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Constitutional Construction: Supplementing Original Meaning

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

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

Thesis and antithesis: To check or not to check the Judiciary

Cristina E. Parau

in Transnational Networking and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are ... More

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.Less

The Documentary Constitution

in Regulatory Rights: Supreme Court Activism, the Public Interest, and the Making of Constitutional Law

This chapter explains that conventional thinking about the Constitution is crippled by the irrepressible misconception that the Constitution is one and the same with the storied document. It examines ... More

This chapter explains that conventional thinking about the Constitution is crippled by the irrepressible misconception that the Constitution is one and the same with the storied document. It examines the visceral insistence that the document specifies constitutional meaning by its literal text, either alone or in company with the intentions of its “framers.” The Supreme Court does make up constitutional law. The social compact explanation for the written Constitution's appeal is equally flawed. Supreme Court justices obviously cannot do whatever they want without regard for the political repercussions. The text of the written Constitution resists techniques devised for statutory construction. Constitutional meaning lies in contemporary judgment, exercised by the men and women who sit on the constantly changing committee—the Supreme Court.Less

Approaches to Constitutional Interpretation

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

This chapter sketches a typology of approaches to constitutional interpretation or sources of constitutional meaning. Yet it cautions against “the approach hypothesis” (i.e., that all of our beliefs ... More

This chapter sketches a typology of approaches to constitutional interpretation or sources of constitutional meaning. Yet it cautions against “the approach hypothesis” (i.e., that all of our beliefs about the Constitution are controlled by some partisan perspective or approach) in light of evidence that interpreters have a pre-approach awareness of the Constitution. It prefigures the ultimate argument of the book, not for one approach over all others but for a fusion of approaches.Less

A True Novelty

Jaklic Klemen

in Constitutional Pluralism in the EU

Some important recent contributions have expressed doubts about viewing the described approaches as pluralist. There are several main lines of this fundamental critique. Firstly, some argue against ... More

Some important recent contributions have expressed doubts about viewing the described approaches as pluralist. There are several main lines of this fundamental critique. Firstly, some argue against the very idea of pluralism by claiming that it is no different from the traditional, monist paradigm. Secondly, others start with the same point, but then argue that the only existing variant of pluralism still distinct from monism faces insurmountable problems from integrity and is thus unviable in that sense. Thirdly, there are those who find this rapidly expanding field just too messy and thus in a sense too vacuous to be able to provide any meaningful conception of pluralism. This chapter shows that after the comprehensive mapping analysis, which decodes the whole picture of the common branch and its ramifications, the criticisms appear in a new light and must largely be rejected.Less

War and Syntax

Robert L. Tsai

in Eloquence and Reason: Creating a First Amendment Culture

This chapter discusses war and the misconception that has circulated for some time regarding its being a purely irrational event—a social paroxysm, even the breakdown of the rule of law. Whether out ... More

This chapter discusses war and the misconception that has circulated for some time regarding its being a purely irrational event—a social paroxysm, even the breakdown of the rule of law. Whether out of fear of ascribing normative significance to actions taken under exigent circumstances or fidelity to a text-bound theory of self-governance, scholars, have hesitated to confirm that judgments made during a time of war can or should generate foundational change. The history of the First Amendment has been inextricably bound up with Americans' perceptions of the global conflicts for which they made sacrifices. Citizens and their leaders worked out the legacy of war through use of existing democratic idioms, without the intervention of formal amendments to the Constitution. Therefore, the pertinent question is not whether armed conflict has influenced debates over governance but how individuals have molded a people's war experiences to generate constitutional meaning.Less