Constitutional Interpretation

CONSTITUTIONAL INTERPRETATION
Legal Memorandum

January 2013
Constitutional Interpretation, January 2013


Executive Summary

The purpose of this memorandum is to identify theories and principles of
constitutional interpretation used to determine the meaning of a constitution or
specific constitutional language.

Constitutional interpretation is the process of determining the meaning of the
constitution. Theories of constitutional interpretation generally include
originalism, pragmatism, and natural law theory, which continuously evolve and
encompass numerous sub-theories. Originalism focuses on the original meaning
and intention of the constitutional drafters, as determined by the interpreter.
Pragmatism, however, emphasizes the judges role in the process and conveys the
philosophy that there is no constitutional meaning apart from the interpretation
given by the institutions that enforce the constitution. Natural law theory refers to
constitutional interpretation based on an unwritten moral code or higher law,
such as equality, human rights, and privacy.

When interpreting the constitution, some states strictly apply the principles
of statutory interpretation. For instance, states often consider the plain meaning of
the text when interpreting the constitution. Where the original text is unclear,
states may look to the intent of the authors, prior interpretations, and history in
interpreting the constitution. Other states support a more creative approach that
reaches beyond domestic sources to interpret constitutional text. The degree to
which these principles apply is influenced by the theory of interpretation being
used.

States also take into consideration the unique characteristics of the
constitution as a foundational law of the state. States seek to keep consistency and
harmony among different provisions in the constitution. States recognize the
courts duty to read the constitution as one consistent document, with a common
objective shared across all provisions. States also recognize the importance of
interpreting the constitution in a manner that upholds the governing structure
provided by the constitution.

In addition, states may use international and foreign law as sources in
interpreting their own constitutions. States may adopt principles and standards of
international law or refer to foreign interpretation of similar provisions in other
constitutions.


TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Theories of Constitutional Interpretation 1
Originalism 2
Pragmatism 2
Natural Law Theory 2

Principles in Constitutional Interpretation 2
Plain Meaning of Text 2
Intent of the Authors 3
History and Prior Interpretations 4
Constitution as One Consistent Document 5
Constitution as Structural Document 6

Use of International Law 6

Conclusion 7

1

Statement of Purpose

The purpose of this memorandum is to identify theories and principles of
constitutional interpretation used to determine the meaning of a constitution.

Introduction

Constitutional interpretation refers to the process of determining the
meaning of a constitution.
1
Theories of constitutional interpretation lay out
philosophical approaches to analyzing the text, such as originalism. However,
principles of constitutional interpretation differ in that they represent the methods
by which interpretive theories are applied, such as looking at the plain meaning of
the text. The judiciary generally has the authority to interpret the constitution.
Some states vest authority in the highest court of the judiciary to decide
constitutional issues and interpretations, while other states establish a separate
constitutional court to handle only constitutional issues and interpretation.

Theories of Constitutional Interpretation

Theories of constitutional interpretation refer to different philosophical
approaches the interpreters take in construing the meaning of the constitution. The
theories are both prescriptive and descriptive.
2
They describe what interpreters
usually do, but also prescribe what they ought to do.
3

Originalism

Originalism refers to constitutional interpretation based on the original
meaning and intention of the drafters of the constitution.
4
Originalism also
conveys the philosophy that a constitution has a fixed and knowable meaning.
5

The challenge in originalism comes from the difficulty in understanding what the
drafters meant at the time of drafting.
6

1
Jeffrey M. Shaman, CONSTITUTIONAL INTERPRETATION: ILLUSION AND REALITY 1 (2001).
2
Susan J. Brison, et al., CONTEMPORARY PERSPECTIVES ON CONSTITUTIONAL INTERPRETATION 4 (1993).
3
4
5
Thomas Colby & Peter J. Smith, Originalisms Living Constitutionalism, 59 Duke Law Journal 239, 242 (2008).
6
Herman Schwartz, Meeses Original Intent, a Constitutional Shell Game, THE NATION, Vol. 241 (Dec. 7, 1985).
2
Pragmatism

Pragmatism refers to constitutional interpretation based on judicial
interpretation.
7
Pragmatism conveys the philosophy that there is no constitutional
meaning apart from the interpretation given by the institutions that enforce the
constitution.
8
Pragmatism, therefore, allows the interpreters to be actively
involved in finding the meaning of the text.
9

Natural Law Theory

Natural law theory refers to constitutional interpretation based on an
unwritten moral code or higher law that people ought to follow, such as equality,
human rights, and privacy.
10
Natural law is less frequently referred to in
interpreting modern-day constitutions.
11

Principles in Constitutional Interpretation

While some experts follow the strict application of the principles of ordinary
statutory interpretation when interpreting the constitution,
12
others support more
creative methods of interpretation of the constitution.
13

