CONSTITUTIONAL INTERPRETATION V. STATUTORY INTERPRETATION: Understanding the Attractions of ‘Original Intent’

Legal Theory ◽  
2000 ◽  
Vol 6 (1) ◽  
pp. 109-126 ◽  
Author(s):  
James Allan
Keyword(s):  
Constitutional Interpretation ◽  
Statutory Interpretation ◽  
Original Intent

scholarly journals DISTINGUISHING CONSTITUTIONAL AND STATUTORY INTERPRETATION IN JUDICIAL REVIEW CASES: A BLURRED BOUNDARY LINE

2018 ◽  
Vol 18 (2) ◽  
pp. 235
Author(s):  
B Bisariyadi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Boundary Line ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Statutory Interpretation ◽  
Court Practice

The establishment of the Constitutional Court to hold power of reviewing the constitutionality of Laws raises discourse on the distinction between constitutional interpretation and statutory interpretation. In judicial review cases, the separation, either in common law or civil law tradition, between the two interpretations is not clearly distinguished. The Indonesian Constitutional Court, in judicial review decisions, shows that the Court does not only interpret constitutional provision. In a number of decisions, the Court has put more emphasis on the use of statutory interpretation. The essay discusses the Constitutional Court practice in the use of constitutional interpretation and statutory interpretation on judicial review cases.Keywords: Constitutional Court, judicial review, constitutional interpretation, statutory interpretation.

Constitutional Interpretation: An Originalism for Nonoriginalists

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Popular Sovereignty ◽  
Constitutional Interpretation ◽  
Original Intent ◽  
Original Meaning ◽  
Lock In ◽  
Constitutional Legitimacy

This chapter argues that the Constitution must be interpreted according to its original meaning. This method of interpretation is commonly known as “originalism,” which is often seen as following from popular sovereignty. The chapter suggests that originalism is entailed by a commitment to a written constitution, which is a vital means of subjecting lawmakers to limits on their lawmaking powers. The chapter first examines how considerations of constitutional legitimacy justify originalism before advancing a version of originalism that is based on “original meaning” rather than “original intent.” It explains how original meaning originalism avoids the prominent objections leveled at originalism. It shows that originalism is warranted because it is the best method to preserve or “lock in” a constitution that is initially legitimate because of what is says.

scholarly journals An Introduction to the Industrial Court

1976 ◽  
Vol 1 (2) ◽  
Author(s):  
Bill Hodge
Keyword(s):  
Statutory Interpretation ◽  
Original Intent ◽  
Conditions Of Employment

From 1894, when the Industrial Conciliation and Arbitration Act sprang from the Fabian brain of New Zealand’s first Minister of Labour, William Pernber Reeves, the Arbitration Court had both a judicial and an arbitral function; that is, after first arbitrating between the employers and the workers’ organisations and “awarding” them wages, hours and conditions of employment to live by, the Court could then don judicial garb and interpret those very same awards whenever disputes as to their meaning or application arose. An award is something akin to a statute. But the techniques of statutory interpretation were never a burden to the Arbitration Court, as the Court as law interpreter always understood the intent of the Court as law giver, and interstices could be filled according to the original intent of the parties.

Part VI Constitutional Theory, A Constitutional Interpretation, Ch.41 Constitutional Interpretation: On Issues of Ontology and of Interlegality

2017 ◽  
Author(s):  
Beaulac Stéphane
Keyword(s):  
International Law ◽  
Case Law ◽  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
Constitutional Interpretation ◽  
Statutory Interpretation ◽  
The Supreme Court ◽  
Recent Developments ◽  
Domestic Use ◽  
Contemporary Approach

The chapter addresses, first, the ontological issue of whether the interpretation of a constitution is fundamentally different than the construction of statutes. Based on a comparison of the Supreme Court of Canada decisions in constitutional interpretation, especially Charter cases, and the contemporary approach to statutory interpretation, endorsing Driedger’s modern principle, it is argued that a convergence of methodology has occurred. Second, recent developments in the domestic use of international law—that is interlegality—also show commonality in constitutional and statutory interpretation. The hypothesis is that recent case law on the operationalization of international normativity, far from supporting the end of the international/national divide, actually reaffirms the Westphalian paradigm. The contextual argument and the presumption of conformity, as interpretative tools, allow courts to be more flexible, indeed more permissive, in resorting to international law.

Constitutional Interpretation

2006 ◽  
Vol 39 (2) ◽  
pp. 35-50 ◽  
Author(s):  
Michel Troper
Keyword(s):  
Constitutional Interpretation ◽  
Statutory Interpretation ◽  
Distinctive Character ◽  
Frequent Use ◽  
The Moment

This Article explores the specificity of constitutional interpretation. It cannot be found in its object, but in the quality of the interpreters, the augmentative techniques it applies, and the standards it produces. The interpreters are not only courts, but also non-judicial authorities such as the Executive or the Parliament. Constitutional interpretation by these authorities tends to be exercised collectively. Although the methods that may be used for constitutional interpretation are the same as those used for statutory interpretation, one notices that there is more frequent use of certain types of arguments. But the most important distinctive character of constitutional interpretation lies in the nature of what it produces. Its output is the constitution. This is true first because by deciding what the meaning of the constitutional text is, the interpreter decides on the substance of the constitutional norm. But the interpreter also decides that a particular text, which until the moment of the decision had no legal value or had the value of a statute, has the meaning of a constitutional norm. At the same time he decides that by being a constitutional norm it prevails over other norms and decides what this supremacy entails. It can therefore be said that constitutional interpretation constitutes the Constitution.

Beguiled By Metaphors: The “Living Tree” and Originalist Constitutional Interpretation in Canada

2009 ◽  
Vol 22 (2) ◽  
pp. 331-354 ◽  
Author(s):  
Bradley W. Miller
Keyword(s):  
Supreme Court ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Constitutional Interpretation ◽  
Original Intent ◽  
Living Tree ◽  
New Family ◽  
The Supreme Court ◽  
Meaningful Engagement ◽  
The Moment

Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly rejected in the new originalist theories that have been developed principally (but not exclusively) in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 (and periodically reaffirmed thereafter), is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. By Keith E. Whittington. Lawrence: University Press of Kansas, 1999. 320p. $39.95.

2001 ◽  
Vol 95 (1) ◽  
pp. 208-209
Author(s):  
Judith A. Baer
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Partisan Politics ◽  
Constitutional Interpretation ◽  
Original Intent ◽  
Interpretive Method ◽  
Textual Meaning ◽  
Affirmative Defense

With friends like Edwin Meese and Robert Bork, "jurispru- dence of original intent" (p. 3) needs no enemies. These polemicists have so corrupted originalism by associating it with reactionary ideology and partisan politics that, in Keith Whittington's words, "the task now is to convince critics to take [it] seriously again" (p. xii). Constitutional Interpretation ably performs this task. Whittington's rescue of originalist jurisprudence from its strangest bedfellows in itself is a major contribution to the study of constitutional law. But, although originalism has found a genuine friend, the book's powerful argument against "dismissing originalism as an interpretive method" (p. 162) does not constitute an affirmative defense. Whittington's efforts to make this case are informative and provocative, but they fail. This failure is traceable to serious defects in both the structure and content of the book.

Sign in / Sign up

Export Citation Format

Share Document