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
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 constitutional law and moral philosophy. Sotirios A. Barber and James E. Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically criticize competing approaches — textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism — that aim and claim to avoid a philosophic approach. They show that none can responsibly avoid philosophic reflection and choice in interpreting the Constitution. At the same time, Barber and Fleming demonstrate that a philosophic approach, properly understood, does not turn its back on traditional sources of constitutional meaning. It is in fact the most defensible approach to constitutional text and history. They emphasize that the philosophic approach is a fusion of approaches. Within such a fusion, interpreters would view text, intentions, consensus, structures, and doctrines not as alternatives to but as sites of philosophic reflection and choice about the best understanding of our constitutional commitments. Nor does the philosophic approach demand that judges and other interpreters of the Constitution become philosophers. It demands only that interpreters think self-critically and take public responsibility for the moral choices that they inevitably make in faithfully interpreting the Constitution. The book offers both a succinct overview of approaches to constitutional interpretation and a powerful argument for a philosophic approach.Less
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 constitutional law and moral philosophy. Sotirios A. Barber and James E. Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically criticize competing approaches — textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism — that aim and claim to avoid a philosophic approach. They show that none can responsibly avoid philosophic reflection and choice in interpreting the Constitution. At the same time, Barber and Fleming demonstrate that a philosophic approach, properly understood, does not turn its back on traditional sources of constitutional meaning. It is in fact the most defensible approach to constitutional text and history. They emphasize that the philosophic approach is a fusion of approaches. Within such a fusion, interpreters would view text, intentions, consensus, structures, and doctrines not as alternatives to but as sites of philosophic reflection and choice about the best understanding of our constitutional commitments. Nor does the philosophic approach demand that judges and other interpreters of the Constitution become philosophers. It demands only that interpreters think self-critically and take public responsibility for the moral choices that they inevitably make in faithfully interpreting the Constitution. The book offers both a succinct overview of approaches to constitutional interpretation and a powerful argument for a philosophic approach.
Randy E. Barnett
- 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
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 originalist interpretation to be applied to cases and controversies. When interpretation has provided all the guidance it can but more guidance is needed, constitutional interpretation must be supplemented by constitutional construction—within the bounds established by original meaning. The chapter first considers the importance of construction to constitutional legitimacy before showing how construction fills the unavoidable gaps in constitutional meaning when interpretation has reached it limits. It argues that it is necessary to “construe” the Constitution in ways that effectuate its purposes but that do not contradict its original meaning. Constitutional constructions that are consistent with original meaning should be chosen to enhance the legitimacy of the laws that are going to be imposed on the people without their consent.Less
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 originalist interpretation to be applied to cases and controversies. When interpretation has provided all the guidance it can but more guidance is needed, constitutional interpretation must be supplemented by constitutional construction—within the bounds established by original meaning. The chapter first considers the importance of construction to constitutional legitimacy before showing how construction fills the unavoidable gaps in constitutional meaning when interpretation has reached it limits. It argues that it is necessary to “construe” the Constitution in ways that effectuate its purposes but that do not contradict its original meaning. Constitutional constructions that are consistent with original meaning should be chosen to enhance the legitimacy of the laws that are going to be imposed on the people without their consent.
James A. Gardner
- 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
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. It begins by arguing that previous approaches to the interpretation of subnational constitutions have failed because they improperly attempted to apply the dominant jurisprudence of national constitutional interpretation—constitutional positivism—to the constitutions of the states. Yet constitutional positivism as a technique only makes sense where subnational units are autonomous, as independent nations are. However, states in a federal system like ours are far from the kind of autonomous sovereigns contemplated by prevailing theories of national constitutional interpretation. Indeed, a state constitution is the product of processes that transcend the state, and in which both the state and national polities participate. As a result, the interpretation of state constitutions inevitably will require at least some resort to national norms and sources of constitutional meaning.Less
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. It begins by arguing that previous approaches to the interpretation of subnational constitutions have failed because they improperly attempted to apply the dominant jurisprudence of national constitutional interpretation—constitutional positivism—to the constitutions of the states. Yet constitutional positivism as a technique only makes sense where subnational units are autonomous, as independent nations are. However, states in a federal system like ours are far from the kind of autonomous sovereigns contemplated by prevailing theories of national constitutional interpretation. Indeed, a state constitution is the product of processes that transcend the state, and in which both the state and national polities participate. As a result, the interpretation of state constitutions inevitably will require at least some resort to national norms and sources of constitutional meaning.
