scholarly journals CONSTITUTIONAL INTERPRETATION OF ORIGINAL INTENT ON FINDING THE MEANING OF SOCIAL JUSTICE IN THE CONSTITUTIONAL REVIEW

2020 ◽  
Vol 9 (3) ◽  
pp. 348
Author(s):  
Agnes Harvelian ◽  
Muchamad Ali Safa'at ◽  
Aan Eko Widiarto ◽  
Indah Dwi Qurbani
Keyword(s):  
Social Justice ◽  
Great Power ◽  
Constitutional Interpretation ◽  
Original Intent ◽  
Constitutional Review ◽  
Legal Discovery

<p><em>This article will study whether original intent method able to find justice in constitution and formulate constitutional interpretation that will able to perform constitutional supremacy. This study uses a doctrinal approach or also referred to as the normative legal approach. The method taken in this writing is analysis descriptive which describes and analyses constitutional interpretation with original intent method. Formulating constitution interpretation which answers people dynamic but doesn’t lose its original constitutional intent. This research shows that Constitutional interpretation with original intent method can mean as an interpretation which assimilate the spirit of how the original written constitution was formulated when building UUD 1945, the opinion of constitution’s founders in their understanding on the purpose and the nation’s ground principals. Basically, All the rules must not contradict with constitution’s intention. The freedom of judges to decide is not freedom without limits. The limitations of judges' freedom of interpretation are Pancasila and the 1945 Constitution. Decisions made by judges must not conflict with Pancasila and the 1945 Constitution, constitutional judges have great power in interpreting the 1945 Constitution. This power is vulnerable to various interests which make the decisions of constitutional judges not objective. Accountability of decisions in public and academics should be a legal idea that can be realized, not to judge the verdict but to know the basis of interpretation and or legal discovery by constitutional judges</em></p>

scholarly journals Redesign of Constitutional Ethics For State Administrator Based on The Value of Pancasila

FIAT JUSTISIA ◽  
2018 ◽  
Vol 12 (2) ◽  
pp. 111
Author(s):  
Muhtadi Muhtadi ◽  
Indra Perwira
Keyword(s):  
Social Justice ◽  
Moral Obligation ◽  
The State ◽  
Collective Agreement ◽  
Ethical Standards ◽  
Ethical Values ◽  
Original Intent ◽  
New Model ◽  
Constitutional Principle ◽  
Interpretation Method

A constitution is a collective agreement as the foundation and goal to be achieved in the state. Therefore, the constitution not only regulates the fundamental rules of the state but also contains the ethical values that serve as the guiding of the state administrator. However, the spreading of violations of law such as corruption, abuse of authority that ends in the imposition of sanctions justifies the occurrence of incompatibility between the values of the constitutional principle as a reflection of the soul of the nation with the moral obligation of state administrator to implement the values. Using a doctrinal approach, data will be analyzed through the original intent of interpretation, grammatical and systematic law is expected to formulate a new model of constitutional ethics for state administrator based on the value of “Pancasila.” Based on the study of moral and constitutional philosophy with the law interpretation method can be concluded that the ethical values in the 1945 Constitution requires that state administrator base their deeds on the moral deity who respects the values of human civilization as Indonesian citizens, and humans in general with the priority of Indonesian unity above all interests and classes in order to achieve the ideals of social justice based on a deliberate-oriented on the great goal of Indonesian independence. To achieve this intention, the formation of ethical standards of the administrator in the constitutional norms through the amendment of the 1945 Constitution which then set a further law which is general and contains normative sanctions. Keywords: Redesign, Constitutional Ethics, State Administrator

Jesuits in the Orthodox World

2018 ◽  
pp. 317-348
Author(s):  
Paul Shore
Keyword(s):  
Social Justice ◽  
Eastern Europe ◽  
Great Power ◽  
Power Politics ◽  
The Balkans ◽  
Great Power Politics

Interactions between Jesuits and Orthodox believers have been characterized both by meaningful encounters and by conflict and misunderstanding. The gaps between urban, transnational, and book-oriented Jesuit culture and the traditional, rural, and preliterate cultures of many Orthodox populations were underscored by different theological ideas and by great power politics. Ethnic rivalries and a historic suspicion of Catholicism among some Orthodox also contributed to tensions. Jesuits nonetheless worked over a wide portion of Russia, the Balkans, and other locations in Eastern Europe, although their success in converting Orthodox was always very modest. The Soviet era brought severe persecution to Jesuits. Since 1991, the Society has returned to the region, but with a focus now based on education, compassion, outreach, and social justice rather than on proselytizing.

