The Constitution: A Legal Approach

The Constitution is a legal document that outlines the fundamental principles of a nation, including the rights of its citizens and the powers of its government. Constitutional law is a significant aspect of legal studies and research, with students and scholars delving into its interpretation and application. Various approaches to interpreting the Constitution exist, including textualism, originalism, pragmatism, and functionalism. Textualism focuses on the plain meaning of the text, while originalism asserts that the original meaning is fixed. Pragmatism considers contemporary values and political and economic circumstances, while functionalism emphasizes the core functions of government branches. The interpretation of the Constitution is crucial, as it guides the government's authority and ensures the protection of citizens' rights.

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Textualism and originalism as modes of interpretation

Textualism and originalism are two modes of interpreting the Constitution. Textualism is a mode of interpretation that focuses on the plain meaning of the text of a legal document. Textualists believe that there is an objective meaning to the text and do not typically inquire into the intentions of the drafters, adopters, or ratifiers of the Constitution. Instead, they consider the context in which the terms appear and how they would have been understood by people at the time of ratification. Textualism is a formalist approach to interpretation, emphasising a straightforward reading of the text.

Originalism, on the other hand, considers the historical context at the time a law was enacted. Originalists believe that the Constitution's text had an "objectively identifiable" or public meaning at the time of its founding that has not changed over time. Originalism was first proposed as an alternative to living constitutionalism, focusing on the original intention of the founders. However, due to the difficulty of ascertaining the drafters' intentions, originalism shifted its focus to the original meaning of the words in the Constitution.

While textualism and originalism differ in scope, they are not necessarily mutually exclusive. For instance, the late Justice Antonin Scalia described himself as both an originalist and a textualist. Justice Neil Gorsuch is considered a textualist, yet he has expressed support for originalism. Justice Elena Kagan has also stated that "we are all textualists now", suggesting a convergence between the two approaches in legal interpretation.

Other modes of interpretation include pragmatism, functionalism, judicial precedent, modernism, and structuralism. Pragmatism takes into account the political and economic circumstances surrounding a legal issue and seeks to produce an optimal outcome. Functionalism emphasises the core functions of each branch of government and considers whether there is an overlap that disrupts the equilibrium intended by the Framers. Judicial precedent examines how laws have been interpreted in the past and continues to use those interpretations as a standard.

Pragmatism and functionalism as flexible approaches

Pragmatism and functionalism are two flexible approaches to interpreting the constitution.

Pragmatism

Pragmatism is a uniquely American approach to interpreting the constitution. It involves the Court weighing or balancing the probable practical consequences of one interpretation of the Constitution against other interpretations. This approach allows the Court to issue decisions that reflect contemporary values and the proper role of the judiciary. For example, pragmatism allows the Court to consider the future costs and benefits of an interpretation to society or the political branches, selecting the interpretation that may lead to the perceived best outcome.

Critics of pragmatism argue that the consideration of costs and benefits unnecessarily injects politics into judicial decision-making. They argue that judges are not politicians and their role is to say what the law is, not what it should be.

Functionalism

Functionalism takes a more flexible approach to interpreting the constitution by emphasizing the core functions of each of the branches of government. It asks whether an overlap in these functions upsets the equilibrium that the Framers sought to maintain. For example, in the case of Zivotofsky v. Kerry, the Court held that the President has the exclusive power to recognize formally a foreign sovereign and its territorial boundaries, and that Congress could not effectively require the State Department to issue a formal statement contradicting the President's policy on recognition. The Court thus adopted a functionalist approach by considering the practical consequences of allocating the power of recognition between the legislature and the executive.

Common law and civil law jurisdictions

There are two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems: Common Law and Civil Law. Common law nations, such as those in the Commonwealth as well as the United States, derive their legal systems from that of the United Kingdom, and as such place emphasis on judicial precedent, whereby consequential court rulings (especially those by higher courts) are a source of law. Common law systems give more weight to the separation of powers between the judicial branch and the executive branch. They usually use an adversarial system, in which two sides present their cases to a neutral judge, and the judiciary is kept separate from the prosecution, establishing the courts as completely independent from both the legislature and law enforcement.

