This chapter undertakes a detailed comparison between traditionalism and other theories of constitutional law. It first distinguishes the activity of constitutional interpretation from that of determining what the law of the Constitution is. Next, it compares originalism and traditionalism, and after that nonoriginalism and traditionalism. The upshot is that traditionalism can certainly be consistent with at least some varieties of originalism, but the ends of the theories are different. The same is true of most nonoriginalist theories, which are largely theories of interpretation. The chapter concludes by considering various cases of possible conflict between text and tradition to see which has, historically, tended to trump the other. The historical examples suggest that tradition holds its own in such cases. But the conflict is unlikely to come up very often, for reasons the chapter describes.

From the founding era to the turn of the twentieth century, Congress has at times asserted its power over elections robustly and creatively, even in periods of judicial obstruction, and its role in shaping the nation’s electoral landscape has always been pivotal – even when contested, uneven, or ineffective. This period invokes a rich and overlooked history that reveals a repository of federal authority over elections that was triggered (or ignored) less for reasons of federalism, and more so due to pragmatic, principled, or partisan considerations.

This introduction outlines a comprehensive study of the U.S. Constitution’s structure, marking its 237th year as the oldest modern constitution. It aims to equip readers – from law students to everyday Americans – with tools to understand its framework of representation, separation of powers, checks and balances, federalism, and the Bill of Rights, addressing enduring questions like the legitimacy of secession, the scope of national powers, presidential authority in foreign affairs and war, judicial review’s origins, and Congress’s taxing and spending powers. The book challenges myths, such as the existence of a “general welfare clause,” and critiques both originalist and living constitutionalist views, arguing, for instance, that enumeration limited executive, not just national, power, and that functionalism fuels the imperial presidency. Organized into seven parts and eighteen chapters, the book explores the Constitution’s compound republic, the distribution of legislative, executive, and judicial powers, and federal-state dynamics. By engaging recent scholarship, it seeks to clarify the Constitution’s original design while advocating its continued relevance today.

This chapter concludes the book, but the book concludes only midway through the quiet revolution that modern public trust advocacy has engendered. The Mono Lake litigation advanced public trust principles as a source of environmental law – and even environmental rights – highlighting the role of the doctrine in providing needed support for environmental protection amid weak legal foundations. The Conclusion turns to several open questions, including objections that the judicial role the doctrine invites may threaten the constitutional separation of powers. It considers whether trust-rights claims raise the kind of generalized harms that jurisprudential standing limitations are intended to prevent, but also the counterargument that the doctrine is the original “citizen suit” provision of the common law, deputizing private attorneys general to champion diffuse environmental interests that special interests would otherwise dominate. Finally, it considers what the world might look like without public trust governance – visiting parallel stories unfolding at the Great Salt Lake, Dead Sea, Sea of Galilee, and Aral Sea – before returning at last to the ongoing story at Mono Lake itself.

This chapter examines the role of enthymemes in legal argumentation, focusing on the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. It argues that while legal reasoning is often presented as syllogistic, it should instead be understood as operating through enthymemes, which allow for the strategic omission of premises and the incorporation of implicit assumptions. The chapter analyzes the enthymematic structure of the Dobbs decision, revealing how Justice Alito’s opinion employs unstated premises and narrowly defined categories to overturn Roe v. Wade while maintaining a veneer of logical consistency. The chapter concludes that acknowledging the rhetorical nature of legal argumentation is crucial for understanding the complexities and nuances of judicial decision-making and the interplay between logic, persuasion, and societal values in shaping legal outcomes.

Constitution-making acts of persons and institutions are the primary objects of constitutional interpretation. The primary result of constitutional interpretation is an account of the meaning of those acts. This chapter offers an explanation of the prodigious creativity of constitutional courts that involves two elements. First, we all equivocate concerning the meaning of a constitution, treating it variously (or at the same time) as the signification of constitution-making acts, and/or as the significance of the constitution as a framework of governance. Secondly, creativity results from interpreters’ ways of resolving the tension between the rule of constitutional law (that is, adherence to a rule-governed framework of governance) and the demands of constitutional justice (that is, the array of principles of justice in governance that the constitution ought to secure). The boundaries of constitutional interpretation are put in question by the equivocation between meaning as significance and meaning as signification, and by the tension between the rule of constitutional law and the demands of constitutional justice.

