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Stanford
Encyclopedia of Philosophy
Constitutionalism
转自宪政文本
Constitutionalism
is the idea, often associated with the political theories of John Locke and the
"founders" of the American republic, that government can and should
be legally limited in its powers, and that its authority depends on its observing
these limitations. This idea brings with it a host of vexing questions of
interest not only to legal scholars, but to anyone keen to explore the legal
and philosophical foundations of the state. How can a government be legally
limited if law is the creation of government? Does this mean that a government
can be "self-limiting," or is there some way of avoiding this
implication? If meaningful limitation is to be possible, must constitutional
constraints be somehow "entrenched"? Must they be enshrined in
written rules? If so, how are they to be interpreted? In terms of literal
meaning or the intentions of their authors, or in terms of the, possibly
ever-changing, values they express? How one answers these questions depends
crucially on how one conceives the nature, identity and authority of
constitutions. Does a constitution establish a stable framework for the
exercise of public power which is in some way fixed by factors like the
original meaning or intentions? Or is it a "living tree" which grows
and develops in tandem with changing political values and principles? These and
other such questions are explored below.
1.
Constitutionalism: a Minimal and a Rich Sense
2. Sovereign
versus Government
3. Entrenchment
4.
"Writtenness"
5. Montesquieu
and the Separation of Powers
6.
Constitutional Law versus Constitutional Convention
7.
Constitutional Interpretation and Constitutional Theories
8. The Fixed
View and the Living Tree
9. Textualism:
The Meaning of a Constitution’s Text
10. Originalism
11. Hypothetical
Intent Theory
12. Dworkin:
Moral Theory
13. Critical
Theory
Bibliography
Other Internet
Resources
Related Entries
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1.
Constitutionalism: a Minimal and a Rich Sense
In some minimal
sense of the term, a "constitution" consists of a set of rules or
norms creating, structuring and defining the limits of, government power or
authority. Understood in this way, all states have constitutions and all states
are constitutional states. Anything recognisable as a state must have some
acknowledged means of constituting and specifying the limits (or lack thereof)
placed upon the three basic forms of government power: legislative power
(making new laws), executive power (implementing laws) and judicial power
(adjudicating disputes under laws). Take the extreme case of an absolute
monarch, Rex, who combines unlimited power in all three domains. If it is
widely acknowledged that Rex has these powers, as well as the authority to
exercise them at his pleasure, then the constitution of this state could be
said to contain only one rule, which grants unlimited power to Rex. He is not
legally answerable for the wisdom or morality of his decrees, nor is he bound
by procedures, or any other kinds of limitations or requirements, in exercising
his powers. Whatever he decrees is constitutionally valid.
When scholars
talk of constitutionalism, however, they normally mean something that rules out
Rex’s
case. They mean not only that there are rules creating legislative, executive
and judicial powers, but that these rules impose limits on those powers.[1]
Often these limitations are in the form of individual or group rights against
government, rights to things like free expression, association, equality and
due process of law. But constitutional limits come in a variety of forms. They
can concern such things as the scope of authority (e.g. in a federal system,
provincial or state governments may have authority over health care and
education while the federal government’s jurisdiction extends to national defence
and transportation); the mechanisms used in exercising the relevant power (e.g.
procedural requirements governing the form and manner of legislation); and of
course civil rights (e.g. in a Charter or Bill of Rights). Constitutionalism in
this richer sense of the term is the idea that government can/should be limited
in its powers and that its authority depends on its observing these
limitations. In this richer sense of the term, there is no "constitution"
in Rex’s
society because the rules defining his authority impose no such limits. Compare
a second state in which Regina has all the powers possessed by Rex except that
she lacks authority to legislate on matters concerning religion. Suppose
further that Regina also lacks authority to implement, or to adjudicate on the
basis of, any law which exceeds the scope of her legislative competence. We
have here the seeds of constitutionalism as that notion has come to be
understood in Western legal thought.