Plain Meaning of Text

States often focus on the plain meaning of the text when interpreting the
constitution.
14
Where the words are clear, interpreters do not need to consider any
other means of interpretation.
15
In addition to focusing on the plain meaning,
states may also consider the technical meaning and the speakers meaning. The

7
Roderick M. Hills, Jr., The Pragmatists View of Constitutional Implementation and Constitutional Meaning, 119
HARVARD LAW REVIEW Forum 173, 179 (2006), available at http://www.harvardlawreview.org/media/pdf/hills.pdf.
8
Roderick M. Hills, Jr., The Pragmatists View of Constitutional Implementation and Constitutional Meaning, 119
HARVARD LAW REVIEW FORUM 173, 179 (2006), available at http://www.harvardlawreview.org/media/pdf/hills.pdf.
9
Richard Posner, Overcoming Law, PRESIDENT AND FELLOWS OF HARVARD COLLEGE (1995).
10
Aaron Epstein, The Supreme CourtThe Natural Law According to Clarence Thomas, SEATTLE TIMES, Aug. 31,
1991, available at http://community.seattletimes.nwsource.com/archive/?date=19910830&slug=1302739.
11
Aaron Epstein, The Supreme CourtThe Natural Law According to Clarence Thomas, SEATTLE TIMES, Aug. 31,
1991, available at http://community.seattletimes.nwsource.com/archive/?date=19910830&slug=1302739.
12
Theo I. Ogune, Judges and Statutory Construction: Judicial Zombism or Contextual Activism?, UNIVERSITY OF
BALTIMORE LAW FORUM 4, 18 (2000).
13
Eoin Daly, Hermeneutic Perspectives on Judicial Activism: Dworkin, Constitutional Interpretation and Judicial
Law-making, 18, (last accessed Dec. 13, 2012), available at
http://corkonlinelawreview.com/editions/2008/2008_COLR_16.pdf.
14
15
Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 401 (1833).
3
technical meaning refers to the meaning of the text within a smaller section of
society, such as the legal community.
16
The speakers meaning refers to the
authors intent, particularly if the meanings of the words have changed since the
drafting of the constitution.
17

The High Court of Kenya has interpreted its constitution based on the plain
meaning of the text. The High Court has stated that the plain text of Section 60 of
supports the finding that the High Court is always a Constitutional Court.
18

Similarly, the High Court of Malawi considered the plain meaning of any person
in interpreting Section 46(2) of the Malawi Constitution, which provides any
person who claims that a fundamental right or freedom guaranteed by this
Constitution has been infringed or threatened can make application to have a
Court enforce such right. The Malawi Court pointed out that the text did not say
any person who claims that his or her fundamental right was infringed, and
interpreted the provision to allow fundamental rights applications without having
to show that the individual making the application was sufficiently connected to
the harm.
19

Intent of the Authors

States often interpret their constitutions based on the intent of the authors,
reflected in the history of drafting and adopting the law. The Constitutional Court
of South Africa interpreted Section 167(3)(b) of the Constitution, which provides
that the Court has jurisdiction over issues connected with decisions on
constitutional matters.
20
The Court considered that the phrase was intended to
avoid fettering the exercise of the Courts functions, and decided that the
provision extends the jurisdiction to matters that stand in a logical relationship to
those matters that are primary.
21

In more explicit originalist terms, the Constitution of Turkey states that it is
[i]n line with the concept of nationalism and the reforms and principles
introduced by the founder of the Republic of Turkey, [Mustafa Kemal]

16
17
18
Apex Finance International Limited v. Kenya Anti-Corruption Commission (2012) eKLR, available at
http://www.kenyalaw.org/CaseSearch/view_preview1.php?link=33951098586349840501306.
19
Public Affairs Commission v. Attorney General and another (2003) MWHC 71, available at
http://www.malawilii.org/mw/judgment/high-court-general-division/2003/71.
20
Gory v. Kolver No (2006) CCT 28/06, available at http://www.saflii.org/za/cases/ZACC/2006/20.pdf.
21
Gory v. Kolver No (2006) CCT 28/06, available at http://www.saflii.org/za/cases/ZACC/2006/20.pdf.
4
Atatrk
22
In a set of controversial cases, the Turkish Constitutional Court
struck down laws that permitted the use of headscarves in schools, finding that the
law violated secularist principles established by Atatrk.
23
The court used the
history of the legislative reforms that led to the addition of secularism into the
constitution in order to support the finding that the change was intended to
establish a secular state and that it was an integral component of the new
republic.
24
On this basis, the court struck down the law as it said that it would
violate this basic tenant of the constitution.

