Methods of constitutional interpretation

Is the ease different for methods of constitutional interpretation? I began this chapter by observing that constitutional theorists in the United States and elsewhere have developed lists of interpretive methods: originalism (with many variants), traditionalism, living constitutionalism (in Canada, ‘living tree’ interpretation), interpretation with reference to universal moral and political truths, and more. For the United States, Philip Bobbitt has called these ‘modalities’ of constitutional interpretation, and one modality is especially important in the present context. This is the modality Bobbitt calls, somewhat misleadingly, ‘ethical’ interpretation, by which he means interpretation with reference to what is described as a nation’s ethos or normative self-understanding.15

The ethical modality is important here because it rules out one obvious possibility for autochthonous interpretive methods - interpretation in light of the distinctive characteristics of the nation’s people. The Preamble to Ireland’s 1937 Constitution makes explicit reference to that nation’s specific national history and the religious composition of its (then) people.[1] Interpreting a constitutional provision - say, a guarantee that the state will not deprive people of life or liberty without due process of law - in light of the Irish Preamble might lead to Ireland-specific results (as it did with respect to abortion until the constitution was amended) but would not deploy an Ireland-specific modality of interpretation. Rather, it would deploy the universally available ethical modality. To revert to a previous formulation, it would be ‘ethical-modality-indexed-to-Ireland’, not ‘Irish interpretation (in a modality unavailable elsewhere)’.

Something similar might be said about constitutional interpretation that takes the controversial idea of ‘Hungarian identity’ into account. Much of that identity is laid out in the 2011 constitution’s preamble. The contrast with Ireland is instructive. In 1937 the description of Irish identity was not controversial within Ireland. By the twenty-first century the people of Ireland understood that national identity there had changed, and interpreting the constitution with an eye to the 1937 identity was no longer possible. That specific form of the ethical modality had become unavailable. In Hungary, the 2011 description of national identity was controversial from the outset. As I argue later, a modality’s availability depends upon agreement within the legal culture that it is available. This might make might the ethical modality unavailable in Hungary.

Though the idea to which he refers is important, Bobbitt’s term ethicalïs misleading because it might be confused with another modality of interpretation.

Can there be autochthonous methods of constitutional interpretation? 69

Call it philosophical-, constitutional provisions arc interpreted with reference to the best available philosophical understanding of the concepts identified by their terms.[2] Of course, people will disagree about what that understanding might be. It might even be the case that disagreements will map systematically on to geography: we might find that a survey would show that a majority of jurists from Western Europe understand the word equality in one way, while a majority from Southeast Asia understand it differently. But, the philosophical modality of interpretation is universal rather than autochthonous, just as Bobbitt’s ethical modality is: The outcomes might differ, but the modality of interpretation is the same everywhere.

So far, then, we do not have an account in which there can be autochthonous modalities of constitutional interpretation. Bobbitt’s work provides the basis for such an account, though. He argues that in the United States the list of interpretive modalities available at any moment is limited. This opens up the possibility of truly autochthonous interpretive methods. Consider the possibility that examining all the interpretive modalities we find in the world leads us to develop a ‘set’ of modalities consisting of N elements. If each nation uses only a subset of that set - if, for example, the United States does not use ‘living tree’ interpretation - and if each nation’s subset differs from every other nation’s (or perhaps if the sets fall into families, with each family different from the others), we might describe interpretive methods as autochthonous: The nation has a distinctive approach to constitutional interpretation, and we might then seek an explanation for why this nation chooses one subset of interpretive methods, that nation another.

This conclusion might be made even more plausible if we supplement Bobbitt’s analysis with one offered by Richard Fallon. According to Fallon, US interpretive methodology ranks the interpretive modalities, with originalism as the first, others following. The possibility of ranking modalities makes it even more plausible that nations would differ in interpretive methods. So, for example, the US approach might say, ‘Follow the original understanding unless doing so would have disastrous contemporary effects’, and the Canadian approach might say, ‘Choose the interpretation that best fits contemporary circumstances - ‘living tree’ interpretation - unless that interpretation is flatly inconsistent with the semantic meaning of relevant constitutional provisions’. Again, we might seek explanations in national experience for the different approaches.

Note that the argument based on Bobbitt’s work depends upon the assumption that the modalities available within a nation arc limited to a subset

of all possible modalities. Of course, within any temporal period - short or long - we will find only some modalities deployed - no more than ‘p’ of the N possible ones. That might occur, though, only because the need for using a ‘new’ modality has not yet arisen. A truly autochthonous interpretation is not possible if interpretation everywhere can draw any element from the set of N modalities as needed, though it will appear at any moment that when closely analysed, every nation’s interpretive method is autochthonous.

We have reached this point: Bobbitt claims that the modalities available within the United States at any moment are limited. If so, the United States might have an autochthonous method of constitutional interpretation. And, unless there is some reason to think that the United States is special with respect to having a limited set of available modalities, so might every other nation. The question then is, are the modalities of interpretation in the United States (and probably elsewhere) actually limited?

