Constitutional interpretation

constitutional interpretation in india

One especially wants a better ground than piety for genuflecting to originalism because Bork rightly if incongruously reminds us of the danger of "absolutisms" and "abstract principles," criticizes reliance in constitutional law on "history and tradition," and implies in his interesting discussion of originalism's historical roots that the nonoriginalist heresy may be part of the original 'understanding of the Constitution.

Calabresi Clayton J. Under a written constitu- tion, which is law and is binding on government, the practice of judicial review raises questions of the relationship between constitutional interpretation and the Constitution—the law that is construed.

rules of constitutional interpretation

The legitimacy of construction by an unelected entity in a republican or democratic system becomes an issue whenever the construction is controversial, as it frequently is. For example, cases involving freedom of speech sometimes require justices to make a distinction between legally permissible speech and speech that can be restricted or banned for, say, reasons of safety, and the task then is for justices to balance these conflicting claims.

interpretation of constitution pdf

Constitution is to set up the electoral cycle to slow change the way a sea anchor does in the middle of the ocean. Maryland, a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.

Promote the Rule of Law—A seventh purpose of the Constitution is to promote the rule of law and not of individual men or women.

Two ways to interpret the constitution

Religious strife has been greatly reduced. Others have become dangerously anachronistic, such as the right to bear arms. Modification and interpretation are reciprocal; the more difficult it is to modify the instrument formally, the more exigent is flexible interpretation. The Constitution aspires to promote these ends so as to produce good consequences, and the Preamble describes the promotion of these ends as being a purpose of the document. And it made sense to borrow from future generations because those very future citizens would themselves benefit from winning the wars in question. The framers wanted to do away with this prohibition. The six-year electoral cycle set up by the Constitution serves other purposes as well as slowing down change. A Potted Plant? Originalists disagree and think race discrimination will always be unconstitutional unless the Fourteenth Amendment is repealed. Similarly, if you start a business or build a factory today, it will not be taken away from you without just compensation being paid twenty years from now. Law can create a freedom or power in people that would not exist if it were not there. Doctrinal arguments proceed from the application of precedents. Many of the specific provisions have stood the test of time well or have been amended without much fuss.

The broader principle, which applies to the Constitution as much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement would entail absurd or terrible results, that is a good reason to reject it.

Rated 8/10 based on 113 review
Download
Theories of Constitutional Interpretation