Against the New Constitutionalism

Against the New Constitutionalism

Elgar Monographs in Constitutional and Administrative Law series

Tamas Gyorfi

Ever since the Second World War, a new constitutional model has emerged worldwide that gives a pivotal role to judges. Against the New Constitutionalism challenges this reigning paradigm and develops a distinctively liberal position against strong constitutional review that puts the emphasis on epistemic considerations. The author considers whether the minimalist judicial review of Nordic countries is more in line with the best justification of the institution than the Commonwealth model that occupies a central place in contemporary constitutional scholarship.

Chapter 4: Constitutional interpretation

Tamas Gyorfi

Subjects: law - academic, comparative law, constitutional and administrative law, politics and public policy, constitutions


The present chapter has three main purposes. First, my argument so far assumed that the judges of constitutional courts are indeed moral arbitrators. However, many people believe that constitutional review is legitimate not because judges are better moral reasoners than legislators, but because they have superior legal expertise. According to this view, judges do not adjudicate between moral views, but simply interpret and apply a legal document, the constitution, and declare what the law is. I have also claimed that the declaratory theory is the only justification of constitutional review that fits in neatly with the democratic pedigree of the constitution and the primacy of the legislature. Whether or not the argument from legal expertise is compelling depends on the character of constitutional interpretation. To put it otherwise, the crucial question is whether judges can avoid the moral reading of the constitution. The declaratory theory of legal interpretation is so central to the view of many academics and judges and is so ingrained in the popular image of courts that one cannot afford not to tackle it directly. Second, as the introductory chapter demonstrated, by today, the New Constitutionalism has become the orthodoxy in constitutional theory. As a matter of institutional choice, my book seems to defend an already lost cause. (I see nothing wrong with this: sometimes even a lost cause is worth defending.

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