Vagueness, Finiteness, and the Limits of Interpretation and Construction
THE CHALLENGE OF ORIGINALISM: THEORIES OF CONSTITUTIONAL INTERPRETATION, Grant Huscroft, Bradley W. Miller, eds., Cambridge University Press, 2011
28 Pages Posted: 6 Mar 2012
Date Written: September 5, 2011
Vaguely worded/underdeterminate constitutional rights guarantees are a standard problem in constitutional law and have the potential to open a vast role for judicial review. However, there are limits to what courts may accomplish in purporting to interpret or construct rights, limits that originalists and living constitutionalists alike must respect. These limits flow from the idea that bills of rights are finite instruments: they protect only the rights they enumerate, and the vagueness of those rights neither invites nor allows courts to provide rights-based answers to every problem that may arise in constitutional litigation.
Originalists require a means of determining the boundaries of legitimate construction when textual meaning runs out, whereas living constitutionalists must make sense of rights having eschewed the idea that they may have some fixed, fore meaning. The scope of bills of rights is typically limited by design, and the absence of some rights that might have been enumerated may reflect a decision to deny constitutional authority to them, despite the strong moral claim they present. In other words, the silence of a bill of rights may have normative significance.
Drawing on experience under the Canadian Charter of Rights and Freedoms, I argue that Courts must respect the constitutional settlement that a bill of rights reflects, rather than take advantage of vaguely worded guarantees to change the bill of rights, and hence, the nature of the constitutional settlement itself.
Keywords: Originalism, Living Tree, interpretation, construction, judicial review, Canadian Charter of Rights and Freedoms, economic and social rights
JEL Classification: K10, K19, K39
Suggested Citation: Suggested Citation