Constitutional Interpretation and Institutional Perspectives: A Deliberative Proposal

Abstract

Legal scholars generally consider the theorisation and constitutionalisation of constitutional interpretation as a matter for the courts. This article first challenges this tendency on conceptual grounds, showing that no institutional commitment follows from the nature of interpretation in law, constitutional law included. It then provides guidance for thinking about institutional perspectives according to two criteria: the nature and normative strength of the sources interpreted and the capacity of the interpreter to include and consider every possibility affected when her interpretation carries collective effects and is authoritatively final. The application of these criteria places the discussion on the grounds of democratic theory. The article thus reviews competing democratic theories and champions deliberative democracy as the alternative whose constitutive features best allow for the development of institutions capable of exercising constitutional interpretation when the imposition of meaning on the constitution is final and carries erga omnes effects.