Reading 'Rights' Rightly: The Role of Judges in Constitutional Interpretation

2018 ◽  
Author(s):  
Feng Ming Kho
Keyword(s):  
Constitutional Interpretation

Prejudice, Moral Progress, and Not Being on the Wrong Side of History

2020 ◽  
pp. 127-153
Author(s):  
Linda C. McClain
Keyword(s):  
White Supremacy ◽  
Well Being ◽  
Moral Progress ◽  
Constitutional Interpretation ◽  
Same Sex ◽  
Majority Opinion ◽  
Same Sex Couples ◽  
Wrong Side ◽  
The Supreme Court

This chapter argues that evaluating the arguments the parties made in Loving v. Virginia (1967), the iconic case in which the Supreme Court struck down Virginia’s anti-miscegenation law, aids in understanding puzzles about bigotry. Virginia attempted a modern, sociological defense of its racist law. Loving illustrates the role of generational moral progress in constitutional interpretation: laws justified by appeals to nature, God’s plan for the races, and children’s well-being were repudiated as rooted in racial prejudice, intolerance, and white supremacy. The chapter then considers Loving’s crucial (but contested) role in constitutional challenges to bars on same-sex marriage, first analyzing the successful challenge to Virginia’s defense of marriage law. It then analyzes the majority opinion in Obergefell v. Hodges, holding that same-sex couples have a fundamental right to marry; the dissenters argued Loving was inapt. The chapter concludes by discussing the role of moral progress and new insight in constitutional interpretation.

scholarly journals O Papel da Interpretação Constitucional na Jurisdição Constitucional Brasileira e no Judicial Review Norte-Americano: um Estudo Comparado

2012 ◽  
Vol 7 (1) ◽  
Author(s):  
Isabella Karla Lima dos Santos
Keyword(s):  
Judicial Review ◽  
Conceptual Analysis ◽  
Control Model ◽  
Fundamental Rights ◽  
Constitutional Interpretation ◽  
Constitutional Courts ◽  
Democratic State ◽  
The Will ◽  
Key Aspects

Resumo: Este trabalho busca analisar o instituto da Interpretação Constitucional no direito americano e brasileiro, de maneira comparada. Nosso objetivo é demonstrar as semelhanças e diferenças entre os dois países, no que diz respeito ao âmbito de incidência da interpretação constitucional e ao espaço de liberdade conferido ao intérprete judicial, bem como demonstrar a influência do modelo de controle de constitucionalidade norte-americano (difuso) sobre o brasileiro (misto). Para tanto, iremos fazer uma breve análise conceitual sobre aspectos fundamentais ao entendimento do tema deste trabalho e, em seguida, estudaremos os modelos de controle de constitucionalidade dos dois países de modo comparado, com ênfase no papel do intérprete constitucional e o seu âmbito de atuação dentro de cada modelo. Buscamos demonstrar que o fundamental não é o modo como se interpreta a Constituição, mas o resultado obtido, que deve ser sempre a efetivação dos direitos fundamentais. Tanto o Judiciário americano quanto o brasileiro recebem críticas quanto ao caráter contramajoritário de suas decisões, contudo, deixamos claro que um Estado Democrático de Direito se faz não só através do respeito à vontade da maioria, mas também quando há a concretização dos direitos fundamentais dos cidadãos por meio das decisões das Cortes Constitucionais. Palavras-chave: Direito Comparado; Jurisdição Constitucional; Judicial Review of Legislation; Interpretação Constitucional; Direitos Fundamentais. Abstract: This paper seeks to analyse the Constitutional Interpretation Institute in American and Brazilian Law, comparative way. Our goal is to demonstrate the similarities and differences between the two countries, with regard to the scope of constitutional interpretation and impact to the area of freedom conferred upon the court interpreter, as well as demonstrate the influence of constitutionality control model (diffuse) on the Brazilian (mixed). To this end, we will do a brief conceptual analysis on key aspects to understanding of the topic of this work and then we will study the models of judicial review of the two countries so compared with emphasis on the role of constitutional interpreter and its scope of action within each model. We seek to demonstrate that the key is not how to interpret the Constitution, but the results obtained, which should always be the practice of fundamental rights. Both the American and Brazilian Courts receive criticism about the against majority character of their decisions, however, we are clear that a democratic State of law is made not only by respecting the will of the majority, but also when there is the realization of the fundamental rights of citizens by means of decisions of Constitutional Courts. Keywords: Comparative Law; Constitutional Jurisdiction; Judicial Review of Legislation; Constitutional Interpretation; Fundamental Rights.

