Interpretation of Constitutions
- Proportionality — Reasonableness — Principles and objectives of constitutions
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. The issue of interpretation is at the very core of contemporary constitutional law. Its practical relevance has grown considerably with the establishment of constitutional courts in most countries of the world, which are given the right to pronounce authoritatively on the meaning of constitutional provisions and to strike down or declare void any measure of public authority, including legislative acts, that are found to be contrary to the meaning of the constitution as established by the court. Despite the enormous significance of constitutional interpretation, the matter is rarely addressed in a systematic and transparent manner in the constitutions or laws on the constitutional courts, or in the rulings and pronouncements of the constitutional courts themselves.
B. Specificity of Constitutional Interpretation
2. The key question of constitutional interpretation is to what extent, if any, it differs from the interpretation of other legal texts, and particularly of statutes, which have to be interpreted by the authorities charged with the execution of the law, including the courts competent to settle disputes and controversies arising in their application. While a constitution shares with ordinary statutes the characteristics of other law that has been fixed in a written text, it also presents a number of peculiar features which set it apart from ordinary legislation. Some of these features are of a formal character, namely the special rank of the constitution as the supreme law of the domestic legal order (supremacy / primacy), while others relate to the contents and the structure of the constitutional text themselves. While broadly-worded clauses also pop up in statutory legislation from time to time—such as the clause that contracts have to be interpreted and executed in good faith—provisions with a broad and indeterminate wording are frequently found in constitutions, especially in the constitutional bill of rights and in the chapter on general principles or objectives of the state (principles and objectives of constitutions). Fundamental rights guarantees in particular have been referred to as ‘majestic generalities’ (Robert Jackson J, Board of Education v Barnette (1943) (US)), ie indeterminate concepts whose meaning has to be ascertained through an elaborate interpretive process before they can be meaningfully applied to concrete cases. Principles relating to state organization and the structure of the political process, such as separation of powers and democracy, are usually fleshed out in greater detail in the chapters dealing with the central institutions of government, their respective powers, and their reciprocal relationships. The same cannot be said of material concepts like social justice, human dignity, public morals etc, which do not exclusively—and perhaps not even primarily—belong to the sphere of law but to that of ethics, politics, philosophy, and morality.
3. Constitutions also have a different function to ordinary statutes: they are designed to define the legal as well as the moral and political foundations of the commonwealth, and to fix the institutional framework for the exercise of the powers of the state institutions. In line with their character as fundamental or basic law expected to last for several generations, constitutions are often more difficult to amend and to change than ordinary statutes, which can be repealed and amended in the ordinary legislative procedure by simple majority (amendment or revision of constitutions). This would suggest that the constitutional judge should take the long view, ie pay particular attention to adapting the constitution to the changing needs of the community for which it has been drafted, while the ordinary judge can rely to a much greater extent on the intervention of the legislature for the necessary updating of the legislation which he or she has to apply.
4. Differences with the interpretation of ordinary statutes may also exist with regard to the institution which is charged with interpreting the constitution authoritatively in case of dispute or controversy. While most countries, including those which entrust the authoritative interpretation of the constitution to a specialized body outside the ordinary judicial hierarchy, require a law degree and minimum professional experience as judge, attorney, or law professor as essential qualifications for members of the constitutional jurisdiction, this rule is not universally followed. In France, for example, the constitution does not require judicial experience or experience as a professor of law as condition for membership in the Constitutional Council of France (Conseil Constitutionnel) (‘Council’). Former presidents of the republic are de iure life members of the Council. This implies that political experience is seen as equally—if not as more—important than legal experience or training for the work on the Council, reflecting a markedly ‘political’ view of the constitution at the expense of its legal features.
5. Despite these considerable differences between statutory and constitutional interpretation, the prevailing view in constitutional court practice seems to be that, in principle, the interpretation of the constitution can be approached with the same methods that are used in the interpretation of ordinary statutes. In SP Gupta v Union of India Case (India) (1982) at paragraph 195, AC Gupta J referred to the ‘generally held view’ among Indian judges ‘that the methodology of interpretation of statutes should be the same for constitutional provisions as it is for statutory provisions’. The view that the methods used in the interpretation of statutory provisions can and should be employed also in the interpretation of the constitution, though rarely stated as explicitly as in Gupta, is widely shared by constitutional courts around the world, based on the assumption that these methods, and particularly the purposive (in common law countries) or teleological (in civil law countries) approaches are broad and flexible enough to accommodate the particular needs arising in the interpretation of constitutional provisions. Even in France, where the Conseil Constitutionnel was expressly created as a non-judicial institution, the few methodological reflections which can be found from members and collaborators of the Council seem to indicate a rather uncritical reliance on the interpretive methods developed by French civil lawyers (l'école de l'exégèse) in the nineteenth century (Ponthoreau 313).
