Constitutional Interpretation Notes

11. Constitutional Interpretation: Originalism, Textualism and the Living Constitution

Interpretation must be more than reach free-standing moral judgment

Statutory <> Constitutional Interpretation

Particular aspects of Constitutions

• Constitutive – the thin sense of constitution

  • Raz – the rest of the reassuring characteristics only necessary where society requires it – not in a small homogenous stable country with good economy & quality of life

• Further aspects in the ‘thick’ sense

  • Stable

  • Written (sometimes)

  • Superior and justiciable

  • Entrenched

  • Holds common ideology (rights, federalism, etc)

Authority of Constitution

Hart – Constitution is a Rule of Recognition

• Authority derives from current practice of officials, not from authority of makers – can identify law without recourse to morality

  • Raz says Constitution is not the ultimate rule of recognition as can be amended

Consent – continuing (implicit) consent of the people

• Particularly antithetical to ‘dead hand’ conception of constitution

• But is a fiction – people do not actually give consent // and Raz says even if they do, it doesn’t necessarily give moral authority – just because citizens consent to be governed in immoral way does not make moral? (Boxer consent example)

  • Some authority/obligation is natural regardless of consent – eg parents over children

  • Some authority/obligation requires consent – eg promises

Legal authority of its makers?

• All other law derives authority from its makers – legislation, common law, decrees, regulations etc – but the makers of the (original) Constitution stand at the head of the stream of authority – so ratification by people?

  • What about very old legislation? Some avant-garde theorists consider that courts could legitimately rule old statutes to be ‘obsolete’ – vehemently denied by Scalia

• NB most revised constitutions come about by existing authority – authorised law reform agencies / colonial powers / powers of larger body from which succeeding – so conundrum applies only to truly original constitutions

Moral authority of makers – Raz – legal authority comes from moral authority

• Even the people as a whole have no particular legal authority except that derived from morals – eg if universal belief that God had anointed a particular individual or group, then morality would (arguably) require that person be given authority

• Moral authority generally taken for granted in chain of legal authority

• Follows that ‘dead hand’ versions of constitutional interpretation can’t stand – no one has moral authority over people centuries ahead

  • No particular person/institution has greater claim to moral judgment – laws cannot have enduring authority because of their own moral nature — sounds religious

• Also follows that at some point source of validity changes from moral authority of its makers to something else

  • From moral authority of makers to morality of rule itself

  • BUT that cannot mean that a constitutional rule has authority just because it is good — that was not true when it passed — for no amount of goodness can make a rule constitutionally binding if its makers lack moral authority

• Raz – decisions on meaning of Constitutional text also have to be morally justified – different in this way from ordinary statutory interpretation

• BUT in a more realistic sense it is the political not the moral claim to authority that gives legal authority to found a nation/constitution

  • That perspective removes ‘mandate’ for moral-based living constitution approach

  • In any even counterfactual is instructive — we wouldn’t accept that, if it is true, there is a mandate for political power-based amendments by interpretation

• Raz – constitution in thin sense is made up of decisions interpreting constitution as much as the document itself — most content is (inevitably) given to it by judges through interpretation

  • Should those decisions be given a certain character separate from other decisions also?

NB — Raz’s “source thesis”

• Competing theses about nature of law

  • Sources thesis — all law is source-based and can be determined by reference to social facts alone (Raz)

    • Legislation, custom, common law etc are social facts

    • IE law does not depend on morality

  • Incorporation thesis — all law is either source-based or entailed by source-based law (eg if law says “there shall be no discrimination”, content of prohibition can be determined only by reference to social facts or whatever is entailed by those social facts)

  • Coherence thesis — law consists of source-based law together with most morally sound justification of source-based law (Dworkin)

    • IE law does depend heavily on morality

• Nature of authority

  • Judges take reasons for actor’s actions into account (Dependence Thesis) and issue authoritative directive — if judge has authority, that directive usurps (at least in part) the place of reasons in the minds of actors (Pre-emption Thesis)

    • IE the authority does the work of weighing reasons for the actors

    • Normal Justification Thesis — normal way to show that an institution has authority over another is to show that the subject is morally better off by following the authority’s directives than by weighing & assessing reasons themselves

    • IE law only has authority where individuals relinquish their own power to choose

• To intelligibly claim authority (ie to be capable of performing mediating function), law must represent a view on how the subjects ought to behave (agency condition) and it must be possible to identify the directive distinct from its reasons (identification condition)

• The Source Thesis is consistent with these two conditions — legislation, common law etc is an agent’s view of an identified directive

  • <> Incorporation thesis — law cannot claim authority if it directs subjects to do everything entailed by its directives, because it includes doing things not attributable to the authority

    • BUT Raz seems to simultaneously prefer creative interpretation — seems...

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