Constitutional Construction

[Allan Ides]

I second your recommendation of Jeff's book.  It is terrific.

On the last point you reference regarding the historical politics of
constitutional law, I find it interesting that other constitutional
courts in western democracies -- Germany is a good example -- frankly
recognize the political nature of their constitutional decisions.  This
is not seen as partisan politics or even everyday politics, but
politics of a higher order in the sense of defining the fundamental
principles of organic law.  This more open approach to the process
strikes me as so much more healthy than our ongoing debate about the
shame of judges acting on their political instincts.

Allan Ides

----- Original Message -----
From: "Johnsen, Dawn Elizabeth" <djohnsen at INDIANA.EDU>
Date: Tuesday, November 26, 2002 5:47 pm
Subject: Re: Constitutional Construction

> Here is a list similar to Sandy's but slightly more comprehensive,
> thisone from a book just out by Jeff Powell entitled "A Community
> Built on
> Words:  The Constitution in History and Politics."  At the
> conclusion of
> his book, Jeff proposes a set of 20 "shared constitutional first
> principles," one of which is:
>
> "In constitutional argument it is legitimate to invoke text,
> constitutional structure, original meaning, original intent, judicial
> precedent and doctrine, political-branch practice and doctrine,
> settledexpectations, the ethos of American constitutionalism, the
> traditions of
> our law and our people, and the consequences of differing
> interpretations of the Constitution.  Eclecticism in the
> modalities of
> argument recognized as constitutional has been standard in American
> constitutional law since the founding." (at 208)
>
> By the way, I strongly recommend Jeff's book which is, I think, a
> brilliant and important examination of constitutional
> controversies from
> 1790 through 1944, with direct relevance to many modern disputes
> regarding, for example, the relationship between constitutional
> law and
> politics, legal reasoning, standards for judicial appointments, etc.
> Just a little more about the book, to quote from the book jacket, Jeff
> demonstrates through an "historicist" interpretation that
> "constitutional law from its very beginning has involved politically
> charged and ideologically divisive arguments.  Nowhere in our past can
> one find the golden age of apolitical constitutional thinking . .
> . .
> Viewed over time, American constitutional law is a history of
> politicaldispute couched in constitutional terms."
>
> Dawn Johnsen
>
>
> -----Original Message-----
> From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Sent: Tuesday, November 26, 2002 4:44 PM
> To: CONLAWPROF at LISTSERV.UCLA.EDU
> Subject: Re: Constitutional Construction
>
>
> My colleague Philip Bobbitt has suggested that "constitutional
> interpretation" consists of six "modalities":  text, history,
> structure,doctrine (precedent), prudence, and what he calls ethos,
> which I
> translate as fundamental social values internal to a given society.
> Some people would add a seventh, a more universal notion of
> natural law
> or justice.
>
> sandy
>
> At 08:51 AM 11/26/2002 -0800, you wrote:
> >How about constitutional structure, history, tradition, fairness,
> >justice, political theory, & social policy.
> >
> >allan ides
> >
> >Francisco Martin wrote:
> >
> > > A question for the listserv:  I am trying to come up with a
> list of
> > > principles and specific rules for construing the Constitution.
> > > Besides the general principles of federalism (or limited
> federal and
>
> > > state government), separation of powers, representative democracy,
> > > rule of law,  judicial review, "living constitution" (or evolving
> > > standards), and originalism, and the specific rules of statutory
> > > construction (as seen in, e.g., Sutherland's treatise), what other
> > > principles and rules come to mind?
> > >
> > > Thanks in advance!
> > >
> > > Francisco Forrest Martin
> > > President
> > > Rights International, The Center for International Human
> Rights Law,
>
> > > Inc. <ricenter at rightsinternational.org>
>