Constitutional norms and interpretive choice

Professor Pino identifies three kinds of norms at play in constitutional law: determinate legal rules, legal principles, and values that transcend law. He contends, however, that before we can identify which kinds of norms reside in any particular constitution, we must first settle on an interpretive method for identifying them. This method, Pino contends, will turn on the interpreter’s conception of what a constitution is and what it is for.[1]

This threshold choice of lens will affect what the constitutional investigator sees: a rule-based interpreter will be more likely to find rules; an aficionado of legal principles will engage in careful specification and balancing; and the value-focused interpreter will read the constitution as an instantiation of a transcendent, objective, and determinate ordering of ideal political morality. This Section will investigate these affinities and explain why Professor Pino is correct to identify the practical pull that interpretive method has on the content of constitutional norms.

Before evaluating the choices between rules, principles, and values in constitutional law, we should first consider this question of interpretive choice and its effect on constitutional norms. In an important sense, Professor Pino is correct that one’s conception of what constitutions are for precedes and influences the search for a particular constitution’s norms. Until a person picks it up, a written constitution is simply a collection of marks on a page, and even after one begins to read the document, one’s purposes in reading it can affect the content. One could read a constitution as a historical primary source or even, if one is so inclined, poetry or a coded prophecy about the future.[2] Reading it as a document that constitutes a state and speaks to lawyers, officials, and citizens about that order is a distinct enterprise that suggests certain modes of reading (to wit, the search for rules or principles or values) and excludes others (the search for insight about class structure and political alliances in 1948, irony, hidden numero-logical codes).

Thus, certain approaches to reading a constitution for legal purposes are plausible, others are plainly unacceptable, and interesting arguments go the merits of competing, plausible options. More complicated is the connection between interpretive choice and the particular forms of constitutional orders. Professor Pino correctly notes an affinity between originalist, formalist approaches to interpretation and “defensive” conceptions of constitutions. This connection, as Professor Pino recognizes, is more a matter of tendency than necessity. We can imagine a charter whose original legal content, understood via formal methods, contained “rules” establishing a foundational constitution in which judges were to apply legal principles or transcendent values as they best understand them (ordinary legislation notwithstanding). Originalists who seek to be faithful to the framers’ choices would have little choice but to exercise such judgment to the best of their abilities.

Thus, in the United States, Professor Jack Balkin’s theory of “framework originalism” holds that many of the outputs of so-called “living constitutionalism” are faithful to a document whose original public meaning gives subsequent interpreters wide leeway to expound constitutional rights. Similarly, Ronald Dworkin has argued that the framers’ choice to include broad, moral language in the constitution indicates that judges are to undertake the principle-laden task of elaborating law as integrity. Originalist research may or may not vindicate these arguments as to the United States constitution, but that is a contingent fact about the content of that particular legal instrument. An originalist reading of, say, the South

African constitution, may lead to a more “foundational” understanding of the document than even a principled reading of its U.S. counterpart.

One can make similar moves with varying degrees of ease regarding principles and values. Imagine I believe, as a matter of political theory, that a defensive or political constitutional order is superior to a foundational legal order. Implicit in that position is a complex of beliefs about the nature of political rights and obligations, the proper role of courts and the political branches, democratic legitimacy, the division between the public and the private sphere, and, more generally, the proper extent of law’s empire. In short, I would fear the total constitution,[3] and I would believe that discomfort is rooted in truths about political theory and moral reality.

Now imagine I am then given the Italian constitution to interpret. If I think that constitutional interpretation turns on objective values, and that the proper reading of a constitution integrates the document with the best understanding of those transcendent values, it is not hard for me to get to, say, a defensive legal constitution. For example: the true principles of republicanism and popular sovereignty in Article I are the interpretive keys to the document; negative liberties are enforceable and can override contrary legislation; and positive rights are programmatic, non-justiciable exhortations to the political branches. Principle-based interpretation may be a little trickier, but in the steady hands of a certain kind of Dworkinian, a jurisprudence weighing the competing principles of liberty, solidarity, and popular sovereignty could go a long way toward a defensive or even political constitution. And this would be so even if, as a historical matter, the framers of the Italian constitution understood their charter in terms of the post-war paradigm.

