Constitutional Interpretation. The Basic Questions:

 
 
 
Constitutional Interpretation. The Basic Questions
di Luca Porcella
 
Course notes on "Constitutional Interpretation. The Basic Questions" of SA
Barber - J.E. Fleming presents the various approaches to interpreting the
Constitution.
 
Università: Libera Univ. Internaz. di Studi Soc. G.Carli-
(LUISS) di Roma
Facoltà: Scienze Politiche
Esame: Comparative Constitutional Law
Docente: Nicola Lupo e Carmela Decaro
Titolo del libro: Constitutional Interpretation. The Basic
Questions
Autore del libro: Sotirios A. Barber, James A. Fleming
Editore: Oxford University Press
Anno pubblicazione: 20071. The Presuppositions of Constitutional Interpretation
 
“Constitutional law” refers to a large body of legal propositions that form part of the “American
Constitution”. Each of these propositions is valid in the sense that the Supreme Court holds each to be true:
this is why constitutional law is often described as a sort of “history” of what the Supreme Court has said
about the Constitution, showing the strong impact of the Court on American life. 
 
Can the Constitution mean anything in and of itself, independently of the Court? 
It is a matter of discussion, and no certain answer can be given. However, Americans usually talk as the
Court can get the Constitution wrong, therefore presupposing that there is a meaning per se. From this
assumptions, some “second-order questions” arise: what does the Constitution refer to with some
expressions (like “equal protection”)? what is the Constitution? how should it be interpreted? who may
interpret it? which are the limits of constitutional interpretation? 
 
They are “second-order” (or interpretative questions) in order to be distinguished from the substantive
questions of constitutional law (e.g. is right to have an abortion?) that are most commonly discussed in the
public debate. However, they are compelling because they can strongly influence the law and the tradition,
defining the meaning of some expressions or rights (such as “liberty”) that are used as basic steps for
substantive matters. 
 
It is said that, unlike scientific questions, answers to constitutional questions have immediate political
implications that attract or repel us emotionally. However, scientific questions could have consequences no
less immediately political and emotional than constitutional questions, according to the circumstances (at the
time they were discussed, heliocentrism and geocentrism  were questions with high political implications,
differently from today). 
 
As for scientific questions, there is no reason to deny the possibility of constitutional truth, and therefore the
possibility to seek for it, with a specification: it is not possible to say that there is a moral reality, but the
enterprise of constitutional interpretation presupposes that conscientious interpreters are seeking the true
meaning or the best interpretation of the Constitution (without any ontological claim about moral reality or
the existence of a true meaning of the Constitution).  
Luca Porcella Sezione Appunti
Constitutional Interpretation. The Basic Questions 2. The Principal Questions of Constitutional Interpretation
 
What Is 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. 
Luca Porcella Sezione Appunti
Constitutional Interpretation. The Basic Questions