Part II Negotiating Constitutionalism, Ch.5 Constitutional Interpretation

2016 ◽  
Author(s):  
Chandrachud Chintan
Keyword(s):  
Constitutional Interpretation ◽  
Indian Constitution ◽  
Constitutional Meaning ◽  
Tools And Techniques ◽  
Constitutional Jurisprudence

This chapter examines the question of interpretation with regard to the Indian Constitution. It begins with an overview of two meta-judgments underlying constitutional interpretation, the first of which relates to the legitimate source of the Constitution’s authority and the second to the tools and techniques that can be relied upon in order to expound constitutional meaning. It then considers the three historical phases of the Indian Supreme Court’s interpretive philosophy: textualism, structuralism and ethicalism, and panchayati eclecticism. It also explains how the Court started deciding cases based on self-conceptions of its own role, resulting in the adoption of various interpretive approaches that are not only incongruent, but also often producing incoherent constitutional jurisprudence.

Part IV Separation of Powers, Ch.21 Jurisdiction

2016 ◽  
Author(s):  
Vakil Raeesa
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Appellate Court ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Indian Constitution ◽  
The Supreme Court ◽  
Indian Supreme Court ◽  
Exercise Of Discretion

This chapter explores how the jurisdiction of the Indian Supreme Court has evolved as an appellate court, a constitutional court, and a ‘final’ court. It begins by reviewing the four kinds of appeal that may be heard by the Supreme Court as specified in the Indian Constitution: civil, criminal, questions of constitutional interpretation, and appeals by special leave of the Court. It then considers the uncertainty and expansion in the Supreme Court’s appellate jurisdiction, with particular emphasis on the imbalance in jurisdictional reforms, the absence of guidelines for the exercise of discretion, and inconsistency in implementing constitutional provisions. It also discusses the Court’s advisory jurisdiction, adjudication of federal disputes, and jurisdiction to interpret the Constitution, along with its power to enforce justice and its claim to inherent powers. The chapter concludes by outlining some of the challenges faced by the Court today.

scholarly journals Why Constitutional Meaning is not Necessarily Fixed - A Reply to Solum

2017 ◽  
Vol 1 (11) ◽  
Author(s):  
Katharina Stevens
Keyword(s):  
Fairy Tales ◽  
Constitutional Interpretation ◽  
Constitutional Meaning

Abstract:In this paper, I show that certain parts of constitutional texts can plausibly be thought of as having a meaning that changes and evolves on its own. This idea is widely rejected, especially but not only by a group of legal theorists who subscribe to a theory of constitutional interpretation called originalism. In a recent paper, the originalist Lawrence Solum has defended the so-called “fixation thesis”, according to which the meaning of the constitutional text is fixed when it was first enacted and does not change later on. Solum rejects the idea that the meaning of the constitutional text might evolve because he cannot identify a plausible way in which any text could have an evolving meaning. I argue that there are such texts and offer folk-fairy-tales as an example. I then go on to present reasons why constitutions can plausibly be considered to be texts that, like fairy-tales, change their meanings independently. 

Who Shall Interpret the Constitution?

1986 ◽  
Vol 49 ◽  
pp. 10-14
Author(s):  
Walter Murphy
Keyword(s):  
Political System ◽  
Constitutional Theory ◽  
Constitutional Interpretation ◽  
Warren Court ◽  
Constitutional Jurisprudence

The liberal legacy of the Warren Court, the turmoil within and around its successor, and the advent of the bicentennial of 1787 have increased popular as well as scholarly interest in constitutional theory in general and constitutional interpretation in particular. We are now being treated to a new and intense version of an old debate about the nature of the American political system and proper institutional roles in determining the meaning of the principles underlying the polity. This debate highlights not only issues of fundamental disagreement but also central questions that must first be addressed before one can construct a systematic constitutional jurisprudence or a coherent theory of constitutional interpretation.

The Constitutional Court in the Legal System of the Russian Federation

10.12737/1543 ◽  
2013 ◽  
pp. 5-13 ◽  
Author(s):  
Сергей Князев ◽  
Syergyey Knyazyev
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Constitutional Court ◽  
Legal Provisions ◽  
Russian State ◽  
The Russian Federation ◽  
Democratic Rule ◽  
Constitutional Meaning ◽  
Constitutional Jurisprudence

The article comprises the analysis of the role of the Constitutional Court of the Russian Federation in the process of formation of democratic, rule of law and social Russian state. The author focuses on the fact that it’s essentially the constitutional jurisprudence that makes it possible to develop the adequate perception of human rights as the primary constitutional value, to define the nature and to unfold the significance of the principles stipulated in the Constitution, to ensure the harmonization of Russian legislation with the commonly recognized principles and norms of International law, to delineate the constitutional meaning of legal provisions subjected to the Constitutional Court review.

