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| Preface | |
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| List of Contributors | |
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| Abbreviations | |
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| Introduction | |
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| The Challenges of Constitutional Interpretation | |
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| Comparing Interpretive Methods and Philosophies | |
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| An Outline of What Follows | |
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| The United States: Eclecticism in the Service of Pragmatism | |
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| The Constitution's Origins and Structure | |
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| Formation of the Constitution | |
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| Basis of the Constitution: Popular versus State Sovereignty | |
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| The Legislature and the Executive | |
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| The Supreme Court | |
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| Constitutional Amendment | |
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| Problems and Methods of Interpretation | |
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| General Problems of Constitutional Interpretation | |
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| Early Examples of Constitutional Interpretation | |
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| Text | |
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| Ordinary meaning | |
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| Technical meaning | |
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| Textual structure | |
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| 'Holistic' interpretation | |
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| Text and practice | |
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| Constitutional Structure | |
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| 'Representation-reinforcing Review' | |
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| Original Understanding | |
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| Appeals to Justice | |
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| Precedent | |
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| Considerations of Administrability | |
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| (Moderately) Disfavoured Interpretive Methods | |
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| Presumptive interpretation | |
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| Academic writing | |
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| Non-United States law | |
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| Conclusion | |
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| Preferred interpretive techniques | |
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| Eclecticism in practice | |
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| Techniques and subjects | |
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| Critical Evaluation | |
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| Canada: From Privy Council to Supreme Court | |
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| Introduction to Canada's Constitution | |
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| Constitution Act 1867 | |
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| Constitution Act 1982 | |
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| Amending Procedures | |
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| Charter of Rights | |
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| Supreme Court of Canada | |
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| Separation of Powers | |
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| Problems of Interpretation | |
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| Interpretation of the Residuary Clause | |
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| Interpretation of the Two Lists | |
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| Interpretation of the Charter of Rights | |
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| Interpretation of Aboriginal Rights | |
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| Interpretation of Judicial Independence | |
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| Sources of Interpretation | |
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| Constitution as Statute | |
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| Legislative History | |
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| Previous Decisions | |
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| Academic Writings | |
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| Comparative and International Sources | |
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| Modes of Interpretation | |
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| Originalism | |
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| Progressive Interpretation | |
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| Generous Interpretation | |
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| Purposive Interpretation | |
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| Unwritten Constitutional Principles | |
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| Influences on Interpretation | |
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| Bilingual and Bicultural Country | |
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| Aboriginal Peoples | |
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| Crisis Management by the Court | |
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| Conclusions on Interpretation | |
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| Dialogue between the Court and Legislatures | |
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| Presumption of Constitutionality | |
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| Formalism and Creativity | |
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| Australia: Devotion to Legalism | |
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| The Constitution's Origins and Structure | |
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| The Constitution | |
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| Judicial Review | |
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| The Judges | |
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| Problems and Methods of Interpretation | |
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| Causes of Interpretive Difficulties | |
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| Sources of Interpretive Principles | |
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| Current Interpretive Methodology | |
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| Words | |
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| Context | |
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| Extrinsic evidence of framers' intentions and purposes | |
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| 'Structural' principles and implications | |
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| Precedent | |
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| Deference to other branches | |
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| Policy considerations | |
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| Formal and conceptual analysis | |
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| Comparative and international law | |
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| Academic writings | |
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| Weighing the Factors | |
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| Application of Interpretive Methodology | |
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| Grants of powers | |
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| Limitations on power, including rights | |
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| Changes Over Time: Recent Debates | |
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| Implied rights | |
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| Separation of powers | |
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| Original meaning and framers' intent | |
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| The Balance Between Legitimate and Illegitimate Creativity | |
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| Institutional and Cultural Factors | |
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| Critical Evaluation | |
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| Germany: Balancing Rights and Duties | |
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| Introduction | |
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| Genesis | |
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| Constitutive assembly | |
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| Constitutent power and reunification | |
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| The Basic Law: General Features | |
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| Supremacy of the Constitution | |
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| The constitutional structure | |
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| Rights, duties, and institutional guarantees | |
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| The amending process | |
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| The Federal Constitutional Court | |
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| Organization and composition | |
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| Authority and jurisdiction | |
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| Workload and decisional procedures | |
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| Problems of Interpretation | |
