Constitutional Interpretation and Change in the United States: The Official and the Unofficial

2015 ◽  
Author(s):  
Jack M. Balkin
Keyword(s):  
United States ◽  
The United States ◽  
Constitutional Interpretation

The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term

2015 ◽  
Vol 43 (3) ◽  
pp. 455-492 ◽  
Author(s):  
Rosalind Dixon
Keyword(s):  
United States ◽  
The United States ◽  
Functional Approach ◽  
Constitutional Interpretation ◽  
High Court ◽  
Functionalist Approach

A ‘functional’ approach to constitutional interpretation is well-accepted in many other jurisdictions, including the United States, and offers a promising middle path between the extremes of pure formalism and pragmatism. It is, however, under-developed as an approach to constitutional interpretation, rather than doctrine, in Australia. The article offers an exploration of what it would mean to adopt a more explicitly functionalist approach to the interpretation of the Constitution, drawing on constitutional cases decided by the High Court in 2014.

Book Review - David A. Strauss' The Living Constitution (2010)

2011 ◽  
Vol 12 (7) ◽  
pp. 1545-1552
Author(s):  
Artour Rostorotski
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Constitutional Change ◽  
Judicial Activism ◽  
Constitutional Interpretation

David Strauss' The Living Constitution addresses the issues of constitutional interpretation and judicial activism in the United States. The book supports the practice of Living Constitutionalism and attempts to demonstrate its advantages over Originalism. It presents general arguments as well as accounts of landmark decisions in order to demonstrate the superiority of Living Constitutionalism. The Living Constitution also argues for common law as the all-but-exclusive method for constitutional change in the modern United States. Overall, the book presents a well-organized and concise case for Living Constitutionalism.

I The Constitutional Court, 3 Forms and Methods of Judicial Reasoning

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
United States ◽  
The United States ◽  
Integrated System ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Judicial Reasoning ◽  
Constitutional Adjudication

Forms and methods of constitutional interpretation are less divisive in Italy than in the United States. In this chapter the interpretive style of the ItCC is described as “syncretistic” or “integrated” because the Court uses a combination of many different approaches to constitutional interpretation. The ItCC interprets the Constitution as a whole, as an integrated system, avoiding the fragmented interpretation of a single provision detached from the context and relationship with other principles, rules, and rights inscribed in the Constitution. This chapter also focuses on the concepts of reasonableness and proportionality, which are used synonymously in a way that is ancillary to many other constitutional principles, making them pervasive in constitutional adjudication. This chapter also studies the types of decisions of the constitutional court and their overall effects.

COMPARATIVE CONSTITUTIONAL INTERPRETATION OF RELIGIOUS FREEDOM

2020 ◽  
Vol 69 (3) ◽  
pp. 611-651 ◽  
Author(s):  
Stijn Smet
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Case Law ◽  
The United States ◽  
Constitutional Interpretation ◽  
Constitutional Courts

AbstractWhen adjudicating religious disputes, constitutional courts often resort to a particular discursive register. The notions ‘tolerance’ and ‘respect’ are an integral part of this religion-specific constitutional register. But what do judges mean when they deploy the language of tolerance and respect? And what substantive role, if any, do both notions play in the constitutional interpretation of religious freedom? This article seeks to answer these conceptual and substantive questions by comparing constitutional case law on religious freedom from India, Israel and the United States. It also provides linkages to ongoing processes of (alleged) constitutional retrogression in the three jurisdictions.

