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Ask the Editors 'Everyday' vs. If we had wanted specifically to ban only the things we thought at the time constitute cruel and unusual punishment, we would have chosen our words differently. We would have explicitly banned those things.
Such an appeal may well transform the resultant theory of constitutional interpretation into something very close to a form of living constitutionalism. In any event, originalists can differ on the role, in constitutional interpretation, of goals and purposes, often referred to as further intentions. An originalist might be prepared to allow some further intentions to override original concrete understandings in some cases, while another might reject the use of such intentions altogether.
One of the essential functions of law is the guidance of behavior. Yet one cannot be guided by a law unless one understands it, knows what it means. And if its meaning depends on factors about which there is great dispute, or which are largely inaccessible, as is quite often the case when it comes to the intentions of long-dead authors, then one cannot be guided by the law.
A second reason for rejecting appeal to further intentions is the fact that there is an important difference between what a constitution actually says or means and what those who created it might have wanted or intended to achieve in creating it.
Interpretation is an attempt to retrieve so as to conserve or enforce the former, not the latter. For example, original intentions and understandings are often very unclear, if not largely indeterminate, leaving the interpreter with the need to appeal to other factors. As a result, many concrete applications or results suggested by original intentions and understandings may now seem absurd or highly undesirable in light of new scientific and social developments and improved moral understanding.
Furthermore, modern life includes countless situations that our predecessors could not possibly have contemplated, let alone intended or meant to be dealt with in a particular way. The right to free speech that found its way into many constitutions in the early modern period could not possibly have been understood or intended by its defenders to encompass, e.
In response to this latter difficulty, an originalist might appeal to what might be called hypothetical intent or understanding. The basic idea is that an interpreter should always consider, in cases involving new, unforeseen circumstances, the hypothetical question of what her predecessors would have intended or wanted to be done in the case at hand had they known what we now know to be true. We are, on this view, to put ourselves imaginatively in the shoes of those who went before us.
We are to determine, perhaps in light of their general beliefs, values and intended goals and purposes, and perhaps by way of analogy with concrete applications we have reason to believe they clearly accepted at the time, what they would have wanted done in the new circumstances we now face. But this move is problematic. First, it presupposes that we can single out one, consistent set of purposes, values and concrete applications attributable to our predecessors.
Yet people invariably have different things in mind even when they agree on a constitutional text. Some might have believed that the right to free expression protects hate speech, while others might thought that banning such speech constitutes a justifiable limit on that right. Second, even if we could single out an acceptable set of purposes, values and applications from which our hypothetical inquiry could proceed, it seems unlikely that there will always be a uniquely correct answer to the counterfactual question of what the authors would have wanted or intended to be done in light of these factors.
If so, then it is likely that a modern interpreter will, in the end, have to be guided by his own moral views is selecting an answer to this counter-factual question. What the interpreter believes the authors would have decided may well end up being nothing over and above what he believes they should decide were they with us today. So we are left with the question of why we should speculate about what a long-dead group of individuals might have intended or wanted done were they apprised of what we now know.
The main appeal of originalism is that it appears to tie constitutional interpretation to morally neutral, historical facts about actual beliefs, intentions and decisions of individuals with the legitimate authority to settle fundamental questions concerning the proper shape and limits of government powers.
If we are now to consider, not what they did decide, believe or understand, but what they should decide were they to exist today and know what we now know, then the main appeal of originalism vanishes. And so the question naturally arises: Why not just forget this theoretically suspect, counterfactual exercise and make the decisions ourselves?
But if we are not to be tied in these ways to the so-called dead hand of the past when we engage in constitutional interpretation, how are we to proceed? The dominant alternative, living constitutionalism, takes its inspiration from the difficulties in originalism sketched in the preceding paragraphs. Whatever else might be said of law, this much is undeniably true: where law exists, our conduct is subject to various forms of restriction.
But in many instances, the relevant restrictions can be removed or changed with minimal effort, as when a problematic common-law precedent is overturned because of changing social circumstances, or a statute is repealed or amended because it no longer serves useful purposes. Not so with constitutions. As noted above, they tend to be heavily entrenched. Constitutions are also meant to be long lasting, so as to serve the values of continuity and stability in the basic framework within which the contentious affairs of law and politics are conducted.
The entrenched nature of constitutions is largely unproblematic when we consider provisions dealing with such matters as the length of term of a senator or which branch of government is responsible for regulating public education. But things get much more complicated and contentious when we turn to the highly abstract, moral provisions of most modern constitutions which have the effect of limiting the powers of government bodies in significant ways.
These special features of constitutions combine to give rise to a fundamental question, one that causes the originalist so much difficulty and to which living constitutionalism purports to provide a better answer: How can one group of people justifiably place entrenched constitutional impediments of a decidedly moral nature in the way of a second group of people who might live in radically different circumstances and perhaps with radically different moral views?
How, in short, can one generation legitimately bind the moral choices of another? A satisfactory answer to this intergenerational problem , living constitutionalists contend, requires that we recognize that constitutions can grow and adapt to ever-changing circumstances without losing their identity or their legitimacy. The choice to employ abstract moral terms e. The result is that as concrete understandings of the entrenched constitutional-rights provisions evolve, the results warranted by these provisions can legitimately change right along with them.