Introduction

2021 ◽  
pp. 1-16
Author(s):  
George Thomas
Keyword(s):  
Supreme Court ◽  
The Political ◽  
Constitutional Interpretation ◽  
The Real ◽  
Original Meaning ◽  
Constitutional Meaning

The Introduction reveals that all constitutional interpretation rests on unwritten ideas, and that debates about these unwritten ideas are the real source of our disputes about how to faithfully interpret the Constitution. Beginning with the most prominent Supreme Court justices who argue for textualism and originalism, the Introduction makes visible the unwritten ideas that frame their understanding of America’s written Constitution. It also reveals an important split between the political and judicial understanding and practice of interpretation based on the text and original meaning of the Constitution and the scholarly disquisition around originalism and textualism. While scholarly advocates of textualism and originalism recognize the importance of constructing constitutional meaning from sparse text, this move is denied by judges and political defenders of originalism.

Constitutional Construction: Supplementing Original Meaning

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Constitutional Interpretation ◽  
Original Meaning ◽  
The People ◽  
Constitutional Construction ◽  
Constitutional Meaning ◽  
Constitutional Legitimacy

This chapter explains how constitutional interpretation, originalist or otherwise, does not always produce unambiguous rules of law that can be applied to cases. The Constitution requires more than originalist interpretation to be applied to cases and controversies. When interpretation has provided all the guidance it can but more guidance is needed, constitutional interpretation must be supplemented by constitutional construction—within the bounds established by original meaning. The chapter first considers the importance of construction to constitutional legitimacy before showing how construction fills the unavoidable gaps in constitutional meaning when interpretation has reached it limits. It argues that it is necessary to “construe” the Constitution in ways that effectuate its purposes but that do not contradict its original meaning. Constitutional constructions that are consistent with original meaning should be chosen to enhance the legitimacy of the laws that are going to be imposed on the people without their consent.

Constitution-As-Commons

2021 ◽  
Vol 120 (1) ◽  
pp. 232-241
Author(s):  
Kalpana Kannabiran
Keyword(s):  
Collective Action ◽  
Civic Engagement ◽  
State Legislatures ◽  
Constitutional Interpretation ◽  
The People ◽  
Political Expediency ◽  
The Commons ◽  
Constitutional Jurisprudence ◽  
We The People ◽  
Judicial Bias

Extrapolating from the ideas of Elinor Ostrom and scholars of the commons, the conceptualization of the Constitution as a commons opens the Constitution out to radical, insurgent readings that redefine belonging and ownership—it is no longer the property of state legislatures and courts to (mis)interpret in the service of political expediency/judicial bias/equivocation. It is the people who, through collective action and civic engagement, hold institutions to account and provide the tools and experiences that must shape constitutional interpretation. This article will examine the emergence of the constitution-as-commons as the space for a public, shared, collectively crafted jurisprudence of citizenship, occupying the commons of the nation and the commons that the Constitution in fact is, bringing space and belonging together in unanticipated ways. What are the implications for courts and for the futures of the Constitution of the rupture of a sequestered “constitutional jurisprudence” through the articulation of an expansive, inclusive constitution-as-commons by “we, the people?”

Recovering the Political Constitution: The Madisonian Vision

2004 ◽  
Vol 66 (2) ◽  
pp. 233-256 ◽  
Author(s):  
George Thomas
Keyword(s):  
Essential Feature ◽  
The Political ◽  
Constitutional Theory ◽  
Constitutional Interpretation ◽  
Proper Place ◽  
Constitutional Politics ◽  
Essential Step ◽  
Judicial Supremacy ◽  
Constitutional System ◽  
Constitutional Meaning

Constitutional theory has recently turned to the importance of extrajudicial constitutional interpretation. Yet much of the scholarly debate remains rooted in “legal” views of the Constitution, which continue to give primacy to the Court. This article seeks to go further by articulating a Madisonian view of the Constitution, which resituates questions of interpretation within a larger institutional framework. This Madisonian view suggests that the Constitution calls forth continual debate about constitutional meaning. The “settlement” of constitutional issues is not an essential feature of our constitutional system and, thus, constitutional politics with overlapping views, discontinuities, and essentially unsettled meanings are inherent features of the Madisonian Constitution. Recovering the Madisonian vision is an essential step in restoring both the political branches and the Court to the proper place in the constitutional scheme and, in doing so, overcoming the deeply ingrained myth of judicial supremacy.

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