Constitutional Interpretation in the United States and the United Kingdom
From IVR encyclopedie
I. Introduction: The Concept of “Methods of Constitutional Interpretation”
This article concerns itself with the methods that courts use to produce interpretations from the texts that comprise the constitutions of the United States and the United Kingdom, rather than with the resulting constitutional substance as such. The most obvious difference between the constitution of the United States and that of the United Kingdom is that the former is codified in a single text, whereas the latter is derived from a large number of sources: statutes, common law, royal prerogatives, unwritten customs and conventions, and treaties such as the European Convention on Human Rights. From the standpoint of the theory of interpretation, however, this difference is not as significant as what the judiciaries of both nations have in common: namely, American and British judges alike always take something as their object of interpretation when they are engaged in the project of construing the constitution. Whether this constitutional “object” is a discrete and well-defined document (as in the U.S.) or the widely accepted expression of a traditional set of written and unwritten institutional arrangements (as in the U.K.), the event of judicial interpretation always exhibits three formally distinct elements: (1) a constitutional “text”—an object of interpretation—in the largest sense of the word; (2) a second text—the interpretation as such—which the judge wishes to derive from the canonical constitutional text; and (3) the explicit or implicit method of interpretation with which the judge makes the passage from (1) to (2).
Of course constitutional interpretations are also a product of history, including the social factors that make the interpreter the person that she is and that predetermine the realm of legal answers that she experiences as plausible. To pursue this line of inquiry, however, is to adopt what Ronald Dworkin calls the “external point of view of the sociologist or historian” rather than the “internal point of view” of the judge who must decide a case (1986, p.13). If the concept of history imputes judicial decisions to their causes, then in this article the concept of methods of interpretation gives an internal account of the different techniques that judges employ to justify and ground their decisions. So long as there is a category difference between a legal rule and its application there will always be a human being who “listens” to what the constitutional text has to say according to some method, however rudimentary it may be. The main point is that disputes about the meaning of the constitution in a given context very often cover over and obscure the existence of more fundamental disagreements about the appropriate method or methods for determining meaning.
Ever since Chief Justice John Marshall declared, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1805), “it is emphatically the province and duty of the judicial department to say what the law is,” legislative and executive officials at both the federal and state levels have come to accept the American Supreme Court’s constitutional holdings as authoritative, almost as if they were extensions of the constitutional text itself. The practical fact that its decisions are final raises the stakes, both politically and jurisprudentially, on the question ofhow the Supreme Court should go about the task of constitutional interpretation. In contrast, the stakes are much smaller in the United Kingdom, primarily because the British Constitution consists of a hodge-podge of texts and arrangements that can always be supplemented, revised, and even repealed by Parliament. Hence, it is often said (with some overstatement) that in the United States the constitution is what the Supreme Court says it is, but in Britain the constitution is what Parliament says it is. No wonder American lawyers, judges, and legal academics pay more attention to methods of constitutional interpretation than their British counterparts do: as a practical matter these methods replace the political process in the United States as the primary external (or “objective”) constraint on judicial authority to say what the law of the constitution is.
II. Methods of Constitutional Interpretation in the United States
Pretending to interpret is not the same as interpreting. Thus, we will henceforth focus our attention on the paradigm of a judge who seeks in good faith to determine what she takes to be the “command of the constitution” and to apply the meaning of this command to a particular dispute without consciously attempting to smuggle in her own personal values and preferences. Given that submission to an external constraint on the determination of meaning is both a logical and psychological precondition of the activity known as “judicial interpretation,” the debate in America about which method is best or most appropriate in a constitutional democracy is not, strictly speaking, about a choice between lawfulness and lawlessness in judicial decision making. Rather, this debate refers to a choice amongst interpretive constraints all of which are external and law-like in Herbert Wechsler’s precise sense of the term “neutral principles”: rational criteria of sufficient neutrality and generality to cover many other cases in the future, as opposed to a naked “act of willfulness or will” that seeks only to establish a particular result in one case (1959, p.11).