And importantly for the living constitutionalist who does not wish to surrender to the charge that she counsels infidelity to the constitution, these changes can occur without the constitution having changed, as would be true were a process of formal amendment successfully invoked and an abstract, rights provision removed from the constitution.
Despite its undoubted appeal, at least to many living constitutionalism is subject to a number of significant objections. Perhaps the most prominent ones are these: a the theory renders all talk of constitutional interpretation, properly understood as the retrieval of existing meaning, utterly senseless: constitutional interpretation becomes nothing more than unconstrained, constitutional creation or construction masquerading as interpretation; b living constitutionalism robs the constitution of its ability to serve its guidance function—how can individuals be guided by a constitution whose application to their conduct and choices will be determined by the unconstrained views of later so-called interpreters?
Hence the appeal of originalism. Living constitutionalists have a number of responses to these objections. For instance, it might be argued that the theory in no way results in the unconstrained, arbitrary exercise of judicial power its opponents often portray it to be. These prior interpretive decisions serve as constitutional precedents. And just as the traditional rules of precedent combine respect for the albeit limited wisdom and authority of previous decision makers legislative and judicial with an awareness of the need to allow adaptation in the face of changing views, and new or unforeseen circumstances, so too must constitutional interpreters respect the wisdom and authority of previous interpreters, while allowing the constitution to adapt so as to respond to changing views, and new or unforeseen circumstances.
Living constitutional interpretation, though flexible and adaptive, is no less constrained and disciplined than reasoning under common law. The text plays a key role insofar as any constitutional interpretation, innovative as it may be, must be consistent with that text, until such time as it is formally changed via some acknowledged process of constitutional amendment.
Original understandings simply cannot be dispositive, at least not in perpetuity. In the end, the relative importance of factors like textual meaning, original understandings, later interpretations, and intended purposes, may be, as Joseph Raz suggests , —91 , fundamentally a question of political morality which cannot be answered in the abstract and without considering what it is that justifies, at that particular moment of interpretation, having an entrenched constitution at all, let alone one with such and such particular content.
Sometimes, retrieval of an existing concrete understanding will be required, especially when the constitution is in its infancy and was partly meant to settle a range of concrete moral questions as to the proper limits of government power, at least for a while. But if an interpreter has good reason to believe that this settlement function has been overtaken by other more pressing concerns, perhaps the need to adapt in light of dramatically changed circumstances or much better moral understanding, then a more innovative interpretation may be called for.
And once again, to say that constitutional interpreters must sometimes be innovative is not to say that a constitution can be interpreted to mean whatever the interpreter wants it to mean.
Although constitutionalism has been widely embraced round the world, it is by no means without its detractors. This is especially true when we turn to those constitutions that not only create and regulate the offices of government but also purport to protect abstract rights of political morality. Rather, their main concern is to challenge the role that democratically unaccountable judges typically play in the interpretation and application of such constitutions.
According to hard critics, factors like original understandings and the supposed discipline of common law reasoning seldom, if ever, succeed in fixing meaningful limits upon government power. As a result, reliance on such factors in constitutional adjudication only serves: a to rationalize the purely political decisions of judges pursuing, consciously or not, their own political ideologies. Further consequences include: b a serious affront to democracy.
In most constitutional democracies, the judges who ultimately decide constitutional cases are appointed, not elected. That is, they hold office not because they were selected to do so by the democratic community, but because of a decision on the part of a President, a Prime Minister, a small group of fellow judges, or a judicial committee of Parliament.
Furthermore, these appointed judges tend to come from the privileged classes of society. And possibly c : suppression of those—women, minority racial groups, the poor, and so on—whose interests are not adequately recognized and protected by the dominant, mainstream ideologies to which these elite judges have an affinity. Instead of the curbing of rights-threatening government power for which the idea of constitutionalism is supposed to stand, we have political suppression disguised in a cloak of false constitutional legitimacy.
So hard critics are highly skeptical of constitutional practice and of those theories that applaud constitutionalism as a bulwark against oppression. Instead of being composed of a group of individuals united in their concern for basic rights, western societies are comprised of various groups competing either for domination e.
The law, including constitutional law, is a powerful tool which has, historically, been utilized by dominant groups to secure and maintain their superior status. According to hard critics, the Lochner era is but one small piece of a much larger picture. To sum up, according to hard critics, a constitution is anything but the protection from unwarranted government power that its champions have heralded over the centuries.
What is taken to be the best articulation of the right to equality emerging from a fair and disciplined common-law analysis of that right, is nothing but a rationalization of current social structures, all of which systematically oppress the interests of women, minorities and the poor. As noted above, democratic critics tend not to be as utterly dismissive of constitutions and constitutional rights protections as their more hard-line cousins.
Their principal objections revolve around a practice with which these aspects of modern constitutional regimes are typically associated: judicial or constitutional review. This is the practice whereby courts are sometimes called upon to review a law or some other official act of government e. In other jurisdictions, the courts either do not have the power to strike down or nullify, or a decision to do so is reversible by some other body of government. But they do have the authority, under section 4 of the Human Rights Act , officially to declare legislation incompatible with The European Convention on Human Rights.