Rather than looking to interpret the constitution to be consistent with
original intent of the authors, Canada employs the living tree doctrine. This
doctrine views the constitution as an organic document that has the flexibility to
change over time. In 1928, the classic case Edwards v. Canada, the Canadian
Supreme Court held that women were indeed persons under the meaning of the
constitution and were therefore eligible to hold public office.
25
In that case, Lord
Sankey noted that the British North American Act, which is the basis of the
Canadian Constitution, planted in Canada a living tree capable of growth and
expansion within its natural limits . . . [l]ike all written constitutions it has been
subject to development through usage and convention.
26

History and Prior Interpretations

States often interpret their constitutions based on past interpretations of the
constitution. On some occasions, states strictly follow the prior interpretation,
which is more prevalent in common law systems.
27
On other occasions, states
reject or expand upon previous interpretations for a reading of the text that is more
suitable to the present context. For instance, the Constitutional Court of Hungary,
in its Decision 6/1998 on the issue of the right to defense in criminal cases, relied
on its previous interpretation of the right of having access to the documents to

22
TURKEY CONST. preamble (1982).
23
Sabrina Tavernise, Turkeys High Court Overturns Headscarf Rule, New York Times, June 6, 2008, available at
http://www.nytimes.com/2008/06/06/world/europe/06turkey.html?_r=0.
24
Ozan O. Varol, The Origins and Limits of Originalism: A Comparative Study, 44 VANDERBILT JOURNAL OF
TRANSNATIONAL LAW, 1239, 1265 (2011), available at http://www.vanderbilt.edu/jotl/manage/wp-
content/uploads/Varol-pdf.pdf.
25
Edwards v. Canada (1928) A.C. 124, available at http://www.chrc-ccdp.ca/en/browseSubjects/edwardspc.asp.
26
Edwards v. Canada (1928) A.C. 124, available at http://www.chrc-ccdp.ca/en/browseSubjects/edwardspc.asp.
27
Joachim Sanden, Methods of Interpreting the Constitution: Estonias Way in an Increasingly Integrated Europe,
VIII JURIDICA INTERNATIONAL 128, 129 (2003), available at
http://www.juridicainternational.eu/public/pdf/ji_2003_1_128.pdf.
5
further include possession of the necessary documents, including copying
them.
28

On the other hand, the High Court of Australia considered historical and
political developments in addition to prior interpretations to interpret the meaning
of the word alien under Section 51(xix) of the Australian Constitution.
29
The
Court considered the definition of alien in a number of legislations and prior cases
during the colonial era. For example, in the colonial era, alien was a person who
did not owe permanent allegiance to the Crown.
30
The Court also noted that early
High Court cases defined a citizen as a person born within Australia.
31
Taking into
account the prior interpretations and historical context, the High Court interpreted
that alien now means those who owed allegiance to another sovereign power, or
who, having no nationality, owed no allegiance to any sovereign power.
32

Constitution as One Consistent Document

States often consider the constitution as one consistent document when
interpreting different provisions. States consider underlying principles and
concepts in the constitution to maintain consistency in interpretation of provisions.
The Supreme Court of Uganda has sought to read the Constitution as one
whole.
33
Stating the importance of harmonization of its provisions, the Court
pointed out that free and fair elections under Article 69 of the Ugandan
Constitution should be achieved despite the provisions of Article 269, which
regulates the activities of political parties.
34
The Supreme Court, in this case,
deferred that judgment to the Constitutional Court of Uganda.
35
The Supreme
Court of India also has stated that the constitution must be read as a whole, and

28
Constitutional Court of Hungary, Decision 6/1998 (III. 11.) AB, available at
http://www.mkab.hu/letoltesek/en_0006_1998.pdf.
29
Singh v. Commonwealth (2004) HCA 43, available at
http://www.ipsofactoj.com/international/2005A/Part08/int2005A(08)-015.htm.
30
31
32
33
Attorney General v. Paul K. Ssemogerere and Anor, Constitutional Appeal No.3 of 2004 (2005) UGSC 12,
available at http://www.ulii.org/ug/judgment/supreme-court/2005/12.
34
35
6
construed in keeping with its declared objects and its functions to ensure smooth
and harmonious working of the Constitution.
36

Constitution as Structural Document

States often also consider the constitution as the fundamental law that sets
the structure of the government. States interpret the constitution to promote
harmonious and effective working among the different government bodies and
territorial districts. The Supreme Court of India stated that the Court should
interpret the constitution in a manner that treats federalism as part of the basic
structure of the Constitution and avoids interpretations that will cause practical
inconvenience and absurdity.
37
Similarly, the High Court of Australia
acknowledged that the federal system of government provided by the
Commonwealth Constitution did not necessarily prescribe the State Constitutions
to do the same.
38

