Arun Sagar (University of Rouen) has posted Constitutional Interpretation in Federations and Its Impact on the Federal Balance on SSRN. Here is the abstract:
Most of the existing literature on judicial interpretation of federal constitutions focuses either on individual federations or on comparative studies of specific judicial techniques and/or the case law in specific fields. This paper argues that the general interpretative philosophy underlying the approach taken by constitutional courts has a huge impact on the balance of power between the constituent units and the federation; an originalist interpretation that treats the constitution as a fixed body of rules tends to favour the constituent units, while progressive or ‘living’ constitutionalism tends to have a centripetal effect on the federal balance. However, even the adoption of an originalist approach is not sufficient to fully counter a general centralising trend noticeable in all the federations studied. This can be explained partly by the manner in which powers are attributed and divided in the constitution itself, partly by social, economic and technological developments, and partly by changing conceptions of the relationship between the federation and the constituent units. Further, the analysis reveals that constitutional courts often adopt a different approach to interpretation in federalism-related issues than they do in other areas of constitutional law, such as fundamental rights. Unlike many of these areas, the case law on federalism seeks not to define the limits of state power but rather to define the relation of power between different levels of government within the state. Comparative studies of constitutional interpretation need to take into account not only the overall interpretative approach prevalent in different legal systems but also how these approaches vary according to the subject matter in question.
Posted at 12:09 AM