Aim: The basis of this paper is that in order to maintain constitutional order some amount of interpretation is essential and

d especially in a constitutional democracy one ends up interpreting more often than not. This paper argues that in a constitutional democracy say like that of India, more often than not a degree of creativity has to be used while this interpretation in carried out and usually this changes the nature of the constitution. This change may be a dramatic one happening in one shot (akin to say a revolutionary change) or may occur in several short steps; but eventually both lead to the same end and that is the creation of a new order. The last thing this paper sheds light upon is the problems this interpretation method creates in relation to political stability in a constitutional democracy. To start of with a few definitions: . Constitution: a very narrow interpretation is the way a nation arranges its public offices and power along with the rights of the people. !. Constitutional Order: this term was used by "ristotle who called the constitution a sort of way of life. In the sense the provisions of the constitution were so fundamental to ones country that to an e#tent they came to determine how our lives functioned. $o on one side we have a communistic constitutional order like that of %hina and &ussia and then the more chilled out ones like India, "ustralia. '. " constitutional text is the actual constitutional document that spells out the constitution in writing. (eaning that how the officials will be selected, what are their powers, functions and duties, rights duties).blah blah blah. *ou get the drift. +. Constitutionism: this is a relatively new term, which signifies the adherence to the te#t of the constitution and to the laws of the e#isting constitutional order. ,asically this means being true to your own constitution. -. Constitutionalism: this differs from the above point. .hen one says constitutionalism it basically refers to a limitation either substantive or procedural. (eaning that whatever might be your ideology / authoritarian, communistic, dictatorial, you might even have large scale support from the public / it doesn0t matter, there are some things that you 1ust cannot do. Its central principle is considered to be humanity and human rights. $o it0s always in conflict with more authoritarian regimes. *ou can call this some what of a normative concept. 2ow when this combines with representative democracy we get a constitutional democracy. Constitutional Democracy has the fundamental principal that the people shall govern but within substantive and procedural restraints. Thus it puts a curb on people0s power which the principles of democracy hail. 2ow comes the 3uestion of who can interpret the constitution. 4ust about anybody can and has and in many cases despite not being an e#pert has done a correct 1ob. 5or e#ample, 1udges will for obvious reasons indulge in interpretations, legislators while framing laws to ensure that the laws are not against certain

constitutional provisions, e#ecutive officials to check the constitutionality of their actions, police officers to see whether they can arrest or search will depend on their ability to interpret the constitution, etc. 6ere he gives an e#ample of "braham 7incoln, who apparently made the single most important piece of constitutional interpretation in 89 when he said that, :I hold that in contemplation of universal law, and the constitution, the ;nion of these $tates is perpetual.< This statement caused a huge furore as there was no such provision in the %onstitution which only mentioned :a more perfect union< not a =perfect union0 and certainly not a =perpetual0 one. Impact as you all must be aware was the "merican %ivil .ar between the north and south which ran on for + years. Two more e#amples have been cited of who has the power to interpret, one again in ;$" and the other in >ermany. 2ow though there may be a universal or ma1ority feeling that interpretation of the constitution / having the importance that it does / should be transparent; this is not always possible or more like it0s not adhered to without any particularly malicious intention. It 1ust happens that interpretations occur and sometimes those interpreting them don0t even realise that they are doing so. The e#ample given for this is that if a legislator says that they must adhere to constitutional provisions and case law as to the same they are making an interpretation that :the authority to interpret the constitution is vested only in the 1udiciary and not the legislature, and hence members of the legislatures are bound to such interpretation as is given by the 1udges.<

?lease note here that apart from the >erman %onstitution which comes the closest, no other constitution delegates the rights of its interpretation wholly and solely to any authority / legislative or 1udicial. Constitutional Interpretation without a Written Document The writer gives this e#ample of how a political system formed, where the founders were against the formulation of a constitutional te#t because they believed that theirs was a political culture which would stand the test of time. This is based on the .estminster model, where there is an independent 1udiciary, albeit devoid of power of 1udicial review. 6e further assumes that this particular form of government does formulate laws that represent the goals of a constitutional democracy insofar as it gives the rights to people and leaders and respective institutions, demarcates process etc. however there are always grounds for 3uestioning the authority and legitimacy of the policies formulated, whether it is by supporters, by groups or even individuals. Thus even without a constitutional te#t / the need for interpretation will be necessary and fre3uent. 2o institution will have absolute authority in interpreting the constitution as this would defeat the principles of a constitutional democracy / it would be the =normative suicide of the principles of a %onstitutional democracy.0 This statement is a conse3uential piece of constitutional interpretation. $ince a constitutional democracy sets limits on e#ercise of power by government in

the light of rights of the people, this itself sets the stage for impugning the authority and legitimacy of any governmental legislation@policy. The thing is that abiding to the constitutionality principles poses problems of practicality. $o the choice is between logic and ideological loyalty. (A#ample on pg B@!C of article abt voters and election funds) $imilarly many laws that may be formulated with a sensible purpose in mind may not be that simple in implementation. hence the conflict again as to the constitutionality of a law. (e#ample on the same pg)

