Political jurisprudence or neutral principles: another look at the problem of constitutional interpretation (original) (raw)

Political Constitutionalism and Judicial Review

The principal academic challenge to the legitimacy of judicial review is presently the work of political constitutionalists. Their main focus hitherto has been constitutional review, but there is now also literature challenging non-constitutional review, which is explored in this paper. The structure of the argument is as follows. In part one the political constitutionalist argument against constitutional review is considered. I do not claim to add to the sophisticated literature on this issue, but its relevance to the Human Rights Act 1998 will be considered. The implications of political constitutionalism for judicial review in administrative law are however much less well-developed. Thus parts two and three critically assess what are termed the radical and moderate view of political constitutionalism. In part four legal constitutionalism is revisited and a moderate view thereof is presented that best captures the legitimacy of judicial review in administrative law, and provides a...

Political constitutionalism and the judicial role: A response

International Journal of Constitutional Law, 2011

This article considers arguments advanced by political constitutionalists concerning judicial review of the kind commonly associated with administrative law. Political constitutionalists have hitherto been critical of particular judicial decisions, but have not proffered any coherent theory as to the scope and nature of such judicial review. The article begins by considering four challenges that must be met by a political constitutionalist who wishes to confine administrative law judicial review. The focus then shifts to the work of Adam Tomkins, who is to be credited for articulating a political constitutionalist thesis as to the scope of judicial review. It is, however, argued in the remainder of the article that this thesis is neither coherent nor consistent.

The Legitimacy of the Constitutional Judge and Theories of Interpretation in the United States

The American Journal of Comparative Law, 1994

7. Max Farrand, The Framing of the Constitution of the United States 156-7 (1913); see the participants' notes collected in, Jane Butzner (ed.) Constitutional Chaff 147-152 (1941). 8. For ratification: e.g., The Federalist No. 78, at 464 (Rossiter ed. 1961) (A. Hamilton); against ratification: "Brutus," in Herbert Storing (ed.), 2 The Complete Anti-Federalist 417 ff. (1981); see, e.g., Raoul Berger, Congress v. The Supreme Court 120 ff. (1969). 9. Strongest textual inferences are drawn from Art. III ยง 2 cl. 1, extending the judicial power of the U.S. to cases "arising under this Constitution", and Art. VI par. 2, the Supremacy Clause, quoted n. 3 above. 10. 5 U.S. (1 Cranch) 137 (1803). 11. This conception of judicial constitutional review as an integral element of the judicial law-finding process, and of the Constitution as supreme ordinary law, drew heavily on the English common law tradition. On the relevance of the common law tradition to the Framers' conception of judicial review see Powell, "The Original Understanding of Original Intent," 98 Harv. L. Rev. 885, 894 ff. (1985). For an argument that Marbury in this sense did indeed effect a major transformation of the earlier understanding, in that it called for routine application of a document originally expected and intended to be enforced only as a last resort against clear violation, see Sylvia Snowiss, Judicial Review and the Law of the Constitution (1990), critically reviewed by Newmyer in 9 Const. Comm. 126 (1992). Marbury is discussed further infra, text at notes 40 if. 12. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Marbury v. Madison, 5 U.S. at 170.

The Role of Non-Judicial Actors in Upholding the Constitution

Constitutional Review in Europe , 2014

This chapter canvasses the role of non-judicial actors in upholding the constitution and critically examines the nature of their involvement. Section II explores the contribution made by Councils of State and chancellors of justice. These institutions are independent of the government and, amongst other things, are tasked to provide it and Parliament with advice on the constitutionality of draft legislation. Section III discusses how Parliament can go about upholding the constitution in the course of its activities, and devotes considerable attention to the special parliamentary committees that exist in Finland and the United Kingdom which scrutinise bills for constitutionality. Section IV considers heads of state and in particular their ability to refuse to sign a new piece of legislation on the ground that it contravenes the constitution. Section V contemplates the role of the people and explains how public discourse and public opinion, the media and academia can impact on the meaning given to constitutional provisions and principles by bodies such as parliaments, constitution-makers and constitutional courts. Section VI offers some concluding remarks. First, it emphasises that we should remember when a matter is placed before the court, usually there has already been consideration of and debate about the meaning of the relevant constitutional provisions and whether a given legal rule lies within constitutional boundaries. In other words, courts usually do not adjudicate constitutional issues ex nihilo. Second, while non-judicial actors typically lack the power to enforce their views on the constitutional validity or compatibility of a legal rule on other State organs de cure, their views may carry considerable weight de facto. In particular, the opinions provided by councils of state, chancellors of justice and the views of the Finnish and UK intra-parliamentary committees for constitutional scrutiny in practice exert significant influence on the way in which the political branches of government approach and deal with constitutional issues.

A Political Reading of the Constitution

Student Scholarship Papers, 2009

Constitutional theory greatly benefits by the use of intellectual resources from disciplines such as political theory and philosophy of language. In this work, such elements are combined to elaborate on the agenda of constitutional theory and distinguish it from other projects. The emphasis is put on the possibility of understanding the constitution as a political grammar, providing its users-the participants of the politico-constitutional process broadly speaking-with syntactic rules and semantic signposts to formulate their ideas, projects, strategies. This view can account for the radical instability of constitutional meaning-in other words, disagreement-by pointing to the so-called separation of signifier and signified made prominent by contemporary philosophy, reinforced by the fact that the recursiveness and self-reference of written language makes the syntactic functions of the constitution open to the same instability that its semantic contents have. Regarding the constitution, just as any other text, we can proclaim the death of the author.