C. Factors Shaping Interpretive Approaches
6. A number of factors can be distinguished which are likely to shape the approach a court takes to the interpretation of the constitution (Goldsworthy (2006) 335).
1. Interpretive Guidelines in the Constitution
7. From a formal point, the most important among these are interpretive guidelines set down in the constitutional text itself. Where they exist, they often refer to the fundamental rights section only, and specifically address the relationship between international human rights instruments and the fundamental rights fixed in the constitution (international human rights law and municipal law). For example:
• Constitution of the Portuguese Republic (Sixth Revision): 2 April 1976 (as Amended to 2005), Art. 16 (Port);
• Constitution of the Kingdom of Spain: 6 December 1978 (as Amended to 27 September 2011), Art. 10 (Spain);
• Constitution of the Republic of South Africa: 16 December 1996 (as Amended to 1 February 2013), Section 39 (1) (S Afr) .
8. Less frequently, interpretive methods for the entire text of the constitution are prescribed. According to the second paragraph of Article 196 of the Constitution of the Pluri-National State of Bolivia: 25 January 2009 (Bol), the Constitutional Court shall have regard, as a preferential criterion of interpretation, to the will of the constituent power as evidenced in its documents, minutes, and resolutions, as well as to the wording of the constitutional text: ‘[e]n su función interpretativa, el Tribunal Constitucional Plurinacional aplicará como criterio de interpretación, con preferencia, la voluntad del constituyente, de acuerdo con sus documentos, actas y resoluciones, así como el tenor literal del texto’. In a similar vein, Article 13 of the Constitutional Interpretation Procedure Act of Taiwan: 3 February 1993 (Taiwan) provides that in case of rendering an interpretation, ‘the Justices shall refer to materials concerning the enactment and amendments of the Constitution’. These prescriptions, however, are hardly exhaustive as it is notoriously difficult to establish the will of the drafters and framers of the constitution. In the Bolivian case, for example, the final and decisive round of negotiations on the provisions of the 2009 Constitution did not take place within the Constituent Assembly, but ten months after the Assembly had completed its work, in the Bolivian congress. In these negotiations, significant changes were made to the constitutional text approved by the Constituent Assembly (Landau 957). The amended text was then submitted to, and approved by, popular referendum.
9. Reliance on the literal interpretation of the text of the constitution, on the other hand, yields clear results only in those cases in which the constitutional text itself is clear and precise—a condition rarely fulfilled in constitutional cases, especially in those involving fundamental rights guarantees and/or general principles.
2. Legal Culture
10. Another important factor in shaping judges’ approaches to constitutional interpretation is the legal culture in which the courts operate. Legal culture as it is understood here refers to the interpretive methods which are generally applied in the interpretation and application of the law by the courts, and in particular to the methods of statutory interpretation. As has already been mentioned, there is a broad consensus that the methods used in statutory interpretation also constitute the basis for the interpretation of constitutional texts. Ordinary principles of statutory interpretation are thus generally carried over to the field of constitutional law (Goldsworthy (2006) 336–37). Thus the methods of constitutional interpretation in common law countries like the United States (‘US’), India, Canada, or Australia were developed on the basis of the British legal tradition and initially set out to follow the British principles of statutory interpretation, with its emphasis on the text and the ‘mischief’ the statute was intended to remedy.