Sudhir Krishnaswamy
- 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
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 legitimacy (including moral legitimacy, legal legitimacy, and sociological legitimacy) of the basic structure doctrine by engaging directly with the normative arguments about legitimacy of the doctrine while building on arguments of legal doctrine carried out so far. It focuses on the mode of constitutional interpretation and the judicial role in creating and sustaining the use of the basic structure doctrine, and considers Richard Fallon's account of the concept of legitimacy in constitutional theory. It also discusses express constitutional meanings, implied constitutional meanings, the doctrine of implied limitations, the doctrine of necessary implication, structural interpretation, exclusivity of amending power, and judicial review. Finally, the chapter explores alternative accounts of the concept of sovereignty advanced by the Supreme Court and academic commentators as underlying the basic structure doctrine: judicial supremacy, popular sovereignty, and shared sovereignty.Less
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 legitimacy (including moral legitimacy, legal legitimacy, and sociological legitimacy) of the basic structure doctrine by engaging directly with the normative arguments about legitimacy of the doctrine while building on arguments of legal doctrine carried out so far. It focuses on the mode of constitutional interpretation and the judicial role in creating and sustaining the use of the basic structure doctrine, and considers Richard Fallon's account of the concept of legitimacy in constitutional theory. It also discusses express constitutional meanings, implied constitutional meanings, the doctrine of implied limitations, the doctrine of necessary implication, structural interpretation, exclusivity of amending power, and judicial review. Finally, the chapter explores alternative accounts of the concept of sovereignty advanced by the Supreme Court and academic commentators as underlying the basic structure doctrine: judicial supremacy, popular sovereignty, and shared sovereignty.
Heinz Klug
- 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
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 schedules, the constitution of South Africa also represents an attempt to constitutionalise all the hopes, fears, and conflicts of its democratic transition. This process is epitomised by the two-stage constitution-making process in which the conflicting parties first negotiated an ‘interim’ constitution and then, after democratic elections, empowered the new Parliament to sit as a constitutional assembly in order to produce a ‘final’ constitution. This chapter describes South Africa's constitution, the union and apartheid constitutions, democratic transition, constitutional principles, the 1993 interim constitution, regionalism and cooperative governance, rule of law and the Bill of Rights, amending procedures, Constitutional Court, sources of constitutional interpretation, constitution as statute, modes of interpretation, duty to develop the common law and customary law, internal directives for interpretation, problems of interpretation, certification and the problem of future constitutional amendments, and legal legacies and popular experience of the law.Less
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 schedules, the constitution of South Africa also represents an attempt to constitutionalise all the hopes, fears, and conflicts of its democratic transition. This process is epitomised by the two-stage constitution-making process in which the conflicting parties first negotiated an ‘interim’ constitution and then, after democratic elections, empowered the new Parliament to sit as a constitutional assembly in order to produce a ‘final’ constitution. This chapter describes South Africa's constitution, the union and apartheid constitutions, democratic transition, constitutional principles, the 1993 interim constitution, regionalism and cooperative governance, rule of law and the Bill of Rights, amending procedures, Constitutional Court, sources of constitutional interpretation, constitution as statute, modes of interpretation, duty to develop the common law and customary law, internal directives for interpretation, problems of interpretation, certification and the problem of future constitutional amendments, and legal legacies and popular experience of the law.
