Constitutional Interpretation Research Articles

Constitutional Limits of Islamic Law: God in the Preamble to the Indonesian Constitution

Abstract The references to God in the preamble to the Indonesian Constitution raise a fundamental question, “do these references mean that the Constitution should be religious?” This paper aims to propose a new interpretation to the references to God in the preamble. Particularly, it suggests reinterpretation of the trajectory of the phrase “belief in One and Only God” in the making of the 1945 Constitution and during the amendment process, and of its legal significance. This article will also examine the implication of those references for the legitimacy of the state implementation of Islamic law. By analyzing the Constitutional Court’s decisions in the Religious Court Jurisdiction case, this article further investigates the implication of the constitutional interpretation of this phrase for the constitutionality of Islamic law. It argues that the preamble which is secular in nature provides the paradigm for enabling and limiting the institutionalization of religion, including Islamic law.

Justice Kennedy’s Jurisprudence of Dignity: From Sovereign Immunity to Gay Rights

Abstract Although this article uses Obergefell v Hodges (2015) as its frame, it aims to bring out some distinctive features of Justice Kennedy’s jurisprudence of dignity more broadly. There are two reasons why such an investigation is important. The first is important to those interested in the legal case. Indeed, in Dobbs v Jackson Women’s Health (2022), the Court now argues that the relevant ‘test’ for determining whether a right is protected under the Due Process Clause is whether the right is found to be ‘deeply rooted’ in the nation’s history and tradition. This article aims to critique this decision, as well as originalist approaches to constitutional interpretation more broadly, and seeks to resurrect and reconstruct Kennedy’s jurisprudence of dignity that has undergirded (sometimes quietly) the expansion of civil rights protections to the LGBTQ+ community. The second reason this investigation is important is of interest to philosophers and legal historians. Dignity is a notoriously elusive concept, and much ink has been spilt trying to sort out the precise nature of its content and its boundaries. This article brings together the many (seemingly disparate) uses of dignity found across cases involving gay rights, abortion, and foreign sovereign immunity, and argues Kennedy effectively weaves these uses together in ways that may sharpen our understanding of dignity in both the philosophical and legal literatures.

Protection of Private, Family, and Intimate Lives

Abstract The Constitutional Court of Romania (CCR) holds an essential position in guaranteeing the observance of human rights within the country’s constitutional and legal framework. Through its attribution to interpret and verify the compliance of laws with the Constitution, the CCR has built a vast and particularly significant caselaw regarding the individual’s fundamental rights. By studying the Constitutional Court of Romania’s judicial practice in the field of human rights, we can examine how fundamental rights are interpreted and implemented in the national legal system. In this regard, the CCR plays a vital role in ensuring the protection and promotion of these rights by interpreting the Constitution and applicable legislation in accordance with international standards. It is important to highlight that the CCR’s human rights caselaw reflects the constant attempt to ensure a balance between the individual’s and society’s interests, protecting fundamental rights in accordance with the principles of the rule of law and international standards in the field. Through the analysis of concrete cases and constitutional interpretation, the CCR strengthens its essential role in human rights promotion and defense in Romania.

경제민주화 헌법 해석의 두 길: 유진오와 조소앙

경제민주화 헌법 해석의 두 길: 유진오와 조소앙

최근 혼인과 가족생활의 변화에 대한 헌법적 대응과 보장

Our Constitution stipulates that marriage and family life should be established and maintained on the basis of individual dignity and equality of sexes, and the state has an obligation to guarantee this.
 However, recent changes in marriage and family life are occurring due to various factors of society. In Korea, too, family forms are diversifying due to the collapse of the traditional family system and various choices for freedom of marriage due to late marriage, non-marriage, graduating from marriage, and reduced fertility. Our Constitution stipulates marriage, family life and the obligation of the state to guarantee it in Article 36, but the current legal concept and constitutional response to marriage and family seems insufficient.
 In order to effectively respond to this, I think it is necessary to appropriately revise marriage and family provisions when revising the constitution. The content and form of the discipline of Article 36, Paragraph 1 of the current Constitution has a limit to constitutionally embrace and guarantee the deinstitutionalization of the family in modern society because the traditional family system has a strong guarantee character.
 Problem solving through the existing constitutional interpretation may be the next best thing, but in order to protect and support a new type of community that does not correspond to traditional marriage and family forms as marriage and family, it is necessary to fully consider the possibility of acceptance into our society and accept it based on constitutional possibility and grounds through consensus of the public sphere.
 Furthermore, in recognizing a new type of marriage and family form, it is time to change the sense of solidarity of being a companion to live together in this age, avoiding discriminatory judgment based on preconception and prejudice on the constitutional basis.

