Constitutional Assumptions
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چکیده
منابع مشابه
Competing Accounts of Interpretation and Practical Reasoning in the Debate over Originalism
This article explores two assumptions about constitutional law and the form of practical reasoning inherent in constitutional argument and decision that have shaped the debate over originalism. The first assumption—adopted by originalists—is that constitutional reasoning is a formalistic process. Originalism’s critics tacitly describe a very different and less formalistic model. The second assu...
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Courts, and especially the Supreme Court, frequently engage in moral reasoning as an aspect of their judicial decision making.1 And it is both necessary and desirable that they do So. Although it may be impossible to specify precise rules concerning the occasions for invocation of moral judgments or the weight that such judgments should be given in comparison with other legally relevant factors...
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Nearly all of us who participate in constitutional argument in subjective good faith share a second-order methodology of constitutional decision-making—that is, an approach to working out both our first-order theories of constitutional interpretation and our judgments about appropriate results in particular cases. That shared method involves a search for reflective equilibrium between our prior...
متن کاملThe Meaning of Constitutional Terms: Essential Features, Family Resemblance and Theory-based Approaches
Categorisation is fundamental to legal decision making. In constitutional law, jurists must regularly decide whether or not laws and facts fall within the categories defined by the Constitution: is this law a law ‘with respect to ... taxation’?1 Is that corporation a ‘trading corporation’?2 Is performance of this function an exercise of ‘judicial power’?3 Is that nation a ‘foreign power’?4 For ...
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More than one hundred years ago, the U.S. Supreme Court started to refer to social science evidence in its judgments. However, this has not resonated with many constitutional courts outside the United States, in particular in continental Europe. This contribution has a twofold aim. First, it tries to show that legal reasoning in constitutional law is often based on empirical assumptions so that...
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