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Against judicial supremacy in constitutional interpretation

Donald E. Bello Hutt
Translation(s):
Contra la supremacía judicial en la interpretación de la constitución

Abstract

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. I criticise both camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research.

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Excerpt

In open access from June 2019.

Outline

1 Introduction
2 Implicit accounts
3 Explicit accounts
3.1 Dworkin’s instrumental justification
3.2 Harel’s normative justification
4 Conclusion

First lines

1 Introduction

This article rejects judicial supremacy in constitutional interpretation. Here I stipulate, as for this notion, a state of affairs where the final word in providing constitutions with meaning is entrusted entirely to the judiciary. It, thus, encompasses two related things: first, that judges interpret the constitution and decide their cases according to their interpretation and, second, that the reasoning and interpretation underlying and justifying these judicial interpretations are followed and uncontested by both other institutions and citizens. This places judicial reasoning in a privileged position compared to that of the rest of agents of a polity in general, and representative institutions and/or citizens themselves in particular.

Judicial supremacy comes into existence due to two independent, but often concurrent features: first, the image of the judiciary as the ideal repository of constitutional interpretation and, second, the social fact that constitutional p...

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References

Electronic reference

Donald E. Bello Hutt, « Against judicial supremacy in constitutional interpretation », Revus [Online], 31 | 2017, Online since 01 June 2019, connection on 21 August 2017. URL : http://revus.revues.org/3659 ; DOI : 10.4000/revus.3659

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About the author

Donald E. Bello Hutt

PhD candidate in Politics, Department of
Political Economy, King's College London.

E-mail: donald.bello_hutt@kcl.ac.uk

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Copyright

All rights reserved

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