11. In civil law countries, constitutional jurisdiction was similarly built on the methods of statutory interpretation which civil lawyers had developed in the nineteenth century. In Germany, the canon of interpretation dates back to the nineteenth century, to the so-called Historical School of Jurisprudence (Historische Rechtsschule) whose founder was Friedrich Carl von Savigny (Brugger 396). Savigny distinguished three methods of interpretation. The first method is textual or grammatical interpretation which uses philological methods to analyse the meaning of a particular word or sentence in a legal rule. The second is logical or systematic interpretation which aims to interpret a legal provision as an integral part of a coherent body of law, ie tries to ensure its consistency with the other relevant legal material which may comprise related provisions of the same section, of the same legal text, or even of other legal texts, domestic or foreign, which deal with a related problem. Thirdly, in historical analysis, the interpreter attempts to identify what the drafters of the legal rule at hand had in mind when they used specific terms or sentences to frame the provision. To these three methods a fourth method was later added: teleological or purposive interpretation, which tries to identify the purpose (telos) or function the rule was designed to serve and how this purpose can be achieved in the light of the concrete circumstances of its application. In France, the interpretive methods developed by the école de l'exégèse in the nineteenth century also formed the starting point for the constitutional jurisdiction established in the twentieth century (Ponthoreau 313). The supporters of this school adopted the restrictive view that interpretation is only necessary in those cases in which the text of the statute is ambiguous and obscure, and that interpretation may never be creative, ie that it cannot add anything to the text which is not already there.
12. The methods of statutory construction are largely unwritten, which means that they are open to constant evolution and adaptation. Neither in common law countries nor in civil law jurisdictions have the strongly positivist methods of statutory interpretation of the nineteenth century retained their initial grip on constitutional interpretation; instead, they have been complemented, and sometimes replaced, by considerations better attuned to the specific needs of constitutional construction. However, the way in which and the extent to which this has happened is in many cases difficult to ascertain, as constitutional courts are often not very transparent about the methods they apply to reach the results they present in the final judgment, and in these cases doctrinal analysis may not be of much help either.
3. Institutional Culture
13. The institutional culture of the respective constitutional adjudication body also plays a role in shaping the approach to constitutional interpretation. Institutional culture as understood here comprises two main elements: the relations between the constitutional court and the ordinary judiciary on the one hand; the homogeneity, or lack of homogeneity, of its membership on the other. In countries where the constitutional review powers are exercised by the ordinary courts, with the Supreme Court sitting at the top of the judicial hierarchy, the approach to constitutional interpretation will most likely be seen as part and parcel of the judicial task which has to be performed in accordance with the ordinary judicial standards and methods. This would seem to favour an approach which emphasizes the similarity between the interpretation of the constitution and the interpretation of ordinary statutes. However, in those cases in which the Supreme Court exercises discretion over its docket and uses this discretion to focus on the adjudication of constitutional cases, the link between constitutional and ordinary adjudication may be weakened. The Supreme Court of the United States, the Supreme Court of India, and the Supreme Court of Canada (Cour suprême du Canada) are all examples of non-specialized judicial bodies which over time have cultivated a high degree of liberty in approaching issues of constitutional interpretation and have developed a specific identity as constitutional courts which is at least as strong, if not stronger than, the corresponding identity of specialized constitutional jurisdictions in other countries.
14. A second factor pertaining to the institutional culture of constitutional courts is the homogeneity of their membership (selection of judges at constitutional courts / supreme courts). Again, one would expect a great measure of homogeneity on those courts which exercise their constitutional review powers as part of a more comprehensive appellate jurisdiction, as impeccable judicial credentials would seem to be a necessary condition for membership of these bodies. While this may indeed still be the case with some supreme courts, in others membership has become more diverse as the executive and legislative branches have modified their appointment policies over time. It has been said that in the US, Democratic and Republican presidents alike have come to see Supreme Court appointments as part of ordinary interest group politics (Tushnet 14). Earl Warren, who served as Chief Justice during the US Supreme Court’s most activist period, had been a well-known Republican politician and governor of California before he was appointed to the Court. Personalities with a long political experience are probably less committed to established professional standards than life-long practising lawyers or serving judges (Goldsworthy (2006) 337). This applies even more to institutions of constitutional review which have deliberately been conceived as hybrid bodies, like the French Conseil Constitutionnel. There are no professional qualifications for membership, and in the appointment practice of the competent institutions—the French president and the presidents of the National Assembly and the Senate each naming three councillors—experienced politicians and former members of the Conseil d’Etat have regularly been favoured over academics and career judges (Ponthoreau and Hourquebie 273). By contrast, the German Law on the Federal Constitutional Court expressly provides that three (out of eight) judges in each of both Senates have to be recruited among the judges of the highest federal courts, thus making sure that the necessary expertise in the interpretation and application of the ordinary law and the required professional standards are adequately represented on the Court (see Law on the Federal Constitutional Court: 12 March 1951 (as Amended to 8 October 2017), Section 2(3) (Ger)).