MATTHEW D. ADLER
- 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
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 various dimensions for evaluating a candidate semantics for some normative discourse, such as CI-discourse. Section II explicates RoR semantics. Section III reviews a sample of CI-discourse and discusses how social facts figure therein. Section IV analyzes whether rule of recognition (RoR) semantics describes or vindicates CI-discourse reasonably well, and reaches a negative conclusion. Section V looks beyond the rule of recognition model, in an initial and exploratory way.Less
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 various dimensions for evaluating a candidate semantics for some normative discourse, such as CI-discourse. Section II explicates RoR semantics. Section III reviews a sample of CI-discourse and discusses how social facts figure therein. Section IV analyzes whether rule of recognition (RoR) semantics describes or vindicates CI-discourse reasonably well, and reaches a negative conclusion. Section V looks beyond the rule of recognition model, in an initial and exploratory way.
Mark Tushnet
- 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 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 between interpretation and alteration is accordingly quite thin. The interpretive traditions are decidedly eclectic. Interpretation relies on the words of the text as understood when they were made part of the constitution, general propositions about how institutional arrangements promote constitutionalism, ideas about the values of democracy and individual autonomy, and much more. This chapter looks at the U.S. constitution, its origins and structure, formation, and basis, as well as the legislature and the executive, the Supreme Court, constitutional amendment, problems and methods of constitutional interpretation, early examples of constitutional interpretation, considerations of administrability, (moderately) disfavoured interpretive methods, presumptive interpretation, preferred interpretive techniques, and eclecticism in practice.Less
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 between interpretation and alteration is accordingly quite thin. The interpretive traditions are decidedly eclectic. Interpretation relies on the words of the text as understood when they were made part of the constitution, general propositions about how institutional arrangements promote constitutionalism, ideas about the values of democracy and individual autonomy, and much more. This chapter looks at the U.S. constitution, its origins and structure, formation, and basis, as well as the legislature and the executive, the Supreme Court, constitutional amendment, problems and methods of constitutional interpretation, early examples of constitutional interpretation, considerations of administrability, (moderately) disfavoured interpretive methods, presumptive interpretation, preferred interpretive techniques, and eclecticism in practice.
Donald P. Kommers
- 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
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 influence and prestige around the world. So when the day of unity finally arrived in 1990, East and West Germany merged under the imprint of the Basic Law itself. Today, in both structure and substance, although frequently amended, it remains the constitutional text of reunited Germany. This chapter discusses the constitutive assembly of Germany, constituent power and reunification, general features of the Basic Law, supremacy of the constitution, constitutional structure, amending process, the Federal Constitutional Court, problems of constitutional interpretation, conception of the constitution, negative and positive rights, horizontality of rights, sources of interpretation, approaches to interpretation, the civil law tradition, and style of judicial decision-making.Less
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 influence and prestige around the world. So when the day of unity finally arrived in 1990, East and West Germany merged under the imprint of the Basic Law itself. Today, in both structure and substance, although frequently amended, it remains the constitutional text of reunited Germany. This chapter discusses the constitutive assembly of Germany, constituent power and reunification, general features of the Basic Law, supremacy of the constitution, constitutional structure, amending process, the Federal Constitutional Court, problems of constitutional interpretation, conception of the constitution, negative and positive rights, horizontality of rights, sources of interpretation, approaches to interpretation, the civil law tradition, and style of judicial decision-making.
James E. Fleming
- 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
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, and that interpreting those principles requires fresh judgments of political theory about how they are best understood. This interpretive strategy — Dworkin's ‘moral reading’ of the Constitution — stands in opposition to the narrow originalists' claim that interpretive fidelity requires following the rules laid down by the framers of the Constitution. Some theorists have responded to the originalists by attempting to carve out an intermediate theory between narrow originalism and the moral reading. Dworkin argues that the search for such an intermediate theory is pointless. This chapter evaluates Dworkin's analysis of the intermediate strategy, and supplements his analysis by putting forth a novel reason why constitutional theorists persist in searching for an intermediate theory. It concludes that the intermediate strategy fails because it fundamentally misconceives fidelity.Less
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, and that interpreting those principles requires fresh judgments of political theory about how they are best understood. This interpretive strategy — Dworkin's ‘moral reading’ of the Constitution — stands in opposition to the narrow originalists' claim that interpretive fidelity requires following the rules laid down by the framers of the Constitution. Some theorists have responded to the originalists by attempting to carve out an intermediate theory between narrow originalism and the moral reading. Dworkin argues that the search for such an intermediate theory is pointless. This chapter evaluates Dworkin's analysis of the intermediate strategy, and supplements his analysis by putting forth a novel reason why constitutional theorists persist in searching for an intermediate theory. It concludes that the intermediate strategy fails because it fundamentally misconceives fidelity.