In discussing
the history and nature of constitutionalism, a comparison is often drawn
between Thomas Hobbes and John Locke who are thought to have defended,
respectively, the notion of a constitutionally unlimited sovereign (e.g. Rex)
versus that of a sovereign limited by the terms of a social contract containing
substantive limitations on her authority (e.g. Regina).[2] But an equally good
focal point is the English legal theorist John Austin who, like Hobbes, thought
that the very notion of limited sovereignty is incoherent. For Austin, all law
is the command of a sovereign, and so the notion that the sovereign could be
limited by law requires a sovereign who is self-binding, who commands
him/her/itself. But no one can "command" himself, except in some figurative
sense, so the notion of limited sovereignty is, for Austin (and Hobbes), as
incoherent as the idea of a square circle.[3] Though this feature of Austin’s theory has some
plausibility when applied to the British Parliamentary system, where Parliament
is often said to be "supreme" and constitutionally unlimited,[4] it
faces serious difficulty when applied to most other constitutional democracies
such as one finds in the United States and Germany, where it is clear that the
powers of government are legally limited by a constitution. Austin’s answer was to say that
sovereignty may lie with the people, or some other person or body whose
authority is unlimited. Government bodies -- e.g. Parliament or the judiciary
-- can be limited by constitutional law, but the sovereign -- i.e. "the
people" -- remains unlimited. Whether this provides Austin with an
adequate means of dealing with constitutional democracies is highly
questionable. For Austin’s sovereign is a determinate individual or
group of individuals whose commands to others constitute law. But if we
identify the commanders with "the people", then we have the
paradoxical result identified by H.L.A. Hart -- the commanders are commanding
the commanders. In short, we lapse into incoherence.[5]
2. Sovereign
versus Government
Though there are
serious difficulties inherent in Austin’s attempt to make sense
of "the people’s sovereignty," his account does bring out the
need to distinguish between two different concepts: sovereignty and government.
Roughly speaking, we might define "sovereignty" as the possession of
supreme (and possibly unlimited) power and authority over some domain, and
"government" as those persons or bodies through whom sovereignty is
exercised. Once some such distinction is drawn, we see immediately that
sovereignty might lie somewhere other than with the government. And once this
implication is accepted, we can coherently go on to speak of limited government
coupled with unlimited sovereignty. Arguably this is what one should say about
constitutional democracies where the people’s sovereignty is thought
to be unlimited but the government’s power is constitutionally limited. As
Locke held, unlimited sovereignty remains with the people who have the
normative power to void the authority of their government (or some part
thereof) if it exceeds its constitutional limitations.
Though
sovereignty and government are different notions, it does seem possible for
them to apply to the same individual or body. It is arguable that Hobbes
insisted on the identification of sovereign and government insofar as he seemed
to require a (virtually) complete transfer of all rights and powers from
sovereign individuals to a political sovereign whose authority was to be
absolute, thus rendering it possible to emerge from the wretched state of
nature in which life is "solitary, poor, nasty, brutish and
short."[6] In Hobbes’ theory, supreme sovereignty must reside in
the supreme governmental person or body who enjoys unlimited power and
authority to rule the commonwealth. Anything less than unlimited government
would, given human nature and the world we inhabit, destroy the very
possibility of stable government. So even if "sovereignty" and
"government" are different notions, this neither means nor implies
that the two could not apply to one and the same individual(s).
3. Entrenchment
According to
most theorists, a further important feature of constitutionalism is that the
rules imposing limits upon government power must be in some way be entrenched,
either by law or by way of "constitutional convention."[7] In other
words, those whose powers are constitutionally limited -- i.e. the organs of
government -- must not be legally entitled to change or expunge those limits at
their pleasure. Most written constitutions contain amending formulae which can
be triggered by, and require the participation of, the government bodies whose
powers they limit. But these formulae invariably require something more than a
simple decision on the part of the present government to invoke a change. Sometimes
constitutional assemblies are required, or super-majority votes, referendums,
or the agreement of not only the central government in a federal system but
also some number or percentage of the governments or regional units within the
federal system. Entrenchment not only facilitates a degree of stability over
time (a characteristic aspiration of constitutional regimes), it is arguably a
requirement of the very possibility of constitutionally limited government. Were
a government entitled, at its pleasure, to change the very terms of its
constitutional limitations, there would, in reality, be no such limitations.
Consider Regina
once again. Were she entitled, at her discretion, to remove (and perhaps later
reinstate) the constitutional restriction preventing her from legislating on
religious matters, then it is questionable whether she could sensibly be said
to be "bound" by this requirement. On the other hand, were there a
constitutional rule or convention specifying that Regina is entitled to remove
this restriction only if she succeeds in convincing two thirds of her subjects
to vote for the change, then we might meaningfully speak of constitutional
limitation. Of course this constitutional meta-rule or convention is itself
subject to change or elimination -- a fact which raises a host of further
puzzles. For example, does such an act require application of the very rule in
question -- i.e. two third’s majority vote -- or are "the
people," as sovereign, at liberty to change or expunge it at their
pleasure? If we accept the distinction between government and sovereignty urged
above, as well as the proposition that sovereignty cannot be self-limiting, (X
cannot limit X) then we seem led to the conclusion that the constitutional
meta-rule -- and hence the constitutional regime of which it is an integral
part -- both exist at the pleasure of the people. Entrenchment may be an
essential element of constitutional regimes, but constitutions cannot be
entrenched against the actions of "the sovereign people" at whose
pleasure they exist.
