Constitutions, Courts, and History

Constitutions, Courts, and History: Historical Narratives in Constitutional Adjudication

Renáta Uitz
Copyright Date: 2005
Edition: NED - New edition, 1
Pages: 366
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  • Book Info
    Constitutions, Courts, and History
    Book Description:

    Emphasizes the role history and historical narratives play in constitutional adjudication. Uitz provocatively draws attention to the often-tense relationship between the constitution and historical precedence highlighting the interpretive and normative nature of the law. Her work seeks to understand the conditions under which references to the past, history and traditions are attractive to lawyers, even when they have the potential of perpetuating indeterminacy in constitutional reasoning. Uitz conclusively argues that this constitutional indeterminacy is obscured by 'judicial rhetorical toolkits' of continuity and reconciliation that allow the court's reliance on the past to be unaccounted for. Uitz' rigorous analysis and extensive research makes this work an asset to legal scholars and practitioners alike.

    eISBN: 978-615-5053-73-3
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Preface and Acknowledgements
    (pp. ix-x)
  4. Introduction Constitutional Adjudication Haunted by Indeterminacy
    (pp. 1-16)

    Theories of constitutional interpretation and constitutional adjudication seek to establish a model of constitutional review which enables courts to respond even to hard cases without transgressing the limits of the legitimate exercise of the review power.¹ In the course of this exercise one of the riddles used to be the countermajoritarian difficulty, as exposed in Bickel’s landmark work The Least Dangerous Branch (1962). Theories that understand constitutional adjudication in the matrix of the continuing operation of the branches of government respond well to challenges that stem from the undemocratic nature of constitutional review. As Dworkin explains in Freedom’s Law,. “[w]hen...

  5. Chapter One Historical Narratives in Constitutional Reasoning: Intuitions and Myths Revisited
    (pp. 17-62)

    References to history and traditions have acquired a curious reputation among lawyers for being objective and neutral points of reference, and thus for being capable of curbing indeterminacy in constitutional adjudication. When inquiring whether a new claim fits within the substantive range of the Due Process Clause, the U.S. Supreme Court sets course to explore whether the right or liberty interest asserted by the petitioner is “deeply rooted in the Nation’s history and tradition.” It was in Bowers v Hardwick² where the U.S. Supreme Court, per Justice White, sought evidence to establish whether the “history and traditions of the Nation”...

  6. Chapter Two An Overview of Arguments Used in Constitutional Adjudication
    (pp. 63-108)

    In jurisdictions with a written constitution, the paradox underlying constitutional reasoning is relatively easy to identify. Constitutional provisions are phrased in a general manner: their open texture often offers little specific guidance for the resolution of particulars in constitutional claims. Despite fleeting indeterminacy in constitutional adjudication, in the thousands of judgments being handed down in constitutional cases each year courts tend to rely on relatively few types of arguments. This phenomenon evokes an deep Aristotelian current in legal reasoning and makes the (post-)modern observer mindful of the stasis (status) system developed to analyze legal conflicts using a set of formal...

  7. Chapter Three The Constitutional Text in the Light of History
    (pp. 109-170)

    As demonstrated in Chapter Two, although often the constitutional text itself offers no readily available solutions to particular problems, the quest for legitimacy in constitutional adjudication finds refuge in the constitutional text. Theories of constitutional interpretation resort to the text of a constitutional provision as a yardstick to evaluate or establish the appropriateness of a given construction of the constitution in a specific case. The constitutional text is believed to fulfill this legitimizing function, despite constitutionalists’ awareness of the open texture of constitutional provisions, the ghost of indeterminacy, and the admittedly extra-textual (contextual) characteristics of the overwhelming majority of arguments...

  8. Chapter Four Behind Historical Narratives: The Promise of Continuity
    (pp. 171-234)

    The previous chapters sought to demonstrate that—despite lawyers’ intellectual reflexes—accounts of the past, history, and traditions are not hard facts to be taken at face value. Rather, accounts of the past (historical narratives) are the outcome of processes of interpretation. Lawyers’ accounts of the past as presented in constitutional cases are as interpretive as any other historical narrative. The last of these concerns relates closely to a court’s justification for selecting particular segments of the past for the purposes of settling a constitutional problem. When invoked in constitutional cases, arguments from history and traditions are presented as if...

  9. Chapter Five The Fruits of Reconciliation: A Bittersweet Harvest
    (pp. 235-300)

    Chapter Four began an exploration of the normative premises underlying courts’ reliance on historical narratives in constitutional cases. The examination targeted the rhetoric of continuity, inquiring how judge-made continuity rhetoric takes shape and, also, how such continuity rhetoric contributes to shaping identities in polities operating under constitutions with troubled founding myths. In addition to constructing constitutional continuity, justices entrusted with applying such constitution myths often invoke historical narratives in order to settle accounts with the past (reconciliation). Building on these previous findings, Chapter Five seeks to unravel the effect of reconciliation rhetoric on the relationship between the constitutional text and...

  10. Conclusion
    (pp. 301-308)

    The U.S. Constitution was drafted as a basic charter for a slaveholders’ polity. Slavery as the status quo of the day does indeed figure in the U.S. Constitution’s original language, such as in the Apportionment Clause calculating the basis of representation and taxation upon every free persons and three-fifths of all other persons.¹ The only framer who did not own slaves at all, and even refused to hire slaves, was future president John Adams. There were framers who disapproved of slavery while at the same time owning slaves (take Thomas Jefferson as a prominent example), and others (like Benjamin Franklin)...

  11. Bibliography
    (pp. 309-342)
  12. Index
    (pp. 343-354)
  13. Back Matter
    (pp. 355-355)