The Constitution stands as the supreme law of the land. All governmental action – state and federal, legislative, executive, or judicial must comply with the dictates of the Constitution. Constitutional interpretation is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. The Supreme Court is the final arbiter of the meaning of the Constitution.
The proper role of the Supreme Court, it is said, is to “interpret” the Constitution, not rewrite it (Shaman, 2001). Traditionally, it is believed interpretation should be based on the words and the intentions of those who adopted it. This interpretation method consisting of a search or quest for original intent is known as ‘originalism’. Many legal experts have felt that originalism is a flawed method and refutes the very principles the Constitution stands for (Shaman, 2001).
Since a constitution is a law, and the supreme law within its domain, the principles of constitutional interpretation are essentially the same as the principles of judicial interpretation. There are six main methods of interpretation: textual, historical, functional, doctrinal, prudential, equitable, and natural (Silverstein, 1997). Textual interpretation is when a decision is based on the actual words of the constitution. Historical method is based on legislative history. Functional or structural method is when decisions are based on analysis of the structures of constitutional law. Doctrinal method dictates that decisions should be taken based on prevailing practices or opinions of legal professionals.
The Prudential method of interpretation involves taking decisions based on factors external to the law or interests of the parties in the case. Equitable method is one in which decisions are based on an innate sense of justice, regardless of what the written law might provide. Finally, there is the Natural method of interpretation in which decisions are based on what is required or advised by the laws of nature or of human nature, on what is physically or economically possible or practical, or on what is actually likely to occur.
The Originalist method and the ‘Textual’ or ‘Literalist’ methods constitute the conservative approach. The Equitable method and the Natural method are seen as more liberal in nature and people who advocate them are called modernists (Silverstein, 1997). Originalists and Constitutional Constructionists contend that the Constitution is a legal document, and is meant to provide rigidity. According to them, non-elected judges cannot make moral or ethical decisions for the country; only elected representatives in the Legislative Branch can. On the other hand, Modernists consider the Originalist approach too rigid. The overwhelming purpose of the Constitution, they argue, is to protect liberty.
Constitution of UK
The United Kingdom is rare among liberal democracies in not having a codified constitution. The British Constitution comes from a variety of sources. The main ones are: Statutes such as the Magna Carta of 1215 and the Act of Settlement of 1701; Laws and Customs of Parliament; political conventions; Case law; constitutional matters decided in a court of law; Constitutional experts who have written on the subject such as Walter Bagehot and A.V Dicey. A major part of the constitution exists in written form as statutes, court judgments and treaties. However, it does include a few unwritten sources such as Parliamentary conventions and the royal prerogatives.
The British constitution rests on the doctrine of parliamentary sovereignty, according to which the statutes passed by Parliament are the UK’s supreme and final source of law. This means that Parliament can change the constitution simply by passing new Acts of Parliament. The Constitution today has thus evolved through the years and considered by political scientists as being “organic”. Its flexible nature makes it responsive to political and social change; however, the absence of entrenchment means that in theory far-reaching changes could be made without significant popular support. Recently, through the adoption of European Union law, and the European Convention on Human Rights, citizens are deemed to have certain negative rights that were previously unspecified in the legal system. These are enacted in the European Communities Act 1972 and Human Rights Act 1998, respectively (McEwen, 2003).
In the British Constitution, the courts’ role is important, but not imperative. The courts may not question any act of parliament, but can rule on constitutional matters. The courts also have jurisdiction over the extent of Royal Prerogative where not limited by statute (McEwen, 2003).
Royal prerogative is the name for powers originally exercised by the monarch. They derived from the monarch’s traditional authority and practically, most prerogatives are now directly exercised by ministers, such as the power to regulate the civil service, or the power to issue passports. Some absolute prerogatives still exist, but these are by convention exercised only on the advice of the Prime Minister and cabinet. These powers include summoning, proroguing and dissolving Parliament, granting royal assent to bills and formally appointing office holders (McEwen, 2003). The most important reserve prerogative is considered to be the appointment and dismissal of Prime Ministers.
The two most important principles of the British constitution are cited by A.V. Dicey, in his work “An Introduction to the Study of the Law of the Constitution” (1885). They are that the constitution is built on the twin equal principles of Parliamentary sovereignty and the rule of law. The former means that Parliament is the supreme law-making body. The latter is the principle of equal application of the law: ‘everyone is equal before the law’. Dicey’s “twin pillars” interpretation is a legalistic interpretation, and has been criticized by commentators writing about the decline of Parliament’s independence and the dominance of the executive in policy making (Jennings, 1941).
Another important principle is the concept of a unitary state – meaning sovereignty resides only at the centre of the state. The power of local and devolved bodies could be abolished completely by Parliament if it wished. Constitutional monarchy is a key principle, meaning that although the monarch technically rules, in practice she does not, but instead has a ceremonial role only. The most recent major principle of the constitution is European Union membership, the principle that EU law takes precedence over UK law. This appears to undermine the principle of Parliamentary sovereignty, but Parliament could still withdraw from the EU by repealing the European Communities Act 1972 so in a way Parliamentary sovereignty is preserved.
Jennings, W. Ivor (1941). The British Constitution. The Macmillan Company. New York.
McEwen, Nicola (2003). The UK Constitution. BBC News. Web.
Shaman, M. Jeffrey (2001). Constitutional Interpretation: Illusion and Reality. Greenwood Press. Westport, CT.
Silverstein, Gordon (1997). Imbalance of Powers: Constitutional Interpretation and the Making of American Foreign Policy. Oxford University Press. New York.