Constitutional Argument and Institutional Structure in the United States

by Nicholas Papaspyrou

Overview

US constitutional jurisprudence often conflates two distinct enquiries: how to interpret the Constitution and how to allocate interpretive authority. This book explains the distinct role of judgements about interpretive authority in constitutional practice. It argues that these judgements do not determine what qualifies as good constitutional argument, and cannot substitute for it. Rather, they specify the division of labour between the political branches and the judiciary in forming applicable constitutional determinations.

This explanation of the structure of constitutional reasoning sets the stage for the development of a normative theory about each enquiry. The book advances a theory of substantive constitutional argument. It argues that constitutional interpretation is a special kind of practical reasoning, aiming to construct and specify morally sound accounts of the Constitution and surrounding constitutional practice. Yet, this task is entrusted to a scheme of institutions, as agents of free and equal citizens. The standard of review is an interlocking component of that scheme, regulating the judicial assignment. As such, it should aim to facilitate best performance of the overall interpretive task, so that the judicial process settles on appropriate constitutional determinations; grounded on morally sound reasons that reach all citizens and uphold the fundamental commitments to freedom and equal citizenship.

Product Details

ISBN-13:	9781509937189
Publisher:	Bloomsbury Academic
Publication date:	11/07/2019
Pages:	304
Product dimensions:	6.14(w) x 9.21(h) x 0.63(d)

About the Author

Nicholas Papaspyrou is Assistant Professor of Public Law at the University of Athens, Greece.

Table of Contents

Acknowledgements v

Analytical Table of Contents ix

Introduction xiii

Part 1 Interpretive Substance

1 Textual Primacy and Precedential Force: The Institutional Anchorage of Constitutional Law 3

2 The Authority of Constitutional Law 14

3 Constitutional Interpretation as a Distinctive Kind of Practical Reasoning 24

4 Constitutional Constructivism and Practical Deliberation 29

5 The Pursuit of Political Justice 54

Part 2 Institutional Architecture

6 The Justification of Institutional Norms 81

7 The Operation and the Dynamics of Institutional Norms 98

8 Functional Analysis and Institutional Checks 111

9 Democracy and Institutional Design 129

10 Democracy and Judicial Review 141

Part 3 Constitutional Doctrine

11 The Province and Duty of the Judicial Department 167

12 The Subtlety of Constitutional Doctrine 178

13 The Claim to Judicial Supremacy 207

14 Constitutional Sensibilities 232

Index 267