1. Strict Textualism
It is quite common for judges in constitutional cases to read one provision of the constitution in light of another, but this kind of intra-textual hermeneutics is not what most American lawyers mean when they speak of “strict textualism” in constitutional law. What is more, although textualism and originalism are often conflated, they are nonetheless analytically distinct methods. In its purest form textualism is inconsistent with any kind of interpretation, including even interpretation according to the original intent of the framers. In a nutshell, strict textualism is the belief that “it is possible to put down marks so self-sufficiently perspicuous that they repel interpretation; it is the thesis that one can write sentences of such precision and simplicity that their meanings leap off the page in a way no one—no matter what his or her situation or point of view—can ignore” (Fish 1991, p.161). For a judge who employs this method there is no occasion to interpret any words and sentences that she receives as being absolutely pellucid in relation to the dispute that she must decide.
At its most basic level, interpretation is the activity of transforming one linguistic sign into another linguistic sign according to some method of transformation. Reception, on the other hand, is the activity of using a linguistic sign without experiencing any doubt about the sign’s role in one’s actions. Another way to put this is to say that the task of interpretation depends on an antecedent state of doubt, regardless of the basis on which the doubt rests, and that where there is no doubt there is also no interpretation—only reception. Thus, the words of the constitution mean exactly what they “tell” the strict textualist they mean in an initial event of reception that is devoid of all doubt and that is missing any self-conscious extraction of meaning. If called upon to justify the resulting decision, the strict textualist will assert that her method is the quintessential example of judicial restraint, inasmuch as it follows the explicit words written down by the framers of the constitution rather than attempting to alter the meaning of those words by an act of interpretation that by definition supplements the authoritative language of the constitution with language written by unelected judges. That strict textualists sometimes disagree among themselves about what the canonical text “says” is of course a function of the fact that history touches everyone at least somewhat differently in distributing its effects, just as a widespread consensus about meaning shows that history often produces similar effects amongst similarly situated people. That said, however, it is important to understand that any subsequent agreements or disagreements about the contents of received meanings are not, strictly speaking, ingredients of the phenomenon of reception itself, without which no text could ever become an element of human behavior. In this sense everyone becomes a textualist at some point in the interpretive process, for every real event of interpretation eventually ceases when the language that comprises the interpretation itself is simply received and understood without further question (Wittgenstein 1960, p.34).
The so-called “strict originalist” determines meaning according to two and only two criteria: (1) the literal text of the constitution; and (2) the specific intent of those who drafted and/or ratified that text. For an originalist the surest guide to authorial intent is to read the words of the constitution for the norms that they state or clearly imply (Ely 1980, p.1), and in this respect most strict originalists are also strict textualists, at least with respect to those portions of the constitution that they receive as being clear in meaning. As for those provisions of the constitution that are vague or ambiguous, the strict originalist looks solely at the written historical record of the context in which the text in question was proposed and ratified in order to determine what the framers and/or those who ratified the provision must have had in mind as its specific purpose (Scalia 1997). From the standpoint of strict originalism the meaning of the constitution is immutably fixed by its language and its specific historical intent, and the only legitimate way for constitutional meaning to change is through the process of formal amendment.
The strict originalist, like the textualist, believes that her method for interpreting the constitution is the only one that is consistent with the democratic value of majority rule. To be sure, the constitution contains numerous constraints on the democratic principle of majority rule, and numerous protections of individual rights and liberties against majoritarian abuse; but from the point of view of a strict originalist the scope of these constraints, rights, and liberties is the product of what the text says and what those who adopted it intended it to mean. Since federal judges are not elected but appointed for life, the strict originalist thinks that they have no duty and no right to make value choices that are different from those made by the framers (see Bork 1971). Thus, the theory of strict originalism also maintains that when the constitutional text is silent on the question of whether a particular legal right exists (e.g., a woman’s right to have an abortion) the courts have no business declaring that it does.
