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from one generation to the next. They cannot therefore serve the role suggested by the
fixed view.
Textualism faces a further difficulty. Even when the meaning of a word or phrase used
in a constitution is constant and plain for all to see, it is not always the case that it is
considered dispositive. For example, taken in terms of both its original and (perhaps
different) contemporary meaning, the First Amendment of the American Constitution is
clearly violated by a whole host of American laws, e.g., those proscribing incitement,
perjury and libel. Taken literally the First Amendment renders unconstitutional any
law which in any way restricts freedom of speech. If so, then it is unconstitutional in the
United States to punish untruthful witnesses, prevent primary school teachers from
uttering vicious racial slurs against their minority students, or convict those who incite
crowds to violence. But such state actions have never been understood to violate the
First amendment, leading to the inevitable conclusion that more than semantic meaning
governs its interpretation and application. And this is generally, if not universally, true of
modern states and their constitutions. But if more than meaning governs, what else
counts? The most obvious choice, especially for those attracted to the fixed view, are the
"intentions" of the framers. In response to the suggestion that the American First
Amendment prohibits laws against perjury, a defender of the fixed view is likely to
reply: "But that can't possibly be what the framers had in mind — what they intended —
in choosing the words they did." This leads us to a second type of interpretive theory,
Originalism, which focusses, not on word meaning, but on the intentions of those by
whose actions the constitution's various provisions came into existence.
10. Originalism
An Originalist might claim that Textualism is partially correct but doesn't go far enough.
The original intentions of a constitution's authors are what really count; and the reason
that textual meaning is so important is that it's often the most reliable guide to those
intentions. The drafters of a constitution may be presumed to have known and had in
mind the standard applications of the words they used, and to have intended the results
suggested by those applications, together with the goals and values those applications
were best suited to achieve. But when textual meaning fails, direct appeal to the relevant
intentions is necessary. In both kinds of cases, however, the ultimate aim is to respect
original intentions.
Whatever its precise contours, an Originalist theory is, like Textualism, likely to rest on
the fixed view of a constitution. To be sure, the constitution's rules are fixed by the
authors' intentions in deciding as they did, and not by the semantic content of the words
chosen to communicate those intentions. But they are fixed nonetheless, and must, as a
result, not be revisited and revised lest the authority and stability of the constitution be
threatened. The intentions of those by whose authority a constitution is made must
always govern its interpretation, not the new value judgments and decisions of
contemporary judges (or any other interpreters) asking the very same questions the
founders intentions were supposed to have settled.
Originalism faces a number of difficulties, some shared with Textualism. For example,
original intentions are often unclear, if not completely indeterminate, leaving the
interpreter with the need to appeal to other factors. The original intentions of the authors
of a constitution can vary from one person to the next. Sometimes the only things upon
which joint authors of a text can agree are the words chosen. The intentions behind that
choice can, however, vary significantly. These can range, for example, from the very
general to the highly specific. At one end of the spectrum are the various, and sometimes
conflicting goals and values the authors of a provision intended their creation to achieve.
At the other end are the very specific applications the authors might have had in mind
when they chose the particular words upon which they settled. Did the intended
applications of an equality provision encompass equal access to the legal system by all
groups within society? Or only something more specific like equal access to fairness at
trial? Did they perhaps include equal economic and social opportunities for all groups
within society? Different authors might have "intended" all, none, or some of these
applications when they agreed upon the equality provision. And as with the general
goals and values underlying a provision, there is room for inconsistency and conflict.
Constitutional authors, no less than legislators, union activists, or the members of a
church synod, can have different goals and applications in mind and yet settle on the
same set of words. In light of this fact, it is often unhelpful to rely on original intentions
when interpreting a constitution.
11. Hypothetical Intent Theory
One of the most serious difficulties faced by Originalism is that contemporary life is
often very different from the life contemplated by the authors of a constitution. As a
result, many intended applications may now seem absurd or highly undesirable in light
of new scientific and social developments and improved moral understanding. Modern
life includes countless situations which the authors of a constitution could not possibly
have contemplated, let alone intended to be dealt with in any particular way. The right to
free speech which found its way into many constitutions in the early modern period,
could not possibly have been intended by its defenders to encompass, e.g., pornography
on the internet. In response to such difficulties, an Originalist might appeal to what we
can call "hypothetical intent." The basic idea is that we should always consider, in such
instances, the hypothetical question of what the original authors would have intended to
be done in the case at hand had they known what we now know to be true. We are, on
this view, to put ourselves imaginatively in the authors' shoes, and determine, in light of
their intended goals and values, and possibly by way of analogy with their intended
applications, what they would have wanted to be done in the new circumstances.
