The Relationship between Forms and Methods in Constitutional Interpretation: Comparative Reflections

Jeffrey A. Pojanowski

SUMMARY: 11.1. Constitutional norms and interpretive choice. - 11.2. Choosing among interpretive choices. - 11.3. Conclusion.

Sometimes a stranger can offer perspective on matters that appear invisible to others more familiar with the terrain - or, at least that is my hope, for I am a stranger here in two respects. First, I study the legal tradition of the United States. Second, I am not trained as a comparative lawyer, and am thus largely innocent of reflection or study on comparative constitutional law’s purposes and methods.

Nevertheless, as a student of interpretive theory more generally, I hope I can contribute to a discussion on the Italian Constitutional Court’s interpretive methodology. Luckily, Professor Giorgio Pino is an interlocutor whose work is clear, insightful, and a catalyst for deeper reflection on constitutional interpretation. Professor Pino’s mastery of Anglophone jurisprudence and constitutional theory also builds a bridge between Italian legal thought and more parochial scholars like me. My contribution would not be possible without the entrée Professor Pino provides.

Professor Pino observes that Italian constitutional jurisprudence favors interpretation based on legal principles and objective values, and he contends that principle-based interpretation is more justified. As an observer of constitutional law in the United States, I would like to focus on one feature that stands out about Professor Pino’s survey and argument, namely how formalist or originalist interpretation plays a more substantial role in constitutional jurisprudence in the United States.[1]

I do not mean to overstate the difference. Although originalist constitutional interpretation was prominent in the United States until the beginning of the 20th Century, it retreated with the growth of the administrative state and the civil rights revolution. As a result, much of the Supreme Court’s jurisprudence is emphatically non-originalist on its face and many of its doctrines involve balancing tests similar to proportionality review. Nevertheless, originalism has reemerged in recent decades as a respectable and influential, if not dominant, interpretive method.

That originalism is “on the wall” in the United States jurisprudence rather than “off the wall” is a substantial difference from Italian law and its notion of constitutional “relationality” emerging from the works of editors and authors in this volume. I will use this chapter for reflection on this distinction, some of its jurisprudential presuppositions, and broader implications.

  • [1] By way of disclosure, I have elsewhere offered normative defenses of originalist constitutional interpretation. See, e.g., J.A. POJANOWSKI, K.C. WALSH, Enduring Originalism, in 105 Geo. L.J. 97 (2016).
 
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