36 Pages Posted: 6 May 2011
Date Written: 1992
Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The "constitutional faithful" argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of that determinacy, judicial review can indeed be brought within the rubric of liberalism. Taking issue with the constitutional faithful is a group who might be called "constitutional sceptics." Scholars in this group see, in every constitutional phrase or doctrine, the possibility of multiple interpretations, and in the application of every constitutional method the possibility of multiple outcomes. It follows from this indeterminacy that judicial review cannot be easily justified by reference to liberal assumptions, because the power of the interpreting judge irreparably compromises the stability and rationality of the "Rule of Law" so central to liberal ideals.
Keywords: Constitutional law, Constitutional theory, Rule of Law, judicial review, liberalism
JEL Classification: K00, K10, K30
Suggested Citation: Suggested Citation