Posted: February 20th, 2021
you need to complete at least two responses “the “Final Posts”) of at least 200 words each to classmates by the dates shown in the course schedule.
Q1/ In my opinion, constitutions, in short, are frameworks for making politics possible. The text of a written constitution contains different kinds of legal norms that create the basic framework. These norms include rules, standards and principles. Rules and standards exist along a continuum. Rules are norms that don’t require very much practical reasoning to apply.
Like standards, principles may also have abstract and vague terms; the difference is that when principles apply to a situation, they do not always apply conclusively, but may be balanced against other considerations.
A constitution contains a mixture of these different kinds of norms. They serve different functions. For some purposes, rules are better than standards or principles. Otherwise presidents would tempted to try to stay in power forever, and this might undermine democracy. But some constitutional goals cannot easily be achieved through rules. That is why human rights provisions in constitutions are usually expressed in terms of standards and principles. These are open-ended, abstract, or vague terms that necessarily require construction and implementation by later participants in the system.
Constitutions use rules, standards, and principles and to channel and police government action, to establish rules of succession to power, to create institutions that perform government functions, to divide powers among different actors and branches, and to set institutions in competition with each other in order to diffuse and check concentrations of power. Because constitutions not only use rules but also standards and principles – and because they are sometimes silent on certain questions – they are elaborate systems of constraint and delegation to the future.
I believe that we must be faithful to the original meaning in the sense of the original semantic and communicative content of the words. But it does not follow that we must apply the constitution’s words in the same way that they would have been applied by the people who wrote them. Thus, the Fourteenth Amendment to the U.S. Constitution guarantees equal protection of the laws. These words have pretty much the same semantic meaning as they did in 1868. But the people who wrote them did not expect that the words would require modern notions of sex equality. In applying the Equal Protection Clause today, we are bound only by the original meanings of the words – which in this case is the same as the contemporary meaning – and not the original expected application.
Because a constitution is a framework, it must be built out over time, and different generations must participate in that project. As each generation gets involved, change inevitably occurs. Moreover, many different people and groups in society participate in the construction of the constitution– not only judges and lawyers, or politicians, but also members of civil society and ordinary individuals.
These groups participate in official ways: for example, by creating laws and judicial doctrines. They also participate in unofficial ways: for example, through social influence, political organization, and cultural change. To understand constitutional development, we must take account of both the official and the unofficial contributions to constitutional construction.
Anyone approaching the topic of constitutional interpretation inevitably encounters the question of whether it has some specific trait that distinguishes it from other objects or forms of legal interpretation. Whatever the theory of legal interpretation to which one adheres, whether one regards it as a function of knowledge or as a function of the will, one necessarily presupposes that the constitutional interpretation is a species of the genus “ legal interpretation ”and one seeks to distinguish it from other species of the same genus, the interpretation of laws, that of international treaties, administrative acts, or contracts of private law. But, if the question is always the same, the type of answer one gives depends in part on the theory of interpretation on which one relies.
Thus, those who believe that interpretation is a function of knowledge are obviously tempted to seek the specificity of constitutional interpretation in the specificity of its object. As the constitution is not a text like any other, constitutional interpretation is different from the interpretation of laws or treaties. In this regard, theorists who adhere to an intermediate or mixed theory agree with the proponents of interpretation-knowledge theory. According to the intermediate theory, in fact, interpretation is an act of will by which the authentic interpreter chooses within a frame among several possible meanings, while the determination of the frame would result from an act of knowledge.
Americans constitutional theory presents an opposition between, on the one hand, the arguments in favor of a living constitution capable of adapting to change, and, on the other, the demand to restore the original meaning of the constitution. these two positions stem from a common observation: the recognition of the disappearance of the world which produced the old constitution. This experience of constitutional modernity gives rise to equal and opposite tendencies: the need to cling to the past, its symbols, and its concrete manifestations on the one hand and, on the other hand, the need to transcend the past through adaptation pragmatic to a world that is no longer the same.
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