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Book ChapterDOI

Constitutional Deliberation in the Legislative Process

01 Apr 2018-Social Science Research Network (Cambridge University Press)-pp 88-100
About: This article is published in Social Science Research Network.The article was published on 2018-04-01. It has received 3 citations till now. The article focuses on the topics: Deliberation & Constitution.
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TL;DR: In this article, the authors argue that the role of interpreting the Australian Constitution is ultimately for the High Court, but some space remains for its interpretation by the Parliament, where Parliament must consider constitutionality without assistance from the courts: "parliament-centered interpretation".
Abstract: In Australia, the role of interpreting the Constitution is ultimately for the High Court, but some ‘space’ remains for its interpretation by the Parliament. Space exists in rare cases where the Court defers to the judgment of Parliament or where a non-justiciable question arises. In these cases, Parliament must consider constitutionality without assistance from the courts: ‘parliament-centered interpretation’. In the predominance of cases, while the final word on constitutional interpretation remains with the courts, we argue that ‘best practice’ requires individual parliamentarians to consider the constitutionality of Bills using ‘court-centered interpretation’. We demonstrate our argument using two case studies: the proposed amendments to the Marriage Act 1961 (Cth) to allow for same-sex marriage, and the passage of legislation following Williams v Commonwealth.

5 citations

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Journal ArticleDOI
TL;DR: In modern pluralist societies, political disagreement often reflects moral disagreement, as citizens with conflicting perspectives on fundamental values debate the laws that govern their public life as mentioned in this paper, and any satisfactory theory of democracy must provide a way of dealing with this moral disagreement.
Abstract: In modern pluralist societies, political disagreement often reflects moral disagreement, as citizens with conflicting perspectives on fundamental values debate the laws that govern their public life. Any satisfactory theory of democracy must provide a way of dealing with this moral disagreement. A fundamental problem confronting all democratic theorists is to find a morally justifiable way of making binding collective decisions in the face of continuing moral conflict.

84 citations

Posted Content
TL;DR: In this paper, the authors examine three of the most prominent objections to extra-judicial constitutional interpretations and defend judicial supremacy, and suggest that such interpretations should be regarded as more authoritative and deserving of greater deference by the courts.
Abstract: Recent cases such as Boerne, Kimel and Garrett highlight the fact that the most important question regarding judicial supremacy focuses on the proper degree of deference between the branches rather than the possibility of extralegal defiance of the Court. Extrajudicial interpretation of the Constitution has often been criticized as problematic, insufficient and not authoritative. Although it is widely accepted that nonjudicial actors can and do interpret the Constitution, many constitutional theorists hold to a theory of judicial supremacy that argues that the Supreme Court is the ultimate, authoritative interpreter of the Constitution. This paper critically examines three of the most prominent objections to extrajudicial constitutional interpretations, and corollary defenses of judicial supremacy, and finds each inadequate. The three objections are that extrajudicial constitutional interpretation is 1) anarchic, 2) irrational, and 3) tyrannical. Each posits a corresponding virtue of judicial supremacy in terms of 1) the settlement function of the courts, 2) the deliberative function of the courts, and 3) the countermajoritarian function of the courts. The paper offers analytical and empirical responses to these critiques of extrajudicial constitutional interpretation, suggesting reasons why such interpretations should be regarded as more authoritative and deserving of greater deference by the courts. These arguments have implications not only for debates over judicial supremacy per se, but also for the related debate over the proper scope of judicial review.

34 citations

Journal Article
TL;DR: In this article, the authors examine three of the most prominent objections to extra-judicial constitutional interpretations and defend judicial supremacy, and suggest that such interpretations should be regarded as more authoritative and deserving of greater deference by the courts.
Abstract: Recent cases such as Boerne, Kimel and Garrett highlight the fact that the most important question regarding judicial supremacy focuses on the proper degree of deference between the branches rather than the possibility of extralegal defiance of the Court. Extrajudicial interpretation of the Constitution has often been criticized as problematic, insufficient and not authoritative. Although it is widely accepted that nonjudicial actors can and do interpret the Constitution, many constitutional theorists hold to a theory of judicial supremacy that argues that the Supreme Court is the ultimate, authoritative interpreter of the Constitution. This paper critically examines three of the most prominent objections to extrajudicial constitutional interpretations, and corollary defenses of judicial supremacy, and finds each inadequate. The three objections are that extrajudicial constitutional interpretation is 1) anarchic, 2) irrational, and 3) tyrannical. Each posits a corresponding virtue of judicial supremacy in terms of 1) the settlement function of the courts, 2) the deliberative function of the courts, and 3) the countermajoritarian function of the courts. The paper offers analytical and empirical responses to these critiques of extrajudicial constitutional interpretation, suggesting reasons why such interpretations should be regarded as more authoritative and deserving of greater deference by the courts. These arguments have implications not only for debates over judicial supremacy per se, but also for the related debate over the proper scope of judicial review.

20 citations