Constitutional interpretation: textual meaning, original intent, and judicial review

2000 ◽  
Vol 37 (05) ◽  
pp. 37-3036-37-3036
2001 ◽  
Vol 95 (1) ◽  
pp. 208-209
Author(s):  
Judith A. Baer

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.


Author(s):  
Oliver Gerstenberg

By looking both at the European and contemporary US constitutional theory debates, this chapter proposes an analytic taxonomy of contemporary non-court centric approaches to constitutional interpretation: those that have concluded that the most promising response to persistent concerns about a democratic deficit is to shift the focus from courts as a forum of principle to the dialogue between courts and other actors, ranging from (other) courts to legislatures, administrative agencies, private actors, civil society stakeholders, and the wider public, in the jurisgenerative process. The goal is, by following the emergent literature on ‘weak’, proceduralist, and democratic-experimentalist forms of judicial review, to argue the virtues of the latter. Democratic experimentalism denotes a modality of judicial review that allows judges to enforce avowedly open-ended, fundamental, constitutional commitments in a way that institutionalizes—rather than excludes—continuing, social, and democratic determination and the progressive clarification of what constitutional commitments can and should come to mean in practice. Judicial review may deepen democracy rather than limit it by providing a focus and reason for public deliberation. The hope is to provide, by setting out contrasting positions, a foil for discussion and to show that the desirability of judicial review is not merely complacent assumption in contemporary constitutional and political thought, but can be supported on democratic grounds as deliberation-enhancing.


2021 ◽  
pp. 152-175
Author(s):  
Rosalind Dixon ◽  
David Landau

This chapter explores the abusive borrowing of an important set of concepts associated with political constitutionalism, or the idea that political institutions such as legislatures, rather than courts, should be chiefly charged with interpreting and enforcing the constitution. It shows how regimes in Hungary and Poland have relied heavily (and erroneously) on these theories to justify attacks on their judiciaries without seeking to develop the set of political and social preconditions which would be necessary for political forms of constitutional interpretation to make sense. It also shows how allies of Prime Minister Benjamin Netanyahu, in Israel, have (so far unsuccessfully) attempted to import the ‘weak-form’, dialogic, or New Commonwealth model of judicial review instantiated in Canada, which allows for a legislative override, in a context where the chief goal was immunizing the Prime Minister from ongoing criminal prosecution.


Author(s):  
Isabella Karla Lima dos Santos

Resumo: Este trabalho busca analisar o instituto da Interpretação Constitucional no direito americano e brasileiro, de maneira comparada. Nosso objetivo é demonstrar as semelhanças e diferenças entre os dois países, no que diz respeito ao âmbito de incidência da interpretação constitucional e ao espaço de liberdade conferido ao intérprete judicial, bem como demonstrar a influência do modelo de controle de constitucionalidade norte-americano (difuso) sobre o brasileiro (misto). Para tanto, iremos fazer uma breve análise conceitual sobre aspectos fundamentais ao entendimento do tema deste trabalho e, em seguida, estudaremos os modelos de controle de constitucionalidade dos dois países de modo comparado, com ênfase no papel do intérprete constitucional e o seu âmbito de atuação dentro de cada modelo. Buscamos demonstrar que o fundamental não é o modo como se interpreta a Constituição, mas o resultado obtido, que deve ser sempre a efetivação dos direitos fundamentais. Tanto o Judiciário americano quanto o brasileiro recebem críticas quanto ao caráter contramajoritário de suas decisões, contudo, deixamos claro que um Estado Democrático de Direito se faz não só através do respeito à vontade da maioria, mas também quando há a concretização dos direitos fundamentais dos cidadãos por meio das decisões das Cortes Constitucionais. Palavras-chave: Direito Comparado; Jurisdição Constitucional; Judicial Review of Legislation; Interpretação Constitucional; Direitos Fundamentais. Abstract: This paper seeks to analyse the Constitutional Interpretation Institute in American and Brazilian Law, comparative way. Our goal is to demonstrate the similarities and differences between the two countries, with regard to the scope of constitutional interpretation and impact to the area of freedom conferred upon the court interpreter, as well as demonstrate the influence of constitutionality control model (diffuse) on the Brazilian (mixed). To this end, we will do a brief conceptual analysis on key aspects to understanding of the topic of this work and then we will study the models of judicial review of the two countries so compared with emphasis on the role of constitutional interpreter and its scope of action within each model. We seek to demonstrate that the key is not how to interpret the Constitution, but the results obtained, which should always be the practice of fundamental rights. Both the American and Brazilian Courts receive criticism about the against majority character of their decisions, however, we are clear that a democratic State of law is made not only by respecting the will of the majority, but also when there is the realization of the fundamental rights of citizens by means of decisions of Constitutional Courts. Keywords: Comparative Law; Constitutional Jurisdiction; Judicial Review of Legislation; Constitutional Interpretation; Fundamental Rights.


2018 ◽  
Vol 18 (2) ◽  
pp. 235
Author(s):  
B Bisariyadi

The establishment of the Constitutional Court to hold power of reviewing the constitutionality of Laws raises discourse on the distinction between constitutional interpretation and statutory interpretation. In judicial review cases, the separation, either in common law or civil law tradition, between the two interpretations is not clearly distinguished. The Indonesian Constitutional Court, in judicial review decisions, shows that the Court does not only interpret constitutional provision. In a number of decisions, the Court has put more emphasis on the use of statutory interpretation. The essay discusses the Constitutional Court practice in the use of constitutional interpretation and statutory interpretation on judicial review cases.Keywords: Constitutional Court, judicial review, constitutional interpretation, statutory interpretation.


Author(s):  
Randy E. Barnett

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.


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