NOMBRE COMUN NOMBRE CIENTÍFICO ABU (%)
9.3. Volumen maderable
It has already been mentioned that both the Court of Justice of the European Union and the European Court of Human Rights have some features in common with a national constitutional court.41Therefore a theoretical discussion on national constitu-
40 Bernhardt (1999), p. 23. 41 Supra note 25 (Chapter 4).
Principle of evolutive interpretation
tional matters can be relevant in furthering our understanding of evolutive interpreta- tion. Many national constitutional courts are confronted with the question whether they should interpret the constitution in light of the intention of the drafters of the document or in light of current circumstances.42In some countries this debate leads
to more controversy than in others,43but the question appears to be relevant for most,
if not all, constitutional courts.
References to evolutive interpretation are often captured in metaphors, like the ‘living constitution’44 or the constitution as a ‘living tree’.45 These metaphors in-
dicate that a constitution is not static and can grow or develop over time though judicial interpretation.46 The opponents of this type of reasoning do not focus on
metaphors, perhaps because the image of a ‘dead constitution’47 would probably
not attract many supporters. Opponents of an evolutive approach are often termed originalists, named after the specifically American ‘originalist’ theory of constitutional interpretation.48There are different versions of originalism, but a common character-
istic is that they all consider that the constitution has a fixed meaning, which is based on either original meaning, original intentions or hypothetical intentions.49One would
assume that much of the debate focuses on the question whether an evolutive approach is legitimate, but this does not seem to be the case. All originalists, even US Supreme Court Justice Scalia, acknowledge that some development should be allowed for or, at least, is inevitable in constitutional interpretation.50 This is the first form of
evolutive interpretation as discussed in section 7.1, where it is explained that this
42 See Jackson (2006), p. 927-937, who discusses the German, Canadian and Australian experience. 43 See, for example, the difference between the USA and Canada. In the latter an evolutive approach
to constitutional law is hardly controversial. See for example Miller (2009), p. 332. 44 This is the American metaphor; see Rehnquist (2006), p. 401.
45 This is the Canadian metaphor; see Jackson (2006), p. 926.
46 Kavanagh (2003), p. 55-56. See also Huscroft (2004), p. 417; Scalia (1997), p. 38. This discussion concerns the debate between those who adhere to a living constitution and originalists. In the USA at least there are also those that do not engage in the rhetoric of this debate. Scholars like Dworkin focus on a moral reading of the constitution. This could lead to the same interpretation as the one based on an evolutive approach, but scholars taking this moral approach will support their reasoning by relying on moral arguments and not on arguments referring to the living constitution. 47 Term referred to by Rehnquist (2006), p. 401.
48 Justice Scalia is the most famous proponent of this theory. See for example: Scalia (1997) or Scalia (1989).
49 Waluchow (2007), p. 52-73.
50 Rehnquist (2006), p. 402; Jackson (2006), p. 942. See also Scalia (1989), p. 861-864, where he discusses the fact that originalism in its purest form is a medicine that many find too hard to swallow. He admits that he is a so-called faint-hearted originalist by discussing the hypothetical example of whether a statute permitting flogging as a punishment (which was not considered cruel and unusual punishment at the time of the Framers) would now be ruled unconstitutional.
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uncontroversial form concerns taking into account changes in social facts. It has been mentioned there that changes in technology or other changes of a more factual nature may be taken into account in all readings of evolutive interpretation. The debate on evolutive interpretation thus focuses on the second form of evolutive interpretation, namely whether judges are allowed to take changes in moral values into account.
It is difficult to discuss these issues relating to the extent of evolutive interpretation in a general manner, since the debate on evolutive interpretation is closely connected to the role of the judge in a specific constitutional system.51The difference between
the USA and Canada may exemplify that the attitude towards evolutive interpretation depends on the national context. In Canada, there is hardly any controversy on evolutive interpretation.52 It is accepted as a form of interpretation without much
discussion or resistance. In the USA, on the other hand, there is much debate over the concept of evolutive interpretation.53 Judging solely by the age of the bills of
rights in these countries, one might expect that evolutive interpretation would not be much of a problem in the USA, because their bill of rights is over two hundred years old and evolutive interpretation of any extent could thus be highly relevant. One might expect it to be a controversial matter in Canada where the charter on fundamental rights is barely 30 years old. Given that the reverse is true, there must be other factors that play a role in determining to what extent evolutive interpretation is accepted in a national legal system.
