(J) Marmor Ch9

IN MOST CONSTITUTIONAL democracies, the interpretation of the constitution involves the power of the judiciary (typically the supreme or constitutional court) to determine issues of profound moral and political importance, on the basis of very limited textual guidance, resulting in legal decisions that may last for decades and are practically almost impossible to change by regular democratic processes. This unique legal power raises two main normative questions: One is about the moral legitimacy of the institution itself, and the other is about the ways in which it ought to be practiced. Both of these questions are actually more complex, of course, and the answers to them are bound to be related. It is one of the arguments of this chapter that the ways in which constitutional interpretation ought to be carried out must be sensitive to the main concerns about the moral legitimacy of a constitutional regime. First, however, we need a clearer picture of the issues. Most democratic1 countries have a ‘written constitution’, that is, a document (or a limited number of documents) enacted in some special way, containing the canonical formulation of that country’s constitution. Other democracies, though by now very few,2 have no such canonical document, and their constitution is basically customary. Thus, if by ‘constitution’ we mean the basic political structure of the legal system, its basic law making and law applying institutions, then every legal system has a constitution. Every legal system must have, by necessity, certain rules or conventions which determine the ways in which law is made in that system and ways in which it is applied to particular cases. In stable legal systems we would also find rules and conventions determining the structure of sovereignty, the various organs of government, and the kinds of authority they have.