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.

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.

Restoring the Lost Constitution

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Supreme Court ◽  
Gravitational Force ◽  
Fourteenth Amendment ◽  
Popular Sovereignty ◽  
Original Meaning ◽  
Commerce Clause ◽  
The People ◽  
The Supreme Court ◽  
The One ◽  
Constitutional Legitimacy

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.

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.

The Fiction of “We the People”: Is the Constitution Binding on Us?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
United States ◽  
United States Of America ◽  
The United States ◽  
Popular Sovereignty ◽  
The People ◽  
We The People ◽  
Constitutional Legitimacy

This chapter explains why the consent of the governed cannot justify a duty to obey the laws. The Constitution begins with the statement, “We the People of the United States...do ordain and establish this Constitution for the United States of America.” The founders declared that “We the People” had exercised their rights and manifested their consent to be ruled by the institutions “constituted” by this document. To understand what constitutional legitimacy requires, the chapter first considers what it means to assert that a constitution is “binding” before making the case that “We the People” is a fiction. More specifically, it challenges the idea, sometimes referred to as “popular sovereignty,” that the Constitution was or is legitimate because it was established by “We the People” or the “consent of the governed.” It argues that the fiction of “We the People” can prove dangerous in practice and can nurture unwarranted criticisms of the Constitution's legitimacy.

Why Care What the Constitution Says?

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
Fourteenth Amendment ◽  
Natural Rights ◽  
Police Power ◽  
Original Meaning ◽  
Commerce Clause ◽  
Ninth Amendment ◽  
Constitutional Legitimacy ◽  
The U.S

This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.

The Unitary Executive

2021 ◽  
pp. 24-38
Author(s):  
Stephen Skowronek ◽  
John A. Dearborn ◽  
Desmond King
Keyword(s):  
Selection Procedure ◽  
Executive Branch ◽  
Executive Power ◽  
Unitary Theory ◽  
Complete Control ◽  
The People ◽  
Constitutional Meaning ◽  
Selection Mechanisms ◽  
Presidential Performance ◽  
The Relationship

This chapter examines the theory of the unitary executive and its deployment in the Trump presidency afgainst the specter of a Deep State. The theory asserts that the president possesses all the executive power, that the incumbent alone is the executive branch. The idea is that anything less than complete control over administration by that individual risks an obfuscation of responsibility, clouding the judgments on presidential performance that “the people” get to deliver retrospectively in the next election. This reading of the Constitution is often joined to a strikingly plebiscitary conception of American democracy. This chapter takes up two issues of special interest. The first is an alternative “republican reading” of the Constitution which anticipates inter-branch collaboration in the control of administrative power. The second is the relationship between the vesting clause of Article II, on which the unitary theory is based, and the selection procedure, which has changed radically since its original constitutional formulation. The chapter concludes by pointing to the distortions of constitutional meaning introduced by joining an expansive reading of the vesting clause to contemporary selection mechanisms.

Part IV Federalism, A Federalism in Canada, Ch.20 The Spending Power in Canada

2017 ◽  
Author(s):  
Kong Hoi L
Keyword(s):  
Federal Government ◽  
Constitutional Law ◽  
The Political ◽  
Federal Spending ◽  
Constitutional Interpretation ◽  
Middle Ground ◽  
Division Of Powers ◽  
Constitutional Legitimacy

In this chapter, I will argue that the Canadian Constitution authorizes the federal government to spend in areas of provincial jurisdiction and constrains the scope of this power. I will, moreover claim that effective enforcement of these limits requires that the judiciary recognize its institutional limits and that the political branches act with restraint. The arguments advanced will seek to occupy a middle ground, between proponents of an unlimited spending power and critics who would bind federal spending to the limits imposed by the legislative division of powers, strictly interpreted. In staking out this ground, I will undertake an approach to constitutional interpretation that closely examines the sources of constitutional law and carefully considers issues of institutional competence and constitutional legitimacy.

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.

scholarly journals STUDI DINAMIKA MEKANISME PILKADA DI INDONESIA DAN PERBANDINGAN MEKANISME PILKADA NEGARA LAINNYA

2015 ◽  
Vol 4 (1) ◽  
pp. 59
Author(s):  
Loura Hardjaloka
Keyword(s):  
Dynamic System ◽  
Local Council ◽  
Local Election ◽  
Direct Election ◽  
The People ◽  
The Future ◽  
Election System ◽  
Regional Leaders ◽  
Constitutional Meaning ◽  
Special Region

Frasa ” dipilih secara demokratis ” dalam Pasal 18 ayat (4) Undang-Undang Dasar 1945 selalu ditafsirkan bahwa pemilihan kepala daerah harus dilakukan secara langsung oleh rakyat. Untuk memahami tafsiran sesungguhnya, tulisan ini akan membahas mengenai tafsiran ketentuan tersebut terhadap mekanisme pemilihan kepala daerah, disamping itu akan dibahas pula dinamika pemilihan kepala daerah (termasuk di daerah istimewa) di Indonesia dari masa ke masa, dan perbandingan sistem pemilihan kepala daerah di negara lainnya. Melalui penelitian yuridis normatif, diketahui bahwa secara konstitusional makna frasa tersebut dapat diartikan dalam bentuk pemilihan langsung dan pemilihan oleh Dewan Perwakilan Rakyat Daerah. Terhadap mekanisme pemilihan kepala daerah di Negara lain pada dasarnya juga pernah diterapkan di Indonesia. Akan tetapi, berdasarkan kisruh yang terjadi beberapa lalu terkait pemilihan kepala daerah di Indonesia melalui pemilihan Dewan Perwakilan Rakyat Daerah memunculkan isyarat bahwa rakyat lebih puas dengan pemilihan langsung. Sebaliknya di daerah istimewa Yogyakarta, rakyat lebih puas untuk tetap menetapkan turunan Sultan yang menjadi pemimpin mereka. Dengan demikian, alangkah baiknya pemerintah memperhatikan aspirasi rakyat sebelum mengubah mekanisme pemilihan kepala daerah untuk meminimalisir terjadinya kisruh.<p>The phrase ”shall be elected democratically” in Article 18 paragraph (4) of the 1945 Constitution of Indonesia is always interpreted that regional leaders shall be elected directly by the people. According to that, this paper will discuss the provisions interpretation about election system for regional leaders, the dynamic system in the local election for regional leaders (including in special regions) in Indonesia, and comparison with other countries. Through normative juridical research, the constitutional meaning of the phrase can be interpreted both as direct election and election by the Local Council. The local election for regional leaders in other countries basically has been applied in Indonesia. However, based on the protest that occurred related to the election by the Local Council gave us a sign that people prefer direct election. Unlike in Yogyakarta, as a special region in Indonesia, the Yogya’s people prefer to be led by Sultan’s descendant. Thus, in the future, government should understand people’s will before changing the election system for regional leaders to minimize conflicts.</p>

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