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Manual The New Commonwealth Model of Constitutionalism (Cambridge Studies in Constitutional Law, 5)

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Book of the Month. More Information. Stephen Gardbaum. Hardback edition , ISBN13 Marbury v Madison settled this question in the affirmative as a matter of American law, and most nations follow Marbury and Montesquieu in accepting the practical necessity of some such arrangement. But it is not clear that the arrangement truly is practically necessary, let alone conceptually so. Bishop Hoadly notwithstanding, there is nothing nonsensical in the suggestion that X might be bound by an entrenched rule, R , whose interpretation and implementation is left to X.

This is, arguably, the situation in New Zealand where the courts are forbidden from striking down legislation on the ground that it exceeds constitutional limits. Observance and enforcement of these limits are left to the legislative bodies whose powers are nonetheless recognized as constitutionally limited and subject to whatever pressures might be imposed politically when state actions are generally believed to violate the constitution.

It is important to realize that what rule, R , actually requires is not necessarily identical with what X believes or says that it requires. Nor is it identical with whatever restrictions X actually observes in practice. That constitutional limits can sometimes be avoided or interpreted so as to avoid their effects, and no recourse be available to correct mistaken interpretations and abuses of power, does not, then, imply the absence of constitutional limitation.

But does it imply the absence of effective limitation? Perhaps so, but even here there is reason to be cautious in drawing general conclusions. And whatever their faults, there is little doubt that many Parliaments modeled on the British system typically act responsibly in observing their own constitutional limits. The idea of constitutionalism requires limitation on government power and authority established by constitutional law.

I·CONnect – Judges, Democracy and the “New Commonwealth Model of Constitutionalism”

But according to most constitutional scholars, there is more to a constitution than constitutional law. But there is a long-standing tradition of conceiving of constitutions as containing much more than constitutional law. Dicey is famous for proposing that, in addition to constitutional law, the British constitutional system contains a number of constitutional conventions which effectively limit government in the absence of legal limitation.

These are, in effect, social rules arising within the practices of the political community and which impose important, but non-legal , limits on government powers. An example of a British constitutional convention is the rule that the Queen may not refuse Royal Assent to any bill passed by both Houses of the UK Parliament. Perhaps another example lies in a convention that individuals chosen to represent the State of Florida in the American Electoral College the body which actually chooses the American President by majority vote must vote for the Presidential candidate for whom a plurality of Floridians voted on election night.

Constitutions and constitutionalism (Law)

Owing to the fact that they are political conventions, unenforceable in courts of law, constitutional conventions are said to be distinguishable from constitutional laws, which can indeed be legally enforced. It includes constitutional conventions as well. We must further recognize the possibility that a government, though legally within its power to embark upon a particular course of action, might nevertheless be constitutionally prohibited from doing so. Should she violate one of these conventions, she would be acting legally, but unconstitutionally, and her subjects might well feel warranted in condemning her actions, perhaps even removing her from office—a puzzling result only if one thinks that all there is to a constitution is constitutional law.

As we have just seen, there is often more to a constitution than constitutional law. As we have also seen, constitutional norms need not always be written rules. Despite these important observations, two facts must be acknowledged: 1 the vast majority of constitutional cases hinge on questions of constitutional law; and 2 modern constitutions consist primarily of written documents.

Differences of view on these matters come to light most forcefully when a case turns on the interpretation of a constitutional provision that deals with abstract civil rights e. As we shall see, stark differences of opinion on this issue are usually rooted in different views on the aspirations of constitutions or on the appropriate role of judges within constitutional democracies. The roles played by each of these factors in a theory of constitutional interpretation depend crucially on how the theorist conceives of a constitution and its role in limiting government power.

Simplifying somewhat, there are two main rival views on this question. On the one side, we find theorists who view a constitution as foundational law whose principal point is to fix a long-standing framework within which legislative, executive and judicial powers are to be exercised by the various branches of government. Such theorists will tend towards interpretative theories which accord pride of place to factors like the intentions of those who created the constitution , or the original public understandings of the words chosen for inclusion in the constitution.

On such a fixed view of constitutions, it is natural to think that factors like these should govern whenever they are clear and consistent. And the reason is quite straight forward. From this perspective, a constitution not only aspires to establish a framework within which government powers are to exercised, it aspires to establish one which is above, or removed from, the deep disagreements and partisan controversies encountered in ordinary, day to day law and politics.

It aspires, in short, to be both stable and morally and politically neutral. To be clear, in saying that a constitution aspires, on a fixed view, to be morally and politically neutral, I in no way mean to deny that those who take this stance believe that it expresses a particular political vision or a set of fundamental commitments to certain values and principles of political morality. Quite the contrary. All constitutional theorists will agree that constitutions typically enshrine, indeed entrench, a range of moral and political commitments to values like democracy, equality, free expression, and the rule of law.

