Constitutional Interpretation Research Articles

IMPLEMENTATION AUTHORITY OF THE CONSTITUTIONAL COURT IN THE INDONESIAN CONSTITUTIONAL LAW SYSTEM

This study delves into the historical evolution and significance of Indonesia's Constitutional Court, focusing on its speculated super authority and independent interpretation of the Constitution. Rooted in the global context of judicial review, the research traces the court's pivotal role back to discussions during the Draft Constitution at BPUPKI and its prominence in the 1945 reform era. With the primary goal of providing a comprehensive understanding of the Constitutional Court's journey, the study sheds light on its distinctive authority and pivotal role within Indonesia's legal and constitutional framework. The research explores the court's exclusive jurisdiction, making its decisions final and binding and limiting legal recourse for dissatisfied parties. By examining the court's historical development and legal foundations, the study elucidates the Constitutional Court's role as a guardian of the constitution. The research reveals that the court's significance stems from its establishment as a constitutional guardian during the 1945 reform era, gaining prominence with the Third Amendment to the 1945 Constitution. The court's exclusive jurisdiction solidifies its position as a final arbiter in constitutional matters, shaping the legal landscape and restricting avenues for legal redress. In conclusion, the Constitutional Court has evolved into a central player in constitutional interpretation, wielding exclusive jurisdiction and serving as a final arbiter, emphasizing its unique authority and indispensable role in shaping Indonesia's legal and constitutional framework.

EXAMINING PRESIDENTIAL IMMUNITY: THE JANUARY 6 RIOT, TRUMP, AND THE 14TH AMENDMENT - AN IMPERATIVE CONSIDERATION OF CONSTITUTIONAL LAW

The work critically engulfs the events surrounding the January 6 riot, interactions, Trump’s alleged involvement, and the application of the 14th Amendment’s Section 3. The central question of the study puzzles on whether the said Amendment grants States jurisprudence to determine or alter presidential immunity. Drawing on Montesquieu's theory of separation of powers - a natural pillar of Federalism that was fundamental in drafting the US Constitution, the work embarks on an exploration that investigates the intersections of States prerogatives on Federal institutions. Building on these constructions, the work delves into intricate legal debates interlocking constitutional interpretation, and emphasizing its potential ramifications. The study employs comparative methodology; incorporating the ten Southern-States that barred Abraham Lincoln, and the case of USA vs Nixon. The approach illuminates political materialism, an enduring theme in American politics, thus, producing a better understanding of the state of the art, through the intrinsic corollaries of federalism in the ever evolving extensive milieus of political constitutionalism and legal canons.

Correlação entre teorias constitucionais e métodos de interpretação: a eutanásia como estudo de caso na Colômbia

Introduction: The text addresses the relationship between constitutional theories and methods of interpretation, using euthanasia in non-terminal illnesses in Colombia as a case study. Objective: Determine the relationship between constitutional theories and interpretation methods in the context of euthanasia, highlighting the change in Colombian jurisprudence in 2020. Reflection: The application of interpretation methods by the Constitutional Court in specific cases, such as Martha Liria, is evident. Sepúlveda and Víctor Julio Escobar, based on the analysis made in this regard from constitutional theories, such as the original, customary law, judicial activism and approaches of authors such as Dworkin, Alexy, Habermas and Nino. Which results in generating an impact on the fundamental guidelines and principles for constitutional interpretation, as well as different types of interpretation, such as authentic, doctrinal and judicial. Conclusion: The importance of having interpretation methods to guarantee rights in modernStates is highlighted, highlighting the complexity and dynamism of the constitutional interpretation process, making it pertinent to establish a more deep-rooted connection between constitutional theories and interpretation techniques in the context of euthanasiain Colombia, analyzing specific cases and providing data on its practice in the country.

