Constitutional interpretation and legal conflict

In this context, it is appropriate to single out which conflicts deserve to have constitutional relevance. Basically, they might fall into three main groupings:

  • 1. ‘Ad-Intra’, within the same category of rights conflicts. These take place when, in a legal dispute over the same good or object or a subset thereof, or when in a controversy among those who claim equality in the distribution of a good/goods or services, courts and legal operators engage themselves to find out who must be excluded or who must have priority in the use of the very same right. An example of this could be the following: when there is a shortage of public resources and through a writ of protection, like the amparo, a Court renders a decision fulfilling certain demands of services associated with the right to health. In Latin America, the potential success resulting from such a legal process will inevitably bring about a later shortage of resources. And naturally, together with that looms a lack of funding or coverage for other subjects whose requests for assistance are doomed to be ignored.
  • 2. ‘Inter-right conflicts’. In litigation over an allegedly thwarted constitutional right, in acknowledging that right, this happens when the triumphant claim causes the unavoidable sacrifice of another right entrenched within the constitution. For instance: when P’s right to freedom of speech outweighs Q’s right to have his image unaffected.
  • 3. Finally, ‘conflict between rights and collective interests’. This alternative takes place when abiding by the required condition of legality and reasonableness; by using its lawmaking powers, the Parliament, as well as other political authorities, encroach, restrict, or erode the individual

rights at stake. For example, this may happen when - on the basis of an extraordinary situation - a legally declared emergency impairs the enjoyment of some basic rights.

Constitutional interpretation, the method, and its ideological backdrop

As stated, before rushing into determining which method of interpretation is more suitable for full enforcement of constitutional rights, we should resort to a previous theoretical and practical set of options. In other words, although it may sound illogical, the enjoyment of constitutional rights depends on an integrated set of elusive underlying insights.

Depending on the idea of the constitution, instilled by the political or theoretical conceptions nurturing different streams of constitutionalism, the interpretative task, certainly, will foster different civic expectations. Depending on the goals of the constitutional design (e.g. concerning a polity’s aims: how legitimate or independent or technically sophisticated Courts’ byproducts should appear), then judicial review and/or rights-adjudication arc likely to develop. Likewise, depending on which pragmatic horizon is hovering in the background of the practice of constitutional interpretation - nuanced by political or philosophical approaches - the very nature of constitutional rights is likely to be based upon different sorts of normative discourses. In sum, the random combination of all of these elements is very telling of how interpretation will enhance or prevent a democratic reading of the Constitution.

If there is a platonic ideal of the Constitution and/or if any engaged legal operator subscribes to legal or philosophical constitutionalism, a solipsistic reading of the text is very likely to occur. Naturally, alongside this, it is more likely for such a dominant hypothesis to provide one and only one true or right answer; one and only one accurate or fair interpretation of the case.

A fair grasp of constitutional interpretation needs to take notice of some of the underlying concepts at stake. It also needs to spell out a set of complementary practices and aims. My impression is that the correct understanding of all these elements is elusive. Were this true, my view is that both ‘inter-pretativism’ and ‘non-interpretativism’ do not provide a comprehensive approach to all would-be reasonable readings a Constitution may have. My attempt involves paying more attention to subtle details. Beyond methodology, interpreting the Constitution requires the awareness of a coherent concert of other concealed factors. Which ones?


As regards possibilities of interpretation, it is wise and useful to pay attention to the following classification which follows Cass Sunstein’s ideas on the matter. The author points out there are at least four alternatives, namely: (1) ‘Perfectionism’; (2) ‘Majoritarianism’; (3) ‘Fundamentalism’; and (4) ‘Minimalism’. Sunstein (n 21) 23; Cass R. Sunstein, One Case at a Time (Harvard University Press 1999); Cass R. Sunstein, Legal Reasoning and Political Conflict (Oxford University Press 1996).

