Description
Book SynopsisConstitutions are a product of history, but what is the role of history in interpreting and applying constitutional provisions? This volume addresses that question from a comparative perspective, examining different uses of history by courts in determining constitutional meaning. The book shows that there is considerable debate around the role of history in constitutional adjudication. Are, for example, historical public debates over the adoption of a constitution relevant to reading its provisions today? If a constitution represents a break from a prior repressive regime, should courts construe the constitution’s provisions in light of that background? Are former constitutions relevant to interpreting a new constitution? Through an assessment of current practices the volume offers some lessons for the future practices of courts as they adjudicate constitutional cases. Contributors are: Mark D. Rosen, Jorge M. Farinacci-Fernós, Justin Collings, Jean-Christophe Bédard-Rubin, Cem Tecimer, Ángel Aday Jiménez Alemán, Ana Beatriz Robalinho, Keigo Obayashi, Zoltán Szente, Shih-An Wang, and Diego Werneck Arguelhes.
Table of ContentsAcknowledgments List of Tables Notes on Contributors Introduction Francesco Biagi, Justin O. Frosini and Jason Mazzone Part 1 Framing the Problem 1 History Limit or License in Constitutional Adjudication? Mark D. Rosen 2 When History Requires the Use of History in Constitutional Adjudication Jorge M. Farinacci-Fernós 3 Memory as Mantle Evil Pasts and Judges’ Power in Germany and South Africa Justin Collings Part 2 Historical Precedents and Inter-constitutional Interpretation 4 Comparing Constitutional Historicities The Case of Precedents in Canada and the United States Jean-Christophe Bédard-Rubin 5 Inter-constitutional Interpretation A Case Study of the Articles of Confederation Cem Tecimer Part 3 A Matter of Narratives 6 Janus’ Third Face? The Spanish Constitutional Court at the Crossroads of History Ángel Aday Jiménez Alemán 7 Competing Narratives The Use of Historical Arguments in Constitutional Interpretation in Brazil Ana Beatriz Robalinho 8 Manipulating Constitutional, Legislative and Judicial History Incremental Judicial Activism in the Japanese Supreme Court Keigo Obayashi Part 4 New Democracies and Illiberal Regimes 9 How Not to Use History in Constitutional Interpretation The Aborted Resurrection of the Historical Constitution in Hungary Zoltán Szente 10 Using the Authoritarian Past for Constitutional Interpretation in New Democracies The Example of the Taiwan Constitutional Court Shih-An Wang Conclusion Which History, Whose Past? Diego Werneck Arguelhes Index
