The Principal Questions of Constitutional Interpretation
Interpreting the U.S. Constitution means starting from some clear assumptions:
- the Constitution, faithfully followed, would limit what the government may do;
- those limits can be known with reasonable confidence;
- reasonable persons would regard those limits in general as serving a paramount good.
The interaction among these assumptions make the fundamental questions about constitutional interpretation emerge, especially regarding the limits of the government. The main sources to see these assumptions at work are an article by W. Rehnquist (1976) and an article by R. Dworkin (1977), representing two different reactions to the behaviour of the Warren Court, which changed a lot the U.S. jurisprudence, creating many discussions due to its “reforms” (or “excesses”, according to the different points of view). However, it claimed fidelity to the Constitution, in the manner typical of courts.
Rehnquist (“narrow originalism”): disapproval of the actions of the Warren Court; disagreement with its claim to constitutional fidelity.
Dworkin (“philosophic approach”): approval of the actions of the Warren Court; agreement with its claim of constitutional fidelity.
“Living-Constitution liberal” (third position recognized by both authors): approval of the actions of the Warren Court; disagreement with its claim of constitutional fidelity.
Continua a leggere:
- Successivo: Rehnquist’s Criticism of the Notion of a “Living Constitution”
- Precedente: The Presuppositions of Constitutional Interpretation
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