Moderate originalism in American jurisprudence agrees with strict originalism on the proposition that the meaning of the constitution is fixed by its language and the historical intent of the framers, but it takes a broader view of what constitutes that intent. Since the original intent of the framers must be described at some level of generality, this means that the judge’s choice of the relevant level of generality will usually determine the result of a case or line of cases. That judges have discretion to choose the level of generality with which they characterize precedent is a feature of the interpretive process that has been well known at least since the early days of American Legal Realism. Moderate originalists simply apply this basic insight to the context of characterizing the intent of the framers. To combat the apparently unbridled judicial discretion that choice of the level of generality seems to entail, strict originalists like Justice Antonin Scalia have called for the framer’s intent to be determined at “the most specific level of abstraction,” so as to leave open the largest possible space for subsequent legislative discretion (Scalia 1997, p.45). It is precisely at this point, however, that moderate originalism distinguishes itself, for it tends to construe authorial intent more generally than strict originalism. To borrow Ronald Dworkin’s important distinction, the moderate originalist relies on the framers’ general “concepts” rather than their particular “conceptions” (1977, p.134), thereby allowing judges to interpret the meaning of the constitution so as to respond to changing historical circumstances without precipitating the need for a constitutional amendment every time a hitherto unforeseen technology or social phenomenon arises.
Finally, natural law originalists take as their starting point the historical fact that the general intellectual milieu of the educated elite in the late 1700s—including important founding documents such as the Declaration of Independence, the preamble to the constitution, and the Federalist Papers—was replete with both explicit and implicit references to natural law. From this they infer that the original intent of the framers was to achieve the ends of government as described by a certain enlightenment conception of natural law—one which embraces fundamental values such as the consent of the governed, the rule of law, separation of powers, and individual rights (see Kesler, p.557). Natural law originalists therefore believe that courts can and should interpret the text of the constitution in light of its natural law purposes—not because (or just because) this is the morally right thing to do, but because this was how the authors of the constitution themselves conceived of the text’s meaning.
Strictly speaking, “non-originalism” is a purely negative theory that adopts a posture of critical opposition to the premises and practices of both originalism and textualism. The non-originalist critique begins by noting that a truly radical purging of Supreme Court precedent would be required in the event that these methods were to be consistently applied to all questions of constitutional interpretation: literally hundreds of cases and lines of authority would have to be reconstructed from the ground up. Non-originalists claim that the uncertainty and disruption of settled expectations that would follow upon overturning well-established precedents according to the strict tenets of originalism and textualism would give affront to one of the most cherished values underlying the rule of law: namely, maintaining judicial continuity in the present with the official acts performed by judges in the past (Grey 1975, p.710). Non-originalists also assert that although originalism and textualism both claim to be democracy-enhancing (inasmuch as they try to preclude constitutional evolution through “loose” interpretations made by unelected judges), in practice they can operate in an anti-majoritarian way by rigidly tying the law of the present to an outdated set of assumptions and preferences that the vast majority of people in the current society do not share.
In addition, non-originalists point out that there is no unambiguously knowable “intent of the framers” that could be followed, even if it were desirable to do so. Determining a single intent of the framers concerning a given provision of the constitution is often extremely difficult if not impossible, inasmuch as the historical record is frequently incomplete, inaccurate, and sometimes self-contradictory. What is more, the entities that ratified the constitution and its amendments were not a single author—they were collections of a large number of individuals (for example, state legislatures and Congress), and as such they cannot rightly be said to possess the attribute of intentionality except in a purely metaphorical sense (Brest 1980, p.212). Some non-originalists have also noted that there is no evidence that the framers and ratifiers of the original constitution believed that subsequent interpretations of their work would or should rely on documentary sources from 1787-1789 to determine constitutional meaning, and that there is, on the contrary, positive evidence that they believed that the meaning of the constitution would and should only become evident over time, in response to changing historical circumstances (Powell 1985). This evidence of the original understanding of original intent gives rise to a strange kind of logical reversal or paradox: strictly speaking, the tenets of originalism would require judges to be non-originalists if the framers themselves intended that future judges would not be bound by their specific intentions and conceptions.