Daniel B. Rodriguez
- 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
This chapter attacks conventional accounts of subnational constitutional interpretation by examining judicial review at the state level in its actual institutional setting. American state constitutions perform different functions from the U.S. Constitution—functions dictated by their role within a federal system of governance. In this system, governance at the state level is meant to be more active, more comprehensive, and more efficacious than its national counterpart. Because the foundational project, indeed the very telos of state and national constitutionalism differs, it makes no sense unreflectively to apply to state constitutions approaches to judicial review worked out in the institutional setting of the U.S. Constitution. The chapter sketches the outlines of an appropriately context-sensitive account of judicial review under state constitutions. Such an approach must, take account of the contemporary mission of states as agents of active governance; judicial review, in other words, must be “optimized” to serve its actual institutional purposes. Such review should be neither too deferential, thereby leaving broad state power dangerously unchecked, nor too aggressive, thereby unduly restraining state power that is meant to be both broad and effective. The challenge is to develop an optimizing account of state constitutional judicial review that facilitates effective governance while simultaneously providing appropriate protections for individual liberty.Less
This chapter attacks conventional accounts of subnational constitutional interpretation by examining judicial review at the state level in its actual institutional setting. American state constitutions perform different functions from the U.S. Constitution—functions dictated by their role within a federal system of governance. In this system, governance at the state level is meant to be more active, more comprehensive, and more efficacious than its national counterpart. Because the foundational project, indeed the very telos of state and national constitutionalism differs, it makes no sense unreflectively to apply to state constitutions approaches to judicial review worked out in the institutional setting of the U.S. Constitution. The chapter sketches the outlines of an appropriately context-sensitive account of judicial review under state constitutions. Such an approach must, take account of the contemporary mission of states as agents of active governance; judicial review, in other words, must be “optimized” to serve its actual institutional purposes. Such review should be neither too deferential, thereby leaving broad state power dangerously unchecked, nor too aggressive, thereby unduly restraining state power that is meant to be both broad and effective. The challenge is to develop an optimizing account of state constitutional judicial review that facilitates effective governance while simultaneously providing appropriate protections for individual liberty.
Peter W. Hogg
- 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
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 North America Act 1867. This is a statute of the United Kingdom Parliament that created the new Dominion of Canada by uniting three of the colonies of British North America and by providing the for the admission of all the other British North American colonies and territories. This chapter presents an overview of Canada's constitution and discusses its interpretation, the Supreme Court of Canada, separation of powers, problems of constitutional interpretation, interpretation of the residuary clause, interpretation of the Charter of Rights, interpretation of Aboriginal rights, interpretation of judicial independence, sources of interpretation, constitution as statute, legislative history, modes of interpretation, originalism, unwritten constitutional principles, influences on interpretation, dialogue between the Court and legislatures, presumption of constitutionality, and formalism and creativity.Less
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 North America Act 1867. This is a statute of the United Kingdom Parliament that created the new Dominion of Canada by uniting three of the colonies of British North America and by providing the for the admission of all the other British North American colonies and territories. This chapter presents an overview of Canada's constitution and discusses its interpretation, the Supreme Court of Canada, separation of powers, problems of constitutional interpretation, interpretation of the residuary clause, interpretation of the Charter of Rights, interpretation of Aboriginal rights, interpretation of judicial independence, sources of interpretation, constitution as statute, legislative history, modes of interpretation, originalism, unwritten constitutional principles, influences on interpretation, dialogue between the Court and legislatures, presumption of constitutionality, and formalism and creativity.
