Constitutional Interpretation
Monday, November 08, 2010
Nelson Dordelly Rosales, Laws Doctoral Candidate, Fourth Year, 2010.
University of Ottawa, Canada ¶ 1:59 PM 0 Comments
Wednesday, December 14, 2005
Discretion and Wisdom in Constitutional Interpretation
References:
1 P. Hogg, Constitutional Law of Canada (Toronto: Thomson, Carswell, 1997), Looseleaf at 7-8.
2 Neil Craik and Craig Forcese, eds., Public Law: Cases, Materials, and Commentary (Toronto: Emond Montgomery, 2006)
3 Luc Tremblay, The Rule of Law, Justice and Interpretation (Montreal: McGill-Queen's University Press, 1997)
4 Robert D. Cooter, The Strategic Constitution (New Jersey: Princeton University Press, 2000)
5 P. Hogg, Constitutional Law of Canada (Toronto: Thomson, Carswell, 1997), Looseleaf at 7-8.
6 Neil Craik and Craig Forcese, eds., Public Law: Cases, Materials, and Commentary (Toronto: Emond Montgomery, 2006)
7 Luc Tremblay, The Rule of Law, Justice and Interpretation (Montreal: McGill)
8 Robert D. Cooter, The Strategic Constitution (New Jersey: Princeton University Press, 2000) at “Human Rights,” Columbia Law School. Online:
http://www.law.columbia.edu/llm_jsd/grad_studies/courses/Human_Rights
9 Jeffrey Goldsworthy (ed.) Interpreting constitutions A Comparative Study (Oxford: university Press, 2007) at 3
http://www.texaslrev.com/seealso/index.php?option=com_content&task=view&id=35
10 Legal Theory Lexicon 055: Principles in Constitutional Theory
The Problem:
When studying constitutional law, students are likely to be exposed to the idea that interpretation of Venezuelan Constitution may include reference to what are sometimes called rule of law principles or "constitutional principles"--general and abstract normative ideas that can aid or guide attempts to glean meaning from the text and may even provide reasons for decisions in constitutional cases. For example, interpretation of the principle of freedom of expression.
What are constitutional principles? How do they relate to legal theory more generally? Where do they come from?
is it another way of describe a constitutional "rule" or "standard"? do principles relate to prudence" or "pragmatisim? are they general and abstract normative propositions that are not themselves part of the constitutional text?
(See Wechsler's famous conception of "neutral principles" of constitutional law. See Weschler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959). ) Or we might use the phrase to pick out matters of "principle" that are to be distinguished from matters of "p." This Lexicon entry will focus on a more specialized or technical meaning of "principle."
How to use the phrase, "constitutional principles"? I think it will be the principles of the rule of law entrenched or not in the text of the constitution.
"Constitutional principles can be distinguished from rules and standards of constitutional law--principles provide normative guidance at a higher level of abstraction and generality than do "hard edged" constitutional rules or more "open textured" constitutional standards." This use of principle is related to Ronald Dworkin's use in his early essay Hard Cases and in his book on constitutional theory, A Matter of Principle.
For an example of sophisticated use of "constitutional principles," by a contemporary legal theorist, check out the links Jack Balkin's work on the method of "text and principle" at the end of this Lexicon entry.
Where to constitutional principles come from?
Or to put the question just a bit differently, what are the sources of constitutional principles? Let's focus on three ways in which we might derive a constitutional principle: from the text of the constitution, its structure or one part of the constitution, from the structure of government, the intent of the founding fathers, the society values...
Below is an explanation taken textually of LEXICON:
"The Role of Constitutional Principles in Constitutional Interpretation
What role do (or should) constitutional principles play in the interpretation of the constitution and in its application to particular cases, either inside or outside the courts? This is a complex issue, but we can simplify it by contrasting two uses of constitutional principle--which I shall call "direct" and "textualist."