4. Political Culture
15. Political culture may also influence the approaches to constitutional interpretation dominant in a constitutional system in one period or another, though this influence is less direct and more difficult to grasp than the impact of legal or institutional culture. In countries in which the adoption of a new constitution marks a radical break with the past, like in post-apartheid South Africa, one may expect favourable conditions for a culture of transformative constitutionalism to flourish—a political culture which favours a generous, purposive interpretation of the principles of the new constitution in the light of the values underpinning it at the expense of more narrow positivist, textualist, or originalist approaches. If in such a setting the objectives of the transformative project would be frustrated by using traditional interpretive methods; the latter are likely to be discarded in favour of teleological or purposive approaches.
16. Such transformative projects, however, are not necessarily tied to the adoption of a new constitution or comprehensive amendments to an existing constitution. They may also emerge in countries with a long-standing, formally unchanged constitution, like in the US with the fight against ‘separate but equal’ doctrine under the Warren Court, or in Israel in the period of the Barak Court (Cohen-Eliya 173). By contrast, in countries with a strong tradition of parliamentary sovereignty, judicial deference to the political branches, and especially to the democratic legislature, might more easily prevail. This is especially so if the constitutional text is drafted in the manner of a ‘dry’ technical instrument, focusing on the legalistic definition of powers, competences, and procedures while being short on the aspirational language which is increasingly being found in contemporary constitutional texts, in particular in the sections on fundamental rights and state objectives—not to mention the preamble which, despite its openly inspirational and aspirational language, is in a growing number of countries also recognized as source of concrete legal obligations (legal effect of constitutions).
D. Methods of Constitutional Interpretation
17. As in other fields of law, the choice of methods to be used in the interpretation of the constitution ultimately lies with the constitutional courts, as it is their task to interpret the constitution and to authoritatively determine its meaning. A review of the actual practice of constitutional courts reveals a certain number of methods employed by most, if not by all, constitutional courts: it is the combination of these methods, which varies from one constitutional court to another and is frequently subject to constant evolution and recalibration within the same court from one period to another, or even from one constitutional issue to another, that gives the interpretive practice of the various courts its distinctive flavour. Those methods, which form part of the basic ‘tool kit’ a constitutional court has at its disposal in the interpretation of disputed constitutional provisions, may be summarized under five main headings.
1. Textual Method
18. The textual method is the most traditional and commonly-used approach. Even those sceptical towards the usefulness of traditional methods of interpretation in the field of constitutional law accept that it should constitute the starting point of constitutional interpretation. A slightly more controversial, but still widely accepted maxim, is that also in constitutional law the language of the constitutional text sets the limits of interpretation (Barak 99). The textual approach is closely linked to the rise of legal positivism in the nineteenth century, an era which was much less bothered with the complex issues raised by the judicial interpretation of constitutions than the contemporary era. It continues to play a key role in those approaches to constitutional interpretation which retain a strongly positivist flavour and have been characterized as legalist or formalist. Examples of countries in which the practice of constitutional interpretation continues to be heavily based on textualism include Austria (Wiederin 95; Somek § 33 Rn. 21) and France (Ponthoreau 313), countries which played a pioneering role in developing alternative models to US-style constitutional review. The problem with this method is that in the field of constitutional law the interpretation of open-textured clauses is no longer the exception but the rule. Constitutions today contain value-laden and aspirational language to a far greater degree than in the nineteenth and the early twentieth century. This is due in no small measure to the ‘rights revolution’, which has seen the fundamental and human rights catalogues in national constitutions grow significantly in size and scope; textual interpretation is often of little help in establishing the scope or the constitutionally admissible limitations of those rights. But it is also a result of the rise of general constitutional principles, which are frequently used today to measure the constitutionality of legislative and executive measures and sometimes even of constitutional amendments, and the justiciability of constitutional preambles recognized in a growing number of jurisdictions, starting in France and Germany in the early 1970s.
