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Constitutional Interpretation: The Basic Questions

Sotirios A. Barber and James E. Fleming

Published in print:
2007
Published Online:
January 2009
ISBN:
9780195328578
eISBN:
9780199855339
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195328578.001.0001
Subject:
Law, Constitutional and Administrative Law

What is the nature of the US Constitution? How ought it to be interpreted? Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of ... More


Constitutional Construction: Supplementing Original Meaning

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0006
Subject:
Law, Constitutional and Administrative Law

This chapter explains how constitutional interpretation, originalist or otherwise, does not always produce unambiguous rules of law that can be applied to cases. The Constitution requires more than ... More


Why Federalism and Constitutional Positivism Don’t Mix

James A. Gardner

in New Frontiers of State Constitutional Law: Dual Enforcement of Norms

Published in print:
2010
Published Online:
January 2011
ISBN:
9780195368321
eISBN:
9780199867509
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195368321.003.0004
Subject:
Law, Constitutional and Administrative Law

This chapter places the book's approach in its interpretational context by linking the federal structure of constitutional norm production to the ever-present problem of interpretational methodology. ... More


Legitimacy of the Basic Structure Doctrine

Sudhir Krishnaswamy

in Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine

Published in print:
2011
Published Online:
September 2012
ISBN:
9780198071617
eISBN:
9780199081455
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198071617.003.0005
Subject:
Law, Constitutional and Administrative Law

The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the ... More


8. Social Facts, Constitutional Interpretation, and the Rule of Recognition *

MATTHEW D. ADLER

in The Rule of Recognition and the U.S. Constitution

Published in print:
2009
Published Online:
September 2009
ISBN:
9780195343298
eISBN:
9780199867806
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195343298.003.0008
Subject:
Law, Constitutional and Administrative Law

This chapter addresses the question of how participants in the United States legal system argue about constitutional interpretation (CI). The chapter is organized as follows. Section I discusses the ... More


South Africa: From Constitutional Promise to Social Transformation

Heinz Klug

in Interpreting Constitutions: A Comparative Study

Published in print:
2007
Published Online:
January 2010
ISBN:
9780199226474
eISBN:
9780191706707
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199226474.003.0007
Subject:
Law, Comparative Law

South Africa's emergence as a constitutional democracy after four decades of apartheid and nearly three centuries of colonialism is rightly heralded as a miracle. With 243 sections and seven ... More


Germany: Balancing Rights and Duties

Donald P. Kommers

in Interpreting Constitutions: A Comparative Study

Published in print:
2007
Published Online:
January 2010
ISBN:
9780199226474
eISBN:
9780191706707
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199226474.003.0005
Subject:
Law, Comparative Law

Germany's constitutional charter, adopted in 1949, is entitled the Basic Law. The Basic Law had evolved into one of the world's most admired constitutions, even rivalling that of the United States in ... More


The United States: Eclecticism in the Service of Pragmatism

Mark Tushnet

in Interpreting Constitutions: A Comparative Study

Published in print:
2007
Published Online:
January 2010
ISBN:
9780199226474
eISBN:
9780191706707
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199226474.003.0002
Subject:
Law, Comparative Law

The traditions of constitutional interpretation in the United States make it possible, and indeed relatively easy, to use interpretation as the vehicle for constitutional adaptation. The distinction ... More


The Place of History and Philosophy in the Moral Reading of the American Constitution

James E. Fleming

in Exploring Law's Empire: The Jurisprudence of Ronald Dworkin

Published in print:
2008
Published Online:
January 2009
ISBN:
9780199546145
eISBN:
9780191706462
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199546145.003.0003
Subject:
Law, Philosophy of Law

Dworkin argues that commitment to interpretive fidelity requires that we recognize that the Constitution embodies abstract moral principles rather than laying down a particular historical conception, ... More


State Constitutionalism and the Scope of Judicial Review

Daniel B. Rodriguez

in New Frontiers of State Constitutional Law: Dual Enforcement of Norms

Published in print:
2010
Published Online:
January 2011
ISBN:
9780195368321
eISBN:
9780199867509
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195368321.003.0005
Subject:
Law, Constitutional and Administrative Law

This chapter attacks conventional accounts of subnational constitutional interpretation by examining judicial review at the state level in its actual institutional setting. American state ... More


