Styles of constitutional interpretation and the four main approaches to consitutional interpretation in american legal history r. Essay the modes of constitutional interpretation 37 appendix a. The theoretical approaches to constitutional interpretation are first briefly discussed. Souter rejected the original intent theory 8 of constitutional interpretation coveted by ideological conservatives in favor of a more practical and flexible application of precedent and interpretation of the law. James madisons notes of the constitutional convention june 15th, 1787.
He soon began to demonstrate a firm commitment to libertarian values of the first amendment. 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. Souter on constitutional interpretation and the kagan. Extrajudicial constitutional interpretation carolina law scholarship. When a court sets aside a statute as unconstitutional, it in essence deems the statute invalid in the name of the constitution. The court a quo adopted a restrictive interpretation of what constitutes a wellknown trade mark in terms of south african trade mark law and found, on an unrealistically narrow interpretation of. While each embraced originalism as one tool in the judicial arsenal, they were also quick to spell out its shortcomings. Memorandum, david hackett souter, a womens rights analysis, sep tember 4, 1990. Principles of constitutional interpretation 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. 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. Supreme court justice retired william chapman, esq. The methodology has been endorsed by wellknown conservative scholars such as robert bork, john mcginnis, michael stokes paulsen, and steven calabresi,1. Rights interpretation and comparative constitutional law hoyt webbi do hereby swear that i will in my capacity as judge of the constitutional court of the republic of south africa uphold and protect the constitution of the republic and the fundamental rights entrenched. Styles of constitutional interpretation and the four.
American abortion jaw aptly illustrates this point. This article describes souters jurisprudence in several important areas of constitutional law and identifies some of the factors that have. The following are some of the general principles formulated by sa courts. He took aim at what he termed the fair reading model of constitutional analysis as simplistic and prone to discourage our tenacity to keep the.
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to nontextual sources, such as. Souters model sees legal principles embodied in case law. Tamanaha, a concise guide to the rule of law brennan, contemporary ratification scalia, originalism. Selected theories of constitutional interpretation congressional research service 2 theories should be applied.
Principles of constitutional interpretation introduction 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. Styles of constitutional interpretation and the four main. Ryan describes the theory he and others endorse as textualism. 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. But in my view souter s understanding of the process of casebycase adjudication reflects deeper philosophical commitments and, for that reason, carries with it more radical implications than has been appreciated.
Pdf in recent years, the supreme court has increasingly looked to. The tensions that are the stuff of judging in so many hard constitutional cases are, after all, the creatures of our aspirations. 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. But it is clear from the context that the version of textualism he has in mind is based on the original public meaning of the text.
Justice david souters speech on constitutional interpretation. May 28, 2010 souter said a blackandwhite interpretation fails to account for what the constitution actually says, and fails just as badly to understand what judges have no choice but to do. 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. Constitutional interpretation, religion, united states supreme court.
Theories of constitutional interpretation study sheet powerpoint. 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. Souter on constitutional interpretation and the kagan hearings 3 comments. The supreme court, in particular, has ranged from giving determinative weight to public opinion, conceptualized in a variety of ways, to excluding public opinion completely from. Pdf constitutional interpretation in a globalised world. We also stock outlines on constitutional as well as law outlines generally. During his freshman term, justice souter struggled to adjust to the workload of the court and did little to. Surely it protects a right that can be enforced by individuals. Whereas textualist approaches to constitutional interpretation focus solely. The preamble cannot override the provisions of the constitution. Souter said a blackandwhite interpretation fails to account for what the constitution actually says, and fails just as badly to understand what judges have no choice but to do.
After souter became a supreme court justice, his pragmatic approach to constitutional interpretation set him apart from his conservative republicanappointed colleagues. Constitutional interpretation in deciding these cases, which i have found closer than i had anticipated, it is the federalist that finally determines my position. This article describes souter s jurisprudence in several important areas of constitutional law and identifies some of the factors that have influenced his jurisprudential evolution. Sep, 2017 seeing justice souter as a commonlaw judge is hardly novel. Abortion and constitutional interpretation anita l. 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. Constitutional interpretation law library of congress. Judge souter s understanding, in particular, of the significance and reach of the 14th amendment in the constitutional system reflects an understanding of our nations history and of the central role that the tragic fact of racial prejudice has played in our history.
The role of public opinion in constitutional interpretation james g. The federalist papers as reliable historical source material for constitutional interpretation in deciding these cases, which i have found closer than i had anticipated, it is the federalist that finally determines my position. No intellectual purpose would be served by pushing the point. 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. The reasons that constitutional judging is not a mere combination of fair reading and simple facts, he states, extend beyond the recognition that constitutions must have a great deal of general language in order to be useful over long. Time chart of the united states supreme court a1 appendix b. The 1994 interim constitution apart from its constitutional implications and political ramifications, it also changed the interpretation of the statutes as we knew it. That clause provides that the senate shall have the. Judge souters understanding, in particular, of the significance and reach of the 14th amendment in the constitutional system reflects an understanding of our nations history and of the central role that the tragic fact of racial prejudice has played in our history. During his first five years on the supreme court, justice david souter has not followed a straight ideological path and he has turned out to be more liberal than officials in the bush administratio.
