The defensive constitution

According to a “defensive” conception of the constitution, the constitution should be primarily, or even exclusively, regarded as a protective device against governmental intrusion into certain rights. Under this approach, the constitution is limited in scope - it covers only a well-defined area of the social and political life of the relevant polity, and legislation is legitimate as long as it remains outside the area protected by the constitution. In other words, the legislature normally moves in a “constitution-free” area, and the content of a great deal of legislation is constitutionally irrelevant; the legislature must stop only in front of the gates of the constitutional fortress, guarded by the Constitutional Court. As a consequence, the constitution should work primarily as a checklist of “negative” validity conditions for legislation. Legislation may have any content whatsoever, as long as it does not clearly encroach upon the area protected by the constitution.

A defensive constitution, then, is premised exactly upon the possibility of clearly distinguishing between what is protected by the constitution and what is constitutionally irrelevant - between the freedom of the legislature and the competence of the Constitutional Court. And this condition can be satisfied only if the constitution is designed as a set of (precise) rules.

All this has some interesting implications for constitutional interpretation. Under a defensive, rule-oriented conception of the constitution, constitutional interpretation should be performed with a good amount of self-restraint, with a view to preserving legal certainty and the distinction of competences between legislator and courts. To that end, textualism and originalism become the favourite canons of constitutional interpretation.[1] More generally, under this approach there is no meaningful difference between constitutional interpretation, on the one hand, and statutory interpretation, on the other. Constitutional interpretation requires the same interpretive canons that are in place in ordinary, statutory interpretation - the constitution is just a statute that happens to be hierarchically superior to other statutes.

Finally, the defensive conception has implications for the role of courts vis-à-vis the constitution. Under this conception, the constitution is not supposed to be applied directly by ordinary courts in their ordinary adjudicative functions; rather, ordinary courts should limit themselves to “alerting” the Constitutional Court when they happen to stumble upon a constitutionally suspect statute. The Constitutional Court, in turn, should operate only as a “negative legislator” - its job is not to develop or implement the constitution but only to quash those statutes that are in clear contrast with the constitution.i0

  • [1] M. DOGLIANI, Il «posto» del diritto costituzionale n. 18; A. PACE, Metodi interpre-tativi e costituzionalismo, n. 18; M. LUCIANI, Interpretazione costituzionale e testo della costituzione. Osservazioni liminari, in G. AZZARITI (ed.), Interpretazione costituzionale, Turin, Giappichelli, 2007, 48, and Interpretazione conforme a costituzione, in Enciclopedia del diritto, Annali IX, 391 (2016), 441; M. ESPOSITO, In penetralibus pontificum re-positum erat: brevi considerazioni sulla parabola discendente del diritto scritto, in Giuri-sprudenza costituzionale 2995 (2004). More generally, on the link between originalism and a perception of the constitution “as a statute”, see M. ROSENFELD, Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts, n. 25, 656-657. 2 R. GUASTINI, Interpretare e argomentare, n. 1, 343-351; A. PACE, Interpretazione costituzionale e interpretazione per valori, n. 18, 95; M. LUCIANI, Interpretazione conforme a costituzione, n. 28, 441 ( nevertheless acknowledging that the difference between constitutional and statutory interpretation may in fact be “in degree”, rather than in kind); M. TROPER, Constitutional Interpretation, in 39 Israel ER. 35 (2006); P. BOBBITT, Constitutional Law and Interpretation, n. 25, 127. 50The idea of the Constitutional Court as an essentially “negative legislator” was famously defended by H. KELSEN, The Nature and Development of Constitutional Adjudication, n. 8, and H. KELSEN, General Theory of Law and State, Cambridge, Harvard University Press, 1945, 268.
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