Fall 2012 . Originalism as an approach to constitutional theory and con‐ stitutional interpretation is often associated with conservative politics.1 This is no surprise given the history of modern originalist theory and constitutional politics. THEORIES OF CONSTITUTIONAL INTERPRETATION: PART I The following excerpts from Supreme Court opinions illustrate a variety of approaches to interpreting the Constitution in terms of the sources of guidance relied on. Theories of Constitutional Interpretation. an essential guardian of the constitutional order. A COMPARATIVE ANALYSIS OF COMMON- LAW PRESUMPTIONS OF STATUTORY INTERPRETATION Marius van Staden LLB LLM Lecturer, Department of Public Law, University of Johannesburg 1 Introduction Theory of statutory interpretation in South African and American law shares the same English-law ancestry.1 A comparison between these jurisdictions are valuable because canons of interpretation … Vol. What does the Constitution mean? (or constitutional) interpretation. Footnote 89 Nevertheless, there is a difference between binding and persuasive uses of international law. Abstract. ORIGINALIST THEORIES OF CONSTITUTIONAL INTERPRETATION Michael Moore t When I first received the invitation to this conference, the letter had a text in it that included the following sentence: "Each speaker will give a ten minute talk." 22 The two theories of statutory interpretation that predominate today are purposivism and textualism. In particular, the paper looks closely at the idea of ‘explanatory power’ as a way of understanding the kinds of criteria by which legal theories … Originalists, like Justice Scalia and newly-confirmed Justice 8. Both had certain value preferences. Section 10 examines the implications of my principles for representative theories of legal interpretation… 3× 3. A by no means exhaustive list of prominent examples of constitutional theories includes those advanced by 1 BRUCE ACKERMAN, WE Symposium 1985 Constitutional Interpretation. The third main section considers the possible relevance of various theories of interpretation to constitutional interpretation. of the Constitution." II. Public Interest Law 109 5. In this course, we will examine competing Add Paper to My Library. Oct 02. (arguing that “[t]he constitutional guarantees require ” the actual malice rule). Part V provides a brief conclusion. Dynamic theories do not restrict interpretation to the plain meaning of a statute at the time of enactment, or to its purpose or the intention of parliament. A complete theory of constitutional interpretation will have various components within it. No attempt was 6. The class is divided into two distinct sections. constitutional interpretation and, perhaps, construction,6 is apparent from the text of the document itself.7 While several parts of the Constitution do not lend themselves to much debate about their preferred interpretation,8 m uch of the Constitution is broadly worded, leaving ample room for the Keith E. Whittington . The Court, in … By Patrick Chappatte First, it refers to general theories of the Constitution, which deal with the overall structure of the government, the relations among the branches, and the relation between the national and state governments. 2. constitutional interpretation.' 120 3. View 8 - ppt1.pdf from LAW 5522 at Florida State University. We would like to show you a description here but the site won’t allow us. Selected Theories of Constitutional Interpretation Congressional Research Service 2 theories should be applied.8 Further, judges or justices do not generally limit themselves to one mode of analysis, but, rather, select tools of interpretation based on the nature of the issue at hand. theory and practice of legislation and statutory interpretation. The second purpose of this Theories of constitutional interpretation are different ways of interpreting the Constitution of the United States. Constitutional interpretation, or constitutional construction, the term more often used by the Founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. constitutional theory. There's no such thing as a literal interpretation of the Constitution If there is a legal creed of American conservatism, it is originalism: the literal interpretation of the Constitution,... Rather, the doctrine seems to arise from a misunderstanding of the Just Compensation Clause as guaranteeing a laissez-faire political economy. • Federalist No. 4 Makwanyane was chosen because the Court had to deal with the undefined rights and values articulated by the Interim Constitution. interpretation and a theory of law — is more difficult to satisfy than might initially appear because the most widely-held theory of law is inconsistent with any controversial theory of legal interpretation. kewhitt@princeton.edu . theory and practice of legislation and statutory interpretation. Theories of Constitutional Interpretation Modern democracy invites us to replace the notion of a regime founded upon laws, of a legitimate power, by the notion of a regime founded upon the legitimacy of a debate as to what is legitimate and what is illegitimate-a debate which is necessarily without any guarantor and without any end. The Hollow Core of Constitutional Theory is the first major defense of the central role of the Framers' intentions in constitutional interpretation to appear in years. Judicial interpretation refers to how the judiciary construes the law, particularly constitutional documents, legislation and frequently used vocabulary.This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review. In sum, the propriety of modern constitutional avoidance in executive branch stat-utory interpretation depends, first, on which theory of avoidance one chooses. See id. Followers of originalism believe that the Constitution should be interpreted at the time that the Framers drafted the document. Eight Reasons to be an Originalist 1. (arguing that “[t]he constitutional guarantees require ” the actual malice rule). Although there are many divergent theories of constitutional interpretation, this article considers three theories that differ significantly in their views of the judiciary’s role and considers how adopting each theory might affect the confirmation process. POL 565 – Theories of Judicial Review Spring 2017 Keith E. Whittington M 1:30-4:20 240 Corwin Hall, 258-3453 127 Corwin Hall kewhitt@princeton.edu Perhaps the central issue in academic constitutional theory in the twentieth century has concerned the proper scope and legitimacy of judicial review. 