The word “constructivism” names a number of different methods for interpreting the constitution, all of which also distinguish themselves from originalism and textualism by giving one or more critiques of them. In other words, a non-originalist judge does not just reject originalism and textualism—for this alone would leave her own constitutional interpretations theoretically rudderless—she also necessarily accepts a different positive method for interpreting the constitution.
Evolutionists view the constitution as a “living document” capable of changing over time in response to new conditions. On this view, the best explanation of the actual state of constitutional law in America is that it represents a common law process of development in light of understandings that evolve over time (Strauss 1996), and that constitutional and statutory grants of jurisdiction constitute a kind of delegation to federal judges of the power to develop constitutional meaning in accordance with the common law method. Evolutionists subscribe to an “adverse possession” theory of constitutional law, according to which a proper reading of well-established Supreme Court precedents on the meaning of any given constitutional provision supplants both the text of that provision and the intent of its framers (Levinson 1982, p.379 n.19). In response to the originalist claim that this method cedes too much discretion to judges, and therefore is anti-democratic, evolutionists point out that the common law method has been with us for nearly a thousand years and that when it is applied in good faith it puts or can put very real constraints on judicial discretion (see Dworkin 1986).
b) Moral Readings of the Constitution
Many of the Supreme Court’s decisions, most notably those interpreting the “cruel and unusual punishments” clause of the Eighth Amendment, employ a method of interpretation that is best described as a kind of descriptive ethics. In Trop v. Dulles, 356 U.S. 86, 101 (1958), for example, the Supreme Court held that the Eighth Amendment should be interpreted in light of society’s “evolving standards of decency”—a method of interpretation that the Court has since employed in numerous death penalty cases. In response to the originalist claim that interpretations such as these impermissibly inject the personal values of judges into the constitutional process, advocates of giving a moral reading to the constitution reply that they are only trying to determine an “objective index” of what most Americans do in fact hold to be cruel and unusual punishments. Once the relevant index of community values is ascertained—usually by means of counting the number of jurisdictions that have adopted or rejected the practice in question—this method binds even those non-originalist judges who personally disagree with the current state of American moral sentiment to apply their findings to the case at hand. However, since courts do not possess the kind of popular mandate and investigative resources that Congress has when it comes to determining what “the people” believe and want, some critics claim that this important difference in institutional competencies is a sufficient argument against this method.
Outside Eighth Amendment law, theories and decisions that give moral readings to the constitution sometimes determine and construct a set of basic national “ideals” surrounding the notions of liberty, equality, fair treatment, and federalism—ideals that stand beyond the four corners of the text and that serve as touchstones for determining concrete disputes about constitutional meaning. One of the most influential of these approaches is John Hart Ely’s theory that the Supreme Court should (and largely does) follow the meta-constitutional moral value of “procedural fairness in the resolution of individual disputes,” as well as the general background value of “ensuring broad participation in the processes and distributions of government” (Ely 1980, p.87). Along the same lines, no survey of values-based constitutional interpretation should fail to mention the famous (or infamous) method of “penumbral reasoning,” which characterizes many of the Warren Court’s decisions expanding the constitutional scope of individual rights and liberties against governmental interference. This method was first announced by Justice William O. Douglas in Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965), and it relies on the moral premise that the constitution as a whole creates what Douglas called a “zone of privacy” that goes beyond the specific list of rights enumerated in the Bill of Rights.
