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22 - Constitutional Interpretation

from Part II - Modalities

Published online by Cambridge University Press:  27 March 2025

By
Timothy Endicott
Edited by
Richard Bellamy  and
Jeff King
Richard Bellamy
Affiliation:
University College London
Jeff King
Affiliation:
University College London
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Summary

Constitution-making acts of persons and institutions are the primary objects of constitutional interpretation. The primary result of constitutional interpretation is an account of the meaning of those acts. This chapter offers an explanation of the prodigious creativity of constitutional courts that involves two elements. First, we all equivocate concerning the meaning of a constitution, treating it variously (or at the same time) as the signification of constitution-making acts, and/or as the significance of the constitution as a framework of governance. Secondly, creativity results from interpreters’ ways of resolving the tension between the rule of constitutional law (that is, adherence to a rule-governed framework of governance) and the demands of constitutional justice (that is, the array of principles of justice in governance that the constitution ought to secure). The boundaries of constitutional interpretation are put in question by the equivocation between meaning as significance and meaning as signification, and by the tension between the rule of constitutional law and the demands of constitutional justice.

Keywords

constitutionalismconstitutional interpretationconstitutional justicemeaningrule of lawliving tree interpretationevolutive interpretationjudicial creativityrule of law
Type
Chapter
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The Cambridge Handbook of Constitutional Theory , pp. 361 - 377
Publisher: Cambridge University Press
Print publication year: 2025

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References

Recommended Reading

Balkin, J. M. (2016). The Framework Model and Constitutional Interpretation. In Dyzenhaus, D. and Thorburn, M., eds., Philosophical Foundations of Constitutional Law. Oxford: Oxford University Press, pp. 241–264.CrossRefGoogle Scholar
Bobbit, P. (1991). Constitutional Interpretation, Oxford: Blackwell.Google Scholar
Dworkin, R. (1996). Freedom’s Law: The Moral Reading of the American Constitution, Cambridge, MA: Harvard University Press.Google Scholar
Fallon, R. (1987). A Constructivist Coherence Theory of Constitutional Interpretation. Harvard Law Review, 100 (6), 1189–1286.CrossRefGoogle Scholar
Goldsworthy, J. (2006). Interpreting Constitutions, A Comparative Study, Oxford: Oxford University Press.Google Scholar
Kavanagh, A. (2002). Original Intention, Enacted Text, and Constitutional Interpretation. American Journal of Jurisprudence, 47 (1), 255–298.CrossRefGoogle Scholar
Raz, J. (1999). On the Authority and Interpretation of Constitutions: Some Preliminaries. In Alexander, L., ed., Constitutionalism: Philosophical Foundations. Cambridge: Cambridge University Press, pp. 152–193.Google Scholar
Roznai, Y. (2017). Unconstitutional Constitutional Amendments, Oxford: Oxford University Press.Google Scholar
Stone, A. (2009). Comparativism in Constitutional Interpretation. New Zealand Law Review, 2009 (1), 45–68.Google Scholar
Waluchow, W. & Kyritsis, D. (2023). Constitutionalism. In Zalta, E., ed., The Stanford Encyclopedia of Philosophy, Stanford: Stanford University. Available from: https://plato.stanford.edu/archives/spr2018/entries/constitutionalism/; see Section 7, ‘Constitutional Interpretation’Google Scholar

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