How Does the High Court Interpret the Constitution? A Qualitative Analysis between 2019–21

Theorists of legal interpretation often argue that their theory describes or fits well with legal practice without using empirical evidence to support such claims. In this article, we provide a proof of concept for how such claims can be established using Critical Discourse Analysis – a qualitative method of coding texts – as applied to High Court decisions. Particularly, we assess whether a slightly modified version of Philip Bobbitt’s theory of constitutional modalities can be used to describe Australian constitutional interpretation working backwards from the start date of the project in August 2021. We find that Bobbitt’s modalities were used by High Court judges in the period studied. Predominantly, the High Court used the doctrinal modality supplemented strongly by textual and structural modalities. The ubiquitous use of doctrine to interpret the Australian Constitution in the period studied suggests a need for a greater understanding of doctrine as an interpretive modality.

Constitutional interpretation and populism: A comparison between Italy and Hungary

AbstractThis essay aims to compare the constitutional interpretation techniques used by the Italian Constitutional Court and the Hungarian one, facing the advancing of populist claims in Europe. After introducing the differences between the exercise of sovereignty in constitutional legal systems towards populistic regimes, the authors analyse some paradigmatic cases in which Constitutional Courts reacted to populistic waves. Through comparing the different legal instruments adopted to interpret the Constitution, this paper will therefore test the Italian and Hungarian legal system's concrete democratic evolution.

Case-based reasoning as a measure of constitutional adjudication

AbstractCase-based reasoning has high significance in constitutional adjudication. The constitutional courts of the Kelsenian model also follow their own previous decisions to develop their own case law, even if those decisions do not bind them formally. In the course of constitutional interpretation, to build coherent and predictable case law and determine constitutional principles and standards in a consistent way are also reasonable expectations of constitutional adjudication deriving from the rule of law. The paper analyses the case law of the Hungarian Constitutional Court from this perspective, regarding the criticism of public figures in defamation cases. It takes case-based reasoning as a measure of the case law of the HCC, reveals the tendencies and highlights the main problems associated with it.

US Human Rights Concept

The article examines the main stages in the development of the concept of human rights in the United States of America. The evolution of the traditional concept of human rights is traced, starting with the positions of the «Founding Fathers» of the United States. A classification of decisions of the US Supreme Court made on the basis of the natural law theory of constitutional interpretation is presented. The significant influence of the theory of natural law on the formation of American constitutionalism and, especially, judicial practice is noted. The features of the modernist concept of human rights in the United States, which is based on the idea of protecting private property as the foundation of individual freedom, are analyzed. The conclusion is formulated about the absence in the modern US constitutional doctrine of recognition of the fundamental importance of rights of a social, economic and cultural nature. The features of the official «progressive agenda», mandatory for the whole world, are revealed, which consists of the following provisions: desovereignization, antinatalism, and a negative attitude towards the family, in the traditional sense. The article presents a general description of the American concept of human rights.

“This Sea of Upturned Faces”: The Rhetorical Role of Audience in Frederick Douglass’s Constitutional Interpretation at Midcentury

“This Sea of Upturned Faces”: The Rhetorical Role of Audience in Frederick Douglass’s Constitutional Interpretation at Midcentury

Metodología para la interpretación constitucional desde el modelo de la justicia electoral mexicana

The article aims to analyze in perspective how constitutional interpretation influences electoral justice and the protection of fundamental rights of a political-electoral nature. A methodology is proposed for the correct and efficient use of constitutional and conventional interpretation by jurisdictional operators, with special emphasis on the analysis of the obstacles or technical barriers they face when carrying out constitutional-conventional regularity examinations. The conclusion was obtained that in electoral judicial practice there are many problems when maximizing or optimizing rights, so constitutional interpretation must be based on a consistent and credible examination of judicial argumentation and hermeneutics to enhance political-electoral rights and democratic principles in the framework of the democratic rule of law.

PENAFSIRAN KONSTITUSI TERHADAP PUTUSAN NOMOR 116/PUU-XXI/2023 TENTANG AMBANG BATAS PARLEMEN

The aim of this research is to find out and analyze the constitutional interpretation of Decision Number 116/PUU-XXI/2023 concerning parliamentary thresholds. The method used in this research is normative legal research with a statutory approach and a conceptual approach. The results of this research show that the Constitutional Court through Decision Number 116/PUU-XXI/2023 partially granted the application for material review submitted by the Association for Elections and Democracy (Perludem) regarding the provisions of Article 414 paragraph (1) of Law Number 7 of 2017 regarding General Elections, namely that political parties must meet the threshold for obtaining a vote of at least 4% of the number of valid votes nationally to be included in determining the acquisition of seats for members of the DPR, however, the constitutional interpretation of the decision does not cancel the parliamentary threshold of 4%, but rather the interpretation of the decision providing legitimacy that the Constitutional Court decides on conditional constitutionality. The conditional constitutional decision contains a constitutional interpretation that the 4% parliamentary threshold remains valid for both the 2024 DPR elections and the 2029 DPR elections, as long as the determination of the threshold is not based on methods, arguments and requirements as determined in the Constitutional Court decision.