Various authors have stated that, for example, the nature of a constitution and the authority granted to a constitution in a specific country could influence the extent of legitimate evolutive interpretation.54 Another factor that plays an important role
is the role of the judge in a specific society and the perceived democratic legitimacy of a judge.55Both factors are related, since one’s views on the nature of the constitu-
tion influences one’s perspective of the role of the judge in constitutional interpreta- tion. A constitution, but also a bill of rights,56 defines and limits the power of a
government. It depends on one’s view of what a constitution is trying to protect whether one considers that a judge should easily defer to the legislator in constitutional
51 Jackson (2006), p. 925. 52 Miller (2009), p. 332.
53 The clearest example of this controversy being the opposition of Scalia against evolutive interpretation, Scalia (1997), p. 45.
54 Waluchow (2007), p. 53 argues that theories of constitutional interpretation [... ] are not easily separated from theories concerning the very nature, point and authority of constitutions’. 55 Jackson (2006), p. 925 argues that different views on democratic legitimacy, rule of law, judicial
constraint and judicial competence’ have an impact on the discussion on evolutive interpretation. 56 In some countries a separate constitution and bill of rights exist, but in others this is combined in one document. Both are part of the constitutional make up of a country in the broad sense and therefore they will be treated as equal for the discussions here. Waluchow (2007), p. 53, also uses both terms interchangeably.
Principle of evolutive interpretation
cases or whether a judge should be able to have more leeway in deciding constitutional cases. WALUCHOWillustrates this difference by discussing the fictional Judges Ronnie
and Antonin.57 Judge Ronnie believes the constitution aims to protect minorities
against the will of the majority. From that perspective Judge Ronnie might not consider himself strictly bound by the will of the legislator as a representative of the will of the majority. Judge Antonin, on the other hand, thinks that the constitution is designed to protect everyone from the arbitrary exercise of government power. As a result Judge Antonin has more respect for the will of the legislator and is careful not to display arbitrary judicial activism himself. This general example may explain the connection between the view of the nature of a constitution and the perceived proper role of the judge.
The nature of a constitution can also refer to the character of the constitution, which can be relevant for the discussion on evolutive interpretation. In the debate in the USA, for example, opponents and proponents of evolutive interpretation have different views on the character of the constitution. Some regard the constitution as a ‘narrow set of negative restraints on policy makers’,58 while others view the
constitution as a set of abstract constitutional principles, which have a ‘broader reach than the framers’ concrete intentions’.59 Those who support the latter view, might
be more inclined to leave room for judicial evolutive interpretation, because these abstract principles might change over time. The question is whether such stark con- trasts exist in the European context as well. Even if the contrasts are not as strong, differences with regard to the nature of the constitution might have an impact on the extent of evolutive interpretation one finds acceptable.
The second aspect that influences the attitude towards evolutive interpretation, as mentioned above, is the role of a judge.60 This is often discussed in the context
of the concerns on evolutive interpretation, which will be addressed below. The remainder of this section will address a number of arguments for and against evolutive interpretation that can be distilled from the national debate about constitu- tional interpretation. Not much attention has been paid in the literature on national constitutional law to the advantages of evolutive interpretation.61 Some advantages
57 See Waluchow (2007), p. 53 for a more extensive illustration. 58 Barber & Fleming (2007), p. 21.
59 Barber & Fleming (2007), p. 21.
60 One could imagine, for example, that historical attitudes towards the judiciary and the legislator also play a role or that other more sociological factors could play a role as well, but that would require a whole different type of research.
