Original Explication and Post-Liberal Constitutionalism: The Role of Intent and History In Judicial Enforcement of Teleological Constitutions
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Farinacci Fernós, Jorge M.
Most of the world’s constitutions fall between two main categories. First, framework constitutions that are mostly structural in nature. The majority of these constitutions can be characterized as liberal democratic, though not inherently or exclusively. Many classical constitutions fall within this type. Second, teleological constitutions that are mostly substantive in nature. The majority of these constitutions can be characterized as postliberal, though not inherently or exclusively. Many modern constitutions fall within this type. Yet in spite of the obvious differences between them, most courts in post-liberal teleological systems still look to countries with liberal democratic framework constitutions as the optimal model of judicial interpretation and enforcement. This is partially due to the incorrect notion that liberal democratic framework constitutions are the superior articulation of constitutional theory. This creates a normative vacuum. This dissertation argues that post-liberal teleological constitutions which (1) adopt explicit policy provisions of a redistributive, progressive or radical nature, (2) are designed to be a substantive blueprint for a particular society, and (3) were also the result of a highly democratic, popular and participatory process of creation, require a model of judicial interpretation and enforcement that adequately takes into account adoption history and the subjective intent of its creators. My main normative proposal is called original explication. It also calls for courts in post-liberal teleological constitutional systems to look beyond the traditional paradigms about the role of the judiciary in liberal democratic societies that have adopted framework constitutions. As such, it proposes that courts in these systems develop new models of interpretation and enforcement that better suit their particular constitutional regimes. This dissertation also argues that constitutional theory has transcended its historical relationship with liberal democracy. Hence post-liberal constitutionalism, which, as a specific ideological articulation of the teleological constitutional model, has transformed the foundations of constitutionalism, interpretive methodologies and the very concept of the judicial role. As a result, an analysis of the interpretation and enforcement of postliberal teleological constitutions produces a necessary rethinking of constitutional theory, which has been, mostly, been premised on liberal democratic pretenses. This requires two simultaneous inquiries: (1) a specific analysis of post-liberal teleological constitutions and how courts interpret and enforce them, and (2) a broader look at constitutional theory to see how post-liberal teleological constitutions have affected it. iii Part I of this dissertation deals with how post-liberal teleological constitutional systems have revolutionized constitutional theory; in particular, the notion of constitutionalism, constitutional types, interpretive methodologies and the judicial role. There, I will attempt to prove that post-liberal teleological constitutionalism exists, thus requiring a conceptual distinction between constitutional theory and liberal democracy. In particular, I will analyze the inner workings of the teleological constitutional type, and how it affects constitutional theory in its different manifestations. This order of analysis is necessary so as to avoid an obvious question: are post-liberal constitutional models really constitutional systems? Part I says yes. As such, Part I is mostly, though not exclusively, normative. Part II of this dissertation offers a more empirical and descriptive glimpse into how courts in countries with teleological constitutions have applied them, particularly as to issues of intent, adoption history, and clear and expansive text. Also, I will analyze how these courts have enforced substantive policy provisions. In particular, I will attempt to demonstrate that some sort of originalism, as will be re-defined in this dissertation, has been applied as a descriptive matter and should be applied as a normative one, which deeply impacts how these constitutions are interpreted and enforced. In Part II I also propose that courts in post-liberal teleological constitutional systems should not look to liberal democratic framework systems for guidance when interpreting and enforcing their own constitutions. Part III of this dissertation deals with the challenge of change in teleological constitutional systems and offers a model of judicial interpretation and enforcement of these constitutional systems taking into account adoption history, the subjective intent of its drafters and the ideological and social forces that gave it life. I have dubbed this model as original explication. Part III is mostly normative, though it also uses a descriptive approach in order to tackle the question of change.
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