Upon such a declaration, Parliament usually undertakes to amend or repeal the offending legislation. But should it chose not to do so, the legislation remains valid and the courts have no further legal recourse. In Canada, the Supreme Court has the power to strike down a law which it believes unjustifiably infringes a right guaranteed in Sections 2 or 7—15 of The Canadian Charter of Rights and Freedoms , but Section 33 of that same Charter grants Parliament or the legislature of a province the power to override that decision.
Among the most influential of contemporary democratic critics is Jeremy Waldron. Waldron is, to put it mildly, no fan of constitutional review. Nor is he enamored of the grandiose constitutional charters and bills of rights which serve as the most contentious ground in terms of which that power is often exercised by courts. According to Waldron and his fellow democratic critics, constitutional review under an entrenched charter or bill of rights is fraught with both theoretical and practical difficulty.
It threatens democracy and is both fundamentally unfair and politically dangerous. It also relies on outmoded views about the nature of moral rights—that there are objective, universal rights of political morality to which charters or bills of rights make reference, upon which there is widespread agreement within democratic communities, and to which judges can sensibly and justifiably be asked to appeal in protecting citizens against recalcitrant exercises of government power.
While it is true that constitutional review need not be based on an appeal to abstract rights of political morality—it could, for example, be restricted to questions such as whether Congress or a provincial legislature has followed proper procedure—and true that it need not include the ability actually to strike down legislation, the main focus of democratic critics has been on strong-form constitutional review which exemplifies these two features.
According to democratic critics it is difficult to underestimate the considerable power which constitutional review under an entrenched charter or bill of rights places in the hands of judges who are, in modern constitutional democracies, typically unelected and hence not directly accountable to the democratic community. Despite their lack of accountability, these judges are assigned the task of providing authoritative answers to the deeply controversial questions of political morality that arise under constitutional review and with respect to which there is so much deep disagreement.
Examples can range from the permissibility of abortion or physician-assisted suicide, to the banning of hate speech or the publication of violent and degrading pornography on the intenet. On the basis of these highly controversial answers they end up determining what shall be deemed lawful in the community. This is far too much political power for a small group of unelected people to wield over an entire democratic community, no matter how learned and wise they might happen to be.
But perhaps more importantly, the granting of such power is fundamentally undemocratic in principle: individual citizens have, in effect, been disenfranchised by this arrangement. Each citizen of voting age should have an equal right, in a democratic society, to contribute to the creation of the laws by which she is governed.
This she exercises directly via the ballot box and by whatever contributions to public discourse and debate about controversial issues she chooses to make.
She also does so indirectly via the legislative votes of her elected representatives, whose task is to represent her interests and opinions. Yet with strong-form constitutional review all this has been replaced by subjection to the pronouncements of judges. The duly considered views of citizens and their representatives about the laws by which they are to be governed, arrived at it is hoped through fair processes of democratic decision-making, have, in effect, been set aside in favour of the contentious moral pronouncements of a handful of democratically unaccountable, elite judges.
This unhappy situation is further exacerbated by the undeniable fact that judges on appeal courts often disagree vehemently among themselves about rights of political morality and must often, in the end, rely on majority voting to settle their own disagreements.
It is not at all uncommon to see split votes when a court deals with a contentious issue of moral principle like affirmative action, abortion or pornography. And often these split votes follow patterns which are closely correlated with the all too discernible political leanings of judges.
And no matter the high esteem in which we tend to hold our judges in modern constitutional democracies, this is not a form of government to be eagerly embraced. Critical theories, both hard and democratic, represent a serious challenge not only to conventional theories and established practices of constitutional interpretation, but to the very idea of constitutionalism itself—the idea that government can and should be limited in ways that serve to protect us from unwarranted state power.
According to originalism, the constitution protects us from judges and other officials by restricting them largely to politically and morally uncontroversial, neutral decisions about historical intentions and understandings.
According to one strand of living constitutionalism, our evolving constitution can do the same while at the same time allowing the constitution to grow and adapt to changing circumstances and it is hoped better moral understandings. It can effect this balancing act so long as the judges, in whom the power of constitutional interpretation and enforcement has largely been placed, are willing to subject their deliberations to the discipline of common law reasoning.
Critics, however, remain highly skeptical. Ordinary judges are not, critical theorists will insist, Platonic kings and queens, dispensing justice in the light of objective moral truth. We must always remember, critics insist, that our judges are ordinary, flawed human beings with all the intellectual and moral shortcomings, weaknesses and biases of their fellow human beings. They are also, more often than not, members of a dominant group e. But if constitutions are all at the mercy of dominant ideologies and the whims and convictions of elite judges, then the kind of protections heralded by the idea of constitutionalism may be a myth, and a harmful one at that.
How to use constitutionalism in a sentence Surely, they will object, nationalism in America means constitutionalism!
A New Constitution? Revolution and Counter-Revolution Karl Marx. Blood and Iron John Hubert Greusel. Desiderius Erasmus of Rotterdam Ephraim Emerton.
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