JUDICIAL INTERPRETATION AS INFORMAL CONSTITUTIONAL CHANGES: QUESTIONS OF LEGITIMACY IN THE ASPECT OF THE DOCTRINE OF CONSTITUENT POWER

Background: Stability is considered a traditional legal value, particularly in relation to the stability of the constitution. This emphasis on stability stems from the need to protect the text of the constitution from frequent and unreasonable changes. However, stability must be combined with dynamism, a task primarily shouldered by the judicial branch of power through constitutional interpretation. Notably, ideas of judicial rule-making and the notion of a living/invisible constitution are only some manifestations of such a phenomenon as informal changes to the constitution. Yet, the potential risks posed by judicial intervention and the legitimacy concerns surrounding such informal changes warrant scrutiny. What is the correlation of informal constitutional changes through interpretation with the traditional doctrine of sovereign constituent power? What should be the limit of the interpretation of the constitution so that such an interpretation is not recognised as abusive? These and other issues are the focal point of research in the article. Methods: The following methods were used to research the main approaches to informal changes to the constitution. The system-structural method was used to characterise the concept of a living and invisible constitution and varieties of informal constitutional changes and to establish the relationship between these concepts. The logical-legal method made it possible to find out the content of the positions of scientists regarding the potential violation of the boundaries of interpretation of the constitution by the courts, as well as arguments for and against the legitimacy of judicial interpretation, an assessment of informal changes in the constitution from the standpoint of modern views on the doctrine of constituent power. Additionally, the comparative method was employed to study the experience of foreign countries in terms of the characterisation of binding interpretation. Results and Conclusions: The study analyses the current state of the concept of informal changes to the constitution through judicial interpretation, its connection with the doctrine of constituent power, as well as the question of the legitimacy of such an interpretation and its limits. The primary conclusion is that judicial activity guarantees the protection of the material constitution, principles and human rights. That is, the judiciary does not allow sovereign decisions made democratically (by the people) to infringe on human rights. Thus, the text of the constitution is interpreted in a conformal way to individual rights. Questions about the role of the judiciary, the possibility of informal changes to the constitution, and judicial lawmaking as such can be an indicator for distinguishing between authoritarian/totalitarian countries and democratic ones.

CONSTITUTIONAL COURT RULING NUMBER 90/PUU-XXI/2023 REGARDING ASPECTS OF HUMAN RIGHTS

The aim of this research is to examine the Constitutional Court decision Number 90/PUU-XXI/2023 on aspects of human rights. This research uses a juridical-normative approach by examining the legal aspects of Constitutional Court Decision No. 90/PUU-XXI/2023 through a literature review. The focus of research here is on aspects of human rights (HAM) and power holders. In this case, the Constitutional Court's decision received public attention regarding the age limit for presidential and vice presidential candidates, giving rise to pros and cons in society. This literature review highlights the controversy over Constitutional Court Decision Number 90/PUU-XXI/2023 and analyzes the authority of the Constitutional Court in the context of human rights and power holders. The discussion involved the principle of separation of powers and the role of the Constitutional Court as a judicial institution. Although the Constitutional Court's decisions reflect constitutional interpretation, their impact on political and social dynamics shows the complexity of the relationship between law and social life. The results of this research show A careful and comprehensive analysis of the Constitutional Court's decision Number 90/PUU-XXI/2023 shows the complexity of the relationship between law, political decisions, and social life, as well as the importance of a deep understanding of the legal and constitutional context in evaluating the consequences of certain legal decisions.

