A constructivist coherence theory of constitutional. Theories of constitutional interpretation wikipedia. Chapter 32 interpretation constitutional law of south. In germany, the constitutional interpretation is also well defined and it ranges between a state orientated interpretation bockenforde and. The constitution is a legal document that is sui generis and must be construed as a special document. Theories of constitutional interpretation flashcards quizlet. Theories of constitutional interpretation robert post. Judicial values and constitutional interpretation 89 speaking up and speaking more 98. Certain times and places are better suited to one theory of constitutional interpretation than are other times and places. The same cycles shape the work of the federal courts and theories about constitutional interpretation. Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents, legislation and frequently used vocabulary. Approaches to constitutional interpretation in australia. Four cases where the four of interpretation merely assist a leading jurist supporting.
Originalism, constitutional interpretation, and judicial power unep. Why does the court interpret the constitution differently. Pdf the genesis of mainstreaming the theory of interpreting. Theories of constitutional interpretation robert post in. Miller excerpt more information the challenge of originalism. Chapter 32 interpretation constitutional law of south africa.
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to nontextual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law. Constitutional interpretation is precisely knowndefined as the commanding interpretation of the supreme constitution show more content it is more than a simple symbolic windowdressing but it is more of a transformative documentation and a commitment to positive action. Theories of constitutional interpretation edited by grant huscroft and bradley w. This paper also attempts to analyze the way in which these theories of constitutional interpretation are implemented by the united states supreme court justices who advocate them. In particular, the paper looks closely at the idea of explanatory power as a way of understanding the kinds of criteria by. This is a broad topic, and we can only scratch the surface in a semester. Originalism reduces the likelihood that unelected judges will seize the reigns of power.
Lessons to be learnt 112 chapter 6 models of constitutional interpretation 114 1. Dworkin has emphasized that constitutional interpretations must meet a. Constitutional absolutism or interpretivism 76 the balancing of interests or judicial selfrestraint 81 strict scrutiny or the preferred freedoms approach 86 the court in american history. Who has the authority to interpret the constitution. The originalist interpretation can be further divided into two schools, intent and meaning.
Theories, tools, and trends congressional research service r45153 version 2 updated 1 introduction no vehicles in the park. The second main section of the chapter focuses on the authorized interpreters of the final constitution. Political theory, contestability, and constitutional defaults. In recent years, however, that traditional consensus has died, and australia is now in the midst of renewed debate regarding competing theories of constitutional interpretation. Rather, the doctrine seems to arise from a misunderstanding of the just compensation clause as guaranteeing a laissezfaire political economy. Pdf theories of interpretation irasha siriwardhane. A by no means exhaustive list of prominent examples of constitutional theories includes those advanced by 1 bruce ackerman, we. View essay theories of constitutional interpretation from phil 441 at morgan state university. Chapter 11 notes theories of statutory interpretation. The relevant precedents of the court pointed unambiguously to the unconstitutionality of the practice of legislative prayer. Pages in category theories of constitutional interpretation the following 3 pages are in this category, out of 3 total. Originalists, like justice scalia and newlyconfirmed justice. It is desirable to begin with justice oconnors approach to constitutional interpretation, for all the approaches to be discussed later either derive from it.
Explain the importance of the influence of legislative change on the development of the common law 2. Constitutional interpretation 89 speaking up and speaking more 98 exhibit 2. Post, theories of constitutional interpretation, in l aw and the order of culture 41 r. This book, judicial approach to interpretation of constitution. This paper explores what it means to formulate and assess theories about law and the interpretation of authoritative sources of law. Theories of constitutional interpretation generally address how the meaning of the constitution should be discerned, thus allowing the application of substantive constitutional law to a particular set of facts or issues. Nov 09, 2004 word in modem constitutional theory is interpretation, according to paul campos, at the university of colorado, but the single most confusing word in modem constitutional theory is interpretation. Toward a theory of comparative constitutional interpretation 1999, 74 indiana law journal 819 at 835. Democracy its influence upon the process of constitutional interpretation s.
But although these indications in the constitution have been used to support various theories of interpretation, the reasoning underlying them is not commanded by the constitution itself. A constitutional maker of the unites states of americas constitution in 1789, who was called james madison, was already affected by montesquieus theory in designing a new constitution to the united states of america. Reestablishing legitimacy and social justice interpretation 104 4. This article is organized around three basic interpretative questions. How to choose a constitutional theory dash harvard. As mchugh j has said, any theory of constitutional interpretation must be a matter of conviction based on some theory external to the constitution itself. The goal of the course is to propose some questions about constitutionalism. There are five basic sources that have guided interpretation of the constitution. Implicit accounts fail to explain why constitutional interpretation is purely. Pdf constitutional interpretation in a globalised world.
But whereas the grundnorm in the pure theory of law is formal making no demands over the substance of constitutional norms. What are appropriate sources of authority to guide interpretation of the constitution and what relative weight should be assigned to the various appropriate sources. His constructivist coherence theory holds that the various categories of constitutional argument, though distinct, are sufficiently interconnected so that it usually is possible for a constitutional interpreter to reach constructivist coherence a reflective equilibrium in which arguments of all five types, following a process of reciprocal. This article seeks to illustrate the challenges facing the russian. This is an important issue in some common law jurisdictions such as the united states, australia and canada, because the supreme courts of those nations can overturn. We first consider the character and basis for interpretivism, that. Originalist theories of constitutional interpretation. It begins by discussing the traditional australian theory of constitutional interpretation and briefly recounts the familiar story of its decline. Constitutional norms also are located in broader notions of democracy, popular sovereignty, and the rule of law, as well as various theories of justice, all unquestionably related to our constitutional tradition but lacking any precise or definite location in it. Justificatory theories for intellectual property viewed. This course is concerned with examining the nature of constitutionalism. On the first day of each week, we will discuss major theories of statutory interpretation.