The chapter analyses the judicial application of the Convention on the Rights of the Child (the Convention) in South Africa, which is a hybrid legal system with both monist and dualist features. The largely successful judicial application of the Convention has been facilitated by the country’s constitution, which contains a provision on children’s rights and generous provisions regarding the judicial application of international treaties. The chapter shows that courts favour the application of the Convention as an interpretation tool for the children’s rights clause in the Constitution, but they neglect other possibilities of engagement, such as self-execution or statutory interpretation. This has resulted in lost opportunities to give judicial effect to the Convention. Courts also engage in sui generis forms of application, which has diversified the means of its application. The impact of the Convention is sometimes difficult to discern because of its overlap with domestic instruments. Nonetheless, the Convention has demonstrated its value added when gaps were found in the domestic law, although most often the influence of the Convention has been subtle and diffuse.

This chapter examines key aspects of constitutional method. First, this chapter considers constitutional interpretation, which is concerned with working out what the terms and provisions of the Constitution mean and how they apply. Secondly, this chapter considers the technique of characterisation, which is concerned with working out whether a law is one with respect to a head of legislative power or a prohibition on legislative power. Finally, this chapter considers the nature and consequences of constitutional invalidity.

The Australian legal system is not an island, and Australian law has felt the influence of law and legal ideas from other jurisdictions, particularly other common law countries. Australian law has also been shaped by public international law both directly and indirectly and this interaction has become increasingly important as the scope and content of international law have grown. The relationship between Australian law and international law is mediated by Australia’s constitutional framework in which the separation of powers between the executive, legislature and the courts holds central place. Unlike the constitutions in many other legal systems, the Australian Constitution does not address the relationship between international and domestic law, and most of the relevant legal principles are to be found in the common law. This chapter examines how each arm of government in Australia has engaged with international law, identifying areas where the relationship is well settled (as it is in relation to treaties) and areas where there remains some uncertainty (as in relation to customary international law).

Two dominant constitutional issues in the 1790s illustrate the fluid nature of constitutional meaning in the early republic. One issue was whether the Constitution permitted individuals to sue states in federal court. The Supreme Court’s decision in Chisholm v. Georgia (1793) generated widespread state interposition to resist the Court’s broad interpretation of a constitutional clause and resulted in the Eleventh Amendment. A second constitutional issue generating interposition in 1796 was whether President Washington had exceeded his authority in negotiating the Jay Treaty with Great Britain. Federalists argued that the Constitution’s text clearly provided presidential authority while Republicans wanted Congress to speak for the sovereign people and have a vital role in assessing a treaty’s constitutionality. Both sides considered it important to understand the intent of those who drafted and ratified the Constitution and to employ that history in interpreting the document. Yet, this process of constitutional interpretation allowed inferences fromthe Constitution’s text, reliance on memory, and even thoughts about the framers’ intentions.

This chapter describes the application of the principle of proportionality in the case law of the Constitutional Court of Ecuador in a context that is highly favorable to its use, given the presence in the Constitution of 2008 of an amplified rights catalog, the reception of international human rights instruments into the constitutional block, and the explicit authority granted to the Court to resort to proportionality analysis to solve tensions and conflicts between rights. On the basis of decisions produced between 2008 and 2019, the authors show that the Constitutional Court has applied the method with different goals in mind and with regards an ample variety of subject matters covering civil and political rights but also economic, social, cultural and environmental rights. While the authors point out that the method has received inadequate uses, case law analysis also shows that it has been used to protect traditionally discriminated–against social groups, displaying a transformative potential.

The first challenge in understanding the courts’ role in unwritten amendments is definitional. “Unwritten amendments” could be understood as overlapping with, but not identical to, amendments to an “unwritten constitution.” Or they could be amendments to the written constitution that leave no trace on the text of the written constitution. In this chapter, the author focuses on the latter in the hopes that it will illuminate the role of the courts. The undeniable reality is that at various times, the Constitution, or various provisions of the Constitution, has been understood in different ways. When those understandings might be considered “unwritten amendments,” however, is not immediately obvious. The author therefore begins by considering several possible definitions of that term she hopes will then help move us toward a more robust understanding of the role of the courts in interpreting, constructing, or participating in “amending” the Constitution.

Federation is an inherently flexible form of political organisation that involves ongoing negotiation, coordination and compromise to meet changing local and temporal conditions.The history of Australian Federation illustrates this: from the origins of the federal idea in the mid-nineteenth century, amid the emergence of quasi-federal arrangements within the British Empire (1847-1890); to the creative outcomes of Australia’s constitution-making decade, when American and other influences garnered attention (1891-1901); and through the subsequent outworkings of the Australian Constitution as it has been interpreted and applied alongside the growth of the nation. The proven adaptability of Federation may inform contemporary approaches to the constitutional recognition of Australia’s First Peoples.