14 - Constitutional Interpretation

Summary

In this chapter (and following the conclusion of the previous one), I refer to the profound difficulties generated by legal interpretation, in general, and constitutional interpretation, in particular. I maintain that, very frequently -and particularly when constitutional values are involved- the words of the law offer some ambiguity or obscurity or vagueness - imprecisions that then must be resolved by the interpreter -typically, by a judge- applying the law to a particular case. The problem is that, unfortunately, interpretative methods-including, originalism, living constitutionalism, textualism, purposivism, strict constructivism- easily take the interpreters to opposite or very different solutions. In the chapter I show how this unfortunate situation strengthens the so-called “democratic objection”, in what relates judicial review; damages the main promises of the “rule of law”(because the “rule of man” rather than the impartial “rule of law” tends to prevail); and in the end favors authoritarianism and “democratic erosion” (thus, when abusive governments, recognizing how much the meaning of the law depends on the will of the interpreter, attempt to gain control over the judicial apparatus).