The Emergence of Constitutionally Conforming Interpretation

Abstract

In this article, I explore the cross-jurisdictional development of constitutionally conforming interpretation in the United States and Europe and trace the historical and sociological reasons for its emergence. In most legal systems, this tenet of interpretation has a uniform starting point, which lies in the aim of constitutional courts to exercise restraint when reviewing statutes. The political necessity for pioneering constitutional courts to lessen opportunities for attack from other branches of government has spurred their inclination to secure desired results through constitutionally conforming interpretation rather than facing the risks associated with declaring a statute unconstitutional. After the emergence of judicial review competencies, constitutionally conforming interpretation was adopted quickly and seemingly naturally, and its further development correlates strongly with the further development of the constitutional court system in the respective jurisdiction. Contrary to what one might assume given the remarkably analogous but chronologically offset evolutions of constitutionally conforming interpretation in the United States and Europe, it has never been a product of legal reception. Instead, the concept materialized independently within European jurisdictions approximately one century after its initial emergence in the United States, evolving within the distinct context of European constitutional review mechanisms and the civil law tradition. Consequently, there are divergences in the approach to constitutionally conforming interpretation between the jurisdictions of the Old and the New World, allowing for a distinction to be made between a two-layered American and a single-layered European model of constitutionally conforming interpretation.

Keywords: constitutionally conforming interpretation, presumption of constitutionality, presumption of validity, constitutional avoidance canon, constitutional-doubt canon, Ashwander principle, judicial review, comparative constitutional law