Lawrence B. Solum
- 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
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 originalists against living constitutionalists. After discussing the arguments for and against various forms of originalism and living constitutionalism, the chapter examines the content of originalism as a constitutional theory, citing its four basic ideas which include the fixation thesis and the public meaning thesis. It then analyzes the linguistic meaning of the Constitution and whether it is binding on judges, the distinction between constitutional interpretation and constitutional construction, and the construction zone. It also addresses the question of justice within the context of the Constitution and concludes by arguing that we must use the word originalism carefully and clearly.Less
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 originalists against living constitutionalists. After discussing the arguments for and against various forms of originalism and living constitutionalism, the chapter examines the content of originalism as a constitutional theory, citing its four basic ideas which include the fixation thesis and the public meaning thesis. It then analyzes the linguistic meaning of the Constitution and whether it is binding on judges, the distinction between constitutional interpretation and constitutional construction, and the construction zone. It also addresses the question of justice within the context of the Constitution and concludes by arguing that we must use the word originalism carefully and clearly.
Sotirios A. Barber and James E. Fleming
- 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
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 constitutional interpretation presupposes that the Constitution in and of itself can mean something, and that conscientious, responsible interpreters are seeking the true meaning or best interpretation of the Constitution. This chapter explores the questions raised by these presuppositions. It also raises the basic questions of constitutional interpretation: What is the Constitution?, Who may authoritatively interpret it?, and How should it be interpreted?Less
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 constitutional interpretation presupposes that the Constitution in and of itself can mean something, and that conscientious, responsible interpreters are seeking the true meaning or best interpretation of the Constitution. This chapter explores the questions raised by these presuppositions. It also raises the basic questions of constitutional interpretation: What is the Constitution?, Who may authoritatively interpret it?, and How should it be interpreted?
Jeffrey Goldsworthy
- 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
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 previously been separate British colonies, each with its own constitution that continued in force after 1900, although subject to the new federal constitution. The authority of the United Kingdom Parliament to change Australian law was not formally terminated until 1986, when the Australia Act was passed by both the United Kingdom and the Commonwealth Parliaments. The fundamental documents of Australian constitutional law therefore comprise the federal constitution, the Australia Act, and the six state constitutions. This chapter looks at Australia's constitution and its origins and structure, judicial interpretation of the federal constitution, judicial review, High Court and its judges, problems and methods of constitutional interpretation, causes of interpretive difficulties, sources of interpretive principles, current interpretive methodology, extrinsic evidence of framers' intentions and purposes, ‘structural’ principles and implications, separation of powers, balance between legitimate and illegitimate creativity, and institutional and cultural factors underlying constitutional interpretation.Less
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 previously been separate British colonies, each with its own constitution that continued in force after 1900, although subject to the new federal constitution. The authority of the United Kingdom Parliament to change Australian law was not formally terminated until 1986, when the Australia Act was passed by both the United Kingdom and the Commonwealth Parliaments. The fundamental documents of Australian constitutional law therefore comprise the federal constitution, the Australia Act, and the six state constitutions. This chapter looks at Australia's constitution and its origins and structure, judicial interpretation of the federal constitution, judicial review, High Court and its judges, problems and methods of constitutional interpretation, causes of interpretive difficulties, sources of interpretive principles, current interpretive methodology, extrinsic evidence of framers' intentions and purposes, ‘structural’ principles and implications, separation of powers, balance between legitimate and illegitimate creativity, and institutional and cultural factors underlying constitutional interpretation.
