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This book describes the constitutions of six major federations and how they have been interpreted by their highest courts, compares the interpretive methods and underlying principles that have guided the courts, and explores the reasons for major differences between these methods and principles. Among the interpretive methods discussed are textualism, purposivism, structuralism and originalism. Each of the six federations is the subject of a separate chapter written by a leading authority in the field: Jeffrey Goldsworthy (Australia), Peter Hogg (Canada), Donald Kommers (Germany), S.P. Sathe (India), Heinz Klug (South Africa), and Mark Tushnet (United States). Each chapter describes not only the interpretive methodology currently used by the courts, but the evolution of that methodology since the constitution was first enacted. The book also includes a concluding chapter which compares these methodologies, and attempts to explain variations by reference to different social, historical, institutional and political circumstances.
Interpreting State Constitutions examines and proposes a solution to a problem central to contemporary debates over the enforcement of civil liberties: how courts, government officials, and lawyers should go about interpreting the constitutions of the American states. With the Supreme Court's retreat from the aggressive protection of individual rights, state courts have begun to interpret state constitutions to provide broader protection of liberties. This development has reversed the polarity of constitutional politics, as liberals advocate unimpeded state power while conservatives lobby for state subordination to a constitutional law controlled centrally by the Supreme Court. James A. Gardner here lays out the first fully developed theory of subnational constitutional interpretation. He argues that states are integral components of a national system of overlapping and mutually checking authority and that the purpose of this system is to protect liberty and defend against federal domination. The resulting account provides valuable prescriptive advice to state courts, showing them how to fulfill their responsibilities to the federal system in a way that strengthens American constitutional discourse.
This third volume about legal interpretation focuses on the interpretation of a constitution, most specifically that of the United States of America. In what may be unique, it combines a generalized account of various claims and possibilities with an examination of major domains of American constitutional law. This demonstrates convincingly that the book's major themes not only can be supported by individual examples, but are undeniably in accord with the continuing practice of the United States Supreme Court over time, and cannot be dismissed as misguided. The book's central thesis is that strategies of constitutional interpretation cannot be simple, that judges must take account of multiple factors not systematically reducible to any clear ordering. For any constitution that lasts over centuries and is hard to amend, original understanding cannot be completely determinative. To discern what that is, both how informed readers grasped a provision and what were the enactors' aims matter. Indeed, distinguishing these is usually extremely difficult, and often neither is really discernible. As time passes what modern citizens understand becomes important, diminishing the significance of original understanding. Simple versions of textualist originalism neither reflect what has taken place nor is really supportable. The focus on specific provisions shows, among other things, the obstacles to discerning original understanding, and why the original sense of proper interpretation should itself carry importance. For applying the Bill of Rights to states, conceptions conceived when the Fourteenth Amendment was adopted should take priority over those in 1791. But practically, for courts, to interpret provisions differently for the federal and state governments would be highly unwise. The scope of various provisions, such as those regarding free speech and cruel and unusual punishment, have expanded hugely since both 1791 and 1865. And questions such as how much deference judges should accord the political branches depend greatly on what provisions and issues are involved. Even with respect to single provisions, such as the Free Speech Clause, interpretive approaches have sensibly varied, greatly depending on the more particular subjects involved. How much deference judges should accord political actors also depends critically on the kind of issue involved.
A brilliant new approach to the Constitution and courts of the United States by Supreme Court Justice Stephen Breyer.For Justice Breyer, the Constitution’s primary role is to preserve and encourage what he calls “active liberty”: citizen participation in shaping government and its laws. As this book argues, promoting active liberty requires judicial modesty and deference to Congress; it also means recognizing the changing needs and demands of the populace. Indeed, the Constitution’s lasting brilliance is that its principles may be adapted to cope with unanticipated situations, and Breyer makes a powerful case against treating it as a static guide intended for a world that is dead and gone. Using contemporary examples from federalism to privacy to affirmative action, this is a vital contribution to the ongoing debate over the role and power of our courts.
Our Constitution speaks in general terms of liberty and property, of the privileges and immunities of citizens, and of the equal protection of the laws--open-ended phrases that seem to invite readers to reflect in them their own visions and agendas. Yet, recognizing that the Constitution cannot be merely what its interpreters wish it to be, this volume's authors draw on literary and mathematical analogies to explore how the fundamental charter of American government should be construed today.