The Hypothetical Intent Theory faces difficulties too. First, the theory presupposes that
we can single out one, consistent set of values, goals and applications attributable to the
authors, in terms of which we are to ask the question: What would they have wanted to
have done given these (intended) values, goals and applications? But as we have already
seen, the authors of a constitution invariably have different things in mind when they
agree on a constitutional text. Second, even if we could single out, at some appropriate
level of generality, a set of goals, values and applications from which our hypothetical
inquiry is to proceed, it is unlikely that there will always be a uniquely correct answer to
the question of what the authors would have intended in these cases which they did not
th
anticipate and could not possibly have imagined. What would an 18 century founder,
firmly in favour of freedom of speech, have thought about child pornography on the
internet? Thirdly, and perhaps most importantly, we are left with the question of why it
much matters what a long dead group of individuals might have wanted done were they
apprised of what we now know. The main appeal of the original intent theory is that it
appears to tie constitutional interpretation to historical decisions actually made by
individuals with authority to decide questions concerning the proper limits of
government power. If we are now to consider, not what they did decide, but what
they might have decided had they known what we now know, then the question naturally
arises: Why not just forget this theoretically suspect, hypothetical exercise and make the
decisions ourselves? There is some plausibility in the claim that the decision should be
made in light of the very general goals and values probably intended by the authors — if,
that is, one could discover what these were and if they could all be rendered consistent.
But why should we wish to perpetuate their possibly misguided views about the
appropriate ways in which to secure these goals and values? Unless we reject completely
the idea that there might be moral progress, or the idea that any such progress must
always be dismissed for the sake of a fixedness allegedly guaranteed by adherence to
authors' intent, there seems little reason to believe that we should be so tied. To think
otherwise might well be to allow the dead hand of the past to govern the affairs of today.
True enough, it might be replied. But the alternative is one which undermines the very
point of constitutions. If we view a constitution as a living tree whose limitations are
constantly open to revisiting and revision in light of changing times and (one hopes)
improved moral/political understanding, then it can no longer function as a stable
instrument whose very point and purpose is to limit the power of government —
particularly, though not exclusively, arbitrary judicial power. Arguments of political
morality may be necessary to frame a constitution, but if judges and other contemporary
interpreters are allowed to construe it in light of how they choose to understand those
limits, then the possibility of limitation vanishes. But does it? One theorist who thinks
not is Ronald Dworkin, whose theory of constitutional interpretation attempts to do
justice to both these points of view.
12. Dworkin: Moral Theory
For Dworkin, historical factors like semantic meaning and intention, though always
important, are in no way dispositive. They in no way fix the limits of government power
until such time as an amendment passes or a revolution occurs. On the contrary,
constitutions frame the terms of an ongoing political debate about the moral principles of
justice, fairness and due process underlying a nation's constitutional limits on
government power. And as the political community's understanding of these principles
develops and (it is hoped) improves, the very content of the constitution develops and
improves along with it.
A crucial element in Dworkin's constitutional theory is his general claim that the law of
a community includes more than any explicit rules and decisions authoritatively adopted
in accordance with accepted procedures. It does, of course, include many such rules and
decisions and these can be found, paradigmatically, in statute books, judicial decisions
and, of course, written constitutions. These are often termed "positive law." But the
positive law in no way exhausts the law according to Dworkin. Most importantly, for our
purposes, it in no way exhausts that part of law we call "the constitution." In Dworkin's
view, a constitution includes the principles of political morality which provide the best
explanation and moral justification — i.e., the best interpretation — of whatever limits
have been expressed in positive law. Hence, constitutional interpretation must always
invoke a theory of political morality. One concerned to interpret the limits upon
government power and authority imposed by a constitution must look to an interpretive
theory which provides the positive constitutional law with its morally best explanation
and justification.
