Constitutions, Courts, and History: Historical Narratives in Constitutional Adjudication

Table of Contents

Table of Contents Preface and Acknowledgements ix INTRODUCTION Constitutional Adjudication Haunted by Indeterminacy 1 CHAPTER ONE Historical Narratives in Constitutional Reasoning: Intuitions and Myths Revisited 17 1.1. History and tradition as accounts of the past: the need for a better distinction, or time to adopt a (not so) new methodology? 20 1.2. Common-law reasoning, Edmund Burke, and conservative/liberal ideals 34 1.3. Conclusion: towards a better understanding of historical narratives 53 CHAPTER TWO An Overview of Arguments Used in Constitutional Adjudication 63 2.1. The limits of textualism in constitutional reasoning 65 2.2. Courts reaching beyond the text: means of construction outside the constitutional text 78 2.3. Arguments from context: the trace of the past, history, and traditions in constitutional cases 93 2.4. Conclusion: variety and recurring traits in constitutional argument 102 CHAPTER THREE The Constitutional Text in the Light of History 109 3.1. Constitutions on their pasts; courts on the past of their constitutions 111 3.2. One Pole: the constitutional text calling for an inquiry into history 116 3.3. The middle of the continuum: a brief overview 137 3.4. The other pole: history as constitutional text in the Québec secession reference 147 3.5. Summary of findings: towards disenchantment 157 CHAPTER FOUR Behind Historical Narratives: The Promise of Continuity 171 4.1. On the vices and virtues of continuity in constitutional adjudication 173 4.2. Constructing constitutional continuity from the building blocks of preferred pasts 181 4.3. Seeing continuity and making it make a difference: lessons from transitional justice jurisprudence 204 4.4. Conclusion without closure: deceived by continuity in constitutional reasoning 221 CHAPTER FIVE The Fruits of Reconciliation: A Bittersweet Harvest 235 5.1. The many faces of reconciliation and their many implications 237 5.2. Canada: continuity and reconciliation rhetoric hand in hand 247 5.3. Reconciliation winning over continuity in Hungarian transitional justice jurisprudence 256 5.4. Indigenous people in the maze of reconciliation: the suppressed subject revisited 268 5.5. Conclusion: the unfulfilled promise of reconciliation 285 CONCLUSION 301 Bibliography 309 Index 343 To my parents ...