And madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. See generally philip bobbitt, constitutional interpretation, in the oxford companion to the supreme court of the united states 183 kermit l. In a democratic society, questions of constitutional law require a political dialogue that involves all three branches of the national government, all fifty states, and the general public. Part of theconstitutional law commons, and thelaw and philosophy commons. Biographical chart of supreme court justices since 1900 b1 appendix c. Below are discussed seven originalist theories of constitutional interpretation, four nonoriginalist ones, and two of a hybrid character. Inherent executive power a source i the legislative powers 1 article i, sec. The role of the supreme court in interpreting the constitution. The role of the supreme court in interpreting the constitution when the supreme court issues an opinion, it is binding on the litigants, is enforced by the u. Styles of constitutional interpretation and the four.
There a numerous types of constitutional interpretation but the main ones are briefly outlined below. Certain times and places are better suited to one theory of constitutional interpretation than are other times and places. The disregard for this rule manifests itself particularly in the adjudication of cases surrounded by controversy. Ducat has made an indelible contribution to the constitutional law arena. Constitutional interpretation law library of congress. Pdf constitutional interpretation in a globalised world. The differences between these two types of constitutions relate to the nature and purposes of the document itself. These constitutions are generally rigid and little changing, adapting slowly to advances in political views, popular opinion, technology, and changes in government.
When it comes to the mainstream debate over constitutional interpretation, therefore, modern americans are faced with a catch22. More than what the supreme court says pdf, 108kb, extensions, fall 2008. On the one hand are the various postmodernist theories, for the most part oriented around issues of textual interpretation, meaning, and objectivity. Constitution to help inform constitutional doctrine is sometimes referred to as originalism. Time chart of the united states supreme court a1 appendix b. The way they do that is by understanding the text of the constitution.
Constitutional interpretation 51 imperfect solutions. It is argued herein that constitutional interpretation is no. The questions my fellow panelists and i were asked to address were. However, a welldeveloped system of constitutional adjudication is lacking in actual practice. It is desirable to begin with justice oconnors approach to constitutional interpretation, for all the approaches to be discussed later either derive from it or react against it. The federal and regional state organs that exercise the power of constitutional control, i.
Learn vocabulary, terms, and more with flashcards, games, and other study tools. Selected theories of constitutional interpretation congressional research service 2 theories should be applied. An interpretive problem always exists in preparing papers on preset topics in symposia such as the present one. Now, i construed the word will to be should and took this to be a normative injunction. However, many supreme court decisions have been actively opposed by significant segments of. The court and constitutional interpretation the republic endures and this is the. Public administration and public affairs nicholas henry. In constitutional theory, schmitt provides a highly distinctive and provocative interpretation of the weimar constitution. Constitutional law of synchronicity and supreme law.
Various other theories of constitutional interpretation seem to diverge. Constitutional interpretation 89 speaking up and speaking more 98 exhibit 2. What are appropriate sources of authority to guide interpretation of the. The constitution of the united states d1 appendix e. Constitutional interpretation, sometimes referred to as judicial interpretation, is the name given to the different viewpoints on the constitution when it is applied to court cases and legislation. Styles of constitutional interpretation and the four main approaches to consitutional interpretation in american legal history r. All legislative powers herein granted shall be vested in the congress of the united states vesting clause a most important power herein granted power to pass laws i framers intent. Randall kelso, styles of constitutional interpretation and the four main approaches to. Ronald kahn, author of the supreme court and constitutional theory, 19531993 a timely, important, meticulously researched, and wellwritten book that makes a valuable contribution to constitutional theory and is the best work on constitutional interpretation that i have read. Start studying types of constitution interpretation. From its origins as a monolithic theory of constitutional interpretation, originalism has developed into a sophisticated family of theories about how to. A professor at northern illinois university since receiving his ph. One of the bestknown, most comprehensive and widely read constitutional law textbooks published, constitutional interpretation is consistently updated to reflect current issues and cases relevant to students. The letters of the constitution are fairly static and not very easy to change but the laws enacted by the legislature reflect the current state of people and are very dynamic.
Methods of constitutional interpretation oxbridge notes. Mar 31, 2017 principles of constitutional interpretation introduction. An approach to constitutional interpretation that envisions the document as having a fixed meaning that might be determined by a strict reading of the text or the framers intent adaptive approach a method used to interpret the constitution that understands the document to be flexible and responsive to the changing needs of the times. With a distinguished teaching and academic career, craig r. If every constitutional question were to be decided by public political bargaining, madison argued, the constitution would be reduced to a battleground of. Two constitutional archetypes constitutions balance and reconcile these legal, political and social functions in different ways. Yet authority theories and interpretation may be connected in a different way. There are five basic sources that have guided interpretation of the constitution. The concept of constitutional interpretation is foreign in some countries, where the constitution makes a reasonable effort to cover every eventuality. Modern democracy invites us to replace the notion of a regime founded upon laws, of a legitimate power, by the notion. Judges charged with deciding constitutional issues may subscribe to a number of different theories including originalism, textualism, intentionalism, contextualism, constructionism, pragmatism, noninterpretivism and dynamic evolution.
Indeed, some of those theories may well be closer to the interpretive model. A diagram which shows all of the constitutional theories discussed in this paper is included on page two. This volume makes schmitts masterpiece of comparative constitutionalism available to englishlanguage readers for the first time. If every constitutional question were to be decided by public political.