Direct Application of Constitutional Principle Constitutional principles might be considered to play a role in constitutional interpretation that is equal or even superior to the role of the text. Here, in schematic form, is how it might go:
Step One: Identify a constitutional principle (on the basis of (a) the text of a specific clause, (b) a structural feature of the constitution, or (c) some extra-constitutional consideration of political morality or constitutional theory.
Step Two: Apply the constitutional principle directly to a question of constitutional law, using the principle as the justification for a constitutional rule or doctrine that resolves a particular case. Textualist Use of Constitutional Principles There is an alternative way that constitutional principles might play a role in constitutional interpretation or adjudication. A "textualist" use of constitutional principle might proceed as follows: Step One: Determine the relevant textual provisions of the constitution. If these provisions are neither ambiguous nor vague with respect to constitutional question at hand, then apply the text, but if there is relevant vagueness or ambiguity, then proceed to step two.
Step Two: Identify the constitutional principles that are relevant to the meaning of the vague or ambiguous constitutional provision. Step Three: Resolve the ambiguity and/or adopt a construction of the vague provision on the basis of the relevant principle (or principles).Step Four: Apply the disambiguated provision or the vagueness-resolving construction to the constitutional question at issue.
The Difference Between Direct and Textualist Use of Constitutional Principles
Most readers will immediately grasp the theoretical significance of the distinction between direct and textualist use of constitutional principles. Some theories of constitutitional interpretation insist that the text of the constitution plays an essential role in constitutional law. "Textualism" or "original meaning originalism," for example, insist that the linguistic meaning of the constitution is given by the "original public meaning" of the constitutional text. It might be thought that these theories are inconsistent with constitutional principles, but, as we have seen, this is not necessarily the case. If constitutional principles are used to resolve ambiguity or vagueness, then their use may be entirely consistent with an approach that gives pride of place to the original public meaning of the constitutional text.On the other hand, there are alternative constitutional theories that seem more consistent with the direct use of constitutional principles. For example, some forms of original intentions originalism conceptualize the original intentions of the framers as general principles: these principles (or intentions) can then be applied directly to resolve particular cases. Similarly, Ronald Dworkin's approach to constitutional interpretation could be understood as consistent with the direct approach to constitutional principle."
The rule of law is an ancient ideal first posited by Plato as grounded in divine reason and so inherent in the natural order. Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written constitution. The contrast between the rule of men and the rule of law is first found in Plato's Statesman and Laws and subsequently in Aristotle's Politics, where the rule of law implies both obedience to positive law and formal checks and balances on rulers and magistrates
Legal equality — All individuals are given the same rights without distinction to their social stature, religion, political opinions, etc. That is, as Montesquieu would have it, "law should be like death, which spares no one."
Important reference:
Vol. 16 No. 4 (April, 2006), pp.271-276
INTERPRETATION AND LEGAL THEORY (rev. 2d ed), by Andrei Marmor. Oxford and Portland, Oregon: Hart Publishing, 2005. 185pp.
Another Proposal:
There is a set of problems with judicial review and the character of constitutional interpretation at the Supreme Court in Venezuela. The problems fall into the following broad categories: legal theory, fundamental rights, constitutional interpretation. In response to these problems, I will offer an analysis of the constitution and Court’s jurisprudence focusing on the right to freedom of expression. I will argue in favour of the power of a holistic view of legal integrity to strengthening constitutional rights protection.
