Method Of Constitutional Interpretation Research Articles

CONSTITUTIONAL COMPLAINT: A COMPARATIVE STUDY OF THE AUTHORITY OF THE CONSTITUTIONAL COURTS OF THE REPUBLIC OF INDONESIA AND CROATIA

This study aims to determine the forms of ideas and powers of the Constitutional Court in the Comparative Study of the Republic of Indonesia and Croatia. The results of this study explain that the Constitutional Courts of the Republic of Indonesia and Croatia are high state institutions in the constitutional system which are the holders of judicial authority together with the Supreme Court. There are three ideas that make constitutional complaints a new authority for the MK, the first being carried out by the MPR by changing the Constitution as the authority of the MK; Second, legislators (DPR and President) through amendments to the Constitutional Court Law; and the third is done by the Constitutional Court itself through the interpretation of the constitution with the method of constitutional interpretation.

On the Relationship between EU Law and Member State Law: From the Principle of Primacy to the Doctrine of Counter-limits

Within the EU there exist two bodies of law, EU Law and Member State law, and in the relationship between the two, the European Court of Justice has established in practice the primacy of EU Law through the principle of direct effect and the principle of priority. With the continuous development of EU Law, some EU countries have established the doctrine of counter-limits in order to protect the inalienable national sovereignty and the fundamental principles of their constitutions. In the Czech Republic, the principle of the primacy of EU Law was implemented in the European Arrest Warrant case by the "EU-friendly" method of constitutional interpretation; in the Czechoslovak Pensions case for the first time, a specific decision of the European Court of Justice was declared to be ultra vires, giving effect to the doctrine of counter-limits.

Originalism's Implementation Problem

Originalism has received a great deal of public attention, both in the media and political sphere. In the legal academic sphere, originalists portray originalism as the dominant form of constitutional interpretation, asserting that it brings constraint to judges and is consistent with democratic values. Despite this, originalists spend little effort explaining how originalism is to be implemented by practicing attorneys and judges, and even less effort responding to the obstacles of implementing originalism as a method of constitutional interpretation. This Article considers multiple originalist methods and finds that they are all lacking. Originalism as a method is too cumbersome or prone to abuse to provide the constraint and attention to democratic values that its supporters claim. Studying the constitutional record and immersion in founding-era texts require expertise in formal historic research methods, which most judges and attorneys lack. The recently developed method of corpus linguistics runs into similar obstacles as well, along with distinct problems including opaque coding methods and skewed source materials. Of the few originalists to contemplate these concerns, several suggest that while judges and attorneys may lack the time and resources necessary to engage in thorough investigations of original public meaning, those in academia may conduct the research upon which practitioners may rely. This purported solution fails. The sheer volume of potential outlets for originalist scholarship, coupled with the fact that most law review and journal editors are not professional historians, means that shoddy, goal-oriented scholarship is likely to be published. As a result, judges and attorneys may select from whatever scholarship supports their preferred outcomes. To the extent that judges and attorneys attempt to select for higher quality scholarship—say, by only citing to top authors or journals—this results in widening the gap between originalist interpretation and democratic values, as the original public meaning of the Constitution is determined only by what the most prominent law professors end up publishing in the most elite journals. Originalism is often touted by its supporters to be a way of finding objective answers to contentious constitutional questions. But if originalism is ever to be implemented with the rigor presumed by academic originalists, these originalists must confront the serious obstacles to implementing their methods that this Article raises. We conclude that originalists are unlikely to meet these objections, and that academic originalism and “originalism” as understood in political discussions and judicial opinions will remain disconnected. At the very least, we hope that this Article prompts originalists to devote greater efforts to addressing and attempting to overcome the problem of implementing originalism.

Originalist Fiction as Constitutional Faith

My book 'Originalism as Faith' argued that constitutional law is driven by a complex interaction of politics, law, social movements, cultural change, and the Justices' personal values and experiences. Professor Christopher Green’s review of my book argues that original infidelity by the Supreme Court and others reveals little about the Constitution itself; that my book failed to adequately distinguish the Constitution from constitutional law or constitutional meaning from constitutional applications; and that Originalism needs to be evaluated as a theory about how to derive constitutional meaning even if in practice the theory has not yet been implemented by judges in a consistent manner. This response argues that the Constitution itself tells us little about constitutional disputes, and that New Originalism's reliance on the application versus meaning narrative demonstrates that original public meaning has little or no bite in most constitutional cases. Moreover, Professor Green's reliance in his review and his substantial other work on the oath judges take to uphold “this” Constitution (the one ratified by the people of the 18th century as properly amended) reveals little about how constitutional law is made binding on the ground by varied political actors especially the United States Supreme Court. My response concludes that centuries of non-originalist judicial decisions and judgments by other political officials does shed substantial light on the lack of merit of Originalism as viable method of constitutional interpretation, and that Professor Green's oath-based, meaning driven conception of the Constitution in practice is another example of Originalism as fiction.