But two points need to be stressed. First, fixed views attempt to transform questions about the moral and political soundness of these commitments into historical questions, principally concerning beliefs about their soundness. The task is not to ask: What do we now think about values like equality and freedom of expression? Rather, it is to ask: What did they —the authors of the constitution or those on whose authority they created the constitution—in fact think about those values? So stability and neutrality are, on fixed views, served to the extent that a constitution is capable of transforming questions of political morality into historical ones.

Second, no proponent of the fixed view will deny that the abstract moral commitments expressed in a constitution tend to be widely, if not universally shared among members of the relevant political community. In that sense, then, the constitution, despite the moral commitments it embodies, is neutral as between citizens and their many more partisan differences of opinion on more particular moral questions.

Not everyone in a modern, constitutional democracy like the US or Germany agrees on the extent to which the right to free expression demands the liberty to express opinions that display and promote hatred toward an identifiable religious or racial group. But virtually no one would deny the vital importance of expressive freedom in a truly free and democratic society. On fixed views, then, constitutions can be seen as analogous to the ground rules of a debating society. Each sets the mutually agreed, stable framework within which controversial debate and action is to take place.

And just as a debating society could not function if its ground rules were constantly open to debate and revision at point of application, a constitution could not serve its role if its terms were constantly open to debate and revision by participants within the political and legal processes it aspires to govern. We avoid this result, according to those whose espoused the fixed view, to the extent that we are able to replace controversial moral and political questions with historical questions about the intentions of constitutional authors in creating what they did, or about how the language they chose to express a constitutional requirement was publicly understood at the time it was chosen.

Only then can it serve as the politically neutral, stable framework its nature demands.

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Not all constitutional theorists believe that the sole or overriding role of a constitution is to set a stable, neutral framework for the rough and tumble of partisan law and politics. Nor do all theorists believe that constitutional interpretation consists of an attempt to ascertain original understandings or authorial intentions. On the contrary, many constitutional scholars embrace living constitutionalism, an approach that sees a constitution as an evolving, living entity which, by its very nature, is capable of responding to changing social circumstances and new and it is hoped better moral and political beliefs.

Along with this very different view of constitutions come very different theories regarding the nature and limits of legitimate constitutional interpretation. One strand within living constitutionalism, upon which we will be focus below, stresses the extent to which constitutional interpretation resembles the kind of reasoning that takes place in other areas of the law pertaining to common law legal systems, such as the law of contracts and torts. Just as the law of contributory negligence emerged and evolved in common law countries in a case-by-case, incremental manner, over many decades and as the product of many judicial decisions, the law of equal protection, free expression, due process and the like has evolved in modern western democracies as constitutional cases have been decided over the years.

Disputes between originalists and living constitutionalists are among the liveliest and most contentious to have arisen in constitutional scholarship over the past several decades. Living constitutionalists, the originalist counters, recommend constitutional practices that threaten a number of cherished values, among them the rule of law and the separation of powers. They are, in effect, happy to place the constitution in the hands of contemporary judges who are licensed, under the guise of interpreting it, to change the constitution to suit their own political inclinations and moral preferences.

And this, originalists claim, only serves to thwart cherished values secured by having a stable, politically neutral constitution, and may render all talk of genuine constitutional constraint meaningless. Originalism [ 16 ] comes in a wide variety of forms Bork ; Scalia ; Whittington b; Barnett ; Solum An originalist might claim that her view follows necessarily from a more general theory of interpretation: to interpret is necessarily to retrieve something that existed at the time of authorship—an original object.

Another might be happy to acknowledge that interpretation could, theoretically, take the form of an innovative or creative interpretation that evaluates or in some way changes an original, as might be the case with a revolutionary interpretation of a play or work of art. But such a theorist might go on to add that, for reasons of political morality having to do with, e.

The object of constitutional interpretation should, to the greatest extent possible, remain fixed by factors like original public understandings or authorial intentions. Yet another originalist might be content to leave a little leeway here, suggesting something like the following: though there is a presumption, perhaps a very heavy one, in favor of interpretation as retrieval of an original, it is one which can, on very rare occasions, be overcome.

For example, this originalist might say that the presumption in favor of retrieval can be defeated when there is a discernible and profound sea change in popular views on some important issue of political morality implicated by an abstract constitutional provision. This was arguably the case in the United States with respect to slavery and equal protection. This concrete understanding of equal protection is now, of course, widely condemned. Its wholesale rejection served as the main inspiration behind Brown v.

Board of Education, whose innovative interpretation of the equal protection clause arguably changed or replaced the original understanding of the notion. Many originalists believe that Roe v. Wade [ 18 ] rested on a mistaken interpretation of the United States Constitution, one that flew in the face of original understandings and intentions; but virtually no originalist will go so far as to deny that any contemporary interpretation of the First, Fourth, Fifth, Ninth and Fourteenth Amendments is justified only if it can be reconciled with that decision.