From the point of view of textualism and originalism, respect for democratic processes requires judges to obey the constitutional balance that was established once and for all by the constitution’s words and its authors’ intent, and to forbear from making new law by giving Olympian readings of value-terms that are almost by definition as vague as they are lofty. Those who advocate a values-based approach to constitutional interpretation reply to this criticism by invoking the realist insight that most legal doctrine is by its very nature inherently malleable and indeterminate, and by arguing that neo-formalist decision making of the kind advocated by textualism and originalism is therefore both disingenuous and potentially anti-democratic. A values-based method of interpretation can make judicial opinions transparent, inasmuch as it obliges judges to give rational and persuasive accounts of the relationship between the widely shared background values of participatory democracy and particular judicial outcomes; whereas textualists and originalists are able to disguise their reasoning (and thus secretly implement their own political preferences) by appearing to derive the result of a case mechanically from alleged constitutional “facts” that may be highly doubtful and contested (Breyer 2005).
c) Judicial Pragmatism
Finally, judicial pragmatism attempts to produce constitutional results that are “good” for the present and the future without any sense of an absolute duty to adhere either to the text, to precedent, or to the original meaning of the constitution. This does not imply that a pragmatist judge will never follow precedent or the original intent of the text—only that she conceives of her decision to follow them as being a function of her judgment that this course of action produces net social gains that outweigh the net social gains of any other course of action. Perhaps the most visible and important modern method for producing judgments about which interpretation is pragmatically “best” is cost-benefit analysis: a social science technique with utilitarian underpinnings that attempts to supplant both guesswork and a judge’s personal preferences with a prediction of the social effects of competing interpretations of the law. According to Richard Posner, a federal court of appeals judge who is its most vociferous defender, this kind of pragmatism encourages judges to doubt even their most cherished beliefs and understandings about the law in order to avoid the pitfalls of formalism, whereby a judge can lazily or mindlessly enact her own unthought prejudices about the meaning of the constitution under the guise of seeming to determine what the text or its history “objectively says” to her (Posner 1996). On the other hand, judicial pragmatism has been criticized both for attempting to usurp the policymaking function of Congress and state legislatures and for being insufficiently respectful of legal rights simply because they are legal rights that officials are bound to respect regardless of the consequences (Dworkin 1986, p.151).
III. Methods of Constitutional Interpretation in the United Kingdom
1. The New Supreme Court of the United Kingdom
On March 21, 2005, Parliament passed the Constitutional Reform Act, one of the most important changes in the British constitution in over two hundred years. The Act provides for a new Supreme Court of the United Kingdom to take over both the preexisting functions of the law lords and certain powers of the Judicial Committee of the Privy Council. Prior to the Constitutional Reform Act, the law lords could (and often did) speak in legislative debates in the House of Lords, and they regularly chaired Royal Commissions and departmental committees. Reversing this traditional blending of powers and functions, the Act reforms the office of Lord Chancellor to remove his ability to act as a government minister in addition to being a judge, disqualifies Supreme Court judges from sitting or voting either in the House of Commons or in the House of Lords, and creates a special commission to make appointments to the bench based solely on the criterion of merit. The Constitutional Reform Act’s primary motivation was to bring the judicial system of Britain more into conformity with the requirements of the European Convention on Human Rights and the modern constitutional theory of separation of powers, both of which stipulate that judicial officers should not also exercise legislative or executive powers. While it is too early to predict the practical consequences of these reforms for the principle of judicial independence and the contents of legal interpretations, it is clear that the Act’s principal achievement is merely to sever the link between the highest court of appeal in Britain and the House of Lords as a legislative body. What is more, the Act’s legislative history expressly affirms that the Act does nothing to change the traditional principle of parliamentary sovereignty over the contents of British law, including constitutional law.