The Original Living Tree

One of the main arguments in Canada in favour of the “living tree” doctrine is that it has deep roots in our constitutional tradition. As the Supreme Court of Canada said in Reference Re Same-Sex Marriage, the living tree is “one of the most fundamental principles of Canadian constitutional interpretation.” The argument goes something like this: beginning with the famous “Persons case” of 1929 (Edwards v. Canada(Attorney General)), the Judicial Committee of the Privy Council recognized the Constitution to be a living tree, capable of evolving to meet new social and economic realities, and this method of constitutional interpretation has remained fundamental to Canada’s constitutional order ever since.

James Madison, Justice Scalia, and Constitutional Interpretation

James Madison (1751–1836), so-called “Father of the Constitution,” held consistently throughout his long public career to a version of textualism regarding constitutional interpretation. It is surprising that for the author of the authoritative notes of the Federal Convention, Madison downplayed altogether the original intent of the constitutional Framers. From 1796 until his death Madison insisted that if constitutional meaning was to be searched for outside the text, the relevant sources to consult were ratifying conventions of the states, and “other public indications” at the time of ratification. In today's parlance Madison adopted a “fair-meaning textualism” method of constitutional interpretation and rejected the “original intent” jurisprudence favored by some modern-day commentators. This textualism appears to have been the method followed by the late Justice Antonin Scalia. Madison also believed in a living Constitution–one that had life and validity breathed into it by the ratifiers, and hence the people, not by its Framers.

Heller High Water? The Future of Originalism

Has originalism won? It’s easy to think so, judging from some of the reaction to the Supreme Court’s recent decision in District of Columbia v. Heller.1 The Heller Court held that the District of Columbia could neither ban possession of handguns nor require that all other firearms be either unloaded and disassembled or guarded by a trigger lock. In finding for the first time in the Court’s history that a gun control law violated the Second Amendment, Justice Scalia’s opinion for the 5-4 majority appeared to be a sterling exemplar of originalism, the method of constitutional interpretation that he has helped to popularize. More surprising to most observers, the dissenting opinion of Justice Stevens also seemed to be in the originalist tradition.2 Hence the claim advanced by some in the decision’s wake that “we are all originalists now.”3 If that claim is true, it is profoundly important to the future of constitutional law. Originalists believe that judges generally should prioritize the original understanding of constitutional provisions over contemporary understandings that avail themselves of social and intellectual progress. Since this is not how constitutional law has been made for much of our history, a serious commitment by the Supreme Court to originalism would destabilize some of our most familiar and cherished political traditions. If the claim is not true, then constitutional lawyers, particularly progressives, must take care to separate the rhetoric of originalists from the impact of originalism on actual constitutional cases.

Before Privacy, Power: The Structural Constitution and the Challenge of Mass Surveillance

The rich legal literature that has grown up to assess the constitutionality of bulk communications collection by the government has focused overwhelmingly on the challenge such programs pose to discrete claims of individual right against the state. Yet beyond the doctrinal and conceptual challenges such claims of privacy and expressive rights have faced – from restrictive views of standing and territoriality to contested understandings of the constitutional harms deserving rights protection – individual rights talk alone ignores the most apparent reality of current bulk collection programs: the newly developed government capacity and desire to collect zettabytes of data represents a vast expansion of government power. Particularly when a large fraction of U.S. government surveillance today is conducted not pursuant to congressional authority but solely under the executive power of Article II of the Constitution, the same changed empirical reality that has led us to revisit many of the decades-old premises on which Fourth Amendment doctrine is based presents an occasion to look anew at the nature of structural constitutional power. As this Article shows, the classic constitutional case for executive power in foreign intelligence surveillance falls short of supporting the claim that Article II alone supports the kind of bulk data collection the executive currently pursues. More, the Constitution’s structural provisions – here meaning the provisions containing affirmative grants of power to the federal government – have also been the source of a method of constitutional interpretation (structural reasoning), and separately, the basis for recognizing a substantive set of purposes underlying the constitutional project, including not only the promotion of functional effectiveness but also the protection of societal liberty. Where rights claims tend to conceptualize the problem of government action in terms of violations of particular clauses or singular individual harms, structural analysis in these respects invites consideration of what kind of government is consistent with the free republican society the Constitution envisions. These considerations, this Article maintains, more usefully inform our understanding of the constitutional harm of bulk collection. While questions of power surrounding bulk collection are hardly straightforward – the President has at least some intelligence authority, and global communications represent an unmatched trove of information that in certain applications has the potential to help protect far more individuals than it harms – this Article demonstrates at a minimum that the Constitution has more to say about this practice than is contained in the Bill of Rights alone.