Princeton university department of politics fall 2012. May 30, 2017 followers of originalism believe that the constitution should be interpreted at the time that the framers drafted the document. Any judge faced with the task of interpreting the constitution must decide what role various sources of meaning will play in the act of constitutional interpretation. Constitutional interpretation frieds janitorial tools because they are both tools designed to keep interpretation valuefree, either as a matter of linguistic fact plain meaning or as a matter of psychological fact intent. Debates over the proper theory of, or approach to, constitutional interpretation rage through many western constitutional democracies. An analysis of current theories of constitutional interpretation.
Robert post theoriesofconstitutionalinterpretation in the reading. Theories of constitutional interpretation modern democracy invites us to replace the notion of a regime founded upon laws, of a legitimate power, by the notion of a regime founded upon the legitimacy of a debate as to what is legitimate and what is illegitimatea debate which is necessarily without any guarantor and without any end. I have placed all theories discussed in one of two categories. Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents. Read download constitutional theory pdf pdf download. Nov 28, 2011 since the 1996 publication of his article, common law constitutional interpretation, strauss has labored to create an constitutional interpretation emulating the common law method hereinafter common law constitutional interpretation or clci that strauss argues is superior to originalism, both normatively and as a description of. The court collectively has never committed itself to a particular theory of interpretation. Originalist theories of constitutional interpretation michael moore t when i first received the invitation to this conference, the letter had a text in it that included the following sentence. Although there are many divergent theories of constitutional interpretation, this article considers three theories that differ significantly in their views of the judiciarys role and considers how adopting each theory might affect the confirmation process. Theories of constitutional interpretation judges are like umpires, john roberts announced during hearings for his confirmation as chief justice of the u. Majoritarian difficulty and theories of constitutional.
The genesis of mainstreaming the theory of interpreting the constitution of kenya 2010 miyawa maxwel. Textualism the textualist theory or the plain meaning theory of interpretation is, according to robert. However, it does highlight and explain the justificatory theories for property that may be applied to intellectual property, while taking cognisance of the limitations of. When a court sets aside a statute as unconstitutional, it in essence deems the statute invalid in the name of the constitution. Apr 05, 2018 major theories of statutory interpretation. The report then briefly describes the two primary theories of interpretation employed today, before examining the main types of tools that courts use to determine statutory meaning. Does the constitution allow differing interpretations or. Statutory interpretation i criteria by which to assess competing theories of statutory interpretation a. Nonjanitorial tools for interpretation include precedent, the purposes. There is general agreement that the first three of these sources are appropriate guides to interpretation, but. Selected theories of constitutional interpretation.
In search for a theory of constitutional interpretation in. Explanatory power, theory formation and constitutional. Tue difficulties inherent in a process of constitutional interpretation were clearly demonstrated in mhlungu4, one of the earliest judgments of the court. The meaning of legal meaning and its implications for. A textualist is an originalist who gives primary weight to the text and structure of the constitution. Students may choose to write a short research paper on any one of the questions presented. Judges charged with deciding constitutional issues may subscribe to a number of different theories including originalism, textualism, intentionalism, contextualism, constructionism, pragmatism, non. Compare and contrast the various theories of statutory interpretation.
Away from institutionalism and toward individualism 100. The third main section considers the possible relevance of various theories of interpretation to constitutional interpretation. Constitutional theory, as i shall use the term, is the effort to develop a generally accepted theory to guide the interpretation of the constitution of the united states. A case of uganda alexander ssensikombi1 constitutional interpretation, or constitutional construction, is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it2. Theories of constitutional interpretation originalism is a force to be reckoned with in american constitutional the ory. Part i the following excerpts from supreme court opinions illustrate a variety of approaches to interpreting the constitution in terms of the sources of guidance relied on. Mar 15, 2018 constitutional interpretation and, perhaps, construction,6 is apparent from the text of the document itself. Students will present an argument for and against a specific proposition for the week. Alan tarr rutgers universitycamden this article examines the contemporary controversy over constitutional interpretation and the differing understandings of constitutional rights that underlie it. A constructivist coherence theory of constitutional interpretation. Those that follow original intent would interpret an action based on how the constitutional framers would have wanted and reacted. For decades, lawyers have debated the proper scope of this hypothetical law. Although this nugget of judicial philosophy played well on main street, most sophisticated observers pegged it for.
Download four theories of statutory interpretation doc. Although the number of distinct theories, if finely individuated, might match the number of theorists who have entered the fray, it has become customary to group the competing accounts into two broad camps, commonly labeled originalism and non. Against judicial supremacy in constitutional interpretation. In fact, in the daytoday practice of constitutional interpretation, in the courts and in general public discourse, the specific words of the text play at. On april 35, 1987, the federalist societys chicago student chapter hosted the sixth annual national student symposium at the university of chicago law scho. The two predominant theories of statutory interpretation today are purposivism and textualism.
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