2. Historical Method
19. The historical methods looks to the intent of constitutional drafters as expressed in the discussions of constituent assemblies or constitutional conventions, to help clarify what the text was originally understood to mean in cases where the textual interpretation does not yield unambiguous results (drafting of constitutions). This approach comes in different versions: while some focus on the meaning the relevant terms had in the mind of the framers, others deems this to be of secondary importance and focus on how the relevant words were generally understood at the time of adoption of the constitution. The historical method is still widely used in Austria, for example (Wiederin 95). In the US, the debate on the respective strengths and weaknesses of the historical approaches to interpretation known under the name of originalism has become the crystallizing point in the discussions about interpretive methodology in recent times (Greene 888). By contrast, the German Federal Constitutional Court is more ambivalent towards the historical approach, cautioning that its use might entice the interpreter to confuse the intentions of the drafters of the text with the objective scope and content of the provision under consideration. As a rule, the historical interpretation will therefore have only a subsidiary character, that is, it will only be used in order to confirm the result reached by the other methods of interpretation (2 BvR 329/60 (1960) 129–30 (Ger)).
20. The historical approach raises a number of difficult methodological issues: if the final approval of the constitution, as is increasingly the rule today, does not lie with the constituent assembly but with the people in a referendum, should not the meaning ascribed to controversial terms by the people at the time of adoption prevail? But how is the understanding of the majority of the people, who vote on the constitutional text as a whole, not on individual provisions, to be ascertained? In addition, as political, social, and economic realities change so does the meaning of words. If the circumstances which the words in the constitutional provision describe change, the meaning of the words must also change, either by constitutional amendment or, failing that—for whatever reason—by constitutional interpretation, otherwise the constitutional provision in question would be rendered meaningless, a result which can hardly be said to have been intended by its drafters/authors.
3. Structural Interpretation
21. In addition to the wording and the history of a constitutional provision, interpretation should also take into account its relation to other provisions and parts of the constitutional text, ie the way in which it is embedded in the structure of the constitution as a whole. Thus there is a presumption that the same term used in several provisions of the constitution has the same meaning, except where the text indicates otherwise. Another important aspect of structural interpretation concerns the distinction between its explicit and its implicit content: ‘[d]iction, word repetitions, and documentary organizing forms (eg the division of the text into articles or the separate status of the preamble and the amendments), for example, all contribute to a sense of what the Constitution is about that is as obviously “constitutional” as are the Constitution’s words as such’ (Tribe, as quoted by Barak 98).
22. Structural interpretation is accepted and practiced by most constitutional jurisdictions, although it is not always recognized as a separate method of interpretation (Barak 98). This may be due to the fact that structural interpretation in the common law countries pays less attention to statutory coherence and systematization than in civil law countries which have been shaped by the tradition of comprehensive legal codes. However, interpretive doctrines like the concept of necessary implication, which in civil law jurisdictions would be part of structural interpretation, are also to be found in the interpretive practices of constitutional courts in common law countries.
4. Purposive/Teleological Interpretation
23. The purposive/teleological method can be said to dominate in contemporary constitutional interpretation. It also fulfils a residual function, as methods of interpretation which cannot be subsumed under one of the preceding three methods are likely to end up in this category. Its application raises particularly complex methodological issues, many of them unresolved. Two main forms of purposive/teleological interpretation can be distinguished. The first asks for the subjective purpose of the constitutional provision, ie the aims, objectives, interests pursued by those who drafted or adopted the provision in question (Barak 100). It is closely linked to the historical method of interpretation (see “Historical Method”) and raises similar questions. Whose original intent or understanding shall be decisive: that of the actual drafters of the constitution, or that of the majority in the constituent assembly or constitutional convention voting in favour of its adoption? Or the intention or understanding of the electorate in cases in which—as is increasingly the case nowadays—the constitution or constitutional amendment is submitted to popular approval by way of referendum? And how can this intention or understanding be ascertained in a reliable manner?
24. The second form of purposive or teleological interpretation, by contrast, focuses on the goals, interests, values, or principles which the constitutional provision is deemed to serve and to implement at the time the constitutional case, or controversy arising from its application, is submitted to adjudication. This view of the constitution as an organic document which calls for a flexible, dynamic method of interpretation was captured well in Lord Sankey’s metaphor in the Edwards case decided by the Privy Council in 1930, that ‘the British North America Act planted in Canada is a living tree capable of growth and expansion within its natural limits’. Sixty years later, this view was echoed by Sabyasachi Mukharji J of the Supreme Court of India: ‘[t]he Constitution of India, it has to be borne in mind, like most other Constitutions, is an organic document … It has to be flexible and dynamic so that it adapts itself to the changing conditions and accommodates itself in a pragmatic way to the goals of national development and the industrialization of the country’ (Synthetics and Chemicals Limited Etc v State of Uttar Pradesh (1989) (India)).