The development of an interpretive theory of the constitution is, Dworkin acknowledges,
an extremely difficult task, and people of good will and integrity will reasonably
disagree about which theory is best. There is no mechanical, morally neutral test to
apply, only the competing interpretations of those whose task it is to interpret. This does
not mean, however, that attempting to evaluate theories is foolish, or that there really is
no such thing as a best theory since there is no mechanical way of discovering it. The
presence of disagreement, controversy, and uncertainty in constitutional cases, does not
entail that there are no right answers to the questions posed, and no uniquely correct
theory which determines what those answers are and hence what the constitution
actually requires. The presence of such factors entails only that interpreters must, as they
must do in all interpretive enterprises, including the arts, the sciences, and the law,
exercise judgment in fashioning their interpretive theories. Dworkin goes so far as to
argue that in a mature legal system there almost always is a best constitutional theory,
and judges (and legislators) are duty-bound to try their best to discern and implement its
requirements in making their decisions.
There are, for our purposes, three important implications of Dworkin's theory of
constitutional interpretation. First, original intentions and semantic meaning at best set
the stage for the ongoing debates of political morality which constitutional cases both
require and licence. They seldom, if ever, settle matters. Second, constitutional cases
require the kind of decision-making which is, on the Originalist and Textualist theories,
properly undertaken only by those who have already fixed the constitutional limits
contained within the constitution — i.e., its authors or framers. The kind of morally and
politically uncontroversial decision-making, within a stable framework established by
other responsible agents, to which the Originalist and Textualist theories aspire, is
simply impossible on Dworkin's theory. Dworkin's theory requires wholesale rejection
of the fixed view. The constitution is not a finished product handed down in a form fixed
till such time as its amending formula is invoked successfully or a revolution occurs.
Rather it is a work in progress requiring continual revisiting and reworking as our moral
and political theories concerning its limits are refined and improved. It is, in short, a
living tree.
A third, related implication of Dworkin's theory is that judges in constitutional cases are
not merely agents of the authors of a constitution whose role is simply to carrying out
the political decisions already made by the authors. On the contrary, they are partners
with the authors in an ongoing political project, one which requires participants, both
then and now, to engage in the kind of moral/political decision-making which, on the
fixed view, settled matters when the constitution was first adopted (and/or amended).
The limits to government power are, on Dworkin's theory, essentially contestable, ad
infinitum. If there is a correct theory of a constitution, it requires, for its development
and elaboration, an interpreter of super-human powers of moral, political and legal
[8]
reasoning. In short, it requires Dworkin's ideal judge Hercules. But Hercules is a
product of Dworkin's imagination, and so the project of interpreting the contestable
terms of a constitution is an ongoing one, requiring each and every interpreter to provide
her own best, and undoubtedly imperfect, interpretation of the limits placed upon
government by her constitution. The latter is never fixed.
13. Critical Theory
That it requires the skill, acumen and insight of a Hercules is seen by many theorists as a
serious drawback of Dworkin's approach to constitutional interpretation. If ordinary
judges, with their limited skill, integrity and objectivity are at liberty to interpret
constitutional limits in light of their own, highly contestable moral theories of the
constitution, then the inevitable result is a kind of unbridled judicial activism which
threatens both the stability and the legitimacy of the constitution and the limits on
government power which it is supposed to represent. Instead of limitations appropriately
fixed and settled by, morally and politically uncontroversial factors like historical
intentions and plain meaning, we would have "limitations" continually in flux and
subject to different interpretations by different judges with their own theories of political
morality. Those of an originalist or texualist bent will see in such consequences
sufficient reason to reject Dworkin's theory in favour of their alternative. But for many
constitutional scholars, originalism and textualism are no less problematic than
Dworkin's interpretive theory. For some of these "critical theorists," semantic meaning,
historical intentions, and herculean interpretive theory, all fail, in one way or the other,
[9]
to fix meaningful limits upon government power. As a result, reliance on such factors
in constitutional adjudication only serve: (a) to rationalize the purely political decisions
of judges pursuing, consciously or not, their own political ideologies. Further
consequences include (b) a serious affront to democracy: a small cadre of unelected,
elitist judges end up substituting their own, highly contentious views about the proper
limits of government power for the considered judgments of the people's
respresentatives, i.e., those members of Congress or Parliament duly elected to exercise,
on behalf of the people, the latter's sovereign right to participate in political decisions
affecting their rights (Waldron); and possibly (c) suppression of those — women,
minority racial groups, the poor, and so on — whose interests are not adequately
recognized and protected by the dominant, mainstream ideologies to which judges have
an affinity. Instead of the curbing of arbitrary government power for which the idea of
constitutionalism is supposed to stand, we have political suppression disguised in a cloak
of false constitutional legitimacy.