On the Categorical Approach to Free Speech – And the Protracted Failure to Delimit the True Threats Exception to the First Amendment

On June 1, 2015, the Supreme Court decided Elonis v. United States on statutory rather than constitutional grounds. In doing so, it turned away an important opportunity to provide needed clarification of true threats, a category of expression relegated to a lower level of protection by the Court almost a half-century ago. The categorical approach to free speech made its first explicit appearance in Supreme Court case law in 1942. Since that time, the Court has relied heavily on this method of constitutional interpretation, carving out discrete exceptions from the seemingly absolutist mandate of the First Amendment that Congress make no law abridging the freedom of speech. Although the categorical approach – frequently front and center in First Amendment adjudication – has been with us for almost seventy-five years, it rests on a surprisingly unsettled theoretical foundation. It is an indispensable doctrinal tool with a puzzling and sometimes contradictory array of justifications and operating instructions. In this piece, I attempt to clear up the confusion. I examine the evolution of this approach to the First Amendment. I critically assess the famous dictum from Chaplinsky v. New Hampshire that is responsible for establishing this system of classification. I scrutinize a number of possible interpretations of Chaplinsky and explore the disparate scholarly and judicial perspectives on this mode of constitutional interpretation. Finally, I move from the foundations and justifications of the categorical approach to the way this system works in practice. I argue that if the Court is to maintain its fidelity to an effectual categorical system of First Amendment adjudication – one that is properly respectful of the high stakes for free expression and democratic self-governance – it is vitally important that Court adequately define and operationalize respective categories. The final third of this article delves into one such category: true threats. I closely examine the Court’s true threats jurisprudence and look critically at the recent Elonis decision, contrasting the Court’s protracted failure to define and delimit true threats with the comparatively robust guidance it has offered with other discrete categories.

Constitutional Interpretation and Foreign Law: A Comparative Analysis between the U.S. Supreme Court and the German Federal Constitutional Court

The central purpose of this paper is to show that there are no major differences in the methods of constitutional interpretation in countries with varying degree of judicial review. Despite the fact that legal culture and traditions, underlying political theories, and values all affect methods of interpretation, there is no big gap in constitutional interpretation in practice in view of wide interpretive discretion. Obviously all legal systems require compliance with some fundamental interpretive standards irrespective of the legal system, and in a democratic society judicial decisions should be justified at least to avoid arbitrariness. The question is what are the limits beyond which judges cannot go in constitutional democracies? Can the foreign law be a parameter for judicial review of legislation? Hence, the style and method of legal argumentation that are used to justify the decision may differ in the countries belonging to different legal systems. Whether there are significant differences between the common law and civil law constitutional interpretation will be assessed through the comparative analysis of the United States Supreme Court and the German Federal Constitutional Court.

Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution

This article studies the opinions of Indiana Supreme Court Justice Brent E. Dickson in three cases in which he interpreted and applied several of the seven religion provisions of the Indiana Constitution. His opinions in these cases provide insight into the Indiana Supreme Court's and his method of constitutional interpretation, and they explicate the meaning of several of Indiana's religion provisions. This study develops in several steps. First, it discusses the three Indiana Supreme Court cases. Second, it explores the court's method of state constitutional interpretation, which Justice Dickson helped to bring into sharper focus. Third, it analyzes his interpretation of several religion provisions in these cases. Fourth, it concludes with some observations regarding his careful application of the court's interpretive method and key features of the court's religion provisions jurisprudence.

