Constitutionalism: Philosophical Foundations

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Cambridge University Press, 2001 M02 26 - 319 páginas
A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as Why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation feel bound by the constitution of an earlier one?The volume will be of particular importance to those in philosophy, law, political science and international relations interested in whether and what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation.

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In short, Kay argues in favor of the interpretive contraint provided by the "original intent" of the people's representatives and writers of the rules of the Constitution of "these United States," in this manner:
It must be held true that the original intent of the framing and wording of the rules of government, in the Constitution of 1788-9, is Necessary, but Insufficient, to the interpretation of those rules;
yet it must be held true too that the content of current judicial cases, with reference to the on-going authority of received beliefs and practices, is also Necessary, but Insufficient, to the Application of those same rules;
so that it must be held true finally that the proper business of a judge, operating under and with the authority of the Constitution, is to adjudicate the relevance of said constitutional rules to those current judicial cases.
 

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Contenido

American Constitutionalism
16
Constitutional Authorship
64
What Is the Constitution? and Other Fundamental Questions
99
On the Authority and Interpretation of Constitutions Some Preliminaries
152
Legitimacy and Interpretation
194
The Domain of Constitutional Justice
235
Precommitment and Disagreement
271
Index
301
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