In defence of judicial innovation and constitutional evolution

2017 ◽  
Author(s):  
Fiona de Londras
Keyword(s):  
Judicial Power ◽  
Constitutional Interpretation ◽  
Final Word ◽  
Constitutional Evolution ◽  
Constitutional Tradition

Fiona de Londras’ chapter argues that judicial innovation is an important and legitimate part of constitutional evolution, taking into account the broader constitutional tradition and structure within which Irish superior courts operate. de Londras defends judicial power generally based on her claims that it leads to better outcomes and that it should be understood as just one part of a broader and ongoing constitutional ‘eco-system’. This chapter mounts a defence of such innovation, arguing that persistent discomfort is founded on (a) an over-weighting of the role of the courts and failure to recognise the ecosystemic nature of constitutional interpretation, (b) a restricted conception of the constitution that underplays its teleological nature, and (c) a misrecognition of judicial pronouncements as ‘the final word’.

scholarly journals Mechanisms of Constitutional Control: A Preliminary Observation of the Ethiopian System

Afrika Focus ◽  
2007 ◽  
Vol 20 (1-2) ◽  
pp. 75-104 ◽  
Author(s):  
Getahun Kassa
Keyword(s):  
Preliminary Observation ◽  
Regional Level ◽  
Actual Practice ◽  
Constitutional Interpretation ◽  
Federal Level ◽  
State Institutions ◽  
Regional State ◽  
Constitutional Adjudication

Mechanisms of Constitutional Control: A preliminary observation of the Ethiopian system The present mechanism of constitutional adjudication in Ethiopia demonstrates unique features. The mechanism does not belong to any of the constitutional adjudication models operating in other countries. However, a well-developed system of constitutional adjudication is lacking in actual practice. The federal and regional state organs that exercise the power of constitutional control, i.e. the Council of Constitutional Inquiry and the House of Federation at the federal level and the Constitutional Interpretation Commissions, Council of Nationalities and Councils of Constitutional Inquiry at the regional level, are not functioning fully and, moreover, are not moving at equal pace. In some regional states, the institutions competent for constitutional control, though mentioned in the regional constitutions, are not even established yet. In other regions, these institutions have been established, but are not operating in practice. Besides, a challenge of judicial overlap is likely to emerge when the regional organs start to execute their task of constitutional control. Since no mechanism is devised to delimit the respective competences of the federal and state organs, overlap between federal and state institutions is inevitable. Furthermore, there is no clear guidance with regards to the role of the judiciary on matters that involve determination of constitutionality.

scholarly journals The Framers' Muse on Republicanism, the Supreme Court,and Pragmatic Constitutional Interpretivism

1991 ◽  
Vol 53 (2) ◽  
pp. 251-288 ◽  
Author(s):  
David M. O'Brien
Keyword(s):  
Conceptual Change ◽  
Supreme Court ◽  
The Political ◽  
Constitutional Interpretation ◽  
The Supreme Court ◽  
Novel Theory ◽  
Republican Government ◽  
Republican Liberty ◽  
Republican Theory

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.

Dworkin's “Originalism”: The Role of Intentions in Constitutional Interpretation

2000 ◽  
Vol 62 (2) ◽  
pp. 197-229 ◽  
Author(s):  
Keith E. Whittington
Keyword(s):  
Normative Reasons ◽  
Constitutional Interpretation ◽  
Primary Focus

Ronald Dworkin's effort to distinguish multiple layers of “intention” that are embedded in the constitutional text has been taken as a substantial critique of traditional originalist jurisprudence. Dworkin has strongly argued that the constitutional text embodies abstract principles. These principles are understood to be both fundamental to the Founders' intentions and the primary focus of correct constitutional interpretation faithful to those intentions. This article argues that Dworkin's reconceptualization of originalism is theoretically flawed. Although there may be normative reasons for preferring that the judiciary always enforce broad constitutional principles, such a jurisprudence cannot be understood as either consistent with or required by an originalist interpretative method whose primary commitment is to fidelity to founding intent.

A Living Truth

2017 ◽  
Author(s):  
Robert A. Burt
Keyword(s):  
Supreme Court ◽  
Social Role ◽  
Constitutional Interpretation ◽  
Social Agent ◽  
Original Language ◽  
The Concept Of Law ◽  
The U.S ◽  
Concept Of Law

This chapter discusses the concept of law and the legal and social role of the courts—especially the U.S. Supreme Court—as a moral and social agent for change, particularly in protecting the minority or the disadvantaged in society as opposed to favoring the strong or majority. This raises questions about who is the majority or minority or the stronger or the weaker, and who decides the answers to these questions. The chapter shows how restricting constitutional interpretation to the specific meanings of the original language is too narrow and, given the majestic generalities of that language, even conflicts with the original authors' intentions. But then again, freeing judges from objectively determinative standards excessively opens them to confusing personal preferences with enduring constitutional values.

5 India: From Positivism to Structuralism

2007 ◽  
Author(s):  
Sathe S P
Keyword(s):  
Judicial Review ◽  
Social Order ◽  
Separation Of Powers ◽  
Early Years ◽  
Legal Positivism ◽  
Constitutional Amendment ◽  
Constitutional Interpretation ◽  
Bill Of Rights ◽  
Constituent Assembly

The constitution of India is not merely a law prescribing a division of power and limits to power, but contains a bill of rights and positive directions to the State to establish a just social order. It incorporates the essential aspects of parliamentary democracy, federalism, provisions regarding inter-state trade, and commerce, among other features. This chapter discusses the salient features of the Indian constitution, directive principles, separation of powers, constitutional amendment, judicial review, problems and methods of constitutional interpretation, positivist and structuralist interpretation, constituent assembly and the role of the judiciary, legal positivism of the early years, external aids to interpretation, resolution of conflicts between constitutional provisions, freedom of religion, powers and privileges of legislatures, affirmative action for the weaker sections of society, freedom of speech, property rights, post-emergency judicial activism, independence of the judiciary, the court as a political institution, and institutional and cultural factors underlying constitutional interpretation.

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