Originally Meant to Live: Interpreting the Constitution's Elegant Specificities Through Farsighted Originalism

Professor Semeraro's essay contends that the traditional debate between originalism and living constitutionalism is a charade because American constitutionalism commits all interpreters to both methods.Originalism comports with American society's commitment to the written rule of law, not men. Living constitutionalism resonates with the tradition of self-government embodied in the ideal of We the People. The on-going debate over the Constitution's majestic generalities in fundamental-rights-defining cases thus amounts to the search for the proper accommodation between originalism and living constitutionalism rather than a choice between them.Professor Semeraro proposes a new method of constitutional interpretation – farsighted originalism – for cases dealing with specific constitutional clauses regulating intra-governmental conflicts. Scholars and judges have long assumed that these specific clauses would prove easier to interpret. But in the last two terms, bitterly divided Courts have struggled with them. Using an analogy to quantum mechanics, Professor Semeraro shows that the Constitution's specific clauses should be interpreted through the problem-solving rubric embodied in the clause. This rubric creates a superposition of potential original meanings, all of which the founding generation – in a meaningful sense – held, even though they may not have considered all of the circumstances to which the rubric might apply. In this way, the meaning of the Constitution remains fixed, as originalism requires, while simultaneously living to resolve new problems.

New Day Rising? Non-Originalism, Justice Kirby and Section 80 of the Constitution

This article critically evaluates Justice Kirby's method of constitutional interpretation: non-originalism.

Incompletely Theorized Disagreements in the Roberts Court

In NFIB, Citizens United, Jones and Heller, the Roberts Court decided constitutional questions that will have important consequences for decades to come. None of these decisions resulted in a unanimous opinion. In this paper I have tried to show that the hundreds of pages of legal analysis that the different justices issued contain surprisingly little discussion of any methodological disagreement between them. I have then explored possible explanations for this phenomenon. If, as some scholars have suggested, justices only use their preferred methods of constitutional interpretation to mask deeper moral views, it is unclear why they would not “wear their masks” when they write their opinions. If, on the other hand, the justices do give independent weight to methodological commitments in order to decide their votes on particular cases, then it seems that candor would demand that they share their reasoning with the public. The advantages of not doing so are far from obvious. Professor Sunstein has suggested some positive aspects of an undertheorized approach to justifying judicial decisions. Some of these advantages are questionable on the merits. Others are real but limited to explaining why a majority opinion is unlikely to include much in terms of methodological discussion. This still leaves open the question why justices that disagree on the outcome of a case refuse to engage in methodological discussion in their separate opinions. Other arguments advanced by Sunstein are poor candidates to describe the way an individual justice acts, or should act, even if we, and the justice himself, agree with the overall benefits of undertheorization. This is because his optimal behavior will depend on what other justices are doing. This is the first-best/second-best pattern that is common to many areas of the law and human behavior in general. I have identified a possible equilibrium where all justices adopt the strategy of avoiding methodological controversies provided that everyone else does the same. To the extent everyone adopts this strategy, no one would have an incentive to deviate (under certain assumptions). Another promising explanation I have discussed is judicial efficiency. Justices may prefer to avoid methodological discussions even in dissent, in order to gather the maximum number of dissenting justices under a single opinion, thus minimizing the number of opinions they have to write. I have also suggested a way in which this hypothesis may be empirically tested.

Noción, justificación y críticas al principio de proporcionalidad*

The principle of balancing is an argumentative structure that provides juridical solutions when fundamental rights have problems coexisting with one another. It allows to maximize fundamental principles within their own factual and juridical boundaries and consists of three sub-principles: suitability, necessity and weighting. The sub-principle of suitability serves to determine if state intervention in matters of fundamental rights has a constitutional basis. The sub-principle of necessity has the purpose of determining if the state intervention in fundamental rights is the least onerous alternative. The weighting sub-principle allows us to choose the constitutional principle that should prevail. The principle of balancing is a tool to bring harmony between fundamental rights in specific situations and it is superior to other methods of constitutional interpretation because it does not state a hierarchy a priori in constitutional principles but promotes the maximization of fundamental rights if possible.

What comparativism tells us about originalism

Defended as a method of constitutional interpretation, originalism is typically thought to reflect uniquely American anxieties about the judicial expansion of rights and the place of popular constitutional culture in judicial review. As such, it has appeared to be of little general interest to constitutional scholars. This paper uses comparative constitutional law to challenge that assumption. Australian constitutionalism lacks the key features thought to make the view distinctively American and yet, the paper argues, originalism not only thrives in Australia but has a firmer foundation in the Australian constitutional system. This has important implications for the application of comparativism to constitutional theory beyond the debate about originalism: the fact that theorists have largely overlooked the possibility that the American constitutional system is not the best fit for originalist interpretation helps show how assumptions grounded in American debates about judicial activism have come to define the aims of interpretive theory.

