This article discusses relatively established theories with respect to statutory and constitutional interpretation. Written constitutions and statutes provide authoritative directions for officials and citizens within liberal democracies. The article mentions that descriptive and normative theories connect with each other in critical respects. Statutory interpretation involves the construction and application of provisions adopted by legislatures. The theoretical questions about interpreting statutes and constitutions suggest more general questions about the meaning of human communications; and scholars of philosophy of language, linguistics, literary theory, and religious hermeneutics discuss analogous issues. This article discusses an important issue in statutory interpretation that is the nature and status of legislative intent. A vital aspect of the issue concerns the sources on which judges should draw. This article deals with central features of American constitutionalism as the situation within which to consider problems of constitutional interpretation.
The chapter addresses, first, the ontological issue of whether the interpretation of a constitution is fundamentally different than the construction of statutes. Based on a comparison of the Supreme Court of Canada decisions in constitutional interpretation, especially Charter cases, and the contemporary approach to statutory interpretation, endorsing Driedger’s modern principle, it is argued that a convergence of methodology has occurred. Second, recent developments in the domestic use of international law—that is interlegality—also show commonality in constitutional and statutory interpretation. The hypothesis is that recent case law on the operationalization of international normativity, far from supporting the end of the international/national divide, actually reaffirms the Westphalian paradigm. The contextual argument and the presumption of conformity, as interpretative tools, allow courts to be more flexible, indeed more permissive, in resorting to international law.
Mark E. Brandon
This chapter examines constitutionalism in the United States, with particular emphasis on its origins and the problems of constitutional failure. It begins with an overview of the origins of constitutionalism, from the ancient period to the Middle Ages and through the modern times. It then describes the characteristics of constitutionalism in the United States, focusing on the debates over the locus of the Constitution’s authority, the legitimacy of judicial review, and the phenomenon of constitutional change. It also discusses critical theories that have set themselves against aspects of U.S. constitutional norms or practices, if not against constitutionalism itself. Two types of critical scholarship are considered: the first radically questions whether the very direction and constraint that constitutionalism demands or presupposes are possible, and the second includes theories that view the Constitution as an instrument for establishing or preserving certain hierarchies, whether of class, race, or sex (or all three).
This chapter identifies the methods and techniques that characterize judicial reasoning about constitutional law in Australia, as well as significant points of agreement and disagreement thereof. Here, ‘constitutional reasoning’ refers to the explanation and justification given to the application of constitutional principles to specific circumstances. In common law systems, constitutional reasoning is most commonly understood as ‘judicial reasoning’. In Australia, its focus is usually the Constitution of the Commonwealth. However, not all constitutional reasoning takes this form. In particular, the chapter focuses only on the narrower conception of constitutional reasoning as judicial reasoning. This focus is justified partly by central tenets of Australian constitutionalism itself. Unlike the in the United States, the courts' power to interpret and enforce the Constitution has never been the subject of serious controversy.
Constitutional courts have made a fundamental contribution in clarifying the domestic binding force of the European Convention on Human Rights, in spite of the divergences as to its status in domestic law. This article examines the status of the Convention in domestic legal systems, which remains a question of constitutional law; and the status and implementation of the judgments of the European Court of Human Rights. It looks at four domestic systems, selected for their particular relevance. Three of them have a written constitution (Germany, France, and Belgium) and the fourth, the United Kingdom, has a human rights ‘catalogue’ (the Human Rights Act 1998) comparable to a constitution.