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Constitutional Interpretation Notes

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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 o 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 o Stable o Written (sometimes) o Superior and justiciable o Entrenched o 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 o 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) o Some authority/obligation is natural regardless of consent - eg parents over children o 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?
o 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 o 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 o From moral authority of makers to morality of rule itself o 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 o That perspective removes 'mandate' for moral-based living constitution approach o 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 o Should those decisions be given a certain character separate from other decisions also?
NB — Raz's "source thesis"
 Competing theses about nature of law o 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 o 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) o 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

o 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 o 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 incompatible o Dworkin's Coherence Thesis — law cannot be best moral view of directive, as that view is not that of the agent (fails agency condition); and merely redirects consideration to the reasons (fails identification condition) IE Law under "service conception" makes human interaction predictable by providing consistent reasons for action rather than idiosyncratic reasons of every individual Raz optimistically says that it is the success rather than the power of the law that determines its authority

Hart's rule of recognition
 Hart's legal positivism suggests that law is divorced from morality
 But query whether Rule of Recognition can survive without moral support o Fuller & Dworkin — law can only be interpreted with regard to social or political morality and is not self-contained o Coleman's "inclusive legal positivism" — controversial moral problems form part of the law o Raz's "exclusive legal positivism" — law is freestanding from morals and need not rely on moral 'backstop'

Constitutional interpretation Statutory interpretation
 Difference in power relations between courts & parliament in

o Constitutional judicial review (hinging on interpretation of constitutional terms) - courts are strong o Statutory interpretation - legislature can override unfavourable interpretation Democratic foundation - dead hand critique o Constitution is manifestation of will of dead people o Legislation is manifestation of will of the current elected parliament Matters imputed to intention don't apply in constitutional context o Legislation - assumed that construe for internal inconsistency &
consistency with previous statutes Principle of legality (in the Lacey v AG) sense has reference to norms of a constitutional nature so can't apply to constitutional interpretation Constitution undertakes a momentous task in a short document o To set out in accurate detail, would have to be a 'monumental code': McCulloch v Maryland per Marshall CJ o Necessarily is in general terms & open to interpretation Constitutions entrenched & envisaged that will last o Kavanagh argues that this requires them to change in other ways o Stagnation of formal constitutional amendment defies its appeal to democracy
 good argument for not entrenching too much, and leaving interpretation of fixed terms open — but not good argument for amending informally in a fundamental way (eg implied freedom, 71-44)

Originalism Originalism - where ambiguous, constitutional interpretation to be guided by framers' intention
 BUT NB Common ground between originalists & non-originalists that Constitution means what framers intended it to mean - just differences in way in which language carries meaning o Arguments against at least unexpressed intent originalism share the same objective as originalism - say that more likely to give effect to intent of framers by reference to text than by seeking out mythical collective intent Arguments For originalism - indirect arguments
 = that originalism one answer to difficulties of interpretation - that originalism shares particular advantage with other methods of interpretation - negative advantages (excluding others methods)
 Constraint of judicial power - makes judges interpret/discover law rather than create by reference to moral/political convictions - judicial review inevitably creates danger of arbitrary power & originalism minimises danger - rule of law roots of argument o NB insufficient argument - could also be constrained by deference to legislature, public mores or academic opinion

BUT there are other reasons not to defer to them: judicial independence (legislature/public); representation & democratic structures (academic) o Other manifestations of same argument
 Predictability & stability
 Curbs discretion
 Eschews subjective/value-laden adjudication o BUT exaggerates the matter - judges constrained at least by
 Own precedents
 Linguistic constraints of words - 'cruel & unusual' is not 'expensive & ineffectual'
 Need to reason interpretively - not from tabula rasa that the legislature has at its hands
 Judicial conventions (eg extent of deference to parliament, departure from previous decisions)
 BUT Scalia would equate living constitutionalism with the dispensation of these conventions
 Can only affect laws that arise in matters coming before them
 BUT Scalia would say this gives perverse outcomes in inter partes litigation — eg not necessarily most meritorious case that gets leave to appeal
 Generally only negative function - can invalidate legislation but can't make specific rules
 At least in the case of Bill of Rights
 Inverse of Scalia's objection that judicial intervention weakens democratic government Argument from democracy - judges not democratically elected so should follow will of Framers, enacted by the people o Again insufficient argument - focuses on vices it avoids rather than virtues it achieves o Prevents illegitimate constitutional change o Interestingly - argument can also be mobilised against reference to 'unexpressed intent', or even conventions etc - Scalia: incompatible with democratic gov to have meaning determined by what the lawgiver meant rather than what he promulgated Arguments don't prove supremacy of originalism - but embody powerful objection to judicial review & risk of arbitrary power