Judicial Reasoning in Constitutional Courts: A European Perspective

“In the beginning was the Word.” This quote from the Holy Bible also stands on the ceiling of our discipline's temple. The job of legal scholarship is interpreting, and the base of every interpretation is the word.In this paper we are going to analyze how constitutional courts are able to extract the most meaning from a, necessarily, short text, such as a constitution, with the use of sophisticated tricks, or methods, of interpretation. Partly with the help of these methods, and partly on the basis of text-independent speculations, constitutional courts and legal scholars are able to develop a system of concepts (aRechtsdogmatik, or its specific constitutional part, theVerfassungsdogmatik) considerably more sophisticated than the one of the actual text of the constitution in order to serve as a helping toolkit for the solution of future cases. After analyzing some preliminary issues in part A, the largest part of this study will deal with the different methods of constitutional interpretation in part B. Then, the nature of this conceptual system will be analyzed in part C, before turning to the question of styles of constitutional reasoning in part D. The analysis concentrates on the practice of European constitutional courts, though for purposes of classification and comparison, non-European practices will also be mentioned.

The Impact of Legal Systems on Constitutional Interpretation: A Comparative Analysis: The U.S. Supreme Court and the German Federal Constitutional Court

The central purpose of this paper is to show that there are no major differences in the methods of constitutional interpretation in countries with varying degrees of judicial review. Despite the fact that legal culture and traditions, underlying political theories, and values all affect methods of interpretation, there is no big gap in constitutional interpretation in practice in view of wide interpretive discretion. Obviously all legal systems require compliance with some fundamental interpretive standards irrespective of the legal system, and in a democratic society judicial decisions should be justified at least to avoid arbitrariness. The question is what are the limits beyond which judges cannot go in constitutional democracies? Hence, the style and method of legal argumentation that are used to justify the decision may differ in the countries belonging to different legal systems. Whether there are significant differences between the common law and civil law, constitutional interpretation will be assessed through the comparative analysis of the United States Supreme Court and the German Federal Constitutional Court.

The Argument for (Living) Originalism: Comments on Jack Balkin's Theory of Constitutional Interpretation

In this comment I consider Jack Balkin’s general argument for his method of constitutional interpretation – the question of why interpret (the United States Constitution) in this way (as presented in his book Living Originalism). I contrast this question with the way in which the conclusion of this argument should be implemented with regard to specific clauses – the question of how to interpret (the United States Constitution). While the former question is concerned with the general form of the argument, the latter is concerned with a substantiation of one premise in the argument.

A Mostly Purposivist Century: Theories of Constitutional Interpretation in the 1800s

Resounding in the debate between textualists and purposivists, is a pervasive, if subtle, historical narrative that figures purposivism as a twentieth-century phenomenon and textualism as a new-and-improved version of the text-focused, plain-meaning interpretation that predominated in the nineteenth century. This account gives textualists the historical high ground - the safe, traditional, and conservative choice - and puts purposivists in the position of having to defend a relatively recent and comparatively radical position. This accuracy of this account is belied, however, by nineteenth-century judges’ methods of constitutional interpretation, as expounded by treatise writers of the era. Their theories can be categorized in three groups, none of which is more than superficially textualist. First was an approach popularized by Joseph Story in mid-century that I call plain meaning purposivism. These thinkers embraced a strong plain meaning rule and a text-focused interpretive framework, but they founded their approach on a set of strongly intentionalist and purposivist notions of the overall meaning of the Constitution. This school was followed after the Civil War by a more direct form of purposivism that I refer to simply as conventional purposivism. These purposivists softened the plain-meaning purposivists’ meaning rule and counseled interpreters to more freely use extratextual indicia of constitutional and legislative intent. By the 1880s, a third and non-purposivist group had evolved: evolutionary constitutionalists. In their view, the Constitution should be interpreted not with regard to original intention but with a Burkean, Spencerian understanding of the nation’s evolving cultural, social, and economic character. The nineteenth century, then, was a mostly purposivist age. It was an era in which purposivism, in contrast to evolutionary constitutionalism, was the textually conservative choice, and in which textualism, which is founded on the fundamental rejection of intentionalism, did not exist. An understanding of this history is particularly pertinent today, as our interpretive discourse stands poised to discard purposivism and enter an age of textualist consensus.