Countries following a civil law system, on the other hand, are typically those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America, Central and Eastern European and East Asian countries. The civil law system is a codified system of law that takes its origins from Roman law. Civil law jurisdictions place less emphasis on judicial review and only the parliament or legislature has the power to effect law. As a result, the structure of the judiciary differs significantly between the two, with civil law judiciaries being inquisitorial.

In common law jurisdictions, such as England and the US, the emphasis when a business gets into financial trouble is on seeking a reorganization rather than a liquidation to keep the business as a going concern. In civil law jurisdictions, the process focuses on liquidation, although some countries now permit reorganizations of debtors before they become insolvent. In many civil law countries, a separate administrative law governs PPP arrangements.

Commercial parties often seek predictability and simplicity in their contractual relations, and frequently choose the law of a common law jurisdiction with a well-developed body of common law to achieve that result. For example, London is considered the pre-eminent centre for litigation of admiralty cases. However, civil law can be clearer than case law when the legislature has addressed the precise set of facts applicable to a particular situation.

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Human rights law and international enactments

Constitutional law serves as a framework for understanding the role, powers, and structure of different entities within a state, including the executive, the legislature, and the judiciary. It establishes the rules and regulations that govern the conduct of these entities, ensuring they act within the scope of their authority. In doing so, constitutional law provides a foundation for upholding and protecting human rights at the national level.

International human rights law, on the other hand, operates at a global level. It is comprised of international treaties, customary international law, general principles, regional agreements, and domestic law. The Universal Declaration of Human Rights (UDHR), adopted in 1948, is widely recognised as the cornerstone of international human rights law. The UDHR sets out core principles such as universality, interdependence, equality, and non-discrimination, providing a framework for states to protect and promote the rights of their citizens.

By becoming parties to international treaties, states assume obligations to respect, protect, and fulfil human rights. This includes refraining from interfering with the enjoyment of human rights, actively protecting individuals and groups from human rights abuses, and taking positive action to facilitate the enjoyment of basic human rights. The international community's commitment to human rights has also given rise to regional human rights conventions, domestic human rights bills, and constitutional provisions that further strengthen the protection of human rights at the national level.

The interpretation of constitutional law and human rights can vary depending on the legal approach taken. Textualism, for example, focuses on the plain meaning of the text of a legal document, considering how the terms would have been understood at the time of ratification. Functionalism, on the other hand, takes a more flexible approach by emphasising the core functions of each branch of government and seeking to maintain the equilibrium between them. Pragmatism, as another approach, considers the political and economic circumstances surrounding a legal issue and aims to produce outcomes that reflect contemporary values. These varying interpretations shape the way human rights law and international enactments are applied and enforced.

Constitutional theory and the Rechtsstaat doctrine

Constitutional theory is an academic discipline that focuses on the meaning of a constitution and its interpretation. It involves the study of historical, linguistic, sociological, ethical, and political aspects of the constitution. In the United States, constitutional theory is particularly concerned with theories of judicial review, as the judiciary has near-final authority on constitutional meaning.

One influential work in constitutional theory is Alexander Bickel's "The Least Dangerous Branch", which introduced the idea of the "countermajoritarian difficulty". This concept highlights the tension between democratic government (majority rule) and judicial power. If the judiciary can overturn popular legislation, it either contradicts the democratic system or requires curbing judicial power.

Carl Schmitt's "Constitutional Theory", published in 1928, is another significant work. Schmitt, a leading German political and legal theorist, provides a provocative interpretation of the Weimar Constitution. He argues that the legitimacy of a constitution stems from a sovereign decision of the people. This theory has influenced constitutional thinking in Asia, Latin America, and Eastern Europe.

The Rechtsstaat doctrine, or "legal state" concept, is a principle in continental European legal thinking, borrowed from German legal philosophy. It translates as "legal state", "state of law", "state of rights", or "constitutional state". The Rechtsstaat doctrine asserts that the exercise of governmental power is constrained by the law. The Russian legal system, for example, adopted this doctrine, making the written constitution the supreme law of the country. Similarly, the post-Communist constitution of Ukraine declares itself a "legal state". The Rechtsstaat concept aligns with the idea of the rule of law, where governmental power is limited by legal constraints.

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