The foundational constitution

Under a “foundational” conception of the constitution, the constitution is seen as the foundation of the entire legal order: each and every norm of the legal system is valid only insofar as it is produced in accordance with the constitution, and is compatible with the constitution. Under this conception, the constitution is supposed to work not only as a set of negative limits but also - and most importantly - as a set of principles and values that call for implementation at both the legislative and the judicial level. Constitutional principles and values project their normative force upon the entire legal system. According to this conception, the function of the constitution is not only to limit governmental activities, but also to direct the actions of public authorities (including legislatures) towards certain constitutionally mandated objectives. Under a “foundational” conception, the constitution - far from being just a kind of statute - is a law of a peculiar kind, in virtue of its content and functions.

As a consequence, the normative content of the constitution cannot be reduced to a set of fixed, stable, precise rules - the kind of norms we would expect to find in a statute. Rather, the constitution - the real content of the constitution, the most important part of the constitution - is seen either as a set of principles or as set of values. A foundational conception of the constitution, thus, may present itself either in a principle- based or in a value- based fashion.

A few interesting implications follow from this. First, under a foundational approach the constitution is not a separate field of the law, but rather it irradiates the entire legal order. Every area of the law is subject to the influence of constitutional principles and values. The entire the legal system has to be rendered fully compatible with the constitution, with no “black holes” or “constitution-free” areas. The constitution, thus, becomes rele

  • 1
  • 51 G. ZAGREBELSKY, La legge e la sua giustizia, n. 21, 267; P. Hogg, Canada: From Privy Council to Supreme Court, in J. GOLDSWORTHY (ed.), Interpreting Constitutions. A Comparative Study, Oxford, Oxford University Press, 2006, 55, 77 (after the entry into force of the Canadian Charter of Rights and Freedoms, “the concept of the Constitution as a statute is well and truly over”).
  • 2
  • 52 This is sometimes referred to as the “constitutionalization” of the (entire) legal system. As far as I know this term, now widely used, has been first introduced in this sense by G. TARELLO, L’interpretazione della legge, n. 1, 337. Subsequently, see A. GAMBARO, R. PARDOLESI, L’influenza dei valori costituzionali sul diritto civile, in A. PlZZORUSSO, V. VA-RANG (eds.), L’influenza dei valori costituzionali sui sistemi giuridici contemporanei, Milan, Giuffrè, 1985, I, 5, 12; L. FaVOREAL), Le droit constitutionnel, droit de la Constitution et constitution du droit, in 1 Revue française de droit constitutionnel 11 (1990); L. FAVOREAU, La constitutionnalisation du droit, in J.-B. AUBY (eds.), L’unité du droit. Mélanges en hommage à Roland Drago, Paris, Economica, 1996, 25; L. FAVOREAU, La constitutionnalisation de l’ordre juridique: considerations générales, in Revue belge de droit constitutionnel 233

vant for any kind of legal, political, and social dispute - it is a “total” constitution. [1]

Secondly, under a foundational approach the responsibility to implement constitutional principles and values falls on every legal and political actor. Constitutional principles will be implemented - through specification and balancing - not only by legislatures but also by courts, no matter how much judicial discretion is involved in such operations.

Thirdly, under a foundational approach constitutional interpretation is perceived as different in character from ordinary, statutory interpretation. As a consequence, it resorts to interpretive methodologies that are specifically tailored to the constitution.34 For instance, the peculiar normative content of the constitution - principles, values - is not amenable to a merely literal interpretation (hence the rejection of textualism), and requires to be frequently adjusted to the ever-changing factual and social circumstances (hence the rejection of originalism). Principles and values ask for a “generous,” purposive interpretation (hence the rejection of strict constructionism). Moreover, given that the normative content of the foundational constitution is constituted by moral and political principles and values (such as liberty, equality, dignity...), the interpretation and application of the constitution will inevitably require some kind of “moral reading”. Constitutional interpretation, that is, will necessarily be contaminated by moral arguments.1

The upshot of all this is quite straightforward: the foundational model acknowledges a wide range of interpretive discretion for the judiciary. Both constitutional and statutory interpretation become “activist” and “dynamic” enterprises, as opposed to the “restrained” and “static” approaches required by a defensive, rule-based model of the constitution.56 Courts will routinely use constitutional principles and values, either by directly applying them to a case, or by using them “indirectly”, as aid in determining the meaning of a statute. The Constitutional Court, in turn, will tend to perform judicial review mainly on an interpretive level, as it were. The Constitutional Court, that is, rather than quash a constitutionally suspect statute, will mostly strive to interpret it in a “constitutionally compatible way”.57