61 Miller (2009), p. 331-332, does address the point that in the Canadian context there has not been much reason to defend the evolutive (sometimes also called progressive’) approach, due to lack of challenges to this approach.
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have, however, been briefly mentioned. First of all, it has been argued that an evolutive approach enables judges to adapt the constitution to ‘modern needs and circumstances’.62It ensures that the constitution stays effective even if it was drafted
generations ago. It thus, secondly, provides for some flexibility when interpreting the constitution. The constitution does not become stuck in rigid historical interpreta- tion.63Finally, it has been argued that it is the task of judges to dojustice. According
to some scholars, that means that they have to be open to, or even actively consider, the possibility for improvement and therefore should be willing to adopt an evolutive approach.64
The concerns about evolutive interpretation, on the other hand, have been discussed extensively.65The most important concern is somewhat similar to that in international
law concerning the impact of the use of the method in relation to the role and the competence of the judge. The question is how far a judge should be allowed to change the constitution by means of (evolutive) interpretation. The basis for this concern is the division of powers between the judiciary and the legislature. Originalists fear that the (non-elected) judiciary will develop into a third legislative branch, which is not considered to be acceptable from a constitutional perspective.66Changes to the consti-
tution should be made by the democratically elected legislator (or by any other competent organ, depending on the constitutional system of the relevant state), but they are not within the province of the courts. An additional aspect is that judgments of highest courts can, generally, only be overturned by the legislator through constitu- tional amendment, which in most constitutional systems is a cumbersome matter and therefore in most situations not a realistic option.67 If courts change the meaning
of the constitution by means of interpretation and such change is considered unaccept- able by the democratically legitimized organs, this means that it can be very difficult to undo the consequences of the court’s decisions. Arguments have been advanced to mitigate this criticism, which will be addressed below, but it is difficult to complete- ly rebut this concern, since it ultimately depends in large part on the constitutional conception of the role of the judge. It does, however, challenge proponents of an evolutive approach (judges and academics alike) to show that there are certain con- straints on evolutive reasoning – it should not be regarded as a licence for ‘unlimited moral adjudication by a free-wheeling judiciary’.68
62 Kavanagh (2003), p. 56.
63 Jackson (2006), p. 958. Huscroft (2004), p. 415, refers to the need for flexibility as well. 64 Kavanagh (2003), p. 68.
65 Among others: Rehnquist (2006), Scalia (1989) and (1997). 66 Kavanagh (2003), p. 69.
67 Huscroft (2004), p. 415, refers to this cumbersome process. See also article V of the United States Constitution for an example of the amendment process in one specific constitutional context. 68 Kavanagh (2003), p. 72.
Principle of evolutive interpretation
A number of arguments have been raised to show that there are certain constraints for judges when they invoke an evolutive approach, which should mitigate the con- cerns of opponents of evolutive interpretation that evolutive interpretation leads a judge to go beyond his or her legitimate role. In this context it is useful to recall the metaphor discussed at the beginning of this section, namely ‘living constitution’ and ‘living tree’. It has been argued in constitutional theory that the latter metaphor is a more appropriate reflection of evolutive interpretation.69The understanding of the
constitution as a ‘living tree’ indicates that the constitution can grow, but that it is at the same time grounded in its roots: ‘the tree is rooted in past and present institu- tions, but must be capable of growth to meet the future’.70 This aspect is missing
in the ‘living constitution’ metaphor, which perhaps explains to a certain extent the fear for unguided judicial reasoning in constitutional systems where this metaphor prevails as a means to describe evolutive interpretation.71Such metaphors themselves
cannot be regarded as real constraints, they just represent a concept. In theoretical literature, however, several actual constraints have been mentioned in order to show that judges will not simply impose their own moral conceptions when invoking evolutive interpretation. The most important constraint is the text of the constitution itself. Even if the constitution is drafted in a general manner, the constitution cannot be interpreted to mean just anything.72 Judges have to interpret a constitutional
provision within the context of the text and structure of the constitution.73Further-
more, precedents impose an important constraint on courts as well. Of course, the extent to which this will really be the case will depend on whether the court in question does indeed adhere to some form of system of precedent. Both the European Court of Human Rights and the Court of Justice of the European Union for reasons of legal certainty, whilst not formally obliged to respect precedent, at least try to adhere to their own precedents.74 Therefore they can be expected to find some
restraint in the need to carefully connect each novel interpretation to the decisions and judgments the courts already rendered in the past.