종교의 자유와 명상에 관한 헌법적 해석

종교의 자유와 명상에 관한 헌법적 해석

Constitutional Authority Based on the Constitutional Court Decision in Indonesia

At least there has been a development regarding the constitutional authority of the Constitutional Court in four ways based on its decision. It is also true that the Constitutional Court's decision is final and binding, but not in the sense of not being examined further. This study uses normative research methods. The results revealed four developments in the constitutional authority of the Constitutional Court in three ways: passive, active, and passive-active methods. Furthermore, it was also revealed; that there are also development efforts that have occurred more than once in the same matter. Therefore, in the future when the Constitutional Court decides on cases related to its authority, ideally by observing the limiting signs of the previous decision and considering the three basic characteristics of constitutional interpretation. Likewise, in the future there is another development regarding the constitutional authority of the Constitutional Court. In that case, it is appropriate to also pay attention to the three basic characteristics of constitutional interpretation.

State International Agreements: The United States, Canada, and Constitutional Evolution

AbstractThe text of the US Constitution appears to require that individual states, to the extent that they are ever allowed to conclude agreements with foreign governments, must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments, including with Canada and its provinces, and they almost never seek congressional approval. This practice is an illustration of both the importance of federalism in US foreign relations and the significant role played by historical practice in informing US constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a climate change agreement that the state of California had made with Québec. Despite this challenge, for the most part, neither Congress nor the executive branch has resisted the growth in state international agreements. This acquiescence could change as countries like China target US states in an effort to work around strained relations with the US national government and as states become more assertive in resisting the national government’s foreign policies. In any event, the practice of state international agreements unapproved by Congress rests in part on a distinction between binding and non-binding agreements that deserves greater scrutiny under both domestic and international law.

Convergence of Constitutional Interpretation to the Test of Laws Through a Constitutional Dialogue Approach

The Constitutional Court's presence yields positive impacts on constitutional law, yet isn't devoid of controversies, including Judge misconduct, transgression of 'nemo judex idoneus in propria causa' principle, and potential super body transformation. This paper aims to comprehend and analyze constitutional interpretation dominance in assessing laws against the 1945 Constitution through a constitutional dialogue approach. This normative writing employs legal, historical, and conceptual methods. Findings underscore: 1) Demonstrating respect for state institutions, notably the People's Consultative Assembly of Indonesia. 2) Establishing a more democratic system to test the 1945 Constitution's compatibility in the Constitutional Court. 3) Breaking the monopoly of Constitutional Court-centric constitutional interpretation. 4) Reviving 'nemo judex idoneus in propria causa' principle is pivotal due to extensive testing of Constitutional Court Law, addressing concerns about verdict impartiality.

Convergence of Constitutional Interpretation to the Test of Laws Through a Constitutional Dialogue Approach

The Constitutional Court's presence yields positive impacts on constitutional law, yet isn't devoid of controversies, including Judge misconduct, transgression of 'nemo judex idoneus in propria causa' principle, and potential super body transformation. This paper aims to comprehend and analyze constitutional interpretation dominance in assessing laws against the 1945 Constitution through a constitutional dialogue approach. This normative writing employs legal, historical, and conceptual methods. Findings underscore: 1) Demonstrating respect for state institutions, notably the People's Consultative Assembly of Indonesia. 2) Establishing a more democratic system to test the 1945 Constitution's compatibility in the Constitutional Court. 3) Breaking the monopoly of Constitutional Court-centric constitutional interpretation. 4) Reviving 'nemo judex idoneus in propria causa' principle is pivotal due to extensive testing of Constitutional Court Law, addressing concerns about verdict impartiality.

Scholastic Literary Theory: Intentionalism and the Desire for Stable Sense

Scholastic intentionalism was a complicated and hardly consistent affair. Theologians sought security of meaning in the principle that a biblical author's intention could be found in the literal sense of his text. But the ultimate author of scripture, God, could have inscribed truths that transcended the intentions of inspired but merely human authors. Perhaps a text's intention was not curtailed by the temporal and historical circumstances of its composition? Further, scholastic debate rested on the assumption that truth emerges through vigorous confrontation. In practice, quotations were plucked from the full contexts that secured their meaning and conveyed authorial intention; those isolated excerpts were themselves treated as having sufficient authority to advance arguments. This history is related to present-day controversy about how the American Constitution (that modern authoritative text par excellence) should be implemented. There are striking parallels and intersections between scholastic literary theory and the “originalist” theory of constitutional interpretation; they share a common language of intentionalism, along with difficulties of interpretation.

