Focusing on practical application, constitutional law. This content was copied from view the original, and get the alreadycompleted solution here. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or. Constitution of the united states, document embodying the fundamental principles upon which the american republic is conducted. Roman constitutionalism is known to us through polibious. Kenny, justice susan the high court of australia and. However, many supreme court decisions have been actively opposed by significant segments of. Introduction scholars, judges and various others have sought to explain the processes of construing written constitutions. Principles of constitutional and statutory interpretation c. Styles of constitutional interpretation and the four main. The general principles of constitutional law in the united. Constitution on the same principles of interpretation as one applies to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the act which requires interpretation. Constitutional values and principles oxford handbooks. Constitutional law is the area of political science that examines the text and substance of the united states constitution and its development over the last 220 years.
Noah websters problem, and some others the practice of following a written constitution, increasingly common throughout the world, is puzzling on at least two levels. This higher law is usually referred to as a constitution. Methods of constitutional interpretation oxbridge notes. An interpretation that can be described as strict constructionism is one whereby justices would look at the precise wording on the constitution in order to gather a meaning. A professor at northern illinois university since receiving his ph. I959 principles of constitutional law i lowed in interpretation. Even when it seems it is clear, there can be conflicting rights and responsibilities.
Methods of constitutional interpretation in the system of checks and. Pdf constitutional interpretation in a globalised world. Constitutional interpretation law library of congress. Constitutional interpretation under the new south african order adrians janet hofmeyr a dissertation submitted to the faculty of law, university of the witwatersrand, johannesburg, in fulfilment of the requirements for the degree of master of laws johannesburg, 1998. If every constitutional question were to be decided by public political bargaining, madison argued, the constitution would be reduced to a battleground.
Since the constitution is a law, and the supreme law within its domain, and authorizes statutes and other official acts or authorities which have a textual expression article 2 1 of the constitution, the principles of constitutional interpretation. Constitutional law, interpretation, principles of interpretation. The constitution must be interpreted in a broad and literal sense. Democratic proponents advocate that the constitution is not designed to be a set of specific principles and guidelines, but that it was designed to be a general principle, a basic skeleton on which contemporary vision would build upon. Principles of constitutional construction constitutional interpretation, or constitutional construction, the term more often used by the founders, is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it.
The judge of the city of london court14 where he stated that ijf the words of an act are clear you must follow them, even though. I do not advocate a particular theory or method of legal interpretation. Even a relatively thin procedural constitution will say something about how a society sees itself and about who is included in and who is excluded from the nations selfnarrative. Since it is written in the form of a statute, the general principles of statutory interpretation are applicable to interpretation of the constitution as well. Common law constitutional interpretation but textualism and originalism remain inadequate models for understanding american constitutional law. Apr, 2017 constitutional interpretation, or constitutional construction, is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it. Drawn up at the constitutional convention in philadelphia in 1787, the constitution was signed on sept. A statute, which is a bill or law passed by the legislature, imposes obligations and rules on the people. If the words are clear and unambiguous, they must be given the full effect. The interpretation of the constitution is provided for under art. Time chart of the united states supreme court a1 appendix b.
There a numerous types of constitutional interpretation but the main ones are briefly outlined below. Rather, i derive principles that any tenable theory of legal interpretation must adhere to. It governs the interpretation and implementation of the constitution, as well as defining the scope of laws within its framework. Methods of constitutional interpretation outlines and revision materials. Indian judicial doctrines principles of constitutional. Proponents of a dynamic reading of the constitutionespousing interpretation of. Answer the following with 200 words or more based on the four approaches to the constitutional interpretation listed below. Constitutional courts, constitutional interpretation, and.
A supreme constitution must be given a generous and purposive interpretation. Shabalala v the attorneygeneral of transvaal nyamakazi v president of bophuthatswana. National values and principles of governance kenya. Section ii discusses the vexed nature of principles as sources of constitutional interpretation. An introduction to the constitutional principles of american government located in appendix a. The court and constitutional interpretation e qual justice.