This thesis will deal with the relationship between legal theory and the interpretive practice. This study attempts to bridge the gap between judicial review theories (positivism theory and natural law philosophy) and the protection of rights and freedoms. In particular, I will study the way in which Venezuelan judges articulate judicial integrity concept in the language of constitutional interpretation philosophy for the protection of freedom of expression. This research will lead to bridge the gap between current theory of integrity (that it is incomplete as a theory of how the constitution ought to be interpreted and applied over time) and the protection of rights (such as freedom of expression that is not completely guaranteed, due to a problem of interpretive disagreement) in Venezuela. This study will help to appreciate the importance of the concept of legal integrity in constitutional interpretation. Integrity is a legal value and a virtue which should be practised in legal interpretation to guarantee rights. In this study I argue that the Venezuelan constitution is a living text. To improve, it ought to take into consideration criteria of integrity as it evolves. In Venezuela the theory of integrity is incomplete as a theory of how the Constitution ought to be interpreted and applied over time. The current debate among legal scholars is focused upon the following questions: Is judicial review a legal theory or a political power or both? How the constitution ought to be interpreted to ensure the protection of rights and freedoms? In this study, I will determine whether a central tenet of holistic criteria of legal integrity, the focus on rights, can lead to a solution. It is an important objective that this inevitable tension should be a creative tension. With this in mind, this study searches multifaceted interpretive criteria of integrity (i.e., independence and freedom; justification or reasonability; "universalisability; propriety and consistency; coherence and equality; competence, diligence and progressiveness; the "generous and purposive" modes of interpretation, among others) referring both to the Venezuelan Constitution, the human rights principles and values from universal law (that help form the Venezuelan fundamental law) and to the work of judges and theoretical writers. The search is for an innovative approach intended as a contribution to give judges a real chance to be independent so that judicial review can be more closely aligned with the constitutional principles, the abstract demands of justice and to the immediate needs of society.
This study will be both, descriptive and prescriptive. It will benefit by starting with an examination of primary sources, which are the Constitution and Constitutional Chamber’s decisions before proceeding to secondary resources. Case law analysis comprises a detailed examination of judicial review practices. Analysis of the constitution and the function of judicial review serve as the basis for constructing a new vision for constitutional interpretation of rights.
Key words: judicial review, human rights, freedom of expression, legal integrity, judicial independence, constitutionalism, Venezuelan Supreme Court.
Freedom is the right to choose: the right to create for yourself the alternatives of choice. Without the possibility of choice and the exercise of choice a man is not a man but a member, an instrument, a thing.
— Archibald MacLeish ¶ 9:26 AM 1 Comments
References:
1 P. Hogg, Constitutional Law of Canada (Toronto: Thomson, Carswell, 1997), Looseleaf at 7-8.
2 Neil Craik and Craig Forcese, eds., Public Law: Cases, Materials, and Commentary (Toronto: Emond Montgomery, 2006)
3 Luc Tremblay, The Rule of Law, Justice and Interpretation (Montreal: McGill-Queen's University Press, 1997)
4 Robert D. Cooter, The Strategic Constitution (New Jersey: Princeton University Press, 2000)
5 P. Hogg, Constitutional Law of Canada (Toronto: Thomson, Carswell, 1997), Looseleaf at 7-8.
6 Neil Craik and Craig Forcese, eds., Public Law: Cases, Materials, and Commentary (Toronto: Emond Montgomery, 2006)
7 Luc Tremblay, The Rule of Law, Justice and Interpretation (Montreal: McGill)
8 Robert D. Cooter, The Strategic Constitution (New Jersey: Princeton University Press, 2000) at “Human Rights,” Columbia Law School. Online:
http://www.law.columbia.edu/llm_jsd/grad_studies/courses/Human_Rights
9 Jeffrey Goldsworthy (ed.) Interpreting constitutions A Comparative Study (Oxford: university Press, 2007) at 3
http://www.texaslrev.com/seealso/index.php?option=com_content&task=view&id=35
10 Legal Theory Lexicon 055: Principles in Constitutional Theory
The Problem:
When studying constitutional law, students are likely to be exposed to the idea that interpretation of Venezuelan Constitution may include reference to what are sometimes called rule of law principles or "constitutional principles"--general and abstract normative ideas that can aid or guide attempts to glean meaning from the text and may even provide reasons for decisions in constitutional cases. For example, interpretation of the principle of freedom of expression.