In other words, virtually all originalists agree that established precedent can sometimes trump original understanding. Whether this apparent concession is in the end consistent with the spirit of originalism is, perhaps, questionable. Another way in which originalists have split is over the identity of the original object of interpretation. But one must be careful here. But that meaning or understanding cannot be anything other than the original one because authors do not have crystal balls and therefore have no access to future understandings.

So an original intention theorist will inevitably have interpreters pay considerable attention to original public understandings — perhaps to the point that her theory actually collapses into a form of public understanding originalism. Similar things will be true of an originalist whose principal focus is original public understanding: she need not dismiss entirely the relevance of original intentions, at least in some cases.

Should it turn out, for instance, that original public understanding leads to unforeseen applications or results that we have good historical evidence to believe the authors did not intend, or would have flatly rejected had they known what we now know, an originalist might allow such actual or hypothetical intentions to override original public understandings. Among the ways in which one might be able to determine that constitutional authors did not intend, or would not have wished to endorse, a particular concrete application or result suggested by the original public understanding of a constitutional provision is by appeal to the general goals or purposes we have reason to believe they intended to achieve in enacting what they did.

Sometimes these goals and purposes, often called further intentions, are explicitly expressed in the preamble to a constitution, as is often true in the case of ordinary statutes. But such statements of purpose in constitutions tend to be very broad and highly abstract and are often of very limited use in dealing with the more specific questions that arise under particular constitutional provisions. Sometimes appeal is even made to widely shared beliefs at the time on the relevant issue. An originalist interpretation of that Amendment might draw support from this fact in an argument purporting to demonstrate the constitutional validity of hanging.

But perhaps things are not quite this simple. If so, and if a contemporary interpreter believes that all forms of capital punishment, including hanging, is in actual fact cruel and unusual, then she might fashion an argument of the following sort, one which has, at least superficially, an originalist flavor. Respecting the general intentions of the authors—to ban cruel and unusual punishment—actually requires that hanging be deemed unconstitutional, even though the authors and those on whose authority they acted would have rejected this claim.

Recognizing the fallibility of their own moral views, the intentions of the authors of the Eighth Amendment might have been that government bodies observe an abstract, partly moral standard forbidding governments from acting in a manner properly characterized as cruel and unusual.

This is a concrete understanding they fully realized could be wrong, and their aim or intention was not to enshrine this possibly erroneous understanding but to prohibit what truly is cruel and unusual. Respecting their intentions under these conditions would, therefore, require holding as unconstitutional whatever truly does come within the extension of the relevant provision, that is, whatever truly does constitute penal behaviour that is cruel and unusual.

Imagine now that one could bring the authors of the Eighth Amendment to life and that one could convince them, via sound empirical and moral argument, that capital punishment in all its forms is in actual fact cruel and unusual. How might they respond to the claim that the only way to respect their intentions is to continue to accept, as constitutional, the practice of hanging? If we had wanted specifically to ban only the things we thought at the time constitute cruel and unusual punishment, we would have chosen our words differently.

We would have explicitly banned those things. Such an appeal may well transform the resultant theory of constitutional interpretation into something very close to a form of living constitutionalism. In any event, originalists can differ on the role, in constitutional interpretation, of goals and purposes, often referred to as further intentions. An originalist might be prepared to allow some further intentions to override original concrete understandings in some cases, while another might reject the use of such intentions altogether.

One of the essential functions of law is the guidance of behavior. Yet one cannot be guided by a law unless one understands it, knows what it means. And if its meaning depends on factors about which there is great dispute, or which are largely inaccessible, as is quite often the case when it comes to the intentions of long-dead authors, then one cannot be guided by the law. A second reason for rejecting appeal to further intentions is the fact that there is an important difference between what a constitution actually says or means and what those who created it might have wanted or intended to achieve in creating it.

Interpretation is an attempt to retrieve so as to conserve or enforce the former, not the latter. For example, original intentions and understandings are often very unclear, if not largely indeterminate, leaving the interpreter with the need to appeal to other factors. As a result, many concrete applications or results suggested by original intentions and understandings may now seem absurd or highly undesirable in light of new scientific and social developments and improved moral understanding.

Furthermore, modern life includes countless situations that our predecessors could not possibly have contemplated, let alone intended or meant to be dealt with in a particular way. The right to free speech that found its way into many constitutions in the early modern period could not possibly have been understood or intended by its defenders to encompass, e. In response to this latter difficulty, an originalist might appeal to what might be called hypothetical intent or understanding.

The basic idea is that an interpreter should always consider, in cases involving new, unforeseen circumstances, the hypothetical question of what her predecessors would have intended or wanted to be done in the case at hand had they known what we now know to be true. We are, on this view, to put ourselves imaginatively in the shoes of those who went before us.


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