When History Requires the Use of History in Constitutional Adjudication

Jorge M. Farinacci-Fernós

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Chapter 2 When History Requires the Use of History in Constitutional Adjudication

In: Comparative Constitutional History

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Jorge M. Farinacci-Fernós

Jorge M. Farinacci-Fernós
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Type:: Chapter

Pages:: 47–70

DOI:: https://doi.org/10.1163/9789004523739_004

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Abstract

An adequate analysis of the uses of history in constitutional analysis requires addressing several important issues. First, the need for a conceptual model that, in particular, addresses the interaction between the roles played by historical devices and the different stages of constitutional analysis. Second, a normative justification that supports these possible uses of history when addressing constitutional questions. One possible approach is to engage in a historical endeavor to determine if historical devices should, in fact, be used and how. The proposition is that, when a constitution-making process is democratic, public, participatory, popular, and socially transcendental, it generates considerable legitimacy and authority which, in turn, strengthens the argument in favor of using history, particularly adoption history, in constitutional analysis. Moreover, when the product of this process is a constitution that reflects the deeply held views of the social majority in any given community, both past and present, it generates connection and fidelity. While legitimacy and authority are the key components during the early stages of constitutional existence with regards to the use of history, connection and fidelity will eventually determine the adequacy of its continued in constitutional analysis. A study of the constitutional experiences in Bolivia, Puerto Rico, and Australia illustrates the usefulness of this approach. While Bolivia and Puerto Rico had constitution-making process that included the normative elements discussed earlier – and thus use both general and adoption history as an authoritative and even determinate source of constitutional meaning –, Australia did not – and thus history is given considerably less weight-.

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Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

Series: History of European Political and Constitutional Thought, Volume: 10

Cover Comparative Constitutional History

E-Book ISBN:: 9789004523739

Publisher:: Brill

Print Publication Date:: 25 Nov 2022

Subjects

Front Matter

Part 1 Framing the Problem

Part 2 Historical Precedents and Inter-constitutional Interpretation

Part 3 A Matter of Narratives

Part 4 New Democracies and Illiberal Regimes

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Chapter 2 When History Requires the Use of History in Constitutional Adjudication

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Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

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