Against judicial supremacy in constitutional interpretation

Abstract

Rejecting judicial supremacy in constitutional interpretation, this paper argues that understanding the interpretation of constitutions to be a solely legal and judicial undertaking excludes citizens from such activity. The paper proffers a two-pronged classification of analyses of constitutional interpretation. Implicit accounts discuss interpretation without reflecting on whether such activity can or should be performed by non-judicial institutions as well. Explicit accounts ask whether interpretation of constitutions is a matter to be dealt with by courts and answer affirmatively. I criticise both camps. Implicit accounts fail to explain why constitutional interpretation is purely judicial in character. Explicit accounts do not provide enough reasons why the judiciary is allegedly the ideal institution to give constitutions meaning with final authority, both in instrumental and normative terms. The paper closes by suggesting avenues for future research.