25. The main problem with this method of interpretation concerns the legitimacy of the interpreter: is it sufficient to validate an interpretation of a constitutional provision for which no substantial support can be found in the materials on the drafting process and the adoption of the text, or, put differently, does the objective teleological interpretation confer too much judicial discretion on the constitutional judge who in cases of doubt is called upon to authoritatively determine the meaning of the constitutional provision? The answer to these questions depends on a number of variables concerning both the composition, selection, and qualifications of the membership of the adjudicatory body, and the peculiar characteristics of the constitutional text to be interpreted, including the age of the text, its broad or detailed character, the possibilities of adapting it by way of other means than interpretation etc. As these factors vary from one constitutional jurisdiction to the next it is no surprise that a consensus on the preferred method of constitutional interpretation has yet to emerge and is unlikely to be reached any time soon. In Ireland, for example, changes to the constitution have to be submitted to the Irish people for approval in a referendum before they can become law. This suggests that the responsibility for the necessary adaptation of the Irish constitution to changing conditions shall primarily lie with the Irish people, not with the legislature or the courts. By contrast, no constitutional referendum is provided for with regard to the US Constitution, and the amendment procedure expressly fixed in the text is extremely difficult to operate in a union of 50 states with a high degree of diversity, with the result that much of the burden of maintaining the relevance of the constitution in the light of present day challenges rests with the judiciary.
5. Consideration of International Law and Foreign Law
26. The role of international law and foreign law has received growing attention in recent decades. In terms of constitutional interpretation, the question here is whether the constitutional judge is entitled or even obliged to take into account relevant case law of international and foreign (constitutional) courts when adjudicating on constitutional matters. It is questionable whether the use of international/foreign precedents constitutes a distinctive method of interpretation or rather forms part of one of the aforementioned approaches, namely the purposive/teleological interpretation. A growing number of constitutions address the issue explicitly. An important example is Section 39 of the South African constitution. According to the latter provision, South African courts must consider international law and may consider foreign law when interpreting the Bill of Rights in the national constitution. In Argentina, the Supreme Court in 2005 struck down amnesty laws covering crimes committed by state agents during the military dictatorship from 1976 to 1983 as unconstitutional, basing itself explicitly on the jurisprudence of the Inter-American Court of Human Rights (IACtHR) that such amnesties were incompatible with Member States’ obligations to prosecute and punish the perpetrators of grave violations of those human rights protected by the American Convention on Human Rights (1969), to which Article 75 of the Constitution of the Argentine Nation: 23 August 1994 (Arg) gives constitutional rank (Julio Simón et al v Public Prosecutor (2005) (Arg)).
27. The jurisprudence of constitutional courts in other Member States of regional human rights systems is frequently more nuanced, but they agree that that not only the text of the relevant conventions, but also the case law of the regional human rights court clarifying the scope and the limits of the relevant rights, have to be taken into account when interpreting the corresponding fundamental rights provisions in national constitutional law. Outside the regional systems, constitutional courts which have repeatedly referred to international human rights treaties and the opinions issued by the treaty bodies include Canada, Jordan, South Korea, and Taiwan.
28. While international law imposes binding obligations on parties to the treaty with regard to treaty matters, foreign law per se is not binding on national authorities. While this does not preclude the consideration of foreign precedents on international human rights guarantees and their application in national law, those precedents have persuasive authority at most.
29. The impact of international and foreign law has remained largely limited to the field of fundamental rights and has barely affected institutional issues. Even in the field of fundamental rights, the internationalization of constitutional interpretation has met with resistance in some places, as the controversy between Justices Beyer and Scalia of the US Supreme Court in 2005 demonstrated. Perhaps more importantly, a number of constitutional courts in Member States of a regional human rights system have recently started to stress the limits set by the national constitution, or at least the non-amendable provisions of the constitution, to the implementation of obligations deriving from international human rights treaties.