From Bad to Worse: The Continuous Dilemma Facing Parliaments in European Economic and Fiscal Governance

Abstract Analysing how the roles of national parliaments and the European Parliament have changed in European economic governance since the euro crisis, this article argues that their situation has deteriorated in the post-Next Generation EU regime. It identifies structural factors impeding more effective parliamentary engagement, relates these to empirical evidence about the role of domestic legislatures and the European Parliament and mirrors these practices against constitutional interpretations concerning the democratic role of parliaments in budgetary matters. The broader Economic and Monetary Union architecture has grown to encompass a variety of rules and mechanisms, many of which are located outside of the treaties and the budget of the Union. As a result, parliaments lack formal powers that would guarantee them meaningful participation rights in European economic and fiscal governance. The key to more effective parliamentary involvement is ensuring that the parliaments can genuinely shape policies and that a strong link is established between elections and budgetary politics.

Report on Abusive Judicial Review of Electoral Matters

It is commonplace to state that the borderline courts are the last obstacle in the defense of fundamental rights, the rule of law, the division of powers, and hence, of constitutional democracy. Nevertheless, there are judgments of last resort which are very illustrative examples of argumentative practices used to conceal decisions that may be systematically politicized, and therefore can be detrimental to fundamental electoral rights, to the certainty and legality of electoral acts and resolutions, as well as to the holding of free, authentic, and periodical elections. The practice of using the democratic legitimacy of the judicial function to intentionally undermine the core of democracy is barely theorized. However, it is highly possible that in the future these types of attack will be part of the authoritarian tools used by groups of an anti-democratic nature. That is to say, the circumstance that the courts and not the political actors are the ones that implement undemocratic measures with the advantage of the difficulty for its identification, given the traditional role assigned to the judiciary in the democratic constitutional state of law, makes it essential to review the use of the weighting of the argumentative representation. This, in order to prevent democracy from being damaged by constitutional interpretation and to avoid the tolerance for the absence of a minimum social consensus on the arguments that it intends to sustain with re-lative temporary stability. Even more so, when it comes to those who make up the constitutional jurisdiction specialized in elections and democracy. In Mexico, the Superior Court of the Electoral Tribunal of the Federal Judiciary (TEPJF) is the highest electoral court. This body has issued controversial and transcendent decisions for electoral democracy which can be subject to critical legal analysis as an input for legislative activity. This is particularly related to issues concerning citizen participation such as the revocation of mandate and the imposition of sanctions due to its diffusion by public servants, as well as cases of gender-based political violence (VPG, by its acronym in Spanish) and the deprivation of an honest way of living (MHV, by its acronym in Spanish) as a sanction. Another topic worth considering is the rulings on the modification or defective abandonment of the jurisprudence in matters such as the assumption of competence over parliamentary acts in the integration of the administrative or government bodies by the Congress of the Union, and the messages of the legislators, which are not protected by the principle of parliamentary immunity, as has been established.

The Urgency of Reforming the Death Penalty Policy for Narcotics Distributors Post the Constitutional Court Decision Number 2-3/PUU-V/2007

<p class="Abstract-Eng-Text">The most questioned severe punishment that can be given for someone is death penalty as with death penalty someone’s existence can be vanished and it is irrevokeable. Since there is no way for turning back the time and bring<span lang="IN">s</span> the life of the person that has already executed. With the establishment of death penalty, Article 28J Paragraph (1) of the 1945 Constitution and Article 29 Paragraph (2) of the Universal Declaration of Human Rights cannot be enforced. Basic Rights directly bind the three areas of state power to obey and respect them. The application of death penalty for narcotics dealers in Indonesia is not only limited to producing legal products, but the implementation of these laws also imposed by the state or the Indonesian government. The issue of whether or not the death penalty is appropriate remains and continues in Indonesia. Nevertheless, The Constitutional Court of the Republic of Indonesia in its decision Number 2—3/PUU-V/2007stated that death penalty is not against Article 28A and Article 28I 1945 Constitution. Hence, the act of distributing narcotics has also violated the human rights of many people in a nation because it can have a devastating impact on future generations of youth. This Normative legal research will be focus on:</p><p class="Abstract-Eng-Text">1. Whether the constitutional interpretation regarding the death policy for narcotics dealers in the Constitutional Court Decision Number 2—3/PUU-V/2007 according to the review of non-derogable rights?</p><p class="Abstract-Eng-Text">2. The need to reforms towards the death penalty policy for narcotics dealers in Indonesia?</p>

