On American Constitutional Interpretation

American constitutional methods can mainly be divided into three methods, which are constitutional interpretation, constitutional construction and judicial review. These three methods have blended, and hard to be parted with each other. This article has reviewed the history of American constitutional interpretation, presented its system, and then expounded its theory, methods and practice. Finally it made theoretical introspection on Chinese constitutional interpretation.This dissertation consists of six chapters, apart from the introduction and conclusion. The introduction part presented the background of research selected, and summarizes general framework of the current situation of the related research home and abroad, emphasizing the significance of research.Chapter 1 mainly refers to the history of American constitutional interpretation. It reappear the history of American constitutional interpretation, resort to the introduction about constitutional change after enact, and development of constitutional interpretation in the social transition. According to the development of American history, the development of constitutional interpretation can be divided into three periods.first, we pay close attention to the relationship between federation and states, slave-owner fight. Supreme Court of this period pays attention to the federalist's concrete implement, emphasize to keep the federation's supreme position, to solve the question of slave-owner. Second, we pay close attention to government's measure to the economy. American of this period has undergone the large ups and downs, accordingly, Supreme Court pay attention to the government's measure to the economy. Third, we pay close attention to the efforts to pursue civil liberty and social equality. Citizens of this period has intense consciousness on the pursuit of the civil liberty, democracy and equality, court will cater to the need of citizen, pay close attention to civil liberty and equality. Dissertation expound, even though American constitutional interpretation has a sustainable development, the constitution still keeps the steady state, this due to the inside and outside factor's affection. The important reason is conservation which show, legal tradition, interpretative methods, constitute of judges and so on.Chapter 2 mainly refers to the system of American constitutional interpretation. The constitution which has supreme authority is hard to be related to judges, Supreme Court and judicial powers from its early born. But after Marbury v Madison, constitution turns