1 The United States: Eclecticism in the Service of Pragmatism

2007 ◽  
Author(s):  
Tushnet Mark
Keyword(s):  
United States ◽  
Structure Formation ◽  
The United States ◽  
Institutional Arrangements ◽  
Constitutional Amendment ◽  
Individual Autonomy ◽  
Constitutional Interpretation ◽  
The Supreme Court ◽  
Interpretive Methods ◽  
The U.S

The traditions of constitutional interpretation in the United States make it possible, and indeed relatively easy, to use interpretation as the vehicle for constitutional adaptation. The distinction between interpretation and alteration is accordingly quite thin. The interpretive traditions are decidedly eclectic. Interpretation relies on the words of the text as understood when they were made part of the constitution, general propositions about how institutional arrangements promote constitutionalism, ideas about the values of democracy and individual autonomy, and much more. This chapter looks at the U.S. constitution, its origins and structure, formation, and basis, as well as the legislature and the executive, the Supreme Court, constitutional amendment, problems and methods of constitutional interpretation, early examples of constitutional interpretation, considerations of administrability, (moderately) disfavoured interpretive methods, presumptive interpretation, preferred interpretive techniques, and eclecticism in practice.

The Intention of the Framers: A Note on Constitutional Interpretation

1955 ◽  
Vol 49 (2) ◽  
pp. 340-352 ◽  
Author(s):  
William Anderson
Keyword(s):  
United States ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Interpretation ◽  
Constitutional Analysis

In discussions of the United States Constitution, the phrase “the intention of the framers” is often used, but it is hardly ever adequately analyzed. The search for the intentions of the framers is made obviously in the hope of finding out what they meant by the words they put into the written Constitution. This leads to the examination of various evidences outside the Constitution, and implies a feeling that there is a lack of clarity in the words of that document.The discussion that follows was written in order, first, to raise some of the questions that I think have to be answered before the phrase about intentions can have fullness of meaning as a tool of constitutional analysis; second, to express certain warnings against a too-confident assumption that “the intention of the framers” can actually be known; and, third, to consider briefly the possible significance today of the intention of the framers in case it could be discovered.

scholarly journals Let's (Not) Make This Work! Why Stare Decisis Workability Should be a Sword but Not a Shield

2019 ◽  
Author(s):  
Audrey Lynn
Keyword(s):  
United States ◽  
Supreme Court ◽  
Separation Of Powers ◽  
The United States ◽  
United States Supreme ◽  
Constitutional Interpretation ◽  
Stare Decisis ◽  
The Supreme Court ◽  
Lower Courts ◽  
History Of

A factor of the United States Supreme Court’s stare decisis test, workability differentiates precedential rules that have proven easy for lower courts to apply in a consistent and fair manner from those that have not. This note addresses the question of whether workability is a legitimate reason for retaining a given interpretation of a statute. The Note begins by providing an illustration of what this Note will sometimes refer to as the “preservative use” of workability. The Note then lays out the history of workability as a consideration of stare decisis and describes how the factor has changed in recent decades. In so doing, its focus is on workability in the context of statutory interpretation. In order to explain the background and development of the factor, however, it is necessary to discuss specific cases in which the Supreme Court has applied workability in the context of constitutional interpretation. The two contexts must be differentiated for purposes of this Note because the thesis of this Note—i.e., that preserving an incorrect interpretation of a statute because of its relative workability violates separation of powers—has no parallel when a court interprets a constitution because in that case there is no inherent infringement on legislative power. This Note then explains why the change toward using workability to preserve erroneous precedent is not required logically, contravenes the basic purposes of stare decisis, and is constitutionally invalid as a violation of separation of powers. Finally, this Note proposes a new way to articulate the stare decisis test that does not discard workability as a consideration but precludes the preservative use criticized by this Note.

scholarly journals CANADIAN LIVING TREE DOCTRINE OF CONSTITUTIONAL INTERPRETATION

2020 ◽  
Vol 25 (3) ◽  
pp. 160-175
Author(s):  
Luiz henrique Diniz Araujo
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
Constitutional Interpretation ◽  
Living Tree

This paper aims to tackle the issue of constraints to constitutional interpretation in light of the Living Tree metaphor from the Canadian Constitutional Law. It further scrutinizes this doctrine in contrast to the Originalism and the Living Constitution doctrines developed in the United States. As a conclusion, the article acknowledges that the Living Tree metaphor has the merit for proposing a reconciliation between fixidity and flexibility in interpretation of the constitution. Nevertheless, in order to convey more objectivity and constraints to interpretation, it should be associated with consideration to precedents and incrementalism.

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