Contemplating the U.S. Supreme Court's Reversal of Roe v. Wade

The Roe case and Casey case were important moments in the women's liberation movement in the United States, recognizing women's constitutional right to abortion, and a fundamental aspect of their autonomy. In contrast, the recent Dobbs case upended the established Roe precedent, rejecting constitutional recognition of women's right to abortion and reverting "regulation of abortion rights to the people and their elected representatives. To delve deeper into this matter, it's crucial to examine the legal doctrines at play. The Roe decision primarily invoked the Substantive Due Process Clause to protect a woman's privacy and reproductive choices, whereas the Dobbs case highlighted the importance of the democratic process and aligns with originalism in constitutional interpretation. This shift raises questions about the durability of constitutional precedents and the evolving nature of constitutional interpretation. The conflict between these cases underscores the profound implications for women's reproductive rights and the broader women's liberation movement, as the nation grapples with the balance between individual autonomy and democratic decision-making in shaping constitutional rights.

Competing Paternalisms: Robert George v. Adrian Vermeule and the Post-Dobbs Battle for Guiding Anti-Abortion Jurisprudence

ABSTRACT Disagreements are mounting between elite opponents of abortion with regard to constitutional interpretation. A rival interpretive method to originalism, common good constitutionalism holds that judges must invoke their own moral views when deciding legal questions, ushering the United States toward a “postliberal” future. Increasingly attractive to right-wing politicians in the US and Europe, postliberalism is a far cry from conservatives’ familiar refrain that reviving the framers’ wisdom will restore our polity’s health. Unlike originalists, postliberals believe individual autonomy is a debased notion of human freedom because it seeks to expand rights instead of promoting substantive and common human goods. Feminists’ justified distrust of the liberal state to secure safety, freedom, and access for all who can become pregnant sometimes manifests in similar sentiments. Yet, precisely in light of past and ongoing reproductive harms, intersectional feminists require a firm notion of individual agency as a moral good and a proper desideratum of government – especially in the wake of Dobbs. Without an affirmation of consent as the root of ethical care and community, feminist critiques of individual rights come perilously close to facilitating the oppressive logic of postliberalism, which unapologetically subordinates individuals to hierarchical collectivities.

헌법상 ‘동물 보호’ 규정의 필요성

In traditional jurisprudence, animals were merely objects of ethics and rights. From this perspective, the idea that the state should restrict people's rights for the sake of “animal protection” was a difficult theory to embrace.
 However, as regulations for the protection of animals have emerged in various forms around the world, an increasing number of countries have directly stated “animal protection” in their constitutions in order to provide a constitutional basis for such regulations. Even if ‘animal protection’ is not directly stipulated in the constitution, ‘animal protection’ is often interpreted to be included in environmental regulations to provide a legal basis.
 There is a big difference between stipulating “animal protection” in the constitution and recognizing it as a matter of interpretation. While constitutional interpretation is done by constitutional judges, constitutional amendments must be initiated and approved by the president or the National Assembly, and put to a referendum to reflect the current values of the time.
 In addition, the interpretation of constitutional provisions can be changed at any time, putting the protection of legal interests in an unstable position. Yet, stipulating “animal protection” in constitutional provisions cannot be easily changed due to the nature of the unwritten constitution, thus ensuring legal stability.
 People's awareness of animal welfare is increasing day by day, and the number of regulations restricting people's rights to protect animals is increasing accordingly. In these changing times, ‘animal protection’ recognized only through the interpretation of the Constitution is bound to face certain limitations. Therefore, it is necessary to ensure legal stability for ‘animal protection’ by stipulating it in the Constitution and using it as a constitutional basis for limiting people's basic rights.