2. The Relationship between British Parliamentary Sovereignty and Judicial Methods of Constitutional Interpretation
It must be acknowledged at the outset that the concept of judicial methods of constitutional interpretation, as defined in this article, is fraught with obscurity in the United Kingdom. Partly this is because there simply is no “Constitution of the United Kingdom” in the narrow sense of a codified and comprehensive set of legal rules that define governmental structures and procedures as well as the government’s relations with its citizens. Moreover, the task of investigating and determining the sphere of judicial methods of constitutional interpretation has always been overshadowed by a certain theoretical obsession with the principle of parliamentary sovereignty and what that principle means for establishing the contents of the constitution. The traditional British view on parliamentary sovereignty holds that Parliament—defined as the Queen, Lords and Commons acting together—enjoys the absolute privilege to make or unmake any law, including constitutional law, and that no person or body has a right to override or set aside its legislation (Bogdanor 2003, p.42). Among other things, this tradition means that a breach of constitutional convention by Parliament produces no “illegal” consequences that the courts can address.
The principle that British courts are subordinate to parliamentary supremacy on the meaning of the constitution—including basic human rights—is ultimately grounded in John Austin’s theory that the very nature of sovereignty implies that it cannot be limited by law (Austin 1998, p.183). As a consequence of this way of thinking, no British court has ever claimed jurisdiction to set justiciable limits to an Act of Parliament, although every now and then judges have opined, in dicta or in their extra-judicial writings, that there may be some rights that are so fundamental to the common law that they are not subject to disposition by Parliament (Bogdanor 2003, p.48-49). A word of caution: in thinking about the issue of parliamentary sovereignty it is important to distinguish the role of the British courts within England from their role elsewhere. For example, the British constitution actually serves three systems—England, Northern Ireland, and Scotland—and the British courts do have the power to strike down statutes passed by the Scottish Parliament if they conflict with the Human Rights Act, which was passed by the British Parliament in 1998 as a way of incorporating into the constitution the most significant provisions of the European Convention on Human Rights. Nevertheless, the Human Rights Act does not require an effective remedy for violations in England, and it explicitly deprives the courts of the power to strike down incompatible legislation passed by the British Parliament.
In contrast with its treatment of the Human Rights Act, the British judiciary has interpreted the European Communities Act of 1972, which is also a part of the constitution of the United Kingdom, as a declaration by Parliament that all future legislation should be interpreted to conform to community legislation, at least unless and until Parliament clearly declares otherwise (Bogdanor 2003, p. 50). Thus, a certain degree of judicial “activism” has crept into British constitutional law, in the form of decisions that either suspend or hold unenforceable Acts of Parliament that judges deem to be in violation of community laws and directives. Nevertheless, no British court has ever suggested that it is beyond the power of Parliament to repeal or modify the European Communities Act or even to abrogate the treaty on which it is based. Thus, it would be a gross exaggeration to say that judicial enforcement of the European Communities Act foreshadows the advent of American-style judicial supremacy on the meaning of the British constitution. Rather, it seems more plausible to interpret these cases conventionally, as Lord Chancellor Mackay did: namely, as garden-variety instances of judges interpreting one British statute in light of another.
3. The Connection between Judicial Restraint and Textualism
Robert Stevens aptly summarizes the overall tenor of British legal culture when he writes that “judicial claims to be guardians of fundamental laws are likely to be met with understandable hostility as a breach of the traditions of parliamentary supremacy” (Stevens 2005, p.68). Supporters of both major parties in Britain have traditionally sought to emphasize the value of judicial restraint, and this political fact has had important implications for the methods of interpretation that judges have employed to construe statutes and develop the common law. To be blunt about it, for most of its history the British judiciary has tended to maintain “the law-is-the-law approach” to legal language (Stevens 2005, p.63). On this model of decision-making, the job of the judiciary is conceived of as positivistic and almost machine-like: judges are supposed to find out what the law is (eschewing any inquiry into what it ought to be) by consulting the “plain meaning” of statutory words and common law precedents.