E. Interpretive Approaches in Court Practice: Recent Trends
30. The existing approaches to constitutional interpretation can be divided into two broad categories. The first group comprises the formalist/legalist approaches to constitutional interpretation. Methodologically, they rely on the (explicit) text and the historical intent of the authors of the constitution. The objective is to narrow the scope for judicial discretion as far as possible. This is seen as an indispensable precondition for a functioning separation of powers, one in which the people and its representatives in the constituent assembly and the legislature make the constitution, while the courts are limited to clarify its meaning in cases of doubt.
31. The normativist, value-oriented approaches, on the other hand, tend to see the constitution as a ‘living instrument’ which must be constantly adapted to the changing circumstances in order to retain its relevance for society. They favour a structuralist and, above all, purposive interpretation of the constitution, with an emphasis on the latter’s objective purpose. Normativist, value-oriented approaches are likely to be particularly strong in countries where there is a desire for a radical break with the past in all or at least some central areas, as was the case in (West) Germany after the defeat of Nazi rule in 1945/49 and in South Africa following the end of apartheid in 1994/96, for example. But it is more generally applicable, as the technique of drafting constitutions has changed considerably in recent decades. Constitutional texts are no longer formulated in legal or technical terms but often contain broad, value-laden language in the Preamble, the provisions on general principles, and the fundamental rights chapters. Once it is admitted that not only the chapters on powers and competences, but also the fundamental rights guarantees, the provisions on general principles, and even the Preamble are directly binding on all public authorities—ie that all parts of the constitution have a normative character—interpretive approaches must be found to give legal meaning to these parts of the constitutional text as well. This has made it necessary to overcome the dominance of positivism and of the interpretive methods closely linked to it.
32. This development can be observed in many places where formalism/legalism has historically been the dominant approach to constitutional interpretation. In India, the Supreme Court based its early jurisprudence on a positivist approach to constitutional interpretation. However, it shifted to a more normativist approach in the controversy about the unwritten limits to parliament’s power to amend the constitution. Although the Court on this matter, too, at first purported to follow a literal, positivist interpretation of the relevant provisions, it subsequently declared that they had to be interpreted in the light of the underlying spirit of the constitution, comprised of enduring constitutional values. It has since openly embraced a creative role in adapting the constitution to ‘the felt necessities of the time’: ‘[t]o interpret it ignoring the social, political, economic and cultural realities, is to interpret it not as a vibrant document alive to the social situation but as immutable cold letter of law unconcerned with the realities’ (Indra Sawhney v Union India (1992) (India), per Sawant J).
33. In Latin America, the traditional paradigm of formalism/legalism has given way since the early 1990s to a value-oriented jurisprudence centred on human rights as the central category of constitutionalism. This was a direct response not only to the egregious human rights violations that had taken place under the military regimes in the 1970s and 1980s, as the very formalism and judicial deference to the legislature was blamed for the passivity shown by the judiciaries in the face of massive human rights violations perpetrated during this authoritarian period (Couso 148–49), but also to the inadequacy of these methods with a view to promoting a transformative constitutional project, as the one which the Columbian Constitutional Court has sought to advance on the basis of the 1991 Constitution (Cepeda 650–51).
34. In France, the traditional obsession with the text of the constitution lost its dominant position to teleological approaches to interpretation once the Conseil Constitutionnel came round to the view that the parameters for the review of constitutionality of legislation are not exclusively found in the constitutional provisions on legislative competence and procedure, but also in the catalogues of rights contained in the French Declaration of the Rights of Man and of the Citizen (1789) and the Preamble of the 1946 Constitution, which are both referred to in the Preamble of the 1958 Constitution. This break with traditional approaches to interpretation was all the more remarkable since the Conseil Constitutionnel, in recognizing the legally binding character of the Preamble, ignored an explicit statement by the drafters of the 1958 Constitution that the Preamble was devoid of any legal effect (Heuschling 46).
35. In Austria, the first country to establish a modern constitutional court, the formalist-textualist style of interpretation remained predominant well into the 1970s. It only started to be replaced by a normativist, value-oriented style when the Constitutional Court of Austria (Verfassungsgerichtshof) decided to follow the purposive interpretation practiced by the European Court of Human Rights (ECtHR) and the German Constitutional Court in the field of human rights in the 1970s. This does not mean that Austria’s Constitutional Court has completely abandoned the formalist style of interpretation. Rather, a predominantly teleological approach in the field of fundamental rights and generally prescribed objectives of the state coexists uneasily with a more formalist approach that is still very much in use in matters concerning powers, competences, and procedures (Jakab 945).