4.
"Writtenness"
Some scholars
believe that constitutional rules do not exist unless they are in some way
enshrined in a written document.[8] Others argue that constitutions can be
unwritten, and cite, as an obvious example of this possibility, the
constitution of the United Kingdom. One must be careful here, however. Though
the UK has nothing resembling the American Constitution and its Bill of Rights,
it nevertheless contains a number of written instruments which arguably form a
central element of its constitution. Magna Carta (1215 A.D.) is perhaps the
earliest document of the British constitution, while others include The
Petition of Right (1628) and the Bill of Rights (1689). Furthermore,
constitutional limits are also said to be found in certain principles of the
common law, explicitly cited in landmark cases concerning the limits of
government power. The fact remains, however, that Britain seems largely to have
an unwritten constitution, suggesting strongly that writtenness is not a
defining feature of constitutionalism.
Why would one
think that constitutional norms must be written rules, as opposed to more
informal conventions or social rules? One possible reason is that unwritten
rules are sometimes less precise and therefore more open to
"interpretation," gradual change, and ultimately avoidance, than
written ones. If this were true, then an unwritten rule could not, as a
practical matter, serve adequately to limit government power. But this need not
be the case. Long standing social rules and conventions are often clear and
precise, as well as more rigid and entrenched than written ones, if only
because their elimination, alteration or re-interpretation typically requires
widespread changes in traditional attitudes, beliefs and behaviour.
5. Montesquieu
and the Separation of Powers
Does the idea of
constitutionalism require, as a matter of conceptual or practical necessity,
the division of powers urged by Montesquieu? In Regina’s case, there is no such
separation. But how, it might be asked, can she be the one (qua judge) who
determines whether her legislation satisfies the prescribed constitutional
limitation? Even if, in theory, Regina’s constitution prohibits her from removing
her constitutional restriction at will (because she must observe the 2/3rds
meta-rule)she can always choose to ignore her restrictions, or to
"interpret" them so as to escape their binding force. Perhaps Bishop
Hoadly was right when he said (1717) in a sermon before the English King:
"Whoever hath an ultimate authority to interpret any written or spoken
laws, it is he who is truly the Law-giver to all intents and purposes, and not
the person who first wrote or spoke them."[9] Although some constitutional
limits, e.g. one which restricts the Mexican President to a single term of
office, seldom raise questions of interpretation, many others are ripe for such
questions. Regina might argue that a decree requiring all shops to close on
Sundays (the common Sabbath) does not concern a religious matter because its
aim is a common day of rest, not religious observance. Others might argue, with
seemingly equal plausibility, that it does concern a religious matter and
therefore lies outside Regina’s legislative competence. That
constitutions often raise such interpretive questions gives rise to an
important question: Does the possibility of constitutional limitation on
supreme legislative (and executive) power require, as a matter of practical
politics, that judicial power reside in some individual or group of individuals
distinct from that in which legislative and executive powers are vested? In
modern terms, must constitutional limits on a legislative body like Parliament,
the Duma or Congress, or an executive body like the President or her Cabinet,
be subject to interpretation and enforcement by an independent judiciary?
Marbury v
Madison settled this question in the affirmative as a matter of American law,
and most nations follow Marbury (and Montesquieu) in accepting the practical
necessity of some such arrangement. But it is not clear that the arrangement
truly is practically necessary, let alone conceptually so. Bishop Hoadly
notwithstanding, there is nothing nonsensical in the suggestion that X might be
bound by an entrenched rule, R, whose interpretation and implementation is left
to X. What R actually requires is not necessarily identical with what X thinks
or says that it requires, any more than what the American Constitution requires
is necessarily identical with what the American Supreme Court says that it
requires. This is so even when there is no superior institution to correct X’s judgment, or that of
the American Supreme Court, when they go wrong. That constitutional limits can
sometimes be interpreted so as to avoid their effect, and no recourse be
available to correct mistaken interpretations and abuses of power, does not,
then, imply the absence of constitutional limitation. But does it imply the
absence of effective limitation? Perhaps so, but even here there is reason to
be cautious in drawing general conclusions. There is a long-standing tradition
within the British Parliamentary system according to which Parliament is alone
in being able not only to create, but also to interpret and implement its own
constitutional limits. And whatever its faults, there is little doubt that
Parliament typically acts responsibly in observing its own constitutional
limits.
