Lee, Jack Tsen-Ta (2012)
Ph.D. thesis, University of Birmingham.
Taciturn bills of rights and constitutions – texts that express concepts at high levels of abstraction or which do not provide much guidance in other ways – pose challenges for courts responsible for determining their meaning and applying them. This dissertation aims to identify the approach that might be taken by courts in Commonwealth jurisdictions with written constitutions. It argues that the starting point is the legislative intention underlying the text, and that the preferred conception of such an intention is moderate originalism. This requires ascertainment of the meaning the legislators imbued the text with through their choice of words at the time the constitution was enacted, but which recognizes that parts of the text may be interpreted dynamically where language connoting abstract moral principles has been employed.
The dissertation distinguishes constitutional interpretation from constitutional construction. Interpretation involves identifying the semantic content of a constitutional text, and to do so courts should consider the linguistic, purposive and applicative meanings of terms and provisions. Where interpreting the text does not yield any useful or complete legal rule, the court must engage in construction by applying legal principles and techniques such as the presumption in favour of generosity, the use of constitutional implications, and a proportionality analysis.
Thus, any constitutional ‘silence’ is in fact not so silent after all, as it may be given voice by the court.
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