As stated, the latitude and value of constitutional interpretation depend on the prior meaning the interpreter attaches to the term ‘Constitution’. Naturally, this is so without leaving aside the fact that interpretative toils will logically differ depending on how constitutional rights arc a priori conceived; not to mention, as well, that either epistcmic or more political assumptions would provide them with different shades of meaning.

Besides, there are some questions that both constitutional theory and comparative constitutional law should never forego. I would like to mention at least three of them. ( 1 ) Is it possible to reach something like truth and/or justice by means of comprehensive interpretative techniques? (2) Do judges deserve, or do they have enough legitimacy, to be the final interpreters of the Constitution? (3) And, as some supporters of the economic analysis of law might claim, is this even desirable?

The Romans used to say: ‘in Claris non fit interpretation. This is because, naturally, as H.L.A. Hart has pointed out, the first virtue of law is ‘clarity’. However, no matter how accurate a legislator’s legal writing may be, or how plausible case law outcomes appear to be, language traps and deceptions of the senses are unavoidable in the world of human beings.

As previously stated, the method depends on interpretation and not the other way around. Hence, constitutional interpretation brings to the surface a clear dividing line in the biases usually conveyed by any interpretative activity. This watershed drives towards an objectively oriented perspective vis-à-vis a subjectively oriented one. As a matter of fact, semantic theories -in their various forms - usually have interpretative goals that are opposed to these types of hermeneutic alternatives. As accurately as possible, broadly speaking, the former attempts to understand the plain linguistic meaning of the text under the interpreter’s scrutiny. Incidentally, it requires information on the legislator’s intent.

From another point of view, supporters of hermeneutic constitutional readings, clearly closer to judicial activism, would rather overvalue the context of the enforcement of the norm under study. In this trend, they see the right-adjudication processes within a ‘chain’ and/or within a spiral of interconnected meanings. It would seem that full integration of each case law interpretative outcome must rely on an entwined, expansive, and never-ending process of construction.

It is a well-known fact that most Latin American highest courts have not only developed a Kclsenian controlling role as a negative legislator. They have engaged themselves in the process of the adjudication of rights as well. And it is not my wish to pry into the promises and weaknesses of the so-called activism, although it is clear that in any constitutional order where


As regards this concept within the law, Gadamer underscored that 'In this manner, the hermeneutic problem is naturalized in every legal science’. See H. G. Gadamer, Verdad y Método, Volumen II (Editorial Sígueme 2004) 109.

adjudication of rights is granted by judges, the normative consequences of this trend have a sound political impact on the balance of powers.[1]

Following Marshall’s seminal dictum granting the judicial review of legislation, every normative assessment concerning constitutional supremacy over other branches’ decisions has driven supreme courts and constitutional tribunals to undergo some legal hazards. For example, as regards the writ of habeas corpus, in 1887, in (Eduardo) Sojo’s case, a landmark in Argentine constitutional history, similar to Marbury, apart from being the first time in which the Argentine Highest Court struck down a law passed by Congress as unconstitutional, the ruling’s ‘holding’ also provides that constitutional interpretation should fit the rule of liberty. In this ruling, the Supreme Court established a normative standard whose key formulation can appear as follows: ‘if there was any doubt in the interpretation of the constitution, it had to be solved in favor of Liberty ... concerning the person and property’. From this case onwards, the Argentine Supreme Court claimed for itself a so-called ‘diffuse control of constitutionality’.

In short, whoever adopts or puts forward a particular interpretative theory understands that as from its application, the constitutional order will convey a greater load of justice. All things considered, we must remember what Schauer has rightly pointed out: ‘the existence of an interpreter with restricted powers is imposed by the very idea of the rule or by the idea of a system of rules’.

  • [1] Vicki C. Jackson & Jamal Greene, ‘Constitutional Interpretation in Comparative Perspective: Comparing Judges or Courts?’ in Tom Ginsburg & Rosalind Dixon (eds.), Comparative Constitutional Law (Edward Elgar 2011). 2 See the So/» case, Fallos 32:120 (1887). 3 Frederick Schauer, Las Reglas en Juego (Marcial Pons 2004) 293.
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