What are constitutional principles? How do they relate to legal theory more generally? Where do they come from?
is it another way of describe a constitutional "rule" or "standard"? do principles relate to prudence" or "pragmatisim? are they general and abstract normative propositions that are not themselves part of the constitutional text?
(See Wechsler's famous conception of "neutral principles" of constitutional law. See Weschler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959). ) Or we might use the phrase to pick out matters of "principle" that are to be distinguished from matters of "p." This Lexicon entry will focus on a more specialized or technical meaning of "principle."
How to use the phrase, "constitutional principles"? I think it will be the principles of the rule of law entrenched or not in the text of the constitution.
"Constitutional principles can be distinguished from rules and standards of constitutional law--principles provide normative guidance at a higher level of abstraction and generality than do "hard edged" constitutional rules or more "open textured" constitutional standards." This use of principle is related to Ronald Dworkin's use in his early essay Hard Cases and in his book on constitutional theory, A Matter of Principle.
For an example of sophisticated use of "constitutional principles," by a contemporary legal theorist, check out the links Jack Balkin's work on the method of "text and principle" at the end of this Lexicon entry.
Where to constitutional principles come from?
Or to put the question just a bit differently, what are the sources of constitutional principles? Let's focus on three ways in which we might derive a constitutional principle: from the text of the constitution, its structure or one part of the constitution, from the structure of government, the intent of the founding fathers, the society values...
Below is an explanation taken textually of LEXICON:
"The Role of Constitutional Principles in Constitutional Interpretation
What role do (or should) constitutional principles play in the interpretation of the constitution and in its application to particular cases, either inside or outside the courts? This is a complex issue, but we can simplify it by contrasting two uses of constitutional principle--which I shall call "direct" and "textualist."
Direct Application of Constitutional Principle Constitutional principles might be considered to play a role in constitutional interpretation that is equal or even superior to the role of the text. Here, in schematic form, is how it might go:
Step One: Identify a constitutional principle (on the basis of (a) the text of a specific clause, (b) a structural feature of the constitution, or (c) some extra-constitutional consideration of political morality or constitutional theory.
Step Two: Apply the constitutional principle directly to a question of constitutional law, using the principle as the justification for a constitutional rule or doctrine that resolves a particular case. Textualist Use of Constitutional Principles There is an alternative way that constitutional principles might play a role in constitutional interpretation or adjudication. A "textualist" use of constitutional principle might proceed as follows: Step One: Determine the relevant textual provisions of the constitution. If these provisions are neither ambiguous nor vague with respect to constitutional question at hand, then apply the text, but if there is relevant vagueness or ambiguity, then proceed to step two.
Step Two: Identify the constitutional principles that are relevant to the meaning of the vague or ambiguous constitutional provision. Step Three: Resolve the ambiguity and/or adopt a construction of the vague provision on the basis of the relevant principle (or principles).Step Four: Apply the disambiguated provision or the vagueness-resolving construction to the constitutional question at issue.
The Difference Between Direct and Textualist Use of Constitutional Principles
Most readers will immediately grasp the theoretical significance of the distinction between direct and textualist use of constitutional principles. Some theories of constitutitional interpretation insist that the text of the constitution plays an essential role in constitutional law. "Textualism" or "original meaning originalism," for example, insist that the linguistic meaning of the constitution is given by the "original public meaning" of the constitutional text. It might be thought that these theories are inconsistent with constitutional principles, but, as we have seen, this is not necessarily the case. If constitutional principles are used to resolve ambiguity or vagueness, then their use may be entirely consistent with an approach that gives pride of place to the original public meaning of the constitutional text.On the other hand, there are alternative constitutional theories that seem more consistent with the direct use of constitutional principles. For example, some forms of original intentions originalism conceptualize the original intentions of the framers as general principles: these principles (or intentions) can then be applied directly to resolve particular cases. Similarly, Ronald Dworkin's approach to constitutional interpretation could be understood as consistent with the direct approach to constitutional principle."