6.
Constitutional Law versus Constitutional Convention
The idea of
constitutionalism is usually thought to require legal limitation on government
power and authority. But according to most constitutional scholars, there is
more to a constitution than constitutional law. Many people will find this
suggestion puzzling, believing their constitution to be nothing more (and
nothing less) than a formal document, possibly adopted at a special
constitutional assembly, which contains the nation’s supreme law. But there
is a long-standing tradition of conceiving of constitutions as containing much
more than constitutional law. Dicey is famous for proposing that, in addition
to constitutional law, the British constitutional system contains a number of
"constitutional conventions" which effectively limit government in
the absence of legal limitation. These are, in effect, social rules arising
within the practices of the political community and which impose important, but
non-legal, limits on government powers. An example of a British constitutional
convention is the rule that the Queen may not refuse Royal Assent to any bill
passed by both Houses of the UK Parliament. Perhaps another example lies in a
convention that individuals chosen to represent the State of Florida in the
American Electoral College (the body which actually chooses the American
President by majority vote) must vote for the Presidential candidate for whom a
plurality of Floridians voted on election night. Owing to the fact that they
are political conventions, unenforceable in courts of law, constitutional
conventions are said to be distinguishable from constitutional laws, which can
indeed be legally enforced. If we accept Dicey’s distinction, we must
not identify the constitution with constitutional law. It includes
constitutional conventions as well. We must further recognize the possibility
that a government, though legally within its power to embark upon a particular
course of action, might nevertheless be constitutionally prohibited from doing
so. It is possible that, as a matter of law, Regina might enjoy unlimited
legislative, executive and judicial powers which are nonetheless limited by
constitutional conventions specifying how those powers are to be exercised. Should
she violate one of these conventions, she would be acting legally, but
unconstitutionally, and her subjects might well feel warranted in removing her
from office -- a puzzling result only if one thinks that all there is to a
constitution is constitutional law.
7.
Constitutional Interpretation and Constitutional Theories
As we have just
seen, there is (often) more to a constitution than constitutional law. As we
have also seen, constitutional norms need not always be written rules. Despite
these important observations, two facts must be acknowledged: (1) the vast
majority of constitutional cases hinge on questions of constitutional law; and
(2) modern constitutions are predominantly written documents.[11] Consequently,
constitutional cases often raise theoretical issues concerning the proper
approach to the interpretation of written instruments -- coloured, of course,
by the special role of constitutions in defining and limiting the authority and
powers of government.
8. The Fixed
View and the Living Tree
Although
theories of constitutional interpretation are many and varied, they all seem,
in one way or another, to ascribe importance to a select number of key factors:
textual meaning, political and legal history, intention, and moral/political
theory. The roles played by these factors in a theory depend crucially on how
the theorist conceives of a constitution and its role in limiting government
power. For example, if a theorist views a constitution as foundational law
whose existence, meaning and authority derive from the determinate, historical
acts of its authors and/or those they represent(ed), and whose principal point
is to fix a framework within which government power is to be exercised, she may
be inclined towards an interpretative theory which accords pride of place to
factors like authors’ intentions, and literal or plain meaning insofar as
the latter is considered the best guide to the former. On what we will call the
"fixed view" of a constitution, it is natural to think that such
factors should govern whenever these are clear and consistent. On the fixed
view, a constitution sets a framework for law and politics which is fixed by
the historical acts of its authors; it is therefore wholly inappropriate for a
judge to ignore such factors when she interprets its provisions, even when
doing so would allow her to avoid results which appear unacceptable, perhaps
even unjust.
If, on the other
hand, one views a constitution as a "living tree", which by its
nature grows and adapts to contemporary circumstances and beliefs, and whose
authority resides in its justice, or in the consent, commitment or sovereignty
of "the people now," not "the people then," then one will
be far less likely to find such appeals persuasive, let alone conclusive. One
inclined towards the living tree conception will tend to spurn appeals to
textual meaning and authors’ intentions as attempts to impose the dead
hand of the (possibly distant) past upon contemporary society and practice. Government
must be limited in power, but the terms of these limitations should be allowed
to evolve and adapt in light of changing circumstances and political beliefs. Despite
its undoubted appeal to some, the living tree conception faces tough questions:
is viewing a constitution as a "living tree", malleable in the hands
of contemporary interpreters -- particularly judges -- consistent with its
status as foundational law, and with the entrenchment, stability and protection
from unwarranted state power which seem to be crucial, if not essential,
aspects of the very idea of constitutionally limited government? Different
theories of constitutional interpretation split on how they answer this
important question.