36. This finding of ‘judicial eclecticism’ in constitutional interpretation is hardly unique to Austria, however. It has also been noted with regard to French constitutional jurisprudence (Heuschling 46) and has been a well-analysed feature of the US Supreme Court’s use of interpretive techniques (Tushnet 47). Purposive/teleological approaches may have enjoyed particular popularity on the Court during the activist period of the Warren Court in the late 1950s and the 1960s, but they were hardly an invention of that court. Similarly, originalist approaches to interpretation go back much longer than the 1980s, when they were officially put on the agenda by the Reagan administration as a way to reign in and roll back what was seen as the activist excesses of the Warren and, partly, the Burger eras (namely the Roe v Wade Case (US) (1973)). Nor has it achieved any real dominance on the court since then, the court’s more conservative composition and leadership notwithstanding.
37. While District of Columbia v Heller (2008) (US) was widely seen as a triumph for originalism in its ‘faint-hearted’ version (Scalia), on other issues the majority has remained faithful to a broad, purposive interpretation of the constitution, particularly with regard to the protection of liberty. Starting in the Lochner era, the Supreme Court developed a broad concept of liberty which protects economic liberties, such as the liberty to contract and the right to engage ‘in any of the common occupations of life’, along with personal liberties, such as the right to marry and to raise children, to confess and practice the religion of one’s choice, and, more generally, ‘to enjoy those privileges long recognized at common law essential to the orderly pursuit of happiness by free men’ (Meyer v Nebraska (1923) (US)). This conception of liberty as a broad principle that is not limited to a concrete historical practice or a specific original meaning survived all later challenges from both within and outside the Court, which criticized the judicial recognition of substantive liberties not enumerated in the constitutional text itself under such broad categories as privacy, autonomy, and substantive due process as an indefensibly indeterminate and irredeemably undemocratic exercise. Writing for the Court in Obergefell v Hodges (2015) (US), Justice Kennedy reaffirmed this approach:
[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility … requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect … History and tradition guide and discipline this inquiry but do not set its outer boundaries ... The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all person to enjoy liberty as we learn its meaning.
38. As is evident from the preceding observations, the rise of fundamental rights and freedoms as the central area of reference in contemporary constitutional adjudication has tended to favour a shift to teleological/purposive approaches in constitutional interpretation. Nothing illustrates this more clearly than the rise of the proportionality test, today the most important test resorted to by constitutional courts when they have to weigh conflicting interests, both of which enjoy constitutional protection, against each other. Its modern version was developed in Germany, where the Federal Constitutional Court of Germany (Bundesverfassungsgericht) since the 1950s applies it whenever it has to review laws limiting fundamental rights, or administrative and judicial decisions applying such laws. From Germany the principle of proportionality has spread to most other European countries with a system of constitutional review, and to numerous constitutional jurisdictions outside Europe. It is perhaps the best example of a purposive/teleological approach to constitutional interpretation, as it is based on the recognition of the special place occupied by individual rights and freedoms in a free society; while the freedom guaranteed by constitutional rights can hardly ever be absolute, their paramount importance as the expression of the citizen’s general claim to freedom vis-à-vis the state requires that when they are limited, they may be restricted only to the extent necessary in the circumstances to protect compelling state interests recognized in the constitution (Grimm 384–85).
F. Concluding Remarks
39. The rules of constitutional interpretation, like constitutional law and law in general, are not fixed once and for all but are subject to constant evolution and adaptation. As the complexity of constitutional texts and structures has grown, so has the need and the demand for more nuanced and flexible interpretive methods. Far from being the organizational statutes of old, constitutions are today multi-layered documents, combining technical and detailed provisions on institutions, powers, and procedures with open-textured fundamental rights provisions, broadly worded objectives of the state, and highly aspirational language, in Preambles. As the scope of constitutional law has expanded and its structure has changed, the need for normativist, value-oriented approaches to interpretation has been more strongly felt in most constitutional jurisdictions and has to a greater or lesser extent superseded older, more positivist approaches, without replacing them altogether. This development has not been limited to the field of fundamental rights but has been particularly visible in this domain, as global and regional efforts to strengthen human rights protection have created conditions favourable to a meaningful interaction of national constitutional courts with international human rights bodies and regional human rights courts, as well as with other national constitutional courts adhering to the same human rights treaties and the values underpinning them.
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