Now, the previous analysis has an air of unreality to it, and for good reason. As an historical matter, there has been an affinity between formal approaches and defensive constitutions, as well as between non-formal interpretation and foundational constitutional orders. It is, however, worth noting that as a theoretical matter, faithful application of a formal, rule-like approach gives constitution framers the most substantial power to choose a constitutional conception, whether it be political or legal, defensive or foundational. The originalist seeks to identify, if she can, the option the framers chose, whatever it is. Values-based interpretation, by contrast, is only loosely connected to the formal choice or text, leaving the true character of the constitutional regime subject to ongoing argument or discovery. Principle-based interpretation may constrain the pace of change away from the original choice, but in a document of any complexity - which is most constitutions - internal antimonies and the necessity of individual moral judgment in resolving them will give the document an interpreter-inflected normative tilt. And the more judgments in favor of one of the competing principles over time, the more marginal its competitor(s) appear in the jurisprudential calculus.

Formal, rule-based interpretation gives framers the authority and flexibility to make enduring choices, both at the micro-level of particular constitutional provisions and at the meta-level of constitutional character (legal versus political, defensive versus foundational). This feature is a virtue to the extent one values the ability of constitutional framers and ratifiers to entrench durable political choices through legal norms. This is so even if the constitution leaves many substantive decisions unresolved while specifying which officials should exercise further choices down the road, as is the case with political constitutions (a choice in favor of political officials) or certain kinds of foundational constitutions (a choice in favor of constitutional courts).

Opinions will differ on the importance of constitutional framers being able to entrench constitutional norms, however. This helps explain why, notwithstanding the analysis above, interpretive choice plays an important role in determining the norms the interpreter finds in a constitution. For example, an interpreter who reads a constitution as a manifestation of objective, enduring value will be less inclined to care about the particular, contingent choices constitutional framers made - especially when those choices depart from ideal political theory. The original, historical constitution at best displays ultimate values through a glass darkly, and further jurisprudential revelation is needed to clarify and perfect the picture.

A practitioner of the principle-based model places more emphasis on the legal norms in the constitution, but, as Professor Pino notes, views such norms as a needle on a “compass”, not a “blueprint” for governance. If one believes that framers’ norms are gestures of general direction for a journey opening many constitutional worlds, one is unlikely to develop unwritten constitutional norms that identify concrete, historical instructions establishing a fixed hierarchy of principles or decisive rules. In fact, the relationship between the contemporary interpreter and the constitution’s framers resembles the interaction between the court and the legislature in constitutional adjudication: both the framers and the legislature have input in the process, a kind of margin of appreciation, but lack conclusive power to determine the balance of principles at play.

It is also possible that the formalist, originalist approach to interpretation may increase how rule-like a constitution is as a practical matter. Even if the interpreter works in good faith to ensure she does not convert historically chosen standards into rules, in close cases a preference for rules may work as a thumb on the scale in favor of a rule. Similarly, the same preference for rule-like determinacy that inspires originalism may lead formalist interpreters, as a practical matter, to underenforce standards or treat them as political questions unamenable to judicial resolution. To be sure, departing from originalism in favor of rules over standards may be good normative formalism, but it is bad originalism - and American originalists have criticized Justice Scalia for demonstrating such a tendency.[4] Yet, with judges being imperfect human beings, it may be hard to for some to bracket their background reasons for originalism - determinacy, predictability, practical limits of adjudication - when originalist methods undermine those norms.

First, consider a jurist who embraces originalism for formalist rule-of-law reasons, but is confronted with a facially foundationalist constitution. In this respect, the dilemma of rule-formalism in ordinary law recapitulates itself at a meta-level. One standard defense of following rules is that even when a result does not square with the background reasons for the rule, following the norm reaps the benefits of coordination, notice, predictability, decision-making efficiency, and the expertise of the rulemaker. Here, a rule-like approach to constitutional interpretation ("Find what the framers laid down, rather than have a roving constitutional convention by the courts!”) discerns emphatically non-rule-like decision rules. The background reason for originalist interpretive method (normative formalism) clashes with its output (decision modes that lose the benefits of formalism).

On this ground, it is not surprising that those who are originalist because of the benefits of rule-based judicial decision-making may be inclined to read constitutional provisions in rule-like fashion or, alternatively, fill any gaps with fixed, rule-like precedents. Nor might we blame them: there is something paradoxical about asking a person whose interpretive method turns on the benefits of rules to continually and perpetually apply standards for rule-like reasons.

