Constitutions, Courts, and History: Historical Narratives in Constitutional Adjudication

Constitutions, Courts, and History: Historical Narratives in Constitutional Adjudication

Constitutions, Courts, and History: Historical Narratives in Constitutional Adjudication

Constitutions, Courts, and History: Historical Narratives in Constitutional Adjudication

Synopsis

Emphasizes the role history and historical narratives play in constitutional adjudication. Uitz provocatively draws attention to the often-tense relationship between the constitution and historical precedence highlighting the interpretive and normative nature of the law. Her work seeks to understand the conditions under which references to the past, history and traditions are attractive to lawyers, even they have the potential of perpetuating indeterminacy in constitutional reasoning. Uitz conclusively argues that this constitutional indeterminacy is obscured by 'judicial rhetorical toolkits' of continuity and reconciliation that allow the court's reliance on the past to be unaccounted for. Uitz's rigorous analysis and extensive research makes this work an asset to legal scholars and practitioners alike. The inquiry in this volume hopes to attract observers of constitutional adjudication, may they be reading constitutional jurisprudence from the quarters of constitutional law, constitutional history, political science or history departments.

Excerpt

Intuitively, at least for lawyers, the record book of history appears as a treasury of very sound points of reference. Precisely due to this reputation, constitutional review fora have a tendency to rely on references to history and traditions (historical narratives) in order to clarify or supplement constitutional provisions, to determine their proper scope of application, and sometimes even to substitute constitutional provisions. Prima facie, historical narratives look like the ultimate tools of taming indeterminacy in constitutional interpretation. Careful analysis, however, reveals that historical narratives are interpretive and normative, and depend not on objective foundations but on the discretion of the interpreter. Upon this discomforting realization, this volume inquires into factors which make references to the past, history, and traditions attractive to lawyers, despite the potential of historical narratives to perpetuate indeterminacy in constitutional reasoning. An analysis of constitutional jurisprudence reveals that the courts’ inclination to establish and preserve constitutional continuity is one such factor, while judicial attempts at reconciliation are another plotline that underlines historical narratives in constitutional cases. To be sure, it would be unrealistic to insist that historical narratives be discarded altogether from the theories or practice of constitutional adjudication. The most serious peril historical narratives pose is not simply that they perpetuate indeterminacy. It is more alarming that this potential of historical narratives in constitutional adjudication is masked so successfully by the judicial rhetorical toolkits of continuity . . .

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