Put differently, a “foundational” conception of the constitution recasts the role of both the Constitutional Court and ordinary courts in some important ways:

  • 1) The Constitutional Court will not just be a “negative” legislator, but also a “positive” one: the Court will claim the power not only to quash statutes, but also to manipulate them in order to make them coherent with the constitution.[2]
  • 2) The Constitutional Court will not only be engaged in a “validity check” on statutes, but will also play the role of an “interpretive agency”.
  • 3) Due to the important and activist role played by ordinary courts in taking care of potentially unconstitutional legislation, the system of judicial review will tend to become a “mixed” one - both centralized and partially decentralized.

So far, I have pointed to some features that can be found in all versions of a foundational conception of the constitution. To be sure, within the foundational conception it is possible to find important variations, which depend on whether the normative core of the constitution is framed in terms of principles or of values. To these variations I now turn.

  • [1] (1998); R. GUASTINI, La “costituzionalizzazione” dell’ordinamento italiano, in 11 Ragion pratica 185 (1998); A. STONE SWEET, Governing with Judges, n. 20, 114-125 (analysing this phenomenon in Italy, France, Germany, and Spain). ”R. BIN, Cosa è la Costituzione?, in XXVII Quaderni costituzionali 11 (2007). See also M. KUMM, Who Is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law, in 7 German L.J. 341 (2006); S. GARD-BAUM, The Place of Constitutional Law in the Legal System, n. 10; M. COHEN-ELIYA, I. PORAT, Proportionality and Constitutional Culture, n. 27, 60 ("in Germany, almost any legitimate individual or collective interest is grounded on a constitutional value and accorded constitutional status”). ,4The idea that constitutional interpretation is a peculiar kind of interpretation, which is not reducible to the ordinary techniques of statutory interpretation, is probably the majoritarian view in current Italian constitutional scholarship; see C. PlNELLI, Il di-battito sull’interpretazione costituzionale tra teoria e giurisprudenza, n. 19, 1666. In the international debate, see for instance A. BARAK, Hermeneutics and Constitutional Interpretation, in 14 Cardozo L.R. 767 (1993), 772; W. WALUCHOW, Constitutional Interpretation, in A. MARMOR (ed.), The Routledge Companion to Philosophy of Law, Abingdon, Routledge, 2012, 418-419. 55 B. CELANO, I diritti nello Stato costituzionale, Bologna, Il Mulino, 2013; G. PlNO, Positivism, Legal Validity, and the Separation of Law and Morals, in 27 Ratio Juris 190 (2014). The phrase “moral reading” has been famously coined by R. DWORKIN, Freedom’s Law. The Moral Reading of the American Constitution, Cambridge, Harvard University Press, 1996.
  • [2] R. GUASTINI, Teona e ideologia dell’interpretazione costituzionale, n. 17 (contrasting “activist” vs “restrained”, and “dynamic” vs “static” approaches to constitutional interpretation). In a similar vein, see also P. CHIASSONI, Tecnica dell’interpretazione giuridica, n. 1, 159-161 (contrasting “traditionalist” and “modernist” approaches to constitutional interpretation). 2 57 G. ZAGREBELSKY, La legge e la sua giustizia, n. 21, 261-262 (judicial review as performed by the Italian Constitutional Court is more concerned with issuing “constitutionally compatible” statutory interpretations rather than judgements on the constitutional validity of statutes). 3 On this kind of judgments, see V. BARSOTTI, P.G. CAROZZA, M. CARTABIA, A. Si-MONCINI, Italian Constitutional Justice in Global Context, n. 4, 86-88. See also D. ROUSSEAU, The Constitutional Judge: Master or Slave of the Constitution?, in 14 Cardozo L.R. 775 (1992), 778, on “constructive interpretations” rendered by the French Constitutional Council, whose role tends to become akin to a “colegislator” (783). 4 For similar trends in other European countries, see A. STONE SWEET, Governing with Judges, n. 20, 71-73. 5 See V. ONIDA, L’attuazione della Costituzione tra magistratura e Corte costituzionale, n. 26, 514; S. CASSESE, La giustizia costituzionale in Italia: lo stato presente, in Rivista trime-strale di diritto pubblico 603 (2012), 606. For some general remarks on this trend, visible
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