Constitutional Interpretation: An Originalism for Nonoriginalists

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Popular Sovereignty ◽  
Constitutional Interpretation ◽  
Original Intent ◽  
Original Meaning ◽  
Lock In ◽  
Constitutional Legitimacy

This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following from popular sovereignty. The chapter suggests that originalism is entailed by a commitment to a written constitution, which is a vital means of subjecting lawmakers to limits on their lawmaking powers. The chapter first examines how considerations of constitutional legitimacy justify originalism before advancing a version of originalism that is based on “original meaning” rather than “original intent.” It explains how original meaning originalism avoids the prominent objections leveled at originalism. It shows that originalism is warranted because it is the best method to preserve or “lock in” a constitution that is initially legitimate because of what is says.

Who Guards the Guardians?

2017 ◽  
Author(s):  
András Sajó ◽  
Renáta Uitz
Keyword(s):  
Judicial Review ◽  
Judicial Activism ◽  
Constitutional Interpretation ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Constitutional Adjudication

This chapter examines constitutional adjudication as a mechanism designed to ensure that the constitution is properly observed. It begins with an overview of the development of constitutional review power and its prevailing modalities around the globe, focusing primarily on the emergence of specialized constitutional courts. It describes models and variations of constitutional review, along with the politics of apex courts. Turning to the constitutional review of legislation, the chapter considers what interpreting a constitution means in practice and whether fears of judicial self-aggrandizement through constitutional interpretation are justified. Finally, it discusses accusations of judicial activism and deference levelled against apex courts as well as the mounting opposition to judicial review.

scholarly journals Tafsir Konstitusional Pengujian Peraturan di Bawah Undang-Undang

2016 ◽  
Vol 13 (3) ◽  
pp. 503
Author(s):  
Inna Junaenah
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Judicial Review ◽  
Legal Reasoning ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Constitutional Review ◽  
State Institutions ◽  
Short Time ◽  
The Guardian

Particular problem in judicial review frequently found is there a contradiction between the subsidiary legislation and the constitution. Unfortunately, in several Supreme Court verdict on judicial review, there is no usage of constitutional interpretation on their legal reasoning. However within domain of Supreme Court authority, constitution is not the touchstone, but constitution perspective must be included to maintain consistency of legislation hierarchy. There are two reasons on that posibilities, first the approximation of constitutional review by the court and second, the consequences of Indonesian’s legal system that implementing legislation hierarchy. Responsibility as the guardian of constitution not only applied on Constitutional Court, but on all the state institutions including every citizen. In the context of guarding consistency of legislation hierarchy, Supreme Court might also develop constitutional interpretation in order to ensure conformity regulations that is examined to the constitution. In addition, meaning of the constitution can be developed by a judge that can be found in accordance with contextuality. The perspective is assessed to highlight more detailed the mapping of the use of constitutional interpretation on Judicial Review in supreme court post amandment of Constitution of Republic Indonesia 1945. This article formulatesthe notion of constitutional interpretation on Judicial Review. Within this concept, will be prepared by the use of mapping of constitutional interpretation on Judicial Review in supreme court post amandment of Constitution of Republic Indonesia 1945. Thus this research was intended to make the judge use constitutional interpretation. Of course if the recommendations are applied, it can be achieved not instantly in a short time. With the use of Constitutional interpretation on Judicial review in supreme court, the constitutionallity can be reflected later on legislation hierarchy as a whole legal system.

Beguiled By Metaphors: The “Living Tree” and Originalist Constitutional Interpretation in Canada

2009 ◽  
Vol 22 (2) ◽  
pp. 331-354 ◽  
Author(s):  
Bradley W. Miller
Keyword(s):  
Supreme Court ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Constitutional Interpretation ◽  
Original Intent ◽  
Living Tree ◽  
New Family ◽  
The Supreme Court ◽  
Meaningful Engagement ◽  
The Moment

Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly rejected in the new originalist theories that have been developed principally (but not exclusively) in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 (and periodically reaffirmed thereafter), is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. By Keith E. Whittington. Lawrence: University Press of Kansas, 1999. 320p. $39.95.

2001 ◽  
Vol 95 (1) ◽  
pp. 208-209
Author(s):  
Judith A. Baer
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Partisan Politics ◽  
Constitutional Interpretation ◽  
Original Intent ◽  
Interpretive Method ◽  
Textual Meaning ◽  
Affirmative Defense

With friends like Edwin Meese and Robert Bork, "jurispru- dence of original intent" (p. 3) needs no enemies. These polemicists have so corrupted originalism by associating it with reactionary ideology and partisan politics that, in Keith Whittington's words, "the task now is to convince critics to take [it] seriously again" (p. xii). Constitutional Interpretation ably performs this task. Whittington's rescue of originalist jurisprudence from its strangest bedfellows in itself is a major contribution to the study of constitutional law. But, although originalism has found a genuine friend, the book's powerful argument against "dismissing originalism as an interpretive method" (p. 162) does not constitute an affirmative defense. Whittington's efforts to make this case are informative and provocative, but they fail. This failure is traceable to serious defects in both the structure and content of the book.

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