9. Textualism:
The Meaning of a Constitution’s Text
No one denies
that the literal meanings of the actual words chosen in drafting a constitution
play a key role in determining its impact upon decisions, just as they do in
the interpretation of statutes, wills, consent forms, and any other written
(and sometimes unwritten) legal instruments. Despite factors such as vagueness,
open texture, indeterminacy and the like, the semantic content of a
constitutional provision, as a rule or norm intended to convey meaning through
the use of words, sets limits to its proper interpretation. As Alice said,
words can’t
just mean whatever one wants them to mean.
Textualism
appeals to many, but especially those who accept the fixed view of the
constitution, coupled with a belief that a constitution is, principally, one
important device through which citizens are protected from unwarranted state
power, including unwarranted judicial power. Requiring that judges interpret
constitutional provisions in light of the meaning of the constitution’s text (particularly the
"original meaning" it bore at the time of his adoption) respects the
role of the founders in fixing, on behalf of the community, the basic framework
of government and the limits within which state power is to be exercised. Political
decisions about that proper framework and its constituent limits have, on this
theory, already been made in a proper forum by those in whose hands such
decisions were rightly placed. Their decisions have been communicated and
should not, lest stability and legitimacy be threatened, be subject to
continuous revisiting and review, particularly by (typically unelected) judges
who lack the authority enjoyed by the constitution’s authors. The discovery
of textual meaning is (it is thought) a largely factual matter, requiring none
of the moral and political reasoning appropriately undertaken by the founders. If
constitutional change is required, the constitution itself sets procedures
through which such changes can be affected. Should these prove ineffective, and
yet change still be warranted, then the people, as the sovereign power
underlying constitutional democracies, have the authority to abandon the
constitution, through revolution, peaceful or not, and to substitute something
else. But so long as the constitution remains in force, the semantic content of
its rules must be taken as governing all matters of constitutional law.
Despite its
obvious appeal, Textualism -- or as it is sometimes called, "strict constuctionism"
-- faces a number of difficulties. First, semantic content is not always fully
determinate or stable from one generation to the next. This is especially true
of words and phrases like "equality," "due process of law,"
"fundamental justice," "free and democratic society,"
"freedom of religion" and so on. These seem to lack the determinate
and relatively stable semantic content of phrases like "five year
term" or "two-thirds majority." The evaluative concepts
expressed by the former are highly contestable politically, perhaps even
"essentially contestable," and cannot therefore serve the role
suggested by the fixed view.
Textualism faces
a further difficulty. Even when the meaning of a word or phrase used in a
constitution is plain for all to see, it is not always the case that it is
considered dispositive. For example, taken in terms of both its original and
(perhaps different) contemporary meaning, the First Amendment of the American
Constitution is clearly violated by a whole host of American laws, e.g., those
proscribing incitement, perjury and libel. Taken literally the First Amendment
renders unconstitutional any law which in any way restricts freedom of speech. If
so, then it is unconstitutional in the United States to punish untruthful witnesses,
prevent primary school teachers from uttering vicious racial slurs against
their minority students, or convict those who incite crowds to violence. But
such actions have never been understood to violate the First amendment, leading
to the inevitable conclusion that more than semantic meaning governs its
interpretation and application. And this is generally, if not universally, true
of modern states and their constitutions. But if more than meaning governs,
what else counts? The most obvious choice, especially for those attracted to
the fixed view, are the "intentions" of the framers. In response to
the suggestion that the American First Amendment prohibits laws against
perjury, a defender of the fixed view is likely to reply: "But that can’t possibly be what the
framers had in mind -- what they intended -- in choosing the words they
did." This leads us to a second type of interpretive theory, Originalism,
which focusses, not on word meaning, but on the intentions of those by whose
actions the constitution’s various provisions came into existence.
10. Originalism
An Originalist
might claim that Textualism is partially correct but doesn’t go far enough. The
original intentions of a constitution’s authors are what really count; and the
reason that textual meaning is so important is that it’s often the most reliable
guide to those intentions. The drafters of a constitution may be presumed to
have known and had in mind the standard applications of the words they used,
and to have intended the results suggested by those applications, together with
the goals and values those applications were best suited to achieve. But when
textual meaning fails, direct appeal to the relevant intentions is necessary. In
both kinds of cases, however, the ultimate aim is to respect original
intentions.