So critical theorists are highly skeptical of constitutional practice and theories which
[10]
applaud constitutionalism as a bulwark against oppression. As we saw at the outset, a
key element in the idea of constitutionalism is that government can/should be limited in
its powers and that its authority depends on observance of those limits. We further noted
that the authority of constitutions in liberal democracies is generally thought to lie in
"the people." One further implication of some critical theories is: (d) that the concept of
"the people" is as much a fabrication as is Dworkin's Hercules. Instead of "we the
people", western societies are comprised of various groups competing either for
domination (e.g., white males and the wealthy) or for recognition and the elimination of
oppression (e.g., the poor, women, and racial minorities). The law, including
constitutional law, is a powerful tool which has, historically, been utilized by dominant
groups to secure and maintain their superior status. As such, a constitution is anything
but the protection from unwarranted power that its champions have heralded over the
centuries. What is taken to be the plain meaning of the word "equality" is what the
dominant group understands it to be. What is taken to be the obvious historical intentions
of the framers is whatever intentions fit the ideologies of the dominant groups. What is
taken to be the best moral theory underlying the constitution is nothing more than a
rationalization of current social structures, all of which systematically oppress the
interests of women, minorities and the poor.
Critical theories represent a serious challenge not only to conventional theories and
established practices of constitutional interpretation, but to the very idea of
constitutionalism itself — the idea that government can and should be limited in ways
which serve to protect us from unwarranted state power. According to originalists and
textualists, the constitution protects us from judges and other officials by restricting them
to politically uncontroversial, neutral decisions about historical intentions and semantic
meanings. According to Dworkin, it is Hercules' best moral theory of the constitution
which serves as the bulwark against oppression. One crucial feature of Hercules' theory
is that it is often at odds with received opinion, in particular with the self-serving
convictions and prejudices of the various dominant groups within society. Following
Hercules' moral theory of the constitution will, Dworkin believes, lead a judge to protect
the rights of oppressed groups from the power of dominant groups, especially when that
power has the sanction of legislation. But the ordinary judge is not, critical theorists will
insist, identical with Hercules. On the contrary, he is an ordinary, flawed human being
with all the intellectual and moral shortcomings, weaknesses and biases of his fellow
humans. He is also, more often than not, a member of a dominant group (e.g., wealthy,
white males) who shares the social background, education, perspective, and values of
that group. As a result, his conceptions of the relevant contested concepts (e.g., equality
or freedom of expression) will be their conceptions — i.e., conceptions which serve the
interests of the dominant groups against whom the constitution is (at least largely) meant
to serve as protection. But if semantic meaning, intentions and Hercules' best theory are
all at the mercy of dominant ideologies and the whims and convictions of judges, then
the kind of protections heralded by the idea of constitutionalism may be a myth, and a
harmful one at that. So what is the solution according to critical theorists? The proffered
solutions vary considerably from one critical theorist to the next, depending on how
radical or skeptical the theorist tends to be. A revolutionary communist might advocate
the complete overthrow of constitutional, democratic government, while many liberal
feminists are content to work within existing constitutional systems to eradicate the
vestiges of patriarchy which have survived recent feminist movements (Strossen 1995).
Waldron agues that we should abandon the practice of judicial review of legislation
under constitutional bills of rights and leave political decisions where they belong: the
people and their representatives, i.e., legislative bodies like Parliament and Congress.
But whatever the preferred solution, all critics of constitutionalism seem to agree that
progress can be made only if the myths surrounding constitutional protection — the
constraining force of meaning, intention, and objectively true moral theory — are all
exposed, and that the true political forces at work in constitutional practice are
acknowledged and dealt with openly. Whether the idea of constitutionalism can survive
the lessons of critical theory is a very good question.
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DESCRIZIONE APPUNTO
Materiale didattico per il corso di Politica comparata del prof. Marco Giuliani, all'interno del quale sono affrontati i seguenti argomenti: definizione ed analisi del concetto di costituzionalismo; i concetti di sovranità e governo; Montesquieu e il principio della separazione dei poteri; il significato della carta costituzionale; la teoria morale di Dworkin.
I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Politica comparata e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Milano - Unimi o del prof Giuliani Marco.
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