The same is true of judicial minimalism, a pragmatic variation on doctrinalism whereby judges would narrowly decide one case at a time. Before one can reject originalism, one must find another criterion for determining the meaning of a provision, lest the opinion of this court rest so obviously upon nothing however the personal views of its members. The complete works of alexander hamilton would also qualify, if the category were construed that broadly. Interpretation of the preamble of the constitution. Approaches to constitutional interpretation it is not possible to have an understanding of the constitution before deciding how to approach it. The value and limits of free exercise doctrinalism. Apr 30, 2008 while the new doctrinalism has already attracted critics who question whether interpretation and doctrine can meaningfully be separated, the essay concludes that its emergence is a welcome one in constitutional theory. 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. All answers found in the wording of the constitution. A positive and just law rests on a higher law, which is common sense and is rooted in justice and inalienable rights. More than what the supreme court says pdf, 108kb, extensions, fall 2008.
Judicial interpretation refers to how a judge interprets laws. Constitutional interpretation law library of congress. 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. Away from institutionalism and toward individualism 100. There are five basic sources that have guided interpretation of the constitution.
Adherents have extolled tradition as a source of wisdom. The topics in constitutional interpretation scholarship repository. Constitutional law and interpretation wiley online library. This chapter shows that doctrinalism cannot avoid controversial moral and philosophic choices in hard cases. The new doctrinalism in constitutional scholarship and heller. More than what the supreme court says, extensions, fall 2008. Approaches to constitutional meaning are now connected with politically or philosophically partisan differences. Michael stokes paulsen, the civil war as constitutional interpretation, 71 u. Judicial interpretation simple english wikipedia, the free. In common law, judicial interpretation is made up of guidelines that come from case law rather than from a legislature. Information and translations of doctrinalism in the most comprehensive dictionary definitions resource on the web.
The court should include justices with different approaches to constitutional interpretation. Such an appeal may well transform the resultant theory of constitutional interpretation into something very close to a form of living constitutionalism. Process school, a doctrinalist enterprise, was to rescue the legitimacy of official consti. Approaches to constitutional interpretation appunti. Traditions role in constitutional interpretation has become a flashpoint of controversy in recent years. Closely related to doctrinalism is a method of interpretation called stare decisis. Principles of constitutional interpretation 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. The preamble cannot override the provisions of the constitution. Pdf nine indonesia constitutional justices have the authority to annul a law drafted by 550 parliament members and the president. Theories of constitutional interpretation umkc school of law. Doctrinalists contend that interpreters can avoid the burdens and responsibilities of philosophic reflection and choice in hard cases by reflecting on bodies of judicial doctrines developed through a process of deciding one case at a time. Some judges are said to interpret laws in ways that cannot be sustained by the plain meaning of the law. In rosenfeldsajo eds, the oxford handbook of comparative constitutional law. Pdf indonesia constitutional court interpretation methodology.
In constitutional law, there are different methods of judicial interpretation. Paul horwitzin recent years, a lot of the best and most interesting scholarship on law and. From comparative constitutional law to comparative. Different judges interpret the laws of their state or the country in different ways. Doctrinalism considers how various parts of the constitution have been shaped by the courts own jurisprudence, according to finn. Ronald dworkin famously argued that fidelity in interpreting the constitution as written calls for a fusion of constitutional law and moral philosophy. In fundamentals of judicial philosophy, judicial restraint is defined as a jurist judge or justice who adheres to a philosophy of restraint can be characterized as one who believes that democracy has intrinsic, not just instrumental. Certain times and places are better suited to one theory of constitutional interpretation than are other times and places. American constitutional law 2009 essays, cases, and comparative notes by donald p. Isbn 9780195328578 isbn 9780195328578 jefferey goldsworthy. 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.
Meanwhile, comparative constitutional scholarship that favors contextual, idiographic knowledge, seldom amounts to a true, inherently holistic, thick description the way clifford geertza grand champion of thorough, contextual symbolic interpretationperceived of and preached for. Supreme court, agree with strict constructionists that the proper scope of inquiry into constitutional interpretation begins and ends with the text itselfnot with the intent of the writers, the. Fleming, constitutional interpretation, the basic questions. Textualism is a similar philosophy of interpretation, though with significant differences. In re berubari4, the supreme court held that the preamble was not a part of the constitution and therefore it could not be regarded as a source of any substantive power. Extensions, fall 2008, interpreting the constitution. Ronald dworkin famously argued that fidelity in interpreting the constitution as.
Whereas textualist approaches to constitutional interpretation focus solely. 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. Edward white, doctrine has found its own historian. Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents and legislation.
A court without dissenters is a court that will not adequately inform us of the costs of choosing the path taken. Originalism deters judges from unfettered discretion to inject their personal values into constitutional interpretation. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or. Constitutional interpretation 89 speaking up and speaking more 98 exhibit 2. In doing so, they systematically critique the competing approaches textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism that aim and claim to avoid a philosophic approach. 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. The role of the supreme court in interpreting the constitution. This chapter sketches a typology of approaches to constitutional interpretation or sources of constitutional meaning. Judicial interpretation is an explanation of how the judiciary interprets the law. Constitutional interpretation by barber, sotirios a. That doctrinalism offers no escape from philosophic reflection and choice is evident in the different interpretations of virtually any longstanding. Barber and fleming contend that fidelity in constitutional interpretation requires a fusion of philosophic and other approaches, properly understood.
Increasingly, constitutional theorists are turning attention away from the modalities of constitutional interpretation text, history, structure, etc. 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. The basic questions illustrates that these approaches cannot avoid philosophic reflection and choice in interpreting the constitution. This chapter shows that doctrinalism cannot avoid controversial moral and philosophic choices in hard. Constitutional courts, constitutional interpretation, and.
In doing so, they systematically critique the competing approaches textualism, consensualism, originalism, structuralism, doctrinalism. Different methods lead to different outcomes literalism original intent doctrinal approach structuralism i. Whenever judicial decisions change the law, judges exercise mit ical power, and when that law is their nations constitution, they exercise the highest political. How courts may and why they must judge burdens on religion under rfra, g.
Apr 11, 2016 frederick mark gedicks, identifying substantial burdens. The constitution is a legal document that is sui generis. Constitutional interpretation is the subject of those who study how the constitution. The chapter shows that minimalism itself is a form of philosophic approach. It is what makes a government of laws and not of men. If every constitutional question were to be decided by public political bargaining, madison argued, the constitution would be reduced to a battleground.
Approaches to constitutional interpretation oxford scholarship. Issues of legal interpretation must be separate from questions of morality. Constitutional interpretation course outline the course concerns two broad and connected questions of contemporary constitutional theory. 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. Constitutionalism stanford encyclopedia of philosophy. Stare decisisto stand by what has already been decidedis at bottom a doctrine built on the importance of precedent. Barber and fleming take up that call, arguing for a philosophic approach to constitutional interpretation. However, many supreme court decisions have been actively opposed by significant segments of. Approaches to constitutional interpretation oxford. 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 laws made by their. The court and constitutional interpretation e qual justice. In legal although not in philosophical or literary parlance, judges require and must be able to articulate a theory of constitutional interpretation. Natural law higher law, gods law is now only infrequently suggested as an interpretive guide, even though many of the framers of the constitution recognized its.
794 1151 222 385 493 573 641 909 108 1401 522 207 342 194 331 455 1231 949 1521 1441 789 137 1443 768 964 417 463 626 46 1135 1208 1038 1484 89 73 1006 947 738 989 900 555 1303