Another mode of constitutional interpretation draws inferences from the design of the constitution. The vast majority of contemporary constitutions describe the basic principles of the state, the structures and processes of government and the fundamental rights of citizens in a higher law that cannot be unilaterally changed by an ordinary legislative act. Kenny, justice susan the high court of australia and modes of constitutional interpretation fca 2007 fedjschol 10 the high court of australia and modes of constitutional interpretation justice susan kenny. The political system of the united states and the foundation of all u. Methods of interpreting the constitution juridica international. Any act of government or any law that is inconsistent with the provisions of this constitution shall, to the extent of such inconsistency, be invalid. The principles for the interpretation of statutes are to be derived from the. Constitutional interpretation, or constitutional construction, the term more often used by the founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. It has to be remembered that it is a constitution that requires interpretation. The constitution of the united states d1 appendix e. Supreme court justices antonia scalia and stephen breyer discussed their judicial philosophies of constitutional and statutory interpretation and how they reach their decisions. This article considers some of the ways in which values and principles have influenced contemporary constitutional law and discourse.
The extension to the post constitutional law was stated in the case of dulare lodh vs adj kanpur. The roman constitutional according to polibious consisted ofrules supported by laws which in turn were supported by religion. Principles of constitutional interpretation people attempt to interpret the principles of the constitution constitutional interpretation and get it wrong because of faulty technique or. In a democratic society, questions of constitutional law require a political dialogue that involves all three branches of the national government, all fifty states, and the general public. There are five basic sources that have guided interpretation of the constitution. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or court decision. Interpretive divergence also arises from analysis of the values. The hon justice michael kirby ac cmg there are few issues of greater legal importance than the principles which should guide the interpretation of the australian constitution. Home constitutional law and history research guide. And madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. The following principles have frequently been discussed by the courts while interpreting the. Away from institutionalism and toward individualism 100.
Mar 31, 2017 principles of constitutional interpretation introduction. Ubiquitous in that universe is the common law, which, as sir owen dixon observed, supplies principles in aid of the interpretation of the constitution. Biographical chart of supreme court justices since 1900 b1 appendix c. Strauss, common law constitutional interpretation, 63 u. Constitutional framework and principles for interpretation. The letters of the constitution are fairly static and not very easy to change but the laws enacted by the legislature reflect the current state of people and are very dynamic. While an exhaustive examination of all of the cases in which judges have outlined methods of constitutional interpretation is beyond the scope of this essay, a number of general points can be made about the state of constitutional interpretation as it exists in this country based on an examination of a number of prominent cases. They owe their preeminence not to their plausibility but to the lack of a coherently formulated competitor. Constitutional courts, constitutional interpretation, subnational constitutionalism, statute of catalonia, direct democracy, religious freedom except where otherwise noted content on this site is licensed under a creative commons 2. Church restricts the monarch from becoming a tyrant. General rules of interpretation of the constitution.
Broadly speaking there are three means by which and through which south african scholars and jurists construe their countrys statutory law. Words are to be understood in their ordinary, everyday meaningsunless the context indicates that they bear a technical sense. We also stock outlines on constitutional as well as law outlines generally. Zywicki in this article, professor pritchard and professor zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. A basic understanding of theory is essential for a perspective on and understanding of legal interpretation. Introduction to methods of constitutional interpretation teachers should use the provided background readings to prepare for a 510 minute introduction to the methods constitutional interpretation before leading students into. It is important to remember that conducting research on constitutional law, as with many other areas of the law, is not so much an endeavor in finding answers as it is discovering different approaches and learning the sources that guide constitutional interpretation the text of the constitution, intention of the framers, case precedent. The role of the supreme court in interpreting the constitution. The letters of the constitution are fairly static and not very easy to change but the laws. Principles of constitutional interpretation of list. Constitutional interpretation, or constitutional construction, is the process by which meanings are assigned to words in a.
Much of this scholarly debate leaves the impression that the fundamental problem of constitutional theory is the discovery and justification as legitimate of an authentic method of reading the text. Theories of constitutional interpretation modern democracy invites us to replace the notion of a regime founded upon laws, of a legitimate power, by the notion of a regime founded upon the legitimacy of a debate as to what is legitimate and what is illegitimatea debate which is necessarily without any guarantor and without any end. Section 2 argues that we should understand legal interpretation to be the process of using legal materials to ascertain the content of. Principles of constitutional and statutory interpretation. Constitutional interpretation 89 speaking up and speaking more 98 exhibit 2. The constitution is a legal document that is sui generis unique and must be construed as a special document.
