Approaches to Constitutional Interpretation
Approaches to constitutional meaning are now connected with (politically or philosophically) partisan differences. But if this “approach hypothesis” was true, it would mean that any approach to the Constitution be partisan and that, since the Constitution does not indicate any particular approach any choice be arbitrary.
There is a pre-approach awareness of the Constitution, in the sense that people usually debate more on substantive questions rather than on interpretative questions. But this awareness is not about a “given thing” (an “objective Constitution”), but about what people personally see as the Constitution: de facto, anyone has a concrete idea about what Constitution is and what its provisions mean. But having such presuppositions means making a philosophic choice, that has to be explicated and defended, which means submission to philosophic processes.
The philosophic approach is the necessary basis, but it has also to be combined with other approaches in order to fully interpret the Constitution. The public debate reflects divisions not just about the meaning of specific constitutional provisions, but about the nature of the Constitution itself.
TEXTUALISM ➔ Plain words of the constitutional document.
CONSENSUALISM ➔ Current social consensus on what the words mean.
PHILOSOPHIC APPROACH ➔ Nature of things the words refer to / best understanding of concepts embodied in the words.
ORIGINALISM ➔ Intentions or original meanings of framers.
STRUCTURALISM ➔ Document’s arrangement of offices, powers, relationships.
DOCTRINALISM ➔ Doctrines of courts and judicial precedents.
PRAGMATISM ➔ Preferences of dominant political forces.
Continua a leggere:
- Successivo: Textualism and Consensualism
- Precedente: Dworkin’s Call for a Fusion of Constitutional Law and Moral Philosophy
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