We have already given a general account of strict textualism—the judicial method of interpreting constitutional law according to its “plain meaning.” The continuing attraction of this method in the United Kingdom is partly explained by a very strong positivistic streak in mainstream British legal theory, which can be traced to Jeremy Bentham’s extreme hostility to the common law process and his equally extreme faith in the power of the written word to constrain judicial discretion (see Kayman 2004). A more recent paean to positivism in Britain is H.L.A. Hart’s very influential work The Concept of Law (1961), which develops the idea that law is a system of rules, analogous to the rules of games, and that judicial decision-making is and ought to be merely descriptive of the law as it is and never proscriptive of the law as it ought to be. The argument that the distinction between “Is” and “Ought” is untenable—because judges have values and political preferences that help shape their alleged “descriptions” of what the law is—would appear to be more readily accepted by Americans than it is by the British, who continue in large measure to trust in the law’s objectivity and autonomy from politics (Stevens 2005, p.175).
4. Evolutionism and Judicial Creativity
Despite what has just been said, it would be wrong to think that constitutional theory in Britain has completely failed to appropriate any of the insights of American Legal Realism. In some of their more candid moments modern British judges have been willing to strip away the veneer of formalism that covers the event of judicial decision-making, and during the past two decades British courts have shown a much greater willingness to depart from the ancient tenets of strict textualism in statutory construction and in common law development. For example, in R v. Home Secretary, ex p Daly  2 WLR 1622, all of the law lords accepted the test of “proportionality,” according to which judges are supposed to make a substantive assessment of the “relative weight” of competing interests in human rights cases—almost as if the court had located a doctrine of substantive due process hidden somewhere in the obscure interstices of the British constitution. This moralistic trend in recent British case law can be traced at least in part to the extremely influential writings of Ronald Dworkin, whose critique of positivism claims that judicial decision making is an interpretive process in which moral principles and moral reasoning—including the overall “purposes” of the legal system—must necessarily have a role to play (Dworkin 1986).
In a similar vein, many British courts have used a substantive interpretation of the common law concept of the rule of law in order to curb or control abuses of the discretion that is exercised by agents of the state. The pace and the scope of this tendency have substantially increased in recent years, during which a series of judicial decisions has, as one commentator puts it, “significantly resisted unfettered discretion, narrowed official immunities and expanded the grounds of review” (Bogdanor 2003, p.60). It is possible, of course, to explain these decisions modestly as examples of courts merely implementing legislative intention under the doctrine of ultra vires—an interpretation that would bring them into harmony with Joseph Raz’s well-known argument that the rule of law is a purely formal concept (Raz 1988, p.196). However, there is an unresolved academic debate in Britain today about whether these cases might stand for a much broader principle, namely, that the courts of the United Kingdom possess an inherent common law function to set the bounds of legality—subject, of course, to the right of Parliament to override their decisions by legislation.
If it is true that modern British courts have reclaimed some responsibility for keeping the common law in line with the needs of society (Bogdanor 2003, p.356), then it is also true that “English judges are adept at providing a fig leaf of judicial objectivity” in explaining their decisions (Stevens 2005: 180). To the extent that British judges actually believe that their fig leaf of objectivity is a full suit of clothes, they are following in good faith the method of constitutional interpretation that we have called textualism. On the other hand, to the extent that the personal morality of judges is both the cause and the ground of their decisions—a thesis that was recently advanced by Lord Browne-Wilkinson (Stevens 2005, p.118)—then the fig leaf of objectivity is truly a fig leaf, with the result that British “law” is not law, properly speaking. To be an exercise of legal interpretation (as opposed to the implementation of personal preference) judges must follow in good faith some legally valid method of interpretation that they consider to be binding on them—whether this method is what we earlier described as “textualism,” “originalism,” “evolutionism,” “moral readings of the constitution,” “judicial pragmatism,” or something else.
As we have seen, the question of the legitimacy of judicial methods of constitutional interpretation occupies a leading position in legal theory and judicial practice in the United States. In contrast, it appears to be the case that British law currently does not make its methods of interpretation into a question or problem. Wittgenstein once said, “What the eye doesn’t see the heart doesn’t grieve over.” Judicial and academic eyes in the United States see clearly (some might say too clearly) that the contents of constitutional interpretations are necessarily linked to, if not determined by, the methods used to generate them. So far this relationship has largely escaped the penetrating gaze of British judges and academicians, who do not think explicitly “enough” about the problem of methods of interpretation: explicitly enough, that is, if one’s goal is to isolate and think about them in their own right, considered apart from the more general problems of parliamentary sovereignty, judicial restraint in statutory interpretation, and the contents of the common law.
