The case is then analysed in respect of section 3 5, chapter 3 and the constitution itself in order to determine the significance. A supreme constitution must be given a generous and purposive interpretation. In this article, however, we argue that statutory meaning is inevitably. Constitutional interpretation is defined here as the activity aimed at extracting from a written constitution the general normative content and specific meaning of its provisions. Even if it is a stupid proposal, it is not necessarily unconstitutional. The hon justice michael kirby ac cmg there are few issues of greater legal importance than the principles which should guide the interpretation of the australian constitution. This is not to say that the chapter opened by engineers is now closed. It was passed in 1901, by referendum, and was enacted by the imperial parliament. The crisis of constitutional literalism in australia 30.
The air force, however, has no constitutional language to support its existencesomething never questioned because, again, this military force is almost universally regarded as being important to have. According to cole, literalism is asserted as requiring that all constitutional interpretation consider only the text of the constitution. Laws5011 f constitutional l e n amazon web services. A public policy or a proposed law that is unwise is not necessarily unconstitutional. Literalism historical historical literalists believe that the contemporary writings of the framers are not relevant to any interpretation of the constitution. The constitution is a legal document that is sui generis. Since its great decision in the engineers case1 in 1920, literalism has been the.
Theories of constitutional interpretation umkc school of law. Shabalala v the attorneygeneral of transvaal nyamakazi v president of bophuthatswana. Randall kelso, styles of constitutional interpretation and the four main approaches to. The interpretation of fundamental human rights and freedoms is an important aspect of constitutional law.
Since the 1920s, the dominant interpretive scheme has been literalism. Amalgamated society of engineers v adelaide steamship co ltd engineers case 1920 28 clr 129 o rules of construction majority championed a legalistic literal approach. Literalism definition of literalism by the free dictionary. Accordingly, for the literalist, obedience to the biblical text the word of god is the highest human good. This is especially true where legislation closely associated with socioeconomic and political transformation stands to. Nov 07, 2010 constitutional literalism photo credit. Biblical literalism and constitutional originalism by peter. Constitutional interpretationconstitutional interpretation comprehends the methods or strategies available to people attempting to resolve disputes about the meaning or application of the constitution. Historical literalists believe that the contemporary writings of the framers are not relevant to any interpretation of the constitution. Biblical literalism and constitutional originalism by. Biblical literalism and constitutional originalism scholarly commons. Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents and legislation.
In recent years, however, that traditional consensus has died, and australia is now in the. Biblical literalism and constitutional originalism. Whereas textualist approaches to constitutional interpretation focus solely on the text. The only thing one needs to interpret the constitution is a literal reading of the words contained therein, with. Constitutional interpretation 89 speaking up and speaking more 98 exhibit 2. Introduction scholars, judges and various others have sought to explain the processes of construing written constitutions. For literalism, interpretation is an act of faith in a god who is just and good. Unlike regular statutes interpretation is not conducted following a set method outlined in the aia, but is left up to the judges of the high court. Different methods lead to different outcomes literalism original intent doctrinal approach structuralism i. Constitutional originalism and biblical literalism. Principles of constitutional interpretation introduction. All answers found in the wording of the constitution.
Text language of the constitution itself narrow v broad 2. This is followed by a description of the four respective judgments in the decision. The following are some of the general principles formulated by sa courts. Learn vocabulary, terms, and more with flashcards, games, and other study tools. Literal interpretation third millennium ministries. A court without dissenters is a court that will not adequately inform us of the costs of choosing the path taken. Originalism, in contrast, demands loyally to the text regardless of its moral quality. Jurd7250 federal constitutional law amazon web services. Approaches to constitutional interpretation in australia. This is the interpretation first suggested by a strong literalism hermeneutic. The two main proposals involve the use of a preamble. What are appropriate sources of authority to guide interpretation of the constitution and what relative weight should be assigned to the various appropriate sources. Textualism, also known as literalism, is a strict constructionist form of interpreting the constitution, since this type of thinking means that the person in question thinks the constitution should be taken literally.
Voltaire expressed the view that to interpret the law is to corrupt it. One proposes symbolic recognition in a new constitutional preamble with a clause prohibiting use of the preamble in constitutional interpretation. However, constitutional interpretation relies on traditional legal tools that look to internal aspects of the constitution e. Problem with literalism is the rigidity of the text, which becomes stuck at the time of drafting. Styles of constitutional interpretation and the four.
Constitutional courts, constitutional interpretation, subnational constitutionalism, statute of catalonia, direct democracy, religious freedom except where otherwise noted content on this site is licensed under a creative commons 2. Constitutional courts, constitutional interpretation, and. Bible and literature interpretation and construction bible as literature biblical literature constitutional interpretation evaluation constitutional law. It seems that a more purposive approach should prevail when the rules of statutory interpretation are compared. Strong literalism cannot say that it means anything else unless there is a compelling reason. This could in the course of time have and has already had an impact on s approach to the interpretation of noncourt constitutional legislation too. It can equate to the dictionary definition of literalism. Fourteen ways to interpret the constitution huffpost. If literalism is unacceptable, then interpreters need to take into account factors in addition to the literal meanings of constitutional provisions. An analysis of current theories of constitutional interpretation.