“Originalism” of Interpretation in the United States Constitution

Originalism is a viewpoint that is one of the methods and theories of constitutional interpretation. It remains controversial in its application, particularly in the decisions of the United States Supreme Court. Originalism first held that the interpretation of the United States Constitution must follow the original intent of the constitutional drafters or those who ratified it. However, in the 1990s, this stance changed, namely that the interpretation of the Constitution must follow the original meaning of the constitutional text. The aim of this research is to understand the anti-mainstream concepts of originalism interpretation. The fundamental problem lies not to answer which one is better between originalist and non-originalist. Instead, it rather depends on how to use this approach in several cases. It is possible that in one case using an originalist approach will be more relevant and appropriate, while in another case it will be absurd, and it is happened in several decisions in the United States. The Normative legal research method was used in this research with five major approaches. Those are the statute, conceptual, historical, casuistry, and comparative approaches. The result of this study indicates that: first, originalism is a stance directly related to perspective on the issue of interpretation of the Constitution. Meanwhile, the interpretation of the Constitution itself is an attempt to understand the definitions contained in the Constitution and the objectives it aims to achieve. Second, reflecting on the practice in the United States, the originalism approach may be more relevant on some occasions. However, originalism will be absurd if applied on other occasions because society has changed so much. Therefore, in such circumstances, getting out of originalism is a necessity.

Constitutional Value as a Fundamental Category of Russian Constitutional Law: Concept and Essence

Within the framework of this article, the positions of various scientists on the concept and essence of constitutional values within the framework of Russian constitutional law are analyzed. The main approaches to understanding the essence of constitutional values are highlighted. The purpose of the study is the formation of the authors definition of the concept of constitutional values, the main task is to determine the sources of consolidation of constitutional values in the Russian state. It is concluded that it is necessary to adopt the position of those authors who propose to understand constitutional values as fundamental principles (attitudes) necessary for the normal development of both an individual and the whole society and the state. Based on the analysis, it is also concluded that it is necessary to recognize the source of constitutional values exclusively the provisions of the current Constitution, acts of constitutional interpretation are assigned only the role of interpretation of constitutional values and disclosure of their content and essence. From a critical point of view, the approach of the legislator to grant the Constitutional Court of the Russian Federation the right of legislative initiative is evaluated. It is stated that it is impossible to develop a single and universal definition of constitutional values, which, however, should not be considered as an obstacle to scientific research in the field under consideration. Based on the analysis carried out, constitutional values are proposed to be understood as a set of basic and fundamental principles (attitudes) proclaimed by the Constitution, binding on all subjects of public relations, emerging in the process of functioning of society and the state, aimed at ensuring the favorable development of both an individual in the state and society and the whole state, organically combining both private and public interests.

A New Dawn for Gay Rights in Botswana: A Commentary on the Decision of the High Court and Court of Appeal in the Motshidiemang Cases

AbstractIn 2003, the Botswanan Court of Appeal decided in Kanane v The State that discrimination on the basis of sexual orientation was not proscribed by the Botswanan Constitution because no evidence had been adduced showing that the society of Botswana was ready for gay individuals. After sixteen years, things changed: in 2019, in Letsweletse Motshidiemang and LEGABIBO (as amicus) v The Attorney General, the High Court held that the law criminalizing anal intercourse violated the fundamental rights of gay people. In 2021, the Court of Appeal upheld the High Court decision. This commentary briefly examines these three decisions. It argues that Kanane gave too much weight to public opinion to the detriment of constitutional interpretation. Through a robust approach to generous interpretation of fundamental rights, the Motshidiemang decisions partly remedied the flaw in Kanane. However, judicial clarification is still required on some aspects of the decision.

Interpretation of the Constitution on the Arrangement of State-Owned Enterprises in the National Economic System Based on the Decision of the Constitutional Court

The constitutional interpretation of the regulation of State-Owned Enterprises (BUMN) is still looking for the right method, BUMN as the embodiment of the constitution for the state's responsibility in managing strategic resources that are used as wide as possible for the prosperity of the people. Submission of a judicial review to the Constitutional Court regarding BUMN can show the direction of constitutional interpretation given by the judges of the Constitutional Court. This article examines whether the constitutional interpretation of SOE arrangements is in accordance with Indonesia's national economic system. The method of approach in this writing is descriptive analysis which explains and analyzes the constitutional interpretation of SOE regulations. the results of the study reveal that the constitutional court has carried out its duties in accordance with the basic principles and principles of the constitution. The Constitutional Court in every decision in the field of BUMN dominates its interpretation by using an originalist interpretation.