IV. Related Entries
Judicial Activism, Argumentation in the Law, Structures of Legal Argumentation, Binding Force of Constitutional Law, Consequentialist Argumentation/Reasoning, Consensus in the Law, Constitutionalism, Constitutional Law, Constitutional Values, Judicial Decision-making, Theories of Democracy and Law, Disagreement (Legal/Political), Discretion and Arbitrariness in Adjudication, Empiricism in Legal Theory, Explanation in Legal Theory, Federalism, Following Rules, Formalism in the Law, Generality/Levels of Generality (in Legal Argumentation), Legislative Intent, Interpretation of Law, Methods of (Statutory) Interpretation, Literal Interpretation of Law, Judicial Independence, Judicial Review, Judicial Supremacy, Justification, Law and Economics, Law and Language, Legal Culture, Legal Positivism, Meta-Theory in Jurisprudence, Objectivity of Law, Ontology of Law, Legal Politics, Pragmatism in the Law, Reasons in the Law, Constitutional Rights, Rule of Law - Philosophical Perspectives, Separation of Powers, Sociology of Law and Legal Philosophy, Teleological Arguments in the Law, Text, Context and Law, Values in the Law.
Austin, John, The Province of Jurisprudence Determined, David Campbell and Philip Thomas (eds.). Aldershot: Ashgate, 1998.
Bogdanor, Vernon (ed.), The British Constitution in the Twentieth Century. Oxford: Oxford University Press, 2003.
Bork, Robert, “Neutral Principles and Some First Amendment Problems,” 47 Indiana Law Journal1 (1971).
Brest, Paul, “The Misguided Quest for the Original Understanding,” 60 Boston University Law Review 204 (1980).
Breyer, Stephen, Active Liberty. New York: Knopf, 2005.
Dworkin, Ronald, Law’s Empire. Cambridge: Harvard University Press, 1986.
Dworkin, Ronald, Taking Rights Seriously. Cambridge: Harvard University Press, 1977.
Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review. Cambridge: Harvard University Press, 1980.
Fish, Stanley, “The Law Wishes to Have a Formal Existence,” in Austin Sarat and Thomas Kearns (eds.), The Fate of the Law. Ann Arbor: University of Michigan Press, 1991.
Grey, Thomas, “Do We Have an Unwritten Constitution?,” 27 Stanford Law Review 703 (1975).
Hart, H.L.A., The Concept of Law. Oxford: Oxford University Press, 1961.
Kayman, Martin, “A Memorial for Jeremy Bentham: Memory, Fiction, and Writing the Law,” 15Law and Critique 207 (2004).
Kesler, Charles, “Natural Law and a Limited Constitution,” in 4 Southern California Interdisciplinary Journal 549 (1995).
Levinson, Sanford, “Law as Literature,” 60 Texas Law Review 373 (1982).
Posner, Richard, “Pragmatic Adjudication,” 18 Cardozo Law Review 1 (1996).
Powell, H. Jefferson, “The Original Understanding of Original Intent,” 98 Harvard Law Review885 (1985).
Raz, Joseph, “The Rule of Law and its Virtue,” Law Quarterly Review 195 (1988).
Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law. Princeton: Princeton University Press, 1997).
Stevens, Robert, The English Judges: Their Role in the Changing Constitution. Oxford: Hart, 2005.
Strauss, David, “Common Law Constitutional Interpretation,” 63 University of Chicago Law Review 877 (1996).
Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” 73 Harvard Law Review 9 (1959).
Wittgenstein, Ludwig, The Blue and Brown Books: Preliminary Studies for the ‘Philosophical Investigations (2nd ed.). New York: Harper & Row, 1960.