The rule of law is an ancient ideal first posited by Plato as grounded in divine reason and so inherent in the natural order. Perhaps the most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written constitution. The contrast between the rule of men and the rule of law is first found in Plato's Statesman and Laws and subsequently in Aristotle's Politics, where the rule of law implies both obedience to positive law and formal checks and balances on rulers and magistrates
Legal equality — All individuals are given the same rights without distinction to their social stature, religion, political opinions, etc. That is, as Montesquieu would have it, "law should be like death, which spares no one."
Important reference:
Vol. 16 No. 4 (April, 2006), pp.271-276
INTERPRETATION AND LEGAL THEORY (rev. 2d ed), by Andrei Marmor. Oxford and Portland, Oregon: Hart Publishing, 2005. 185pp.
Another Proposal:
There is a set of problems with judicial review and the character of constitutional interpretation at the Supreme Court in Venezuela. The problems fall into the following broad categories: legal theory, fundamental rights, constitutional interpretation. In response to these problems, I will offer an analysis of the constitution and Court’s jurisprudence focusing on the right to freedom of expression. I will argue in favour of the power of a holistic view of legal integrity to strengthening constitutional rights protection.
This thesis will deal with the relationship between legal theory and the interpretive practice. This study attempts to bridge the gap between judicial review theories (positivism theory and natural law philosophy) and the protection of rights and freedoms. In particular, I will study the way in which Venezuelan judges articulate judicial integrity concept in the language of constitutional interpretation philosophy for the protection of freedom of expression. This research will lead to bridge the gap between current theory of integrity (that it is incomplete as a theory of how the constitution ought to be interpreted and applied over time) and the protection of rights (such as freedom of expression that is not completely guaranteed, due to a problem of interpretive disagreement) in Venezuela. This study will help to appreciate the importance of the concept of legal integrity in constitutional interpretation. Integrity is a legal value and a virtue which should be practised in legal interpretation to guarantee rights. In this study I argue that the Venezuelan constitution is a living text. To improve, it ought to take into consideration criteria of integrity as it evolves. In Venezuela the theory of integrity is incomplete as a theory of how the Constitution ought to be interpreted and applied over time. The current debate among legal scholars is focused upon the following questions: Is judicial review a legal theory or a political power or both? How the constitution ought to be interpreted to ensure the protection of rights and freedoms? In this study, I will determine whether a central tenet of holistic criteria of legal integrity, the focus on rights, can lead to a solution. It is an important objective that this inevitable tension should be a creative tension. With this in mind, this study searches multifaceted interpretive criteria of integrity (i.e., independence and freedom; justification or reasonability; "universalisability; propriety and consistency; coherence and equality; competence, diligence and progressiveness; the "generous and purposive" modes of interpretation, among others) referring both to the Venezuelan Constitution, the human rights principles and values from universal law (that help form the Venezuelan fundamental law) and to the work of judges and theoretical writers. The search is for an innovative approach intended as a contribution to give judges a real chance to be independent so that judicial review can be more closely aligned with the constitutional principles, the abstract demands of justice and to the immediate needs of society.
This study will be both, descriptive and prescriptive. It will benefit by starting with an examination of primary sources, which are the Constitution and Constitutional Chamber’s decisions before proceeding to secondary resources. Case law analysis comprises a detailed examination of judicial review practices. Analysis of the constitution and the function of judicial review serve as the basis for constructing a new vision for constitutional interpretation of rights.
Key words: judicial review, human rights, freedom of expression, legal integrity, judicial independence, constitutionalism, Venezuelan Supreme Court.
Freedom is the right to choose: the right to create for yourself the alternatives of choice. Without the possibility of choice and the exercise of choice a man is not a man but a member, an instrument, a thing.
— Archibald MacLeish ¶ 9:26 AM 1 Comments