For originalism - direct argument for originalism
= link between framers' intent & good interpretation - positive advantages (identifying as only proper method) Words derive meaning from the way in which people use them - we ordinarily ascertain a speaker's intention to determine meaning
 Constitution is akin to individual speaking o BUT
 difficult to ascertain collective thought - may be no such collective reasoning

EG - only a few years after 1st amendment, Sedition Act 1798 enacted - same people argued about whether free speech included freedom from prosecution for speech - also shows an intention to enact in general terms and entrust interpretation to judges
 Reference to vague 'intentions' is actually more likely to present contrived answer
 Purpose of legislative process is to achieve consensus - danger of reference to intent is that there may be a reason why it isn't in the enacted text - not supported by majority Meaning in speech is (at least partly) a result of / determined by intentions o Not confined to terms with normative or moral meaning - eg "use of firearms" (Smith v US (1993) USSC - selling a firearm for drugs - use of firearm gives higher sentence) - or more distinctly, homonyms (eg bow, bay) - plainly given meaning by context & intention o BUT
 not wholly - expressions are made in general terms because not intended to be exhaustive Interpretation seeks to establish meaning So constitutional interpretation seeks to establish meaning, which requires reference to intentions

= enactment process (incl debates etc) is the means by which lawmakers make intentions authoritative - essential link between laws & views on what ought to be done by rulers
 BUT the purpose of the lawmaking process is to o Curb abuse of law-making power by making parliament democratically accountable o Refine content of laws
 Need for restraints on legislative power is the justification for onerous legislative processes - therefore should respect boundary between what has legal force & what doesn't - otherwise tearing away those safeguards - subvert the enactment process required by democracy Against originalism
 Justification for originalism is elusive — must show why intentions are relevant without referring to intentions — can't say founders intended their intentions to be relevant
 Interpretation cannot be equated with discovery/description — evaluative judgments cannot be avoided o Choosing method of interpretation involves evaluative choices o Terms are tied to evaluative ground o IE relying on framer's interpretation doesn't avoid evaluative judgment either
 Instrumental o Disincentive for lawmakers to carry out task diligently & responsibly - if underlying 'intentions' eg in debates can be used to clarify

This doesn't have much force - unlikely that legislators would be content to rely on judges to correctly find intentions o More cynically - could create incentive for manipulation of committee reports, parliamentary debates etc - even law commission reports by unelected administrators o Would elevate private correspondence to constitutional status - undermines the rule of law where it is most important - clear, knowable laws - as reason to rule out private motives as relevant to meaning Normative o Dead hand argument - accept the purpose and meaning but not the content of words that are bound to moral ground that shifts over time
 Obviously not a complete objection - otherwise we wouldn't entrench at all - the purpose of which is precisely to bind with a dead hand "Epistemic" difficulties - reaction to positive arguments above o "Framer" = drafters / members of Convention / people ratifying?
o How to ascertain intentions? Collective group & long ago - how to evidence - ratification debates / private memoires?
Positive law - Does not reflect many important US cases

For non-originalism / "Living Tree" constitutionalism
 Instrumental - experience shows that judges interpreting terms as requiring evaluative moral judgment tend to produce better outcomes o Justification with reference to outcome is not totally empty in light of historical experience - Communist Party Case, Implied freedom of pol com in Aus; Brown v Education Board (segregated schools) o Scalia's list of examples are matters that restrict 'democratic government', but usually increase individual liberties: eg exclusion of evidence obtained by unlawful search; no prohibition of pornography; no imposition of property requirements for franchise
 Restrictions on democratic legislative power generally enhance liberties of citizen
 No necessary reason why it should be this way - but does reveal a tendency of people under a democracy to sign away their liberties o BUT NB of course some interpretations reduce individual rights
 Maryland v Craig (1990) - right to confront witnesses did not require personal confrontation & allowed testimony by child from remote facility
 Nothing has changed except for social values - and this right was not rooted in evaluative term - just 'right to confront' - while 'cruel' has changed, 'confront' has not o Good example of living tree textualism
 Property rights, right to bear arms in US Const; Jury trial on indictment in Aus
 May not consider unfavourable

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