A similar tension arises for those who embrace originalism for reasons grounded in popular sovereignty or institutional competence. Constitutional adjudication in systems where judicial review is binding can close political discussion on particular issues and require courts to make complex, controversial normative decisions about human rights and the common good. For those who think the political branches should make such decisions for reasons of legitimacy11 or institutional competence,[5] a polity’s decision to delegate authority over such questions to the courts is at best unwise. Accordingly, such interpreters might give narrow readings to potential delegation of authority to judges in close cases or, less forgivably, sometimes even in not-so-close cases. Furthermore, when a constitutional provision contains a gap or is silent on questions of rights, such an original-ist will prefer to defer to the political branches’ resolution of such matters, rather than judicial elaboration of a total constitution.

As the discussion above indicates, it is possible as a matter of theoretical structure for an interpretively formal originalist to recognize a living, foundational constitution. It is also possible for an interpreter who focuses on legal principles or constitutional value to read a constitutional document as a defensive and even political charter. As a scholar who values constitutional durability and stability, I view originalism’s ability to respect framers’ choices of constitution type - legal or political, defensive or foundational -as a mark in its favor. That preference, of course, is a normative one and other considerations compete with the legitimating and practical values of entrenched constitutional norms. There is the worry that the “dead hand” of the past will hold injustice in place or smother further progress. If so, the original constitution may be as much as a burden to overcome as an inheritance to transmit intact.

Curiously, however, when framed that way, such a concern about originalism seems to be a particularly American one. The U.S. constitution is old by contemporary standards and far more defensive and political in character than those operating in the postwar paradigm. From the perspective of many in contemporary social democracies, the dead hand of the American constitution has a far more ancient and restricting grip than their own charters. To be sure, an originalist reading of the Italian constitution might render many of the social rights nonjusticiable, though the Court’s

“generally cautious approach” to such matters might minimize such a practical difference.[6] That aside, the Italian framing generation’s fear of majoritarian tyranny and the document’s ample language about human rights and dignity should lead any honest originalist away from any minimalist conclusions about the Constitutional Court’s role. Compared to the United States constitution, the “dead hand” points to a far more active and dynamic role for the constitution and the court.

Hence, the puzzle is that originalism is a live option in a country where the dead-hand challenge is the most formidable, but is a rejected curiosity most everywhere else, including nations like Italy, with more recent and more easily amendable constitutions. Any explanation for this is likely to be complex and beyond my ability to provide, but that will not stop me from hazarding a few guesses. Part of it may have to do with the sense (fair or not) that officials’ practice of “positivistic” legal interpretation abetted the atrocities of World War II. Part of it may also be explained by the Anglo-American tendency to view constitutional law as a species of ordinary law that happens to be supreme, whereas European expounders of constitutions seem more inclined to treat this domain of law as not just vertically supreme, but transcendent and meriting its own distinct methods - methods that may seep down to transform “ordinary law” as well. The roots of this tendency may be as much institutional as theoretical, with the U.S. Supreme Court deciding questions of constitutional and ordinary law, rather than serving exclusively as a constitutional tribunal.

I also suspect a substantial part of the difference turns on the question of democratic theory. The more one views political legitimacy in terms ofparliamentary supremacy or more direct forms of popular sovereignty, the more one will be suspicious of a total constitution administered primarily by courts. By contrast, the more we value a “culture of justification”, in which popular voting and legislative deliberation is necessary but not sufficient, the more appealing one may find a system of constitutional law in which the political branches play a role in dialogue with a constitutional court. In the latter case, one can praise the system of proportionality review as a form of deliberative democracy, with the courts playing an aristocratic role in ensuring the political branches respect basic rights and overarching constitutional values. Here, the constitutional court plays a role similar to United States Senate (before its seats were opened to popular election) or the U.K. House of Lords (before it lost the power to nullify legislation).

This is not to say Anglo-American legal culture champions direct democracy or unadorned parliamentary supremacy. The United States has a written, counter-majoritarian constitution that divvies up power between the central government and the states and separates power in a way that makes federal legislation very hard to pass. Yet a significant strain of American legal thought strongly favors electoral political accountability. All three actors in the complicated dance of federal legislation are accountable by elections[7] and devolution of power to the states promotes more direct participation in governance. Even democracy-restricting constitutional amendments are subject to supermajoritarian ratification by Congress and the states. It is telling that a prominent, perennial headache in American constitutional theory has been the “countermajoritarian difficulty” posed by judicial review of legislation by judges with life tenure.

No such neuralgia besets Italian constitutional law and politics. The Constitutional Court plays a prominent role in public affairs and, while individual cases briefly capture the public’s attention, the appointment of justices does not, for example, play a substantial role in ordinary politics as in the United States. This suggests the “small-c” constitution - the Italian peoples’ and officials’ dispositions and political attitudes - embraces a model of democracy more deliberative and less direct than its counterpart in the United States.

