Constitutions, Courts, and History
Historical Narratives in Constitutional Adjudication
Publication Year: 2005
Published by: Central European University Press
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Table of Contents
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Preface and Acknowledgements
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Intuitively, at least for lawyers, the record book of history appears as a treasury of very sound points of reference. Precisely due to this reputation, constitutional review fora have a tendency to rely on references to history and traditions (historical narratives) in order to clarify or supplement constitutional provisions, to determine their proper scope of application, and sometimes even to substitute constitutional...
Introduction. Constitutional Adjudication Haunted by Indeterminacy
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Theories of constitutional interpretation and constitutional adjudication seek to establish a model of constitutional review which enables courts to respond even to hard cases without transgressing the limits of the legitimate exercise of the review power.1 In the course of this exercise one of the riddles used to be the countermajoritarian difficulty, as ex-...
Chapter One. Historical Narratives in Constitutional Reasoning: Intuitions and Myths Revisited
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References to history and traditions have acquired a curious reputation among lawyers for being objective and neutral points of reference, and thus for being capable of curbing indeterminacy in constitutional adjudication. When inquiring whether a new claim fits within the substantive range of the Due Process Clause, the U.S. Supreme ...
Chaper Two. An Overview of Arguments Used in Constitutional Adjudication
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In jurisdictions with a written constitution, the paradox underlying constitutional reasoning is relatively easy to identify. Constitutional provisions are phrased in a general manner: their open texture often offers little specific guidance for the resolution of particulars in con-stitutional claims. Despite fleeting indeterminacy in constitutional ad-...
Chapter Three. The Constitutional Text in the Light of History
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As demonstrated in Chapter Two, although often the constitutional text itself offers no readily available solutions to particular problems, the quest for legitimacy in constitutional adjudication finds refuge in the constitutional text. Theories of constitutional interpretation resort to the text of a constitutional provision as a yardstick to evaluate or ...
Chapter Four. Behind Historical Narratives: The Promise of Continuity
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The previous chapters sought to demonstrate that––despite lawyers’ intellectual reflexes––accounts of the past, history, and traditions are not hard facts to be taken at face value. Rather, accounts of the past (historical narratives) are the outcome of processes of interpretation. Lawyers’ accounts of the past as presented in constitutional cases are ...
Chapter Five. The Fruits of Reconciliation: A Bittersweet Harvest
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Chapter Four began an exploration of the normative premises under-lying courts’ reliance on historical narratives in constitutional cases. The examination targeted the rhetoric of continuity, inquiring how judge-made continuity rhetoric takes shape and, also, how such conti-nuity rhetoric contributes to shaping identities in polities operating ...
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The U.S. Constitution was drafted as a basic charter for a slaveholders’ polity. Slavery as the status quo of the day does indeed figure in the U.S. Constitution’s original language, such as in the Apportionment Clause calculating the basis of representation and taxation upon every free persons and three-fifths of all other persons.1 The only framer who ...
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Page Count: 366
Publication Year: 2005