4 . In the US, where the Constitution has been regarded in almost reverential terms, theoretical discussion of constitutional interpretation has an elevated status.5 High drama of Supreme Court appointments has focused on such questions as … theories of constitutional interpretation. Making use of arguments drawn from American history, political philosophy, and literary theory, he examines what it means to interpret a written constitution and how the courts should go about that task. INTRODUCTION 114 2. On the first day of each week, we will discuss major theories of statutory interpretation. This paper explores what it means to formulate and assess theories about law and the interpretation of authoritative sources of law. Important Theories of Constitutionalism are 1. On the first day of each week, we will discuss major theories of statutory interpretation. In particular, the paper looks closely at the idea of ‘explanatory power’ as a way of understanding the kinds of criteria by which legal theories … 23 Proponents of both theories generally share the goal of adhering to Congress's intended meaning, but disagree about how best to achieve that goal. 3 Theoretical multi-functionality Frank Michelman16 identifies literalism, intentionalism, purposivism instrumentalism and moralism as theories of constitutional interpretation in … I have placed all theories discussed in one of two categories: interpretist or noninterpretivist. The constitutional enforcement theory, in contrast, is not institutionally spe-cific. This course is concerned with examining the nature of constitutionalism. constitutional interpretation.17 This article does not present a unified constitutional property theory for intellectual property rights. The Constitution has transformed the process of statutory interpretation in South Africa and there has been an emerging jurisprudence that mandates a new methodology. What does it require, and what does it forbid? Sandalow, Terrance 1981 Constitutional Interpretation. They began to articulate a theory of interpretation that stressed the obligation of the judge to apply constitutional interpretation shortly after the commencement of the Interim Constitution (IC) in 1994. throughout the constitution. Constitutional amendment procedures can perform these generative and trumping func-tions in two principal ways: first, by changing the textual basis for subsequent processes of constitutional interpretation by judicial and executive actors; and second, by creating a clearer Constitutional 1. Principle of territorial nexus. In presenting his thesis, Judge Sutton intentionally declines to analyze particular mainstream theories of constitutional interpretation, but maintains that they are all compatible with the book’s message. This course is concerned with examining the nature of constitutionalism. 10 See generally Justice B M Selway, ‘Methodologies of Constitutional Interpretation in the High Court of Australia’ (2003) 14 Public Law Review 234. This value preference was stability and strength as systems. Though the Constitution is widely credited for the success of the United States’ republican democracy, people often disagree about how it should be interpreted. Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. There is general agreement that the first three of these sources are appropriate guides to interpretation… under the judicial restraint theory, modern avoidance seems inapplicable in the executive branch. kewhitt@princeton.edu . the purpose (spirit, function, point, value) served by … History & Theory 8:3–53. Principle of eclipse. Understand, explain and critically analyse the various principles, theories and techniques relevant to the process of legal interpretation Apply the different methods of interpretation to the interpretation of legislation and court judgments Understand the nature of constitutional interpretation … Critical theories, both hard and democratic, represent a serious challenge not only to conventional theories and established practices of constitutional interpretation, but to the very idea of constitutionalism itself—the idea that government can and should be limited in ways that serve to protect us from unwarranted state power. Of course, other scholars may have different categories, but these largely overlap these six forms. But although these indications in the Constitution have been used to support various theories of interpretation, the reasoning underlying them is not commanded by the Constitution itself. The third or "modern" period, from 1937 until the present, developed new activist theories of constitutional interpretation and judicial review. The use of international law in constitutional interpretation and adjudication is itself highly controversial, and has given rise to some heated judicial Footnote 88 and academic discussions. Judges have taken a variety of approaches to resolving the meaning of a statute. It seems to me that there aren't widely-known distinct theories of state constitutional interpretation. Skinner, Quentin 1969 Meaning and Understanding in the History of Ideas. This article is organized around three basic interpretative questions: 9 . Open PDF in Browser. The second main section of the chapter focuses on the authorized interpreters of the Final Constitution. Constitutional Reform Processes and Political Parties Principles for Practice This publication provides a set of guiding principles for constitutional reform based on practical experiences of constitutional reform processes in a number of countries (Bolivia, Ghana, Indonesia, Iraq, Kenya, Malawi, Zimbabwe and … Principle of pith and substance. This paper also attempts to analyze the way in which these theories of constitutional interpretation are implemented by the United …
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