Constitutions are a product of history, but what is the role of history in interpreting and applying constitutional provisions? This volume addresses that question from a comparative perspective, examining different uses of history by courts in determining constitutional meaning. The book shows that there is considerable debate around the role of history in constitutional adjudication. Are, for example, historical public debates over the adoption of a constitution relevant to reading its provisions today? If a constitution represents a break from a prior repressive regime, should courts construe the constitution’s provisions in light of that background? Are former constitutions relevant to interpreting a new constitution? Through an assessment of current practices the volume offers some lessons for the future practices of courts as they adjudicate constitutional cases.
Contributors are: Mark D. Rosen, Jorge M. Farinacci-Fernós, Justin Collings, Jean-Christophe Bédard-Rubin, Cem Tecimer, Ángel Aday Jiménez Alemán, Ana Beatriz Robalinho, Keigo Obayashi, Zoltán Szente, Shih-An Wang, and Diego Werneck Arguelhes.
Francesco Biagi is Senior Assistant Professor of Comparative Public Law at the University of Bologna Department of Legal Studies. His latest publications include: European Constitutional Courts and Transitions to Democracy (Cambridge University Press 2020); “Constitution Drafting After the Arab Spring: A Comparative Overview”, 29 Indiana Journal of Global Legal Studies 1 (2022).
Justin O. Frosini is Associate Professor of Comparative Public Law at the Bocconi University in Milan and Adjunct Professor of Constitutional Law at Johns Hopkins University. He earned his law degree and his doctorate from the University of Bologna. His latest book is Dalla Sovranità del Parlamento alla Sovranità del Popolo. La rivoluzione costituzionale provocata dalla Brexit (Wolters Kluwer-Cedam, 2020).
Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law at the University of Illinois at Urbana-Champaign where he also serves as Director of the Program in Constitutional Theory, History and Law. He earned undergraduate and law degrees from Harvard University and his doctorate from Yale University.
List of Tables
Notes on Contributors
Introduction Francesco Biagi, Justin O. Frosini and Jason Mazzone
Part 1 Framing the Problem
1 History Limit or License in Constitutional Adjudication? Mark D. Rosen
2 When History Requires the Use of History in Constitutional Adjudication Jorge M. Farinacci-Fernós
3 Memory as Mantle Evil Pasts and Judges’ Power in Germany and South Africa Justin Collings
Part 2 Historical Precedents and Inter-constitutional Interpretation
4 Comparing Constitutional Historicities The Case of Precedents in Canada and the United States Jean-Christophe Bédard-Rubin
5 Inter-constitutional Interpretation A Case Study of the Articles of Confederation Cem Tecimer
Part 3 A Matter of Narratives
6 Janus’ Third Face? The Spanish Constitutional Court at the Crossroads of History Ángel Aday Jiménez Alemán
7 Competing Narratives The Use of Historical Arguments in Constitutional Interpretation in Brazil Ana Beatriz Robalinho
8 Manipulating Constitutional, Legislative and Judicial History Incremental Judicial Activism in the Japanese Supreme Court Keigo Obayashi
Part 4 New Democracies and Illiberal Regimes
9 How Not to Use History in Constitutional Interpretation The Aborted Resurrection of the Historical Constitution in Hungary Zoltán Szente
10 Using the Authoritarian Past for Constitutional Interpretation in New Democracies The Example of the Taiwan Constitutional Court Shih-An Wang
Conclusion Which History, Whose Past? Diego Werneck Arguelhes
The volume is aimed both at an academic audience and practitioners interested in history, constitutional law, comparative constitutional law, comparative constitutional history, constitutional interpretation, and constitutional adjudication. It will also be suitable as a textbook for advanced undergraduate and postgraduate students