A final general constraint that has been mentioned is that judges have to adjudicate within a specific legal culture.75 This is perhaps not a constraint in the legal sense,
69 Jackson (2006), p. 941-954. 70 Jackson (2006), p. 948.
71 Choudhry (2006), p. 19-20, briefly refers to the value of the right metaphor in shaping thought about a specific issue.
72 Kavanagh (2003), p. 70.
73 Huscroft (2004), p. 427, speaks about limits inherent to the Charter or Constitution. He also refers to Dworkin who refers to constraints of structure and precedent as well, p. 428.
74 See in the context of the CJEU: Brown & Kennedy (2000), p. 369-370. In the context of the ECtHR: Mowbray (2009), p. 180, who cites an official of the ECtHR Registry, who claims that the ECtHR adheres to a limited form ofstare decisis.
75 Kavanagh (2003), p. 71.
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such as the constraints constituted by the constitution and by precedent, but it rather can be considered to come down to ‘professional pressures’ or ‘internal constraints on judicial decision-making’.76Justice Brennan of the United States Supreme Court
has called this constitutional integrity.77Every legal culture has specific norms on,
for example, how to decide a case or ‘the degree of deference that should be accorded to parliament’.78Judges have to adjudicate within their particular legal and constitu-
tional cultures and they will thereby be restrained in their (evolutive) reasoning. Another argument against evolutive interpretation that has sometimes been brought forward is that there is no general guiding principle for evolutive interpretation and that, as a result, the whole process of evolutive interpretation is unclear.79The lack
of clarity in the process can lead to a lack of clarity with regard to the solution that is adopted on the basis of an evolutive approach. If it is unclear how judges have reached a certain (perhaps controversial) interpretation this might affect the force of the argument and ultimately it might affect the willingness to accept the interpretation. To be more precise, it is unclear, according to SCALIA, whether a judge should consult
the ‘chats at the country club’ or Aristotle when interpreting a constitutional text in an evolutive manner.80 The problem for S
CALIA seems to be that each theory of
interpretation incorporating an evolutive perspective on the constitution holds a different view of what documents and developments should be considered as consti- tuting sufficient foundation for evolutive interpretation.81 He seems to imply that
this could mean that every judge trying to interpret the ‘living constitution’ will be taking different elements into account and as a result it becomes an unguided, un- predictable and unprincipled form of interpreting a constitution. At a certain level, SCALIA might be correct in the sense that judges should try to be consistent in the
elements they consult in order to establish an evolutive interpretation and they should provide sound reasons to consult certain documents or materials. The fact, however, that different theories can exist on which documents or developments should be taken into account and different theories might emphasize different elements in these documents, should not in itself render evolutive interpretation useless. It does require
76 Kavanagh (2003), p. 71.
77 See Brennan (1989), p. 435, who argues that judges are limited by precedents, the text to be inter- preted, regard for the public opinion and institutional integrity. See also Huscroft (2004), p. 428, referring to Brennan. See also De Blois (1994), p. 41-42, who points to similar factors that relate to the legal cultural environment of the judge, which limit their freedom of discretion.
78 Kavanagh (2003), p. 71. 79 Scalia (1997), p. 44-45. 80 Scalia (1997), p. 45.
81 Scalia (1997), p. 45, this becomes especially clear when he claims that originalists might not always agree, but at least they agree on what they are looking for.
Principle of evolutive interpretation
proponents of an evolutive approach to address this criticism. The question is how judges in the European Courts establish an evolutive interpretation and whether that is done in a consistent and reasonable manner.
The discussion on evolutive interpretation in the national context has provided some interesting insights that are relevant for the discussion on the use of the method of