Canada: From Privy Council to Supreme Court

Peter W. Hogg

in Interpreting Constitutions: A Comparative Study

Published in print:
2007
Published Online:
January 2010
ISBN:
9780199226474
eISBN:
9780191706707
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199226474.003.0003
Subject:
Law, Comparative Law

Canada has no single document that is customarily described as ‘the constitution’. The closest approximation of such a document is the Constitution Act 1867, which was originally named the British ... More


We Are All Originalists Now

Lawrence B. Solum

in Constitutional Originalism: A Debate

Published in print:
2011
Published Online:
August 2016
ISBN:
9780801447938
eISBN:
9780801460630
Item type:
chapter
Publisher:
Cornell University Press
DOI:
10.7591/cornell/9780801447938.003.0001
Subject:
Law, Constitutional and Administrative Law

This chapter advocates a form of constitutional originalism that accepts originalism's major claims while rejecting the label originalism. It first considers the debates about originalism pitting ... More


The Presuppositions of Constitutional Interpretation

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

Published in print:
2007
Published Online:
January 2009
ISBN:
9780195328578
eISBN:
9780199855339
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195328578.003.0001
Subject:
Law, Constitutional and Administrative Law

Many books on and courses in constitutional law are about what the United States Supreme Court has said about the Constitution, not about what the Constitution itself means. But the enterprise of ... More


War Powers: The Politics of Constitutional Authority

Mariah Zeisberg

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691157221
eISBN:
9781400846771
Item type:
book
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691157221.001.0001
Subject:
Political Science, American Politics

Armed interventions in Libya, Haiti, Iraq, Vietnam, and Korea challenged the US president and Congress with a core question of constitutional interpretation: does the president, or Congress, have ... More


Australia: Devotion to Legalism

Jeffrey Goldsworthy

in Interpreting Constitutions: A Comparative Study

Published in print:
2007
Published Online:
January 2010
ISBN:
9780199226474
eISBN:
9780191706707
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199226474.003.0004
Subject:
Law, Comparative Law

The Commonwealth of Australia is a federation of six states, whose constitution was enacted by the United Kingdom Parliament in 1900, when Australia was part of the British Empire. The six states had ... More


Judicial Review of Constitutional Fact-Finding: Juries, Judges, Legislatures, and Administrative Agencies

David L. Faigman

in Constitutional Fictions: A Unified Theory of Constitutional Facts

Published in print:
2008
Published Online:
January 2009
ISBN:
9780195341270
eISBN:
9780199866878
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780195341270.003.0006
Subject:
Law, Constitutional and Administrative Law

Prior to a constitutional case's appearance before the Supreme Court, it has ordinarily travelled through a wide assortment of fact-finders, including state and federal courts, legislatures, and ... More


India: From Positivism to Structuralism

S. P. Sathe

in Interpreting Constitutions: A Comparative Study

Published in print:
2007
Published Online:
January 2010
ISBN:
9780199226474
eISBN:
9780191706707
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199226474.003.0006
Subject:
Law, Comparative Law

The constitution of India is not merely a law prescribing a division of power and limits to power, but contains a bill of rights and positive directions to the State to establish a just social order. ... More


Human Dignity: The Constitutional Value and the Constitutional Right

Aharon Barak

in Understanding Human Dignity

Published in print:
2013
Published Online:
January 2015
ISBN:
9780197265642
eISBN:
9780191760389
Item type:
chapter
Publisher:
British Academy
DOI:
10.5871/bacad/9780197265642.003.0020
Subject:
Law, Human Rights and Immigration

This chapter draws the basic distinction between human dignity as a constitutional value and human dignity as a constitutional right. It describes the role and meaning of human dignity as an express ... More


The Forms and Limits of Constitutional Interpretation

David M. Beatty

in The Ultimate Rule of Law

Published in print:
2004
Published Online:
January 2010
ISBN:
9780199269808
eISBN:
9780191710063
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199269808.003.01
Subject:
Law, Philosophy of Law

The faith that so many people have placed in the judiciary is one of the defining characteristics of our age. The problem is that constitutional exhortations proclaiming the inviolability of life, ... More


Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine

Sudhir Krishnaswamy

Published in print:
2011
Published Online:
September 2012
ISBN:
9780198071617
eISBN:
9780199081455
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198071617.001.0001
Subject:
Law, Constitutional and Administrative Law

The basic structure doctrine was announced by the Supreme Court in Kesavananda Bharati v. State of Kerala in 1973. This book argues that basic structure review in India is an independent and distinct ... More


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