Approaches to constitutional interpretation have been classified under a variety of designations such as originalism, intentionalism, literalism, textualism, and progressive interpretation. Jurd7250 federal constitutional law table of contents. To ensure that the new laws are consistent with the basic structure of the constitution, the constitution must. Under this theory, the high court has concerned itself with finding meaning exclusively within the written text. This comment briefly lists, in no particular order, fourteen possible approaches with a very brief and incomplete statement of what advocates and critics generally have to say about each. Constitutional interpretation between legalism and law. Theories of constitutional interpretation modern democracy invites us to replace the notion of a regime founded upon laws, of a legitimate power, by the notion of a regime founded upon the legitimacy of a debate as to what is legitimate and what is illegitimatea debate which is necessarily without any guarantor and without any end. Ubiquitous in that universe is the common law, which, as sir owen dixon observed, supplies principles in aid of the interpretation of the constitution. The theoretical approaches to constitutional interpretation are first briefly discussed. Biblical literalism and constitutional originalism core. Accordingly, for the literalist, obedience to the biblical textthe word of godis the highest human good. Advocates find that this approach produces a clearcut guide, makes interpretation predictable, and prevents the court from contradicting itself. Source for information on constitutional interpretation.
Critics argue that many precedents are contradictory and support for any outcome is possible. Constitutional dimensions of statutory interpretation page 4 the second way in which the constitution has a direct impact on rules of statutory interpretation derives from the federal judicial structure imposed by chapter iii. I can see that quite clearly from your comments, but your original post seems rather focused on equating constitutional originalism with biblical literalism and dismissing both as simplistic. This is especially true where legislation closely associated with socioeconomic and political transformation stands to be construed. Kenny, justice susan the high court of australia and modes of constitutional interpretation fca 2007 fedjschol 10 the high court of australia and modes of constitutional interpretation justice susan kenny. Styles of constitutional interpretation and the four main. It ignores context, which according to lynch, m akes literalism illegitimate. Literalism, and strict construction form of judicial interpretation a method of constitutional interpretation that focuses on the plain meaning of the words of the constitution. The theory of constitutional interpretation which allows the courts the least amount of discretion is referred to as strict textualism 5.
A constitution gives the people and their elected leaders the opportunity to make many decisions that are unwise or even reckless. Dec 01, 2010 the marines and coast guard, which can be reasonably included in the naval forces authorized, pass constitutional muster. However, this does not imply a return to literalism and the orthodox plain. Oct 31, 2016 when supreme court justices interpret the constitution, they have a stated or unstated framework for analyzing the text. Theoretical dis position and strategic leitmotivs in constitutional interpretation in south africa l du plessis 1 introductory observations the constitutional makeover of a dilapidated south african state called for inimitable political prudence and integrity, and for courageous, ethical statesmanship rising above chancy brinkmanship.
It is entirely possible to read this to mean that paul regularly and purposefully inflicted injuries on himself as part of his practice of holiness. Away from institutionalism and toward individualism 100. The crisis of constitutional literalism in australia greg craven the article acts as an introduction to current australian debates concerning constitutional interpretation. Brentdpayne perhaps one of the most overused and underexplained arguments wielded in the 2010 election cycle is the assertion that a certain law is unconstitutional. Selected theories of constitutional interpretation congressional research service 2 theories should be applied. Further, to treat dixon j as a literalist in the narrowest the doctrine of stare. A constitution should not be used as a weapon to end debate. Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to nontextual sources, such as. Bible and literature interpretation and construction bible as literature biblical literature constitutional interpretation evaluation constitutional law original intent law laws, regulations and rules. Constitutional analysis of the interpretation clause of the zimbabwean declaration of rights. There are various theories about how this task should be performed ranging from obedience to original intent, through. Natural law higher law, gods law is now only infrequently suggested as an interpretive guide, even though many of the framers of the constitution recognized its. Heydon, jd theories of constitutional interpretation.
Why has constitutional interpretation become such an issue. Literalism v legalism literalism legalism prioritisation of the text in interpretation. Since its great decision in the engineers case in 1920, literalism has been the australian high courts enunciated methodology of constitutional interpretation. Constitution is interpreted and applied by focusing on its terms, syntax. Selected theories of constitutional interpretation congressional research service 1 introduction the united states constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government and, to a lesser. Constitutional interpretation, or constitutional construction, is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it. The court should include justices with different approaches to constitutional interpretation. These are referred to as progressivism and intentionalism. First, the author examines some of the normative considerations for and against judges openly enunciating and consistently applying allembracing approaches to constitutional interpretation a. Approaches to constitutional interpretation have been classified under a variety of designations such as originalism, intentionalism, literalism, textualism. Constitution identified limited public awareness8 for much of this century, literalism prevailed as the appropriate guiding theory for constitutional interpretation9 neither lawyers nor the public have substantially questioned that approach. Certain times and places are better suited to one theory of constitutional interpretation than are other times and places.
Styles of constitutional interpretation and the four main approaches to consitutional interpretation in american legal history r. Constitutional interpretation and characterisation the constitution of australia is our premier legal document. The debate on the recognition of indigenous australians in the australian constitution is more about how, than whether, this should occur. Encyclopedia of the american constitution dictionary. The only thing one needs to interpret the constitution is a literal reading of the words contained therein, with an expert knowledge in the 18th century meaning of those words. Australian high courts enunciated methodology of constitutional interpretation.
With regard to constitutional interpretation, the judge must decide, among other. Biblical literalism or biblicism is a term used differently by different authors concerning biblical interpretation. It is widely assumed that a constitutional principle of legislative supremacy confines judges, in interpreting statutes, to the modest role of effectuating legislative intention. And, indeed, both critics of originalism and literalists who urge originalism as an approach to constitutional interpretation have failed to identify the fundamental differences between the two approaches. The amendment process is too difficult and cannot be relied upon to save us. The supreme courts literalism and the definition of. This article deals in detail with the two divergent methodologies concurrently challenging literalism for dominance in the field of constitutional interpretation. Constitutional interpretation between legalism and lawmaking. The constitution of the united states preamble we the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do. This essay will outline the advantages and disadvantages of the literal rule and argue that it is not a sensible guide.