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To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.
Originalism is a force to be reckoned with in American constitutional theory. From its origins as a monolithic theory of constitutional interpretation, originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists have harnessed the resources of linguistic, moral, and political philosophy in responding to critics. Recent work is characterized by methodological concerns about how to identify the meaning of constitutional texts as well as the development of normative arguments for fidelity to them.
Despite these developments, originalism is sometimes dismissed out of hand. Critics of originalism often rely on stock arguments that neither add-ressed nor anticipated the arguments of contemporary originalists. Many are persuaded that originalism was dealt a fatal blow by the criticism of Paul Brest and Jefferson Powell in the 1980s, culminating in the failure of Judge Robert Bork's nomination to the United States Supreme Court. But originalism has moved on considerably since that time. The multiplicity and complexity of the new variants of originalism require interlocutors to make a considerable investment in order to participate in the debate. The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provide an introduction to the development of originalist thought, showcase the great range of contemporary originalist constitutional scholarship, and situate competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves.
Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves.
The most important questions that arise in judicial review under bills of rights typically involve the most vaguely worded rights. Rights to “equal protection” and “due process” in the U.S. Bill of Rights and to “equal protection and equal benefit of the law without discrimination” and “fundamental justice” in the Canadian Charter of Rights and Freedoms raise profoundly difficult moral and political questions, and the way in which they are interpreted by the courts has far-reaching consequences in the constitutional order. Given the stakes, concern about the legitimacy of particular approaches to constitutional interpretation is inevitable and it will not do to insist that “[i]t is emphatically the province and duty of the Judicial Department to say what the law is.” The question is not whether the judiciary must interpret the constitution but how it should do it.
“New” originalist theory addresses the challenge posed by vaguely worded rights by emphasizing a distinction between “interpretation” and “construction.” Interpretation is concerned with determining the linguistic meaning of the text of the bill of rights and is the first task for a court. Once meaning is ascertained the court turns to the task of construction, developing secondary rules or doctrines to flesh out the content of vaguely worded rights in order to resolve particular disputes.