Whatever its
precise contours, an Originalist theory is, like Textualism, likely to rest on
the fixed view of a constitution. To be sure, the constitution’s rules are fixed by the
authors’
intentions in deciding as they did, and not by the semantic content of the
words chosen to communicate those intentions. But they are fixed nonetheless,
and must, as a result, not be revisited and revised lest the authority and
stability of the constitution be threatened. The intentions of those by whose
authority a constitution is made must always govern its interpretation, not the
new value judgments and decisions of contemporary judges (or any other
interpreters) asking the very same questions the founders intentions were
supposed to have settled.
Originalism
faces a number of difficulties, some shared with Textualism. For example,
original intentions are often unclear, if not completely indeterminate, leaving
the interpreter with the need to appeal to other factors. Original intentions
can vary from one author to the next, and can range from the very general to
the highly specific. At one end of the spectrum are the various, and sometimes
conflicting goals and values the authors of a provision intended their creation
to achieve. At the other end are the very specific applications the authors
might have had in mind when they chose the provision they did. Did the intended
applications of an equality provision encompass equal access to the legal
system by all groups within society? Or only something more specific like equal
access to fairness at trial? Did they perhaps include equal economic and social
opportunities for all groups within society? Different authors might have
"intended" all, none, or some of these applications when they chose
the equality provision. And as with the general goals and values underlying a
provision, there is room for inconsistency and conflict. Constitutional
authors, no less than legislators, union activists, or the members of a church
synod, can have different goals and applications in mind and yet settle on the
same set of words. In light of this fact, it is often unhelpful to rely on
original intentions when interpreting a constitution.
11. Hypothetical
Intent Theory
One of the most
serious difficulties faced by Originalism is that contemporary life is often
very different from the life contemplated by the authors of a constitution. As
a result, many intended applications may now seem absurd or highly undesirable
in light of new scientific and social developments and improved moral
understanding. Modern life includes countless situations which the authors of a
constitution could not possibly have contemplated, let alone intended to be
dealt with in any particular way. The right to free speech which found its way
into many constitutions in the early modern period, could not possibly have
been intended by its defenders to encompass, e.g., pornography on the internet.
In response to such difficulties, an Originalist might appeal to what we can
call "hypothetical intent." The basic idea is that we should always
consider, in such instances, the hypothetical question of what the original
authors would have intended 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 authors’
shoes, and determine, in light of their intended goals and values, and possibly
by way of analogy with their intended applications, what they would have wanted
to be done in the new circumstances.
The Hypothetical
Intent Theory faces difficulties too. First, the theory presupposes that we can
single out one, consistent set of values, goals and applications attributable
to the authors, in terms of which we are to ask the question: What would they
have wanted to have done given these (intended) values, goals and applications?
But as we have already seen, the authors of a constitution invariably have
different things in mind when they agree on a constitutional text. Second, even
if we could single out, at some appropriate level of generality, a set of
goals, values and applications from which our hypothetical inquiry is to
proceed, it is unlikely that there will always be a uniquely correct answer to
the question of what the authors would have intended in these cases which they
did not anticipate and could not possibly have imagined. What would an 18th
century founder, firmly in favour of freedom of speech, have thought about
child pornography on the internet? Thirdly, and perhaps most importantly, we
are left with the question of why it much matters what a long dead group of
individuals might have wanted done were they apprised of what we now know. The
main appeal of the original intent theory is that it appears to tie
constitutional interpretation to historical decisions actually made by
individuals with authority to decide questions concerning the proper limits of
government power. If we are now to consider, not what they did decide, but what
they might have decided had they known what we now know, then the question
naturally arises: Why not just forget this theoretically suspect, hypothetical
exercise and make the decisions ourselves? There is some plausibility in the
claim that the decision should be made in light of the very general goals and
values probably intended by the authors -- if, that is, one could discover what
these were and if they could all be rendered consistent. But why should we wish
to perpetuate their possibly misguided views about the appropriate ways in
which to secure these goals and values? Unless we reject completely the idea
that there might be moral progress, or the idea that any such progress must
always be dismissed for the sake of a fixedness allegedly guaranteed by
adherence to authors’ intent, there seems little reason to believe that we
should be so tied. To think otherwise might well be to allow the dead hand of
the past to govern the affairs of today.