Use of International Law

States often use international law in interpreting constitutions.
39
In South
Africa, the Constitutional Court of South Africa applied the definition of
minority under the United Nations International Covenant of Civil and Political
Rights (ICCPR) in interpreting the rights of cultural and religious communities
under Section 31 of the South African Constitution.
40
Similarly, the High Court of
Malawi has stated that Chapters II and IV of the Malawi Constitution actively
subject the Constitution to the norms of public international law and comparative
foreign law.
41

Other states refer to foreign constitutional law in interpreting their own
constitutions, although states rarely adopt the interpretation word by word. For
instance, the Supreme Court of Namibia took into account how Canada interpreted

36
State of Karnataka v. Union of India & ANR (1977) INSC 21, available at
http://www.indiankanoon.org/doc/184521/?type=print.
37
State of Karnataka v. Union of India & ANR (1977) INSC 21, available at available at
http://www.indiankanoon.org/doc/184521/?type=print.
38
Australian Capital Television Pty Ltd and New South Wales v. Commonwealth, HCA 45, 177 CLR 106 (Sept. 30,
1992), available at http://www.austlii.edu.au/cgi-
bin/sinodisp/au/cases/cth/HCA/1992/45.html?query=Commonwealth%20Constitution.
39
Gerald L. Neumann, International Law as a Resource in Constitutional Interpretation, 30 HARVARD J. OF L &
PUBLIC POLICY (2006).
40
Kwazulu-Natal v. Pillay (2007) CCT 51/06, para. 144, available at
http://www.saflii.org/za/cases/ZACC/2007/21.pdf.
41
Public Affairs Commission v. Attorney General and another (2003) MWHC 71, available at
http://www.malawilii.org/mw/judgment/high-court-general-division/2003/71.
7
reasonable time in the Canadian Constitution in interpreting the same term in
Article 12(1)(b) of the Namibian Constitution on the right of the accused to have a
trial within a reasonable time.
42
The Namibian Court also referred to the
constitutions of Jamaica and South Africa to examine its provisions on this same
issue.
43
In addition to foreign interpretations, treaties or conventions may also play
a role in constitutional interpretation in some instances. In some states, such as
Ireland, Germany, or Italy, the European Convention on Human Rights (ECHR)
may be interpreted by judges to establish a minimum standard of rights that must
be upheld in their analysis of the rights afforded by their own state constitution.
44

The ECHR plays a role in a number of ways, such as state amendments
incorporating the rights into the constitution or weight given to convention rights
in constitutional interpretation by the courts.
45

Conclusion

In interpreting the constitution, some states apply the general principles of
statutory interpretation more strictly than others. States often look to the plain
meaning of text, intent of the authors, and prior interpretation and history to
interpret constitutional provisions. These interpretive doctrines are similar to those
used by statutory, regulatory and treaty interpretation. States also seek to maintain
consistency and harmony in interpreting different provisions within the
constitution. States also attempt to uphold the basic structure of the government
established in the constitution. Additionally, some states may incorporate
principles or standards of international law or refer to foreign interpretations of
similar provisions in other constitutions to shed light on the constitution of the
interpreting state.

42
S v. Myburgh, SA 21/01 (2002) NASC 16, available at http://www.saflii.org/na/cases/NASC/2002/16.html.
43
S v. Myburgh, SA 21/01 (2002) NASC 16, available at http://www.saflii.org/na/cases/NASC/2002/16.html.
44
Alec Stone Sweet and Helen Keller, Assessing the Impact of the ECHR on National Legal Systems, YALE LAW
SCHOOL FACULTY SCHOLARSHIP SERIES PAPER 88, 678, 703 (2008), available at
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1087&context=fss_papers&sei-
redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dnational%2Bconsti
tutional%2Binterpration%2Buse%2Bof%2BECHR%26source%3Dweb%26cd%3D1%26ved%3D0CDUQFjAA%2
6url%3Dhttp%253A%252F%252Fdigitalcommons.law.yale.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%25
3D1087%2526context%253Dfss_papers%26ei%3DWBnpUKqMK6je0gGnw4GACg%26usg%3DAFQjCNF_EaqX
IrBR7daCX6pXa17i7Jb4PA%26bvm%3Dbv.1355534169%2Cd.dmQ%26cad%3Drja#search=%22national%20cons
titutional%20interpration%20use%20ECHR%22.
45
Alec Stone Sweet and Helen Keller, Assessing the Impact of the ECHR on National Legal Systems, YALE LAW
SCHOOL FACULTY SCHOLARSHIP SERIES PAPER 88, 678, 684-86 (2008).

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