Imagine that a US-based lawyer makes an argument that the US Constitution, properly interpreted, protects a defendant’s right to engage in some practice mandated by her religion because - and this is the key point - a specific Bible verse clearly indicates that secular authorities lack the power to prohibit the practice.[3] Other lawyers and all judges would reply that, whatever its merits as an interpretation of the Bible, the argument was not a legal argument. One might contrast this with an argument made to an Egyptian court that some constitutional interpretation was correct because it was supported by Koranic verses. In light of the provision in Egypt’s constitution that ‘The principles of Islamic Sharia are the main source of legislation’ (in one translation), this would be a legal argument.

To oversimplify: theology' is an available modality of interpretation in Egypt, but not in the United States. The reason is not that the two nation’s constitutions themselves identify all the available modalities of interpretation. Nothing in the US Constitution - or in most other national constitutions - prescribes how the document is to be interpreted: Originalism in the United States and ‘living tree’ interpretation in Canada arc imposed on the documents from the outside, so to speak. So too with religious arguments: They are excluded in the United States for reasons unconnected to the US Constitution’s text.

The reason for the availability and unavailability' of modalities of interpretation lies in national legal culture. And national legal culture is the product of the way lawyers are educated and socialized. At any specific moment lawyers will recognize some arguments as legal, others as ‘not legal’. Such recognition can vary from nation to nation, and so - again at any particular moment - national

Can there be autochthonous methods of constitutional interpretation? 71 methods of constitutional interpretation might be autochthonous. We can examine legal education and socialization in specific nations to explain why some arguments arc accepted as legal and others not.[4] And, as before, national legal cultures are not set in stone. Innovations in legal education - including contact among lawyers and legal educators working in different traditions - can induce gradual changes in national legal cultures.

One question lingers. Recall my earlier metaphor of a map with several basic colours, each of which came in several shades. We have reached the point where it is possible to sec many nations each of which uses its own set of modalities, some of which other nations use, and each of which has its own ranking of modalities. Arc these going to appear on the map as shades of a (quite muddy) single colour - blends with different proportions of red, green, and blue for each nation - or as clearly distinctive colours? Of course we will not be in a position to answer that question without doing a sort of research that, as far as I know, has not been done. I can report, though, my personal sense of things based upon my understanding of methods of constitutional interpretation in the United States, Australia, and Germany: They seem to me different enough to appear as different colours on the map.

Conclusion

I conclude, then, tliat there might be distinctive national methods of constitutional interpretation. Constitutional interpretation in European populist regimes might be distinctive - not in terms of substantive interpretations of specific constitutional provisions (of course, tliat might be so), but in terms of the methods of constitutional interpretation that arc deployed. Such distinctiveness would have to be rooted in distinctions among national legal cultures. I admit that I am quite sceptical about the possibility that relevant distinctions exist among those specific cultures as compared with the legal cultures in other parts of Europe, and so am sceptical about possible claims that there is a special way of interpreting constitutions in European populist regimes. But, at least as I have analysed the issue, the possibility that there is such a special way cannot be ruled out.

Part II

  • [1] Philip Bobbitt, Constitutional Fate: Theory of the Constitution (OUP 1982). For Bobbitt, the core message of an ‘ethical’ interpretation is: ‘That’s simply not who we are as a people’ or, conversely, ‘This is who we are as a people’. 2 Similar references are not uncommon in other nation’s preambles. For an overview, see Wim Voermans et al, Constitutional Preambles: A Comparative Analysis (Edward Elgar 2017).
  • [2] Here I refer to Ronald Dworkin’s account of constitutional interpretation. See, e.g., Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1997). That book’s subtitle refers only to the US Constitution, but Dworkin’s body of work taken as a whole seems to me to suggest quite strongly that he believed that the ‘moral reading’ approach should be taken by every constitutional court. 2 Bobbitt (n 13) 6, 8. 3 Richard Fallon, ‘A Constructivist Coherence Theory of Constitutional Interpretation’ (1987) 100 Harvard Law Review 1189.
  • [3] In the 1940s lawyers for Jehovah’s Witnesses made such arguments in presenting their cases to the US Supreme Court. See e.g. Appellants’ Brief, Cantwell v. Connecticut [310 US 296], No. 632, Oct. Term 1939, p 14 (the challenged statute ‘deprives [the defendant] of his liberty to worship ALMIGHTY GOD according to the God-given mandates recorded in Holy Writ’). The brief cited 24 cases and an equal number of Bible verses. 2 For a useful introduction to the role of socialization in creating legal cultures, see Theunis Roux, The Politics of Principle: The First South African Constitutional Court, 1995-2005 (Cambridge University Press 2013).
  • [4] An important example might be the rather strong sense among Australian lawyers that the argument, 'This interpretation would better advance social welfare’ - a pragmatic argument of a sort quite common in the United States - is not really a legal argument. 2 The importance of legal culture might be shown by ‘failed’ innovations, efforts by jurists to import other approaches into their nation’s legal culture that nonetheless do not stick. The short life of the so-called ‘Mason revolution’ in Australian constitutional law might be an example. See Thcunis Roux, ‘Reinterpreting “the Mason Court Revolution”: An Historical Institutionalist Account of Judge-Driven Constitutional Transformation in Australia’ (2015) 43 Federal Law Review 1. 3 I find the episode of the Mason Revolution in Australia quite instructive: During that period Australian methods of interpretation began to include hues similar to those dominant in the United States, but afterwards Australia reverted to a set of interpretive methods quite different from that used in the United States.
 
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