Inter-constitutional Interpretation: A Case Study of the Articles of Confederation

Cem Tecimer

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Chapter 5 Inter-constitutional Interpretation

A Case Study of the Articles of Confederation

In: Comparative Constitutional History

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Cem Tecimer

Cem Tecimer
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Type:: Chapter

Pages:: 146–216

DOI:: https://doi.org/10.1163/9789004523739_007

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Abstract

This chapter explores the understudied phenomenology of an enduring interpretive practice in polities with a history of at least two written constitutions: inter-constitutional interpretation, which occurs when a polity’s old constitution(s) are invoked for purposes of elucidating the same polity’s new constitution. Inter-constitutional interpretation emerges as a distinct mode of constitutional engagement, especially distinguishable from invocations of foreign constitutions for purposes of domestic constitutional adjudication. The chapter uses the Articles of Confederation and their invocation by the US Supreme Court as a case study to test the applicability of the concept and to expose the many and varied uses of inter-constitutional interpretation, all the while acknowledging its ubiquity across time and geography as an enduring interpretive practice in numerous constitutional polities. The chapter concludes with the insight that, contrary to suggestions by many, if not most, framers of new constitutions, inter-constitutional interpretation shows how abrogated constitutions, purportedly of no legal import, can and do factor into constitutional adjudication and analysis under subsequent constitutional orders.

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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

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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 5 Inter-constitutional Interpretation

A Case Study of the Articles of Confederation

Abstract

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Comparative Constitutional History

Volume Two: Uses of History in Constitutional Adjudication

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