David L. Faigman
- 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
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 administrative agencies. Inevitably, constitutional facts are documented and resolved all along the way. The question naturally arises, therefore, whether the Court sometimes owes deference to the factual resolves of juries, judges, legislatures or administrative agencies and, if so, when? This chapter argues that the answer to the question of how much deference is due is itself a subject of constitutional interpretation. It examines several principles that might help determine in particular contexts how much deference is due to juries, judges, legislatures, or administrative agencies, if any at all.Less
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 administrative agencies. Inevitably, constitutional facts are documented and resolved all along the way. The question naturally arises, therefore, whether the Court sometimes owes deference to the factual resolves of juries, judges, legislatures or administrative agencies and, if so, when? This chapter argues that the answer to the question of how much deference is due is itself a subject of constitutional interpretation. It examines several principles that might help determine in particular contexts how much deference is due to juries, judges, legislatures, or administrative agencies, if any at all.
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
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 constitutional authority to take the country to war? This book argues that the Constitution doesn't offer a single legal answer to that question. But its structure and values indicate a vision of a well-functioning constitutional politics, one that enables the branches of government themselves to generate good answers to this question for the circumstances of their own times. The book shows that what matters is not that the branches enact the same constitutional settlement for all conditions, but instead how well they bring their distinctive governing capacities to bear on their interpretive work in context. Because the branches legitimately approach constitutional questions in different ways, interpretive conflicts between them can sometimes indicate a successful rather than deficient interpretive politics. This book argues for a set of distinctive constitutional standards for evaluating the branches and their relationship to one another, and demonstrates how observers and officials can use those standards to evaluate the branches' constitutional politics. With cases ranging from the Mexican War and World War II to the Cold War, Cuban Missile Crisis, and Iran-Contra scandal, the book reinterprets central controversies of war powers scholarship and advances a new way of evaluating the constitutional behavior of officials outside of the judiciary.Less
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 constitutional authority to take the country to war? This book argues that the Constitution doesn't offer a single legal answer to that question. But its structure and values indicate a vision of a well-functioning constitutional politics, one that enables the branches of government themselves to generate good answers to this question for the circumstances of their own times. The book shows that what matters is not that the branches enact the same constitutional settlement for all conditions, but instead how well they bring their distinctive governing capacities to bear on their interpretive work in context. Because the branches legitimately approach constitutional questions in different ways, interpretive conflicts between them can sometimes indicate a successful rather than deficient interpretive politics. This book argues for a set of distinctive constitutional standards for evaluating the branches and their relationship to one another, and demonstrates how observers and officials can use those standards to evaluate the branches' constitutional politics. With cases ranging from the Mexican War and World War II to the Cold War, Cuban Missile Crisis, and Iran-Contra scandal, the book reinterprets central controversies of war powers scholarship and advances a new way of evaluating the constitutional behavior of officials outside of the judiciary.
S. P. Sathe
- 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
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. It incorporates the essential aspects of parliamentary democracy, federalism, provisions regarding inter-state trade, and commerce, among other features. This chapter discusses the salient features of the Indian constitution, directive principles, separation of powers, constitutional amendment, judicial review, problems and methods of constitutional interpretation, positivist and structuralist interpretation, constituent assembly and the role of the judiciary, legal positivism of the early years, external aids to interpretation, resolution of conflicts between constitutional provisions, freedom of religion, powers and privileges of legislatures, affirmative action for the weaker sections of society, freedom of speech, property rights, post-emergency judicial activism, independence of the judiciary, the court as a political institution, and institutional and cultural factors underlying constitutional interpretation.Less
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. It incorporates the essential aspects of parliamentary democracy, federalism, provisions regarding inter-state trade, and commerce, among other features. This chapter discusses the salient features of the Indian constitution, directive principles, separation of powers, constitutional amendment, judicial review, problems and methods of constitutional interpretation, positivist and structuralist interpretation, constituent assembly and the role of the judiciary, legal positivism of the early years, external aids to interpretation, resolution of conflicts between constitutional provisions, freedom of religion, powers and privileges of legislatures, affirmative action for the weaker sections of society, freedom of speech, property rights, post-emergency judicial activism, independence of the judiciary, the court as a political institution, and institutional and cultural factors underlying constitutional interpretation.
