Can there be autochthonous methods of constitutional interpretation?

Mark Tushnet


It is common ground among theorists of constitutional interpretation that many logically defensible methods of constitutional interpretation exist. We have labels for these methods: originalism, textualism, living constitutionalism, structural interpretation, and many more. It is also common ground that observation shows that nations vary in the degree to which lawyers and judges within each nation use one or another method.

Note that these methods are transnational in the sense that they are dis-cernibly similar from one to another nation. Originalism in Austria means examining the historical materials associated with the adoption of the Austrian constitution; originalism in India means examining the historical materials associated with the adoption of the Indian constitution. Of course, what those materials are may vary from one to another nation. We may have detailed records of the debates at one nation’s constitutional convention but relatively little information about what the public heard about a proposed constitution’s terms, and the opposite for another nation - rich information about the information available to the public and almost nothing about what the drafters argued about before presenting their proposal to the public. And of course, we might find different ‘schools’ of originalism, some emphasizing a specific set of relevant historical materials and others giving priority to a different set. And, fiirther, the degree to which scholars and judges use each school’s interpretive method might differ across nations. Yet, with all those qualifications, we can fairly talk about ‘originalism’ as a method of constitutional interpretation.

I could repeat the preceding exercise for each listed method of interpretation. At the end, we could colour a map of the world’s nations using a handful of colours with a few shadings - navy blue, aquamarine, cornflower blue - to show each nation’s preferred approach to constitutional interpretation. We might draw an analogy here to the effort in traditional comparative law to identify legal ‘families’. And, as with that effort, we might ask, could there be a true outlier, a nation whose ‘interpretive colour’ differed from the ones used elsewhere on the map or that was not a member of any identifiable legal family? Such a nation would use what I call an autochthonous method of constitutional interpretation.

Can there be autochthonous methods of constitutional interpretation? 63

For my purposes, the term autochthonous refers to a phenomenon that (a) is present in one constitutional system but not in others and (b) arises from circumstances unique to the nation in which it occurs, where unique is defined to exclude cases in which there are general ‘mid-level’ similarities in social, economic, and political circumstances across nations. This chapter explores the possibility of autochthonous methods of constitutional interpretation.

At the outset I emphasize that my perspective is a broad, almost jurisprudential one. To distinguish my perspective from others, consider the following: We might observe shades of red and blue scattered around the world, and we might want to ask whether there might be some account given for the existence of these families of constitutional interpretation. So, for example, we might try to determine whether there is something like a distinctive populist method of constitutional interpretation - perhaps newly recognized as an addition to the list of methods.

My concern here is different. I am interested in examining the possibility that somewhere on the map there might be a single blot of a colour not used elsewhere. Again, can there be a truly autochthonous method of constitutional interpretation rather than a local variant on a recognized member of the family of methods?

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