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. Syllabus opinion kennedy concurrence souter dissent roberts dissent scalia html version pdf version. Analysis of selected opinions congressional research service 1 introduction on may 26, 2009, president obama nominated judge sonia sotomayor of the u. Biographical chart of supreme court justices since 1900 b1 appendix c. Bruce ackerman, the common law constitution of john marshall harlan, 36 n. With sotomayors nomination, liberals are looking for a way to sell their own view that interpretation must reflect the changing norms of society. During his first five years on the supreme court, justice david souter has not followed a straight ideological path and he has turned out to be more liberal than officials in the bush administration. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or. Liang kan, note, a theory of justice souter, 45 emory l. Professor epstein, who for much of his career has analyzed constitutional issues through the lens of law and economics, is primarily a legal theorist for whom history provides examples of how modern constitutional law has deviated from what he considers the classical liberal origins of the constitution. Originalism and political ignorance ilya somin introduction original meaning originalism may now be the most popular version of constitutional theory in the legal academy. Conservative supreme court nominees espouse originalism, the theory that the constitutions meaning remains static. Within two years, he was often joining with the more liberal members of the court. Interpretation of constitution through judicial decisions source department of legal affairs, ministry of law and justice constitution of india was drafted, enacted and approved by the constituent assembly on behalf of the people of india.
Souter on constitutional interpretation and the kagan hearings. Justice souter has articulated a model that looks to supreme court precedent as a source of tradition, socalled common law constitutionalism. Constitutional absolutism or interpretivism 76 the balancing of interests or judicial selfrestraint 81 strict scrutiny or the preferred freedoms approach 86 the court in american history. Justice souter has noted,1 the sheer mass of the brennan legal legacy exerts an intense gravitational. Constitutional norms interpretation is also problematic. The deference courts give to precedentstare decisisis a key issue. 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. The case is then analysed in respect of section 3 5, chapter 3 and the constitution itself in order to determine the significance. A supreme constitution must be given a generous and purposive interpretation. The other was former justice david souter s brilliant demolition of the umpire metaphor in his commencement address at harvard last week. The constitution of the united states d1 appendix e.
This is followed by a description of the four respective judgments in the decision. Not only was the principle of parliamentary sovereignty replaced by constitutional supremacy, but the interpretation clause stated the. Casey1 opinions of justice souter,2 chief justice rehnquist, and justice scalia. I could then add that a perverse application of a theory is not a reason to reject the theory. Shabalala v the attorneygeneral of transvaal nyamakazi v president of bophuthatswana. Interpreting the constitution grade 912 4 this document provides elaboration on the theoretical basis for the court and its purpose in american government. Allen constitutional law changes, even though the constitution remains the same. During his freshman term, justice souter struggled to adjust to the workload of the court and did little to establish a distinct judicial philosophy. The most prominent adherent to harlans theory of tradition is justice david souter. Judge souter said no social problem is more tragic or demanding of.
Justices ruth bader ginsburg and david souter both adddressed constitutional interpretation recently before law school audiences. Interpretation of the preamble of the constitution. However, constitutional interpretation relies on traditional legal tools that look to internal aspects of the constitution e. Yet, ultimately these disagreements share an underlying misperception of the problem as one of method and. In re berubari4, the supreme court held that the preamble was not a part of the constitution and therefore it could not be regarded as a source of any substantive power. Only in florida prepaid postsecondary education expense board v. I believe that the most straightforward reading of the federalist no. Constitutional interpretation 89 speaking up and speaking more 98 exhibit 2. Harvard universitys 359th commencement address harvard. Use the sidebar on the right side of the page to toggle to. The question presented by this case is not whether the second amendment protects a collective right or an individual right.
Methods of constitutional interpretation oxbridge notes. Justice stevens, with whom justice souter, justice ginsburg, and justice breyer join, dissenting. Constitutional interpreters 199612 sajhr 214 at 214, who said every public official takes an oath to uphold and support the constitution, but not the supreme courts interpretation of choices and these choices can and do profoundly effect sic the outcome of. Background note on interpretation of constitution through. What are appropriate sources of authority to guide interpretation of the constitution and what relative weight should be assigned to the various appropriate sources. With a senate confirmation hearing to begin later this month, it is, therefore. Jun 23, 2009 conservative supreme court nominees espouse originalism, the theory that the constitutions meaning remains static. The constitution of the united states preamble we the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do.
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. Justice souters speech reinforces the view that the values, predilections, and background of who sits on the supreme court do make an enormous difference in constitutional interpretation. But in my view souters understanding of the process of casebycase adjudication reflects deeper philosophical commitments and, for that reason, carries with it more radical implications than has been appreciated. Justices souter and breyer did not reach the question. Justice souters theory, grounded in the method, if not the. Pols 5211 constitutional law web resources fall 2009. The lesser evil marshall, reflections on the bicentennial of the united states constitution meese, the law of the constitution souter. Heller, the supreme court considered the issue of whether a district of columbia prohibition on the. Constitutional courts, constitutional interpretation, and. Justice david souters speech on constitutional interpretation by professor will huhn on june 3, 2010 in constitutional law, equal protection, freedom of religion, freedom of speech, wilson huhn. Judicial values and constitutional interpretation 89 speaking up. The role of public opinion in constitutional interpretation.
As part of constitutionally speakings inquiry into the question. Randall kelso, styles of constitutional interpretation and the four main approaches to. A a a a simplistic approaches to constitutional interpretation, says souter, threaten to ignore or overlook those values. With sotomayors nomination, liberals are looking for a way to sell their own. Approaches to constitutional interpretation in australia. Court of appeals for the second circuit to fill the supreme court seat that will be vacated by retiring justice david souter. Text of justice david souters speech harvard gazette. Methods of constitutional interpretation outlines and revision materials. Seeing justice souter as a commonlaw judge is hardly novel. Pdf the divergence of constitutional and statutory interpretation.
Away from institutionalism and toward individualism 100. Although the text of the fourteenth amendment has remained constant since the united states supreme court decided roe v. More than what the supreme court says pdf, 108kb, extensions, fall 2008. He took aim at what he termed the fair reading model of constitutional analysis as simplistic and prone to discourage our tenacity to keep the constitutional promises the nation has made.