True enough, it
might be replied. But the alternative is one which undermines the very point of
constitutions. If we view a constitution as a living tree whose limitations are
constantly open to revisiting and revision in light of changing times and
improved moral/political understanding, then it can no longer function as a
stable instrument whose very point and purpose is to limit the power of government
-- particularly, though not exclusively, arbitrary judicial power. Arguments of
political morality may be necessary to frame a constitution, but if judges and
other contemporary interpreters are allowed to construe it in light of how they
choose to understand those limits, then the possibility of limitation vanishes.
But does it? One theorist who thinks not is Ronald Dworkin, whose theory of
constitutional interpretation attempts to do justice to both these points of
view.
12. Dworkin:
Moral Theory
For Dworkin,
historical factors like semantic meaning and intention, though always
important, are in no way dispositive. They in no way fix the limits of
government until such time as an amendment passes or a revolution occurs. On
the contrary, constitutions frame the terms of an ongoing political debate
about the moral principles of justice, fairness and due process underlying a
nation’s
constitutional limits on government power. And as the political community’s understanding of these
principles develops and improves, the very content of the constitution develops
and, it is hoped, improves along with it.
A crucial
element in Dworkin’s constitutional theory is his general claim that the
law of a community includes more than any explicit rules and decisions authoritatively
adopted in accordance with accepted procedures. It does, of course, include
many such rules and decisions and these can be found, paradigmatically, in
statute books, judicial decisions and, of course, written constitutions. These
are often termed "positive law." But the positive law in no way
exhausts the law according to Dworkin. Most importantly, for our purposes, it
in no way exhausts that part of law we call "the constitution." In
Dworkin’s
view, a constitution includes the principles of political morality which
provide the best explanation and moral justification -- i.e. the best
interpretation -- of whatever limits have been expressed in positive law. Hence,
constitutional interpretation must always invoke a theory of political
morality. One concerned to interpret the limits upon government power and
authority imposed by a constitution must look to an interpretive theory which
provides the positive constitutional law with its morally best explanation and
justification.
The development
of an interpretive theory of the constitution is, Dworkin acknowledges, an
extremely difficult task, and people of good will and integrity will reasonably
disagree about which theory is best. There is no mechanical, morally neutral
test to apply, only the competing interpretations of those whose task it is to
interpret. This does not mean, however, that attempting to evaluate theories is
foolish, or that there really is no such thing as a best theory since there is
no mechanical way of discovering it. The presence of disagreement, controversy,
and uncertainty in constitutional cases, does not entail that there are no
right answers to the questions posed, and no uniquely correct theory which
determines what those answers are and hence what the constitution actually
requires. The presence of such factors entails only that interpreters must, as
they must do in all interpretive enterprises, including the arts, the sciences,
and the law, exercise judgment in fashioning their interpretive theories. Dworkin
goes so far as to argue that in a mature legal system there almost always is a
best constitutional theory, and judges (and legislators) are duty-bound to try
their best to discern and implement its requirements in making their decisions.
There are, for
our purposes, three important implications of Dworkin’s theory of
constitutional interpretation. First, original intentions and semantic meaning
at best set the stage for the debates in political morality which
constitutional cases both require and licence. They seldom, if ever, settle
matters. Second, constitutional cases require the kind of decision-making which
is, on the Originalist and Textualist theories, properly undertaken only by
those who have already fixed the standards contained within the constitution --
i.e. its authors or framers. The kind of morally neutral decision-making, under
standards set by other responsible agents, to which the Originalist and
Textualist theories aspire, is simply impossible on Dworkin’s theory. Dworkin’s theory requires
wholesale rejection of the fixed view.The constitution is not a finished
product handed down in a form fixed till such time as its amending formula is
invoked successfully or a revolution occurs. Rather it is a work in progress
requiring continual revisiting and reworking as our theories concerning its
limits are refined and improved. It is, in short, a living tree.
A third, related
implication of Dworkin’s theory is that judges in constitutional
cases are not merely agents of the authors in carrying out their explicit
decisions. On the contrary, they are partners with the authors in an ongoing
project, one which requires participants, both then and now, to engage in the
kind of moral decision-making which, on the fixed view, settled matters when
the constitution was adopted (and/or amended). The limits to government power
are, on Dworkin’s theory, essentially contestable, ad infinitum. If
there is a correct theory of a constitution, it requires, for its development
and elaboration, an interpreter of super-human powers of moral, political and
legal reasoning. In short, it requires Dworkin’s judge Hercules.[12] But
Hercules is a product of Dworkin’s imagination, and so the project of
interpreting the contestable terms of constitutions is an ongoing one,
requiring each and every interpreter to provide her own best, and undoubtedly
imperfect, interpretation of the limits placed upon government by her
constitution. The latter is never fixed.
