A Philosophical Investigation into Methods of Constitutional Interpretation in the United States and the United Kingdom
Most constitutional theorists in America and Britain are primarily interested in the contents of their respective constitutions. They pay less attention (and in Britain far less attention) to the methods that judges employ to derive those contents, and almost no attention to the philosophical aspects of judges’ interpretive methods. This article attempts to redress this imbalance by giving a distinctly philosophical description of the principal methods of constitutional interpretation that judges are inclined to follow in these two countries, and by developing the important distinction between the interpretation and the reception of a constitutional text. The act of interpretation is active and rational; the event of reception is passive and pre-rational. In a sense, the phenomenon of reception makes every judge into a kind of “strict textualist” at some point in the interpretive process. Rather than seeking to criticize the many competing methods of constitutional interpretation, or to decide which one is “best,” this article merely seeks to understand them for what they are. The result is a comparative law exposition that is simultaneously legal and philosophical.
Date of this Version
Louis E. Wolcher, "A Philosophical Investigation into Methods of Constitutional Interpretation in the United States and the United Kingdom" (October 30, 2005). bepress Legal Series. bepress Legal Series.Working Paper 846.