Costituzionalismo - Definizione

Difficulties faced by Originalism

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 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 are underlying principles that limit government power in a nation's constitution. As the political community's understanding of these principles develops and improves, the content of the constitution also develops and improves.

A crucial element in Dworkin's constitutional theory is his general claim that the law of a community includes more than explicit rules and decisions adopted in accordance with accepted procedures. While these rules and decisions are part of the law, they do not exhaust the law according to Dworkin. This is especially true for the constitution.

In Dworkin's view, a constitution includes the principles of political morality that provide guidance for interpreting and applying the law.

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,

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

The theory is that judges in constitutional cases are not merely agents of the authors of a constitution whose role is simply to carry 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 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.