The relevant precedents of the court pointed unambiguously to the unconstitutionality of the practice of legislative prayer. An analysis of current theories of constitutional interpretation nicole cress southern illinois university carbondale. Principles of constitutional interpretation introduction. Theories of constitutional interpretation originalism is a force to be reckoned with in american constitutional theory. The theory and practice of constitutional interpretation in singapore abstracts of papers 1.
The court and constitutional interpretation supreme court. Essay the modes of constitutional interpretation 37 appendix a. This book considers the recent growth of constitutional cases in singapore in the last ten years. Adherents have extolled tradition as a source of wisdom. Interpretation of the constitution the united states supreme court judges are in charge of applying the constitution while the constitution comprises the primary law of the federal government. Away from institutionalism and toward individualism 100. Praise read by itself, constitutional theory offers a rigorous, indepth study of the ideas informing the modern rechtsstaat constitution. A more representative general definition would be that constitutionalism seeks to prevent arbitrary government. Traditions role in constitutional interpretation has become a flashpoint of controversy in recent years. Read together with the concept of the political, constitutional theory presages an ominous grouping of mutually hostile nationstates, each formed on the basis of a homogeneous people that has willed its separateness and is enclosed by impermeable. And principles with no clear textual source are enforced. Carl schmitts magnum opus, constitutional theory, was originally published in 1928 and has been in print in german ever since. States and the making of american constitutional law.
An analysis of current theories of constitutional interpretation. Critics have attacked the use of tradition as antidemocratic because it looks backward to the views of people long dead, rather than looking to the views of todays majorities. Our postpositivist age teems with constitutional theories, however, and these seem to be of two main types. Schmitt is considered by many to be one of the most originaland, because of his collaboration with the nazi party, controversial. Presidential constitutional interpretation may appear to be inconsistent with our constitutional structure, if constitutional interpretation is the primary or sole province of the supreme court. Constitutional interpretation, or constitutional construction, the term more often used by the founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. 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. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or.
This page analyzes interpretive theories, including originalism, nonoriginalism, pragmatism, textualism, intentionalism. Theories of constitutional interpretation in the united states are varied and complex, but most fall into one of several major categories. Included under the originalism umbrella over the years, however, have been both advocates of original meaning and advocates of an inquiry into framers intent, a now largely. Shabalala v the attorneygeneral of transvaal nyamakazi v president of bophuthatswana. Selected theories of constitutional interpretation congressional research service 1 introduction the united states constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government and, to a lesser. Originalist theories of constitutional interpretation. Madison 1803, americans gradually came to accept the notion that courts could. Originalism is a force to be reckoned with in constitutional interpretation. The constitution is a legal document that is sui generis unique. No competing theory of constitutional interpretation justifies regulatory takings ideology andrew w. All the abovementioned doctrines are used in several situations as the judiciary may deem fit in the light of facts and circumstances of the question of law being raised under the ambit of constitution. Styles of constitutional interpretation and the four main.
Two broad constitutional archetypes can be identified. The court and constitutional interpretation e qual. A supreme constitution must be given a generous and purposive interpretation. The court should include justices with different approaches to constitutional interpretation. A court without dissenters is a court that will not adequately inform us of the costs of choosing the path taken. To ensure that the new laws are consistent with the basic structure of the constitution, the constitution must. Theories of constitutional interpretation umkc school of law.
At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Federal institutions will continue to channel state interests. At the center of this interpretation lies his famous argument that the legitimacy of a constitution depends on a sovereign decision of the people. Common law constitutional interpretation virtually everyone would agree that sometimes the text is decisive. Meaning and belief in constitutional interpretation. Cases in comparative politics sixth edition patrick h. At the heart of constitutional interpretation is the struggle between, on the one hand, fidelity to founding meanings, and, on the other hand, creative interpretation to suit the context and needs of an evolving society. The following are some of the general principles formulated by sa courts.
Constitutional courts, constitutional interpretation, and. 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. The theory of constitutional interpretation which allows the courts the least amount of discretion is referred to as strict textualism 5. But that is only one interpretation and by no means the most prominent historically. Perhaps, in other words, constitutional interpretation is best thought of as an activity that one can do well or poorly, rather than as an application of some explicit general theory. Dead hand arguments and constitutional interpretation chicago. Whereas textualist approaches to constitutional interpretation focus solely on. If they wish to avoid the dangers of liberal judicial activism, they must choose a conservative theory of strict construction, but under that theory they lose protection for certain kinds of rights. Resounding in the debate between textualists and purposivists, is a pervasive, if subtle, historical narrative that figures purposivism as a twentiethcentury phenomenon and textualism as a newandimproved version of the textfocused, plainmeaning interpretation that predominated in the nineteenth century. The judiciary has adopted various canons of interpretation while interpreting indian constitution which has been already explained by the author. Originalist theories of constitutional interpretation scholarship. Schwartz compensation for excessive regulation of the use of property under the just compensation clause of the fifth amendment has gained wide acceptance. 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 it.
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. For purposee of this paper the two categories will be referred to. Michael moore, originalist theories of constitutional interpretation, 73 cornell l. Types of constitution interpretation flashcards quizlet. A textualist is an originalist who gives primary weight to the text and structure of the constitution.
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