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| Conception of the Constitution | |
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| An objective order of values | |
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| Negative and positive rights | |
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| The horizontality of rights | |
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| Structures and relationships | |
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| Sources of Interpretation | |
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| Unwritten principles | |
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| The written Constitution | |
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| Historical materials | |
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| Judicial precedents | |
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| Academic writings | |
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| Comparative and international materials | |
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| Approaches to Interpretation | |
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| Textual interpretation | |
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| Drafting history | |
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| Structural interpretation | |
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| Teleological interpretation | |
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| Proportionality | |
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| Practical concordance | |
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| Passive virtues and dialogical techniques | |
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| Cultural and Institutional Determinants | |
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| Parliamentary Government | |
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| The Civil Law Tradition | |
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| Legal Education and Scholarship | |
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| Style of Judicial Decision-Making | |
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| Specialization | |
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| Conclusion | |
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| India: From Positivism to Structuralism | |
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| Introduction | |
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| The Indian Constitution | |
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| Salient Features | |
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| Parliamentary government | |
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| Federalism | |
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| Bill of rights | |
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| Directive principles | |
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| Separation of powers | |
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| Amendment of the Constitution | |
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| Judicial review | |
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| The Judges | |
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| Problems and Methods of Interpretation | |
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| The Choice of Methods | |
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| Positivist and structuralist interpretation | |
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| The colonial heritage | |
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| The constituent assembly and the role of the judiciary | |
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| The Legal Positivism of the Early Years | |
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| External Aids to Interpretation | |
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| Interpreting the Federal Distribution of Power | |
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| Resolving Conflicts between Constitutional Provisions | |
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| Freedom of religion | |
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| Powers and privileges of legislatures | |
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| Towards Sociological Interpretation | |
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| Affirmative action for the weaker sections of society | |
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| Freedom of speech | |
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| Property rights | |
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| Towards Structuralist Interpretation: the Basic Structure Doctrine | |
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| Emergencies | |
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| Post-emergency Judicial Activism | |
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| Liberal interpretation of fundamental rights and directive principles | |
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| Article 21 revisited | |
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| International covenants and fundamental rights | |
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| Competing values and balancing | |
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| Procedural innovations for access to justice | |
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| Transformation from adversarial to polycentric-law making through directions | |
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| The independence of the judiciary | |
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| The Court as a Political Institution | |
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| Institutional and Cultural Factors | |
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| Conclusion | |
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| South Africa: From Constitutional Promise to Social Transformation | |
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| Introduction to South Africa's Constitution | |
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| Constitution, 1996 | |
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| The Colonial Constitutional Order: the Union and Apartheid Constitutions | |
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| Democratic Transition, Constitutional Principles and the 1993 Interim Constitution | |
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| Regionalism and Cooperative Governance | |
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| Rule of Law and the Bill of Rights | |
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| Amending Procedures | |
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| Constitutional Court | |
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| Sources of Interpretation | |
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| Constitution as Statute | |
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| Legislative History | |
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| Public Opinion and Constitutional Values | |
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| International and Comparative Sources | |
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| Modes of Interpretation | |
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| Generous Interpretation | |
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| Purposive Interpretation | |
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| Positive Obligations and Accountability | |
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| Duty to Develop the Common Law and Customary Law | |
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| Internal Directives for Interpretation | |
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| Problems of Interpretation | |
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| Certification and the Problem of Future Constitutional Amendments | |
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| Interpreting the Bill of Rights within the Frame of Dignity, Equality and Freedom | |
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| Interpretation of Socio-economic Rights | |
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| Interpretation of Regional and Concurrent Powers | |
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| Influences on Interpretation | |
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| History | |
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| The Historical Exclusion of Indigenous Law and the Hope of Ubuntu | |
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| Legal Legacies and Popular Experience of the Law | |
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| Conclusion | |
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| Conclusions | |
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| Introduction | |
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| Comparing Interpretive Methods and Philosophies | |
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| The United States | |
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| Canada | |
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| Australia | |
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| Germany | |
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| India | |
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| South Africa | |
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| Explaining the Differences | |
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| Legal Culture | |
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| Judicial Appointments and Homogeneity | |
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| Political Culture | |
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| The Nature and Age of the Constitution | |
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| 'The Felt Necessities of the Time' | |
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| Index | |