The presuppositions of constitutional interpretation -- The principal questions of constitutional interpretation -- The principal features of the American constitutional order : the positive constitutionalism of The federalist -- Approaches to constitutional interpretation -- Textualism and consensualism -- Narrow originalism/intentionalism -- Broad originalism -- Structuralism -- Doctrinalism and minimalism -- The philosophic approach -- Pragmatism -- Epilogue: a fusion of approaches to constitutional interpretation.
Both the Bible and the Constitution have the status of “Great Code,” but each of these important texts is controversial as well as enigmatic. They are asked to speak to situations that their authors could not have anticipated on their own. In this book, one of our greatest religious historians brings his vast knowledge of the history of biblical interpretation to bear on the question of constitutional interpretation. Jaroslav Pelikan compares the methods by which the official interpreters of the Bible and the Constitution—the Christian Church and the Supreme Court, respectively—have approached the necessity of interpreting, and reinterpreting, their important texts. In spite of obvious differences, both texts require close, word-by-word exegesis, an awareness of opinions that have gone before, and a willingness to ask new questions of old codes, Pelikan observes. He probes for answers to the question of what makes something authentically “constitutional” or “biblical,” and he demonstrates how an understanding of either biblical interpretation or constitutional interpretation can illuminate the other in important ways.
A New York Times Book Review Editors' Choice An innovative account of Abraham Lincoln, constitutional thinker and doer Abraham Lincoln is justly revered for his brilliance, compassion, humor, and rededication of the United States to achieving liberty and justice for all. He led the nation into a bloody civil war to uphold the system of government established by the US Constitution—a system he regarded as the “last best hope of mankind.” But how did Lincoln understand the Constitution? In this groundbreaking study, Noah Feldman argues that Lincoln deliberately and recurrently violated the United States’ founding arrangements. When he came to power, it was widely believed that the federal government could not use armed force to prevent a state from seceding. It was also assumed that basic civil liberties could be suspended in a rebellion by Congress but not by the president, and that the federal government had no authority over slavery in states where it existed. As president, Lincoln broke decisively with all these precedents, and effectively rewrote the Constitution’s place in the American system. Before the Civil War, the Constitution was best understood as a compromise pact—a rough and ready deal between states that allowed the Union to form and function. After Lincoln, the Constitution came to be seen as a sacred text—a transcendent statement of the nation’s highest ideals. The Broken Constitution is the first book to tell the story of how Lincoln broke the Constitution in order to remake it. To do so, it offers a riveting narrative of his constitutional choices and how he made them—and places Lincoln in the rich context of thinking of the time, from African American abolitionists to Lincoln’s Republican rivals and Secessionist ideologues. Includes 8 Pages of Black-and-White Illustrations
From New York Times bestselling author Cass Sunstein, a timely and powerful argument for rethinking how the U.S. Constitution is interpreted The U.S. Supreme Court has eliminated the right to abortion and is revisiting other fundamental questions today—about voting rights, affirmative action, gun laws, and much more. Once-arcane theories of constitutional interpretation are profoundly affecting the lives of all Americans. In this brief and urgent book, Harvard Law School professor Cass Sunstein provides a lively introduction to competing approaches to interpreting the Constitution—and argues that the only way to choose one is to ask whether it would change American life for the better or worse. If a method of interpretation would eliminate the right of privacy, allow racial segregation, or obliterate free speech, it would be unacceptable for that reason. But some Supreme Court justices are committed to “originalism,” arguing that the meaning of the Constitution is settled by how it was publicly understood when it was ratified. Originalists insist that their approach is dictated by the Constitution. That, Sunstein argues, is a big mistake. The Constitution doesn’t contain instructions for its own interpretation. Any approach to constitutional interpretation needs to be defended in terms of its broad effects—what it does to our rights and our institutions. It must respect those rights and institutions—and safeguard the conditions for democracy itself. Passionate and compelling, How to Interpret the Constitution is essential reading for anyone who is concerned about how the Supreme Court is changing the rights and lives of Americans today.