Styles of constitutional interpretation and the four main approaches to consitutional interpretation in american legal history r. There is an interpretation of list 1 and list 2 of the constitution. What are appropriate sources of authority to guide interpretation of the constitution and what relative weight should be assigned to the various appropriate sources. Perhaps, in other words, constitutional interpretation is best thought of as an activity that one can do well or poorly, rather than as an application of some explicit general theory. Constitutional framework and principles for interpretation part a hailbronnerthym 5 dure. I believe that i am on strong ground in claiming that theories of legal interpretation seek to ascertain how statutory and constitutional provisions and other legal. African constitutional court justice albie sachs, constitutions can be regarded as autobiographies of nations austin 2009. Pdf the divergence of constitutional and statutory interpretation. Ducat has made an indelible contribution to the constitutional law arena.
Principles of harmonious construction must be applied. Democratic interpretation is also known as normative or representation reinforcement. Doctrine of pith and substance this doctrine comes into picture when there is a conflict between the different subjects in different lists. One of the reasons for the dismal state of statutory. General principles and recent trends congressional research service 1 introduction article i, section 1 of the constitution vests all federal legislative power in congress, while. Finally, a suggested model of constitutional interpretation is offered.
It means the art of finding out the true sense of an enactment by giving the words of the enactment, their natural and ordinary meaning. Principles of constitutional interpretation legal bites. Constitution of the republic of malawi as amended up to. Statutory interpretation refers to the process by which a court looks at a statute and determines what it means. Theoretical dis position and strategic leitmotivs in constitutional interpretation in south africa l du plessis 1 introductory observations the constitutional makeover of a dilapidated south african state called for inimitable political prudence and integrity, and for courageous, ethical statesmanship rising above chancy brinkmanship. While the claim often made on their behalf, that they are the cornerstones of the very concept of constitutionalism, provides a. The principles of constitutional interpretation the. Since the constitution is a law, and the supreme law within its domain, and authorizes statutes and other official acts or authorities which have a textual expression article 2 1 of the constitution, the principles of constitutional interpretation are essentially the same as the principles. Learn vocabulary, terms, and more with flashcards, games, and other study tools. The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used. In the medieval period, the role of church is important. Words must be given the meaning they had when the text was adopted. Seven basic principles of the constitution popular sovereignty the governments right to rule comes from the people limited government the government has only the powers that the constitution.
Although legislature makes the statute, it may be open to interpretation and have ambiguities. When disputes arise, it comes time for people, and most importantly judges, to interpret the constitution. With a distinguished teaching and academic career, craig r. Principles and practice, 2nd edition offers multiple handson opportunities to help you excel. A read is counted each time someone views a publication summary such as the title, abstract, and list of authors, clicks on a figure, or views or downloads the fulltext. Courts are often alive to its peculiar nature and have over the years developed principles followed in interpretation of the constitution and these are discussed in this paper. Meaning and belief in constitutional interpretation andrei marmor introduction the distinction between a concept and its different conceptions plays a prominent role in debates about constitutional interpretation. Meaning and belief in constitutional interpretation. Constitutional principles and coherence in statutory. Legal interpretation in south africa refers to the juridical understanding of south african legislation and case law, and the rules and principles used to construct its meaning for judicial purposes. Background note on interpretation of constitution through. Principles of interpretation of statutes 207 lisher mr in r. Toward neutral principles of constitutional law jstor. Introduction constitution is the supreme and fundamental law of our country.
An analysis of current theories of constitutional interpretation. The topic could, for example, be asking what effect constitutional principle has upon the coherence of statutes as interpreted or, perhaps more tantalizingly, 2 it could be referring to the impact of constitutional principle upon the field of law known as statutory interpretation. The role of the supreme court in interpreting the constitution when the supreme court issues an opinion, it is binding on the litigants, is enforced by the u. Statutory interpretation juridical understanding of legislation statutory interpretation deals with the body of rules and principles used to construct and justify the meaning of legislative provisions to be applied in practical situations. Are there, indeed, any criteria that both the supreme court and those who undertake to.
Principles of constitutional interpretation the following principles have frequently been discussed by the courts while interpreting the constitution. The following are some of the general principles formulated by sa courts. Helpful appendices include samples of commonly used legal documents, while informationpacked readings deliver. In addition, they sometimes seem inadequate to deal appropriately with developments that threaten principles the constitution was intended to safeguard. Constitutional interpretation questia online library. Essay the modes of constitutional interpretation 37 appendix a. A discussion between justice antonin scalia and justice stephen breyer was held by the rehnquist center at 11. Selected theories of constitutional interpretation congressional research service 1 introduction the united states constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government and, to a lesser. Randall kelso, styles of constitutional interpretation and the four main approaches to. More than what the supreme court says pdf, 108kb, extensions, fall 2008.
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