That said, with the rise of populism in Italy and Europe more generally, with persistent worries about the EU’s “democratic deficit”, and with the increasing supervenience of ECJ and ECHR norms over Italian jurisprudence, one cannot help but wonder about the stability of that equilibrium. It is far from clear whether the Italian Constitutional Court will become engulfed in broader political disturbances. It is even less clear whether that should affect the Court’s jurisprudence, let alone how it should; however, a reflection on Professor Pino’s interpretive triptych and broader considerations of self-governance may nevertheless be useful.

  • [1] Cf. L. ALEXANDER, What Are Constitutions, and What Should (and Can) They Do?, in 28 Soc. Phil. & Pol’y 1 (2011).
  • [2] ’ For an example of esoteric readings in the non-legal, yet Italian, context, consider U. ILCO,IlPendolo di Foucault, Milan, Bompiani, (1988). 2 See S.E. SACHS, Originalism as a Theory of Legal Change, in 38 Hare. J. L. & Pub. Pol’y 817 (2015), 821 (“The Constitution, and the Founders’ legal system as a whole, was only as crisp and determinate as it actually was...[W]hy should we try to be more originalist than the Founders, or more Catholic than the Pope?”). 3 J.M. BALKIN, Living Originalism, Cambridge, Harvard University Press, 2014; see also W. BAUDE, Is Originalism Our Law?, in 115 Colum. L. Rev. 2349 (2015), 2376-86 (contending that many apparently non-originalist decisions are consistent with his theory of “inclusive originalism”). 4 See J. GOLDSWORTHY, Dworkin as Originalist, in 17 Const. Comment. 49 (2000).
  • [3] M. KUMM, Who is Afraid of the Total Constitution? Constitutional Rights as Principles in the Constitutionalization of Private Law, in 7 German L.J. 341 (2006).
  • [4] sSee S. CALABRESI, G. LAWSON, The Rule of Law as a Law of Law, in 90 Notre Dame L. Rev. 483 (2014). 2 ’See L. ALEXANDER, E. Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law, Durham, Duke University Press, 2001. 3 This latter move may be consistent with originalism if the framers gave subsequent interpreters wide authority to implement the constitution to the best of their ability. The interpreter’s best judgment would be that the polity benefits from rules. It is harder to square with originalism if the framers wanted the constitution to be implemented through continued, evolving application of legal principles or invocation of enduring values.
  • [5] See, e.g., J. WALDRON, The Core of the Case Against judicial Review, in 115 Yale L.J. 1346 (2006). 2 See, e.g., P. Yowell, Constitutional Rights and Constitutional Design, Oxford, 3 Hart Publishing, 2018. 4 15 See, e.g., K. WHITTINGTON, Constitutional Construction: Divided Powers and Con 5 stitutional Meaning, Cambridge, Harvard University Press, 2001.
  • [6] 2 Justice in Global Context, Oxford, Oxford University Press, 2016, 114-150. 3 The picture is of course more complex, with Third Reich jurists being encouraged to interpret in light of “healthy folk sentiment”, not just the letter or original meaning of the law. 4 See, e.g., M. WALTERS, Public Law and Ordinary Legal Method: Revisiting Dicey’s Approach to Droit Administratif, in 66 U. Toronto L.J. 53 (2016). This tendency is obviously not unanimous, though the departures are instructive. Much, though not all, non-originalist U.S. constitutional theory in the past century regards the constitution as something emphatically different from ordinary law. 5 See S. GARDBAUM, The Place of Constitutional Law in the Legal System, in M. ROSENFELD, A. Sajó (eds.), The Oxford Handbook on Comparative Constitutional Law, Oxford, Oxford University Press, 2012, 169. One sees this in Anglo-American legal systems as well, especially with respect to the “principle of legality”, which requires clear statements from Parliaments before a court will recognize a legislative abrogation of basic rights, even those not explicitly entrenched in a constitution. See D. MEAGHER, The Principle of Legality as Clear Statement Rule: Significance and Problems, in 36 Sydney L. Rev. 413 (2014).
  • [7] The Senate by original design was supposed to be accountable to state legislatures, but in 1913 the 17th Amendment made Senators directly elected by the voters of their state. 2 B. FRIEDMAN, The Birth of An Academic Obsession: The History of The Countermajoritarian Difficulty, Part Five, in 112 Yale L.J. 153 (2002); A. BICKEL, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, New Haven, Yale University Press, 1986.
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