The high court on constitutional law: the 2012 term explanatory power and the modalities of constitutional reasoning

Aroney, Nicholas (2013) The high court on constitutional law: the 2012 term explanatory power and the modalities of constitutional reasoning. University of New South Wales Law Journal, 36 3: 863-893.

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Author Aroney, Nicholas
Title The high court on constitutional law: the 2012 term explanatory power and the modalities of constitutional reasoning
Journal name University of New South Wales Law Journal   Check publisher's open access policy
ISSN 0313-0096
1839-2881
Publication date 2013
Year available 2013
Sub-type Article (original research)
Open Access Status
Volume 36
Issue 3
Start page 863
End page 893
Total pages 31
Editor Andrew Smorchevsky
Place of publication Sydney, Australia
Publisher University of New South Wales, Faculty of Law
Collection year 2014
Language eng
Subject C1
180108 Constitutional Law
Abstract In a Harvard Law Review foreword published in 2000, and entitled 'The Document and the Doctrine', Professor Akhil Reed Amar argued - putting it bluntly - that the Constitution of the United States of America 'has often proved more enlightened and enlightening than the case law glossing it'. Professor Amar acknowledged, of course, that the Constitution has to be interpreted by the Supreme Court, but he pointed out that some modes of interpretation focus more directly on the Constitution than others. To make the point, Amar distinguished between two broad camps, which he said transcend the divide between liberals and conservatives. The first camp, the 'documentarians', he argued, 'seek inspiration and discipline' in the Constitution's 'specific words and word patterns, the historical experiences that birthed and rebirthed the text, and the conceptual schemas and structures organizing the document'. The second camp, the 'doctrinalists', however, 'rarely try to wring every drop of possible meaning from constitutional text, history, and structure'; instead, 'they typically strive to synthesize what the Supreme Court has said and done, sometimes rather loosely, in the name of the Constitution. For them, the elaborated precedent often displaces the enacted text'.
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2014 Collection
TC Beirne School of Law Publications
 
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Created: Thu, 12 Dec 2013, 12:17:04 EST by Carmen Buttery on behalf of T.C. Beirne School of Law