The Judicial Committee of the Privy Council, constitutional interpretation, and the right to same-sex marriage

Abstract The recent judgments of the Judicial Committee of the Privy Council (JCPC) in Day and Another v. Government of the Cayman Islands, and Attorney General for Bermuda v. Ferguson and Others, upholding the constitutionality of laws limiting marriage to opposite-sex couples in Bermuda and the Cayman Islands, respectively, have disrupted a consensus that had been emerging amongst constitutional courts in the common law world that such laws were unconstitutional. This article critiques the JCPC’s justifications for distancing itself from this consensus and instead aligning itself with the much-criticized jurisprudence of the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UNHRC) on the issue of same-sex marriage. It will be argued that the JCPC’s decisions were based on a narrowly textual interpretation of the respective constitutions and failed to take account of the impact of the ban on same-sex marriage on the gay and lesbian communities in each jurisdiction. It will further be argued that the JCPC relied too heavily on the jurisprudence of the ECtHR and UNHRC at the expense of foundational principles such as liberty and equality. The article also considers the consequences of these decisions for the other countries over which the JCPC continues to exercise jurisdiction and which prohibit same-sex marriage, as well as for the other countries whose courts continue to be influenced by the jurisprudence of the JCPC even though it is no longer their final appellate court.

Implementation Authority Of The Constitutional Court In The Indonesian Constitutional Law System

This study explores the evolution and significance of the Constitutional Court in Indonesia, examining its speculated super authority and unilateral interpretation of the Constitution. The research delves into the court's exclusive jurisdiction, rendering its decisions final and binding, thereby limiting legal recourse for dissatisfied parties. Grounded in the global development of judicial review, notably the landmark Marbury versus Madison case by John Marshall, the Constitutional Court's role is integral to constitutional interpretation. Originating from discussions during the Draft Constitution at BPUPKI and resurfacing during deliberations on the Draft Law on Judicial Power (UU Number 14 of 1970), the importance of the Constitutional Court gained prominence during the 1945 reform era. The Third Amendment to the 1945 Constitution solidified the court's establishment as a guardian of the constitution, shaping its pivotal role in constitutional interpretation in Indonesia. This research aims to provide a comprehensive understanding of the Constitutional Court's journey, its unique authority, and its crucial role in the country's legal and constitutional landscape

Between Dialogue, Conflict, and Competition: The Limits of Responsive Judicial Review in the Case of the Romanian Constitutional Court

Abstract A response to Rosalind Dixon’s Responsive Judicial Review (Oxford University Press 2023) assessing her theory’s prospects and caveats in the Romanian constitutional context. The piece analyses recent case law from the Romanian Constitutional Court and highlights three important shortcomings that limit the applicability of Dixon’s framework: the tendency toward formalism in constitutional interpretation, an impoverished rights review culture, and the persistent conflictual positioning of the Constitutional Court vis-à-vis other constitutional actors. The article ends by speculating on developments that may yet render responsive judicial review more of a reality in Romanian constitutionalism than present conditions may allow.

Plurality and Constitutionalism

In the establishment of the new South African democracy, modernisation through constitutionalism, globalisation and economic freedom resulted in a pluralist space with pluralist ideas and pluralist politics. Living in plurality means living in a world of difference and living cooperatively with other religions, and this is also inextricably entangled with the history, economics, politics and culture of societies and individuals. Religion remains a key player in society, and, though the State is seen as secular, the Constitution does recognise and support religions and protects the religious rights of the citizenry. But navigating religious differences in a liberal democracy can create tensions when the application of rights is blind to how citizens differ. This article reveals how constitutional interpretations in public education can be perceived by religions as unequal treatment underscoring the limits of plurality.

Doctrinal Debate on the Age of Contracting of Marital in Ibero-America

In this article, I intend to identify, within the frame of the semiotic theories of C.S. Peirce and U. Eco, some indications that may help to shed light on a remarkable phenomenon of constitutional interpretation, namely the influence exerted, in the determination process of the constitutional provisions which attribute fundamental rights, by the set of beliefs, expectations, purposes, etc., sedimented within a socially oriented linguistic practice. Through this operation of analogical transposition, I aim to highlight how the identification of the theoretical-doctrinal backgrounds related to the complex of ethical-political conceptions incorporated by the constitutions is strongly influenced by various elements of an intra- and extra-textual nature. Furthermore, by placing the interpretative processes in a broader hermeneutic-semiotic framework that considers legal cases as sign functions, the text seeks to demonstrate in a relatively easy-to-understand manner that the theoretical complications present in the legal field are ultimately not dissimilar to those found in any other interpretative activity that involves the use of a natural-historical language.