Bosko Tripkovic
- Published in print:
- 2017
- Published Online:
- February 2018
- ISBN:
- 9780198808084
- eISBN:
- 9780191845833
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198808084.003.0002
- Subject:
- Law, Constitutional and Administrative Law
The chapter examines the metaethical foundations of the argument from constitutional identity. This argument locates the source of value in a set of deep and self-identifying evaluative commitments ...
More
The chapter examines the metaethical foundations of the argument from constitutional identity. This argument locates the source of value in a set of deep and self-identifying evaluative commitments that develop in a society in virtue of the fact that it has a constitution. Drawing on comparative constitutional practice, the chapter argues that constitutional identity has two dimensions: general constitutional identity relies on the notion that constitutions entail common evaluative commitments that are applicable in any constitutional system of government, and particular constitutional identity relies on specific values discernible from moral judgments that have been made in local constitutional practices. The chapter contends that the argument from constitutional identity incorporates the tension between the emotive-local and reasonable-universal dimension of moral value, and extends into other types of value-based arguments in constitutional reasoning. The chapter concludes that constitutional identity cannot be a self-standing source of value in constitutional adjudication.Less
The chapter examines the metaethical foundations of the argument from constitutional identity. This argument locates the source of value in a set of deep and self-identifying evaluative commitments that develop in a society in virtue of the fact that it has a constitution. Drawing on comparative constitutional practice, the chapter argues that constitutional identity has two dimensions: general constitutional identity relies on the notion that constitutions entail common evaluative commitments that are applicable in any constitutional system of government, and particular constitutional identity relies on specific values discernible from moral judgments that have been made in local constitutional practices. The chapter contends that the argument from constitutional identity incorporates the tension between the emotive-local and reasonable-universal dimension of moral value, and extends into other types of value-based arguments in constitutional reasoning. The chapter concludes that constitutional identity cannot be a self-standing source of value in constitutional adjudication.
Aharon Barak
- 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
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 or implied constitutional value. The chapter then focuses on the scope of the constitutional right to human dignity and the problem of partial overlap between the right to human dignity and other independent constitutional rights.Less
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 or implied constitutional value. The chapter then focuses on the scope of the constitutional right to human dignity and the problem of partial overlap between the right to human dignity and other independent constitutional rights.
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
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 type of constitutional judicial review which applies to all forms of state action to ensure that such action does not ‘damage or destroy’ the ‘basic features of the Constitution’. These basic features of the constitution are identified through a common law technique and are general constitutional rules which are supported by several provisions of the Constitution. The book argues that the basic structure doctrine like other types of constitutional judicial review possesses a sound constitutional basis and rests on a sound and justifiable interpretation of the Constitution. The legitimacy of basic structure review may be assessed under three categories: legal, moral, and sociological. The legal legitimacy of such review is established by defending a structuralist interpretation as a coherent and justifiable model of constitutional interpretation. The moral legitimacy of basic structure review rests on a rejection of majoritarian versions of democracy and the adoption of a dualist model of deliberative decision-making in a constitutional democracy. The sociological legitimacy of the doctrine is, to a large extent, contingent on the success of the moral and legal legitimacy arguments.Less
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 type of constitutional judicial review which applies to all forms of state action to ensure that such action does not ‘damage or destroy’ the ‘basic features of the Constitution’. These basic features of the constitution are identified through a common law technique and are general constitutional rules which are supported by several provisions of the Constitution. The book argues that the basic structure doctrine like other types of constitutional judicial review possesses a sound constitutional basis and rests on a sound and justifiable interpretation of the Constitution. The legitimacy of basic structure review may be assessed under three categories: legal, moral, and sociological. The legal legitimacy of such review is established by defending a structuralist interpretation as a coherent and justifiable model of constitutional interpretation. The moral legitimacy of basic structure review rests on a rejection of majoritarian versions of democracy and the adoption of a dualist model of deliberative decision-making in a constitutional democracy. The sociological legitimacy of the doctrine is, to a large extent, contingent on the success of the moral and legal legitimacy arguments.
