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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... Vedi di più

Esame di Politica comparata docente Prof. M. Giuliani



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


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


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,


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


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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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.

Corso di laurea: Corso di laurea in scienze internazionali e istituzioni europee
Università: Milano - Unimi
A.A.: 2011-2012

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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