Introduction

2021 ◽  
pp. 1-16
Author(s):  
George Thomas

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.

1991 ◽  
Vol 53 (2) ◽  
pp. 251-288 ◽  
Author(s):  
David M. O'Brien

The so-called Madisonian dilemma has dominated recent debates over the role of the Supreme Court and suggested a “majoritarian paradigm” for constitutional interpretation. But a reexamination of James Madison's unique contributions to republican theory indicates that the “Madisonian dilemma” is in many ways misleading and unfaithful to his political vision. Madison, argues the author in Section I, worked a conceptual change in republican theory. Madison did so because he was convinced that republican liberty (and government) was primarily threatened by popular majorities and legislative majoritarianism in Congress and the states. For that reason, Madison advanced his well-known “naturalist” argument for republicanism and, on that basis, argued for buttressing the political architecture of republican government with “auxiliary precautions” for securing republican liberty. From Madison's reconstruction of republicanism, Section II moves to his conversion to the project of amending the Constitution with a declaration of rights and the basis he laid for the Supreme Court's role in defending republican government and liberty. Finally, Section III takes up Madison's view of the role of the Supreme Court and his articulation of a novel theory of pragmatic constitutional interpretivism.


Author(s):  
Randy E. Barnett

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.


2004 ◽  
Vol 66 (2) ◽  
pp. 233-256 ◽  
Author(s):  
George Thomas

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.


1991 ◽  
Vol 30 (1) ◽  
pp. 95-99
Author(s):  
Ziaul Haque

After thirteen long years of military dictatorship, national elections on the basis of adult franchise were held in Pakistan in December 1970. The Awami League, led by Sheikh Mujibur Rahman, and the Pakistan Peoples Party, under Zulfiqar Ali Bhutto, emerged as the two majority political parties in East Pakistan and West Pakistan respectively. The political party commanding a majority in one wing of the country had almost no following in the other. This ended in a political and constitutional deadlock, since this split mandate and political exclusiveness gradually led to the parting of ways and political polarization. Power was not transferred to the majority party (that is, the Awami League) within the legally prescribed time; instead, in the wake of the political/ constitutional crisis, a civil war broke out in East Pakistan which soon led to an open war between India and Pakistan in December 1971. This ultimately resulted in the dismemberment of Pakistan, and in the creation of Bangladesh as a sovereign country. The book under review is a political study of the causes and consequences of this crisis and the war, based on a reconstruction of the real facts, historical events, political processes and developments. It candidly recapitulates the respective roles of the political elites (both of India and Pakistan), their leaders and governments, and assesses their perceptions of the real situation. It is an absorbing narrative of almost thirteen months, from 7 December, 1970, when elections were held in Pakistan, to 17 December, 1971 when the war ended after the Pakistani army's surrender to the Indian army in Dhaka (on December 16, 1971). The authors, who are trained political scientists, give fresh interpretations of these historical events and processes and relate them to the broader regional and global issues, thus assessing the crisis in a broader perspective. This change of perspective enhances our understanding of the problems the authors discuss. Their focus on the problems under discussion is sharp, cogent, enlightening, and circumspect, whether or not the reader agrees with their conclusions. The grasp of the source material is masterly; their narration of fast-moving political events is superbly anchored in their scientific methodology and political philosophy.


2017 ◽  
Vol 1 (1) ◽  
Author(s):  
Eko Wahyono ◽  
Rizka Amalia ◽  
Ikma Citra Ranteallo

This research further examines the video entitled “what is the truth about post-factual politics?” about the case in the United States related to Trump and in the UK related to Brexit. The phenomenon of Post truth/post factual also occurs in Indonesia as seen in the political struggle experienced by Ahok in the governor election (DKI Jakarta). Through Michel Foucault's approach to post truth with assertive logic, the mass media is constructed for the interested parties and ignores the real reality. The conclusion of this study indicates that new media was able to spread various discourses ranging from influencing the way of thoughts, behavior of society to the ideology adopted by a society.Keywords: Post factual, post truth, new media


2007 ◽  
Vol 35 (2) ◽  
pp. 697-709
Author(s):  
Jock Macleod

AS AN UNDERGRADUATE IN THE1970s, my introduction to the 1890s was perfunctory. Squeezed into a couple of weeks in the middle of a year-long course on “Victorian and Modern Literature,” the literature of the decade was reduced to aestheticism and decadence and presented as something of a preliminary to the real business of modernism. Such a focus reflected the scholarship of the time, in which thefin de sièclewas constructed as a moment of transition, one in which the political and socio-ethical dimensions so central to high Victorian literature were evacuated, as arguments for the autonomy of art came to dominate the literary cultural landscape. The organising principle was one of bifurcation: the separating out ofavant gardefrom bourgeois culture, the high from the low and, of particular relevance to this essay, literature from politics.


1913 ◽  
Vol 7 (2) ◽  
pp. 217-229 ◽  
Author(s):  
C. H. McIlwain

At the meeting of the Political Science Association last year, in the general discussion, on the subject of the recall, I was surprised and I must admit, a little shocked to hear our recall of judges compared to the English removal of judges on address of the houses of parliament.If we must compare unlike things, rather than place the recall beside the theory or the practice of the joint address, I should even prefer to compare it to a bill of attainder.In history, theory and practice the recall as we have it and the English removal by joint address have hardly anything in common, save the same general object.Though I may not (as I do not) believe in the recall of judges, this paper concerns itself not at all with that opinion, but only with the history and nature of the tenure of English judges, particularly as affected by the possibility of removal on address. I believe a study of that history will show that any attempt to force the address into a close resemblance to the recall, whether for the purpose of furthering or of discrediting the latter, is utterly misleading.In the history of the tenure of English judges the act of 12 and 13 William III, subsequently known as the Act of Settlement, is the greatest landmark. The history of the tenure naturally divides into two parts at the year 1711. In dealing with both parts, for the sake of brevity, I shall confine myself strictly to the judges who compose what since 1873 has been known as the supreme court of judicature.


Author(s):  
Tom Hickey

This chapter considers the record of the Irish Supreme Court in its constitutional policing of the two political ‘organs of State’. It outlines the basis upon which the judicial organ enjoys the authority to determine the limits of the powers of the Oireachtas and Government. It explores the various approaches taken by judges and courts in a selection of the main cases in the period 1970–2020. On the powers of Government—and the power of the judicial organ with respect to those powers—it considers the case of Crotty v An Taoiseach. As for the powers of the Oireachtas—and the judicial power in that context—the chapter looks at In re Haughey, Abbeylara and Angela Kerins. Overall, the analysis suggests that Irish judges have not been meek in their constitutional regulation of the political organs, although they have sought to limit their interventions to particular cases and contexts.


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