헌법제정권력: 갱신(更新) 중의 개념

The concept of constituent power is often invoked in jurisprudence and literature to account for the origin and supremacy of the constitution, the limits of constitutional amendment, and the basis of constitutional interpretation. Nevertheless, the concept of constituent power has been under criticism for quite some time, and there remains today some full-fledged arguments to dispense with it as a mythical concept, unnecessary or harmful. In order to answer the question of whether the concept of constituent power has meaning and value on the horizon of constitutional law scholarship today, it might be useful to confront these contemporary criticisms alongside a consideration of the history of the concept. A noteworthy point in the historical examination of the concept of constitutional power is the fact that Sieyès tried to distance the concept of constituent power from that of sovereignty. While Sieyès proposed ‘pouvoir constituant’ as a concept that expresses the ‘the political authority of the people’, he rejected the idea of sovereignty as a “monastic” and “colossal” that cannot give adequate explanatory function of modern form of political legitimacy. Carl Schmitt, on the other hand, who inherited the concept of constituent power from Sieyès but closely linked it to the concept of sovereignty, used the unmediated delegation of constituent power as a basis for justifying a transitional sovereign dictatorship that suspended all separation of powers. Contemporary critiques of the concept of constituent power take several forms. A positivist version suggests that the concept of constituent power as a immediate presence without representation, “das formlos Formende” is itself inconceivable. In addition, the concept reduces the question of validity and legitimacy of the legal order to the question of “who” created the constitution, while the circumstances regarding the enactment of a legal norm cannot be an independent, determinative basis for the obligation to obey the law. A normativist version argues that the concept of constituent power fails to explain coherently the problem of law's authority for it locates the source of law's authority outside the legal order. But as emphasized by Fuller and Dworkin, the authority of law is better explained by the internal morality of the legal order and this renders the concept of constituent power unnecessary. The former view contends that constitutions can only be justified in terms of their conformity to extralegal moral and practical considerations, and thus a concept of constituent power that centers on the question of “who” made them loses its importance. The latter view argues that constitutions can be justified through internal morality of the law itself, and thus the question of constitutional authority that locates the source of their authority outside the legal order is not raised in the first place. The view that the constituent power is “das formlos Formende”, the presence of the people without representation, however, may be just one interpretation of constituent power, but not the only one. Rather, Sieyès' concept which emphasizes the limited powers of the extraordinary representative in constitution-making, seems to be closely linked to considerations on the process of representation. In addition, understanding constitution-making power as extra-legal authority without any normative dimension or ‘plenitudo potestatis’, free of any legal constraints seems to be a distinctively Schmittian interpretation. It should not be overlooked that the concept of the constitution that the critiques presuppose underscores the meaning of positive ‘written’ constitution as a product of actual political processes. However, it is necessary to consider in a serious manner the problem of mystification and possible misuse of the concept of constitutional power that these criticisms highlight.

The Conflation of the Justification Framework for Infringement of Aboriginal Rights with the Oakes Test in Tsilhqot’in Nation v British Columbia

In Tsilhqot'in Nation v British Columbia, the Supreme Court of Canada replaced the test for the justification of Aboriginal rights infringements with a framework that is nearly indistinguishable from the Oakes test. The goal of this paper is to show that this development in the law, and thus the current justification framework, is undesirable and erroneous. This paper submits four reasons to arrive at this conclusion. First, the justification test proposed in Tsilhqot'in mirrors the test rrequired to prove an infringement of Aboriginal rights, whose burden of proof falls on the Indigenous party, and hence shifts the entire onus of proving justification from the Crown to the Indigenous party. Second, the conflation of the Oakes test with the justification framework makes justification effectively impossible, which may cause reluctance amongst courts to recognize Aboriginal rights. Third, Aboriginal rights are fundamentally different from Charter rights and should not be subjected to a test designed for the Charter. Fourth, the incorporation of the Oakes test into the justification framework runs contrary to established principles of constitutional interpretation. These four reasons merit abandoning the framework proposed in Tsilhqot'in. Otherwise, this area of the law will be riddled with doctrinal flaws and Indigenous interests will suffer.