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This post is in conversation with Assistant Professor Nicholas Papaspyrou, author of the recently published book Constitutional Argument and Institutional Structure in the United States. Dr Papaspyrou is an Assistant Professor of Public Law at the University of Athens.
Tell us a little bit about the book.
Constitutional jurisprudence often conflates two distinct enquiries: how to interpret the Constitution and how to allocate interpretive authority. The book seeks to explain the distinct role of judgements about interpretive authority in US constitutional practice. It argues that these judgements do not determine what qualifies as good constitutional argument, and cannot substitute for it. Rather, they specify the division of labour between the political branches and the judiciary in forming applicable constitutional determinations.
This explanation of the structure of constitutional reasoning sets the stage for the development of anormative theory about each enquiry. The book advances a theory of substantive constitutional argument. It argues that constitutional interpretation is a special kind of practical reasoning, aiming to construct and specify morally sound accounts of the Constitution and surrounding constitutional practice. Yet, this task is entrusted to a scheme of institutions, as agents of free and equal citizens. The standard of review is an interlocking component of that scheme, regulating the judicial assignment. As such, it should aim to facilitate best performance of the overall interpretive task, so that the judicial process settles on appropriate constitutional determinations; grounded on morally sound reasons that reach all citizens and uphold the fundamental commitments to freedom and equal citizenship.
Whose work was influential on you throughout the course of the project?
The main figures were Ronald Dworkin and John Rawls. I believe that interpretivist accounts of constitutional law are the only tenable ones for mature, self-critical democracies with judicial review. I also consider that the generic frame advanced by John Rawls provides essential resources for rationalizing fundamental rights discourse. At the same time, Dworkinian jurisprudence downplays the limitations of the judicial process in constitutional implementation. And this defect is rather significant since acknowledgment of institutional limits is internalized in the standard of judicial review. In fact, as the standard of review is a matter of interpretive controversy itself, institutional considerations resurface in many hotly debated cases. This defect, to my mind, is not fatal to Dworkin’s jurisprudential project. Thus, I felt I had to fix it.
What challenges did you face in writing the book?
The main challenge was that I had to bring together conceptual resources from three distinct fields, namely, jurisprudence, institutional theory and normative political philosophy.
On the particulars, I had to explain a) how institutional norms governing the standard of review provide second order reasons about how to resolve substantive constitutional disputes, while at the same time b) we hold them accountable to general conceptions about appropriate resolution of substantive disputes. And this difficulty becomes more pronounced once we add to the equation an important feature of constitutional democracies: the existence of reasonable pluralism over constitutional details.
What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?
I think that I have presented a sensible argument showing that the moral and constructive character of constitutional interpretation is fully compatible with reflective acknowledgement of the limitations inherent in the institution of judicial review; and a normative argument suggesting that the standard of judicial review should be tailored to the task of best serving the moral aspirations and commitments of constitutional practice.
Endorsement of these two main arguments sets the stage for a constructive debate about institutional structure; about the proper synergy between the political and the judicial branches in constitutional implementation; and about the critical hedge of the judicial process in safeguarding certain commitments of principle.
I am currently working on the diverse pathways of U.S. and European constitutionalism with emphasis on the 19th century. We often suppose that the current state of constitutionalism in advanced democracies develops from a few unitary themes and values that somehow reflect the constitutional dimension of modernity. This is fundamentally misguided. I am interested in unearthing the diverse ideas and the distinctive mentalities driving the US, English, German and French constitutional traditions, and the ways interactions among them have framed patters of approximation and distancing.
This genealogical analysis may perhaps shed light to the recent spread of populism and institutional discontent. The commitment to social and institutional pluralism and to open social and economic orders is much more precarious than we tended to think in the heydays of post-war optimism. And this, I fear, has deep historical roots.
You can find out more, and purchase Constitutional Argument and Institutional Structure in the United States here.