13. Critical
Theory
That it requires
the skill, acumen and insight of a Hercules is seen by many theorists as a
serious drawback of Dworkin’s approach to constitutional
interpretation. If ordinary judges, with their limited skill, integrity and
objectivity are at liberty to decide in terms of their own, highly contestable
moral theories of the constitution, then the inevitable result is a kind of
unbridled judicial activism which threatens the stability and legitimacy of the
constitution and the limits on government power which it is supposed to
represent. Instead of limitations properly fixed and settled by apolitical
factors like historical intentions and meanings, we would have
"limitations" continually in flux and subject to different
interpretations by different judges with their own theories of political morality.
Those of an originalist or texualist bent will see in such consequences
sufficient reason to reject Dworkin’s theory in favour of their alternative. But
for many constitutional scholars, originalism and textualism are as problematic
as Dworkin’s interpretive
theory. For these "critical theorists", semantic meaning, historical
intentions, and herculean interpretive theory, all fail, in one way or the
other, to fix meaningful limits upon government power.[13] As a result,
reliance on such factors in constitutional adjudication only serves to
rationalize the purely political decisions by judges pursuing, consciously or
not, their own political ideologies. A further consequence is suppression of
those -- women, minority racial groups, the poor, and so on -- whose interests
are not supported by these ideologies. Instead of the curbing of arbitrary
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 critical
theorists are highly skeptical of constitutional practice and theories which
applaud constitutionalism as a bulwark against oppression.[14] As we saw at the
outset, a key element in the idea of constitutionalism is that government can/should
be limited in its powers and that its authority depends on observance of those
limits. We further noted that the authority of constitutions in liberal
democracies is generally thought to lie in "the people." One
important implication of critical theory is that the concept of " the
people" is as much a fabrication as is Dworkin’s Hercules. Instead of
"we the people", western societies are comprised of various groups
competing either for domination (e.g., white males and the wealthy) or for
recognition and the elimination of oppression (e.g. the poor, women, and racial
minorities). The law, including constitutional law, is a powerful tool which
has, historically, been utilized by dominant groups to secure and maintain
their superior status. As such, a constitution is anything but the protection
from unwarranted power that its champions have heralded over the centuries. What
is taken to be the plain meaning of the word "equality" is what the
dominant group understands it to be. What is taken to be the obvious historical
intentions of the framers is whatever intentions fit the ideologies of the
dominant groups. What is taken to be the best moral theory underlying the
constitution is nothing more than a rationalization of current social
structures, all of which systematically oppress the interests of women,
minorities and the poor.
Critical
theories 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 which serve to protect us from unwarranted state power. According to
originalists and textualists, the constitution protects us from judges and
other officials by restricting them to morally neutral decisions about
historical intentions and semantic meanings. According to Dworkin, it is
Hercules’
best moral theory of the constitution which serves as the bulwark against
oppression. One crucial feature of Hercules’ theory is that it is often
at odds with received opinion, in particular with the self-serving convictions
and prejudices of the various dominant groups within society. Following
Hercules’
moral theory of the constitution will lead a judge to protect the rights of
oppressed groups from the power of dominant groups, especially when that power
has the sanction of legislation. But the ordinary judge is not, critical
theorists will insist, identical with Hercules. On the contrary, he is more
often than not himself a member of the dominant group (e.g. wealthy, white
males), and shares the social background, education, perspective, and values of
that group. As a result, his conceptions of the relevant contested concepts
(e.g., equality or freedom of expression) will be their conceptions -- i.e.
conceptions which serve the interests of the dominant groups against whom the
constitution is meant to serve as protection. But if semantic meaning,
intentions and Hercules’ best theory are all at the mercy of
dominant ideologies, then the kind of protections heralded by the idea of
constitutionalism may be a myth, and a harmful one at that. So what is the
solution according to critical theorists? The proffered solutions vary
considerably from one critical theorist to the next, depending on how radical
or skeptical the theorist tends to be. A revolutionary communist might advocate
the complete overthrow of constitutional, democratic government, while many
liberal feminists are content to work within existing constitutional systems to
eradicate the vestiges of patriarchy which have survived recent feminist
movements.[15] But all seem to agree that progress can be made only if the
myths surrounding constitutional protection -- the constraining force of
meaning, intention, and objective moral theory -- are all exposed, and that the
true political forces at work in constitutional practice are acknowledged and
dealt with openly. Whether the idea of constitutionalism can survive the
lessons of critical theory is a very good question.
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Copyright © 2001 by
Wil
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McMaster
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