2ow apparently a constitutional democracy consists of two theories: constitutional theory and democratic theory. The interpretation of both is a difficult task, because even within the broad heads, as is e#pected, there are many conflicting theories each trying to reign supreme. "nd while many things may overlap between theories, they are to speak very frankly very different due to the way they interpret rights, duties goals policies functions, methods, values and process to be followed. $o not only does one have to choose which particular variant of the theory to e#amine but also to figure out which particular combination of the many variants has been adopted by a particular state and then go on to interpret it. "dded to this as no theory is articulately stated, interpretation is a must. Thus while the power to interpret may be abdicated by a select individual or group, never can it be completely destroyed. Constitutional Interpretation with a Written Document 6ere the scenario in the first case is tweaked a bit. "ssuming that the founders foresaw the difficulty of interpreting two slightly capricious concepts, it was decided to put the constitution and its norms down in writing. They had at their disposal to adopt various versions; the "merican for e#ample which is so broad in its ob1ects and outlines that despite its simplicity to laymen understanding it was the constant sub1ect of interpretation. Dr on the other e#treme is the Indian %onstitution, so specific that it was almost endless. ,ut the specific nature was only e#tended to trying to cover all possibilities. The language of the Indian %onstitution was broad and left definite scope for interpretation. The necessity of interpretation is part of the human condition. Astablishing a new constitutional order and writing a fresh te#t may solve some problems but at the same time createEor reveal others. "nyone familiar with disputes among 4ews about the Torah, among %hristians about the gospels, and among (uslims about the Qur'an knows that the te#t that unites also divides. "s 4ames (adison noted in Federalist 'F: GH2Io language is so copious as to supply words and phrases for every comple# idea, or so correct as not to include many e3uivocally denoting different ideas..... .hen the "lmighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.G It must also be noted that not all future events and problems can be foreseen, and if they can not always will they be considered. $ometimes they will be 1ust passed over. Then there is also the case where constitution writers would rather not comment on the legitimacy of something and in such cases they choose to speak in broad languid terms so as to effectively ignore the problem. It is only later when the problem becomes apparent that the e#perts decide to be specific.

Constitutional Interpretation with a Partially Written Text This would be the case with Israel. .hen this country got its independence, the then provisional government called upon the re3uired authorities to draft a constitution. This was met with much opposition as the orthodo#y believed the word of >od / 6alakhah / to be the final law. $o while provisional documents called the ,asic 7aws. 5or these laws to be final they had to be approved by a two third ma1ority. .hile about nine such laws were enacted not all of them were passed with a !@' rd ma1ority; some were passed only with a simple ma1ority. 5ollowing this, certain decisions were passed by the $upreme %ourt in certain cases (chk main document for the e#ample) wherein the $% interpreted the provisions of the ,asic 7aws. This led the then president to comment on the dual nature of the Jnesset: where it made laws and also created a constitutional te#t. $ome other e#amples of groundbreaking decisions have also been given. In all these cases, creative constitutional interpretation was of primary importance. Effects of such interpretation Interpretation, by whosoever made will definitely have far reaching impact, on polity as well as public policy. " good constitution is dependant on how it is construed. .hile change is the only permanent definite fact of life, not all change is beneficial. 2ot all interpretation may be wise and in certain cases it may even threaten the constitutional and democratic facets of a constitutional democracy and thus effectively the nations stability. "ccording to Kante, :to translate is to betray<. Jeeping this in mind anyone who chooses to indulge in interpretation must try to ma#imise the benefits and minimise the threat that may arise from interpretation. %hange precludes survival of the political system, which must be stable but must not stand still. 2ow this whole concept of interpretation has led to a debate in ;$". Dn one side there are the Driginalists whose philosophy is that when interpreting the constitutional provisions we must keep in mind the goals that were in the minds of the original writers so that our interpretation may be in keeping with the essence and spirit of the constitution. This is a warped view because essentially it is not well evidenced, based on incomplete and very random documents, most of the time where particular facts have been pulled out, out of conte#t to support theory, and because of this it eventually leads to the chaos of conflicting philosophies of the constitutionalist and democratic theory debate. Dne the other side there were the contemporary rationalist whose mantra was, :how would those people in that time, being as smart as we are, approach our problem.< $o effectively, the former can be faulted for creativity and imputing this creativity falsely to people dead and gone and the latter for 1ustifying personal choices on the grounds of general needs. The threat of this approach is that it proposes to return governance to an unstable concept of the principles of democracy and constitutionalism. ,oth the above mentioned philosophies of interpretation do not

solve the dilemma: political stability re3uires constitutional interpretation; constitutional interpretation re3uires discretion and choice which may recreate the constitutional order, and this in turn presents problems to national stability. Aven the presence of such obvious danger though does nothing to reduce the necessity of interpretation. " possible solution would be to share interpreting authority so that there is no monopoly of such a power and apart from that, uncommon wisdom and plain luck.