The Hydraulics of Constitutional Claims: Multiplicity of Actors in Constitutional Interpretation
69 University of Toronto Law Journal 211-247 (2019)
40 Pages Posted: 31 Aug 2018 Last revised: 8 Jun 2019
Date Written: August 28, 2018
This article argues that multiple actors play a role in raising, and resolving, constitutional claims on both sides of the Atlantic. There are common functional demands for democratic involvement in shaping constitutional meaning in different countries. These constitutional claims respond to what is described in the article as a “hydraulic process.” The hydraulics analogy explains how, across various constitutional systems, similar bottom-up constitutional claims are asserted in different institutional forums. The common driver is the grassroots mobilization of societal actors (and their opponents) advancing their interpretation of the constitution through all available avenues. The precise configuration of these institutional channels is the result of “hydraulic shifts”: when societal actors are shut out of one institutional channel, they redirect their constitutional claims to alternative forums thereby engaging new institutional actors. These dynamic hydraulic responses ultimately generate a picture of multiple actors engaging in the process of constitutional interpretation.
I map out these constitutional actors by using as a case study the legalization of same-sex marriage in the United States, Spain, the United Kingdom, and Ireland. The four systems represent distinctive models of formal recognition of same-sex marriage, with different actors taking the lead and appearing to have the final say on this contested issue. However, I explain that in all four cases we can detect the voices of multiple actors, including notably the people themselves, in a process of legal contestation around and interpretation of fundamental constitutional principles. The case studies illustrate that common bottom-up constitutional demands respond to similar overarching hydraulic processes, which, in turn, owing to diverse political, institutional, and cultural contexts, bring in the voices of citizens and other constitutional actors in diverse ways.
Analytically, the paradigm proposed in the article captures more accurately the complex institutional dynamics across various legal systems. Normatively, this framework encourages inclusive and dynamic constitutional interpretation that reflects evolving political and social demands instead of top-down delivery of constitutional meaning.
Keywords: Constitutional Interpretation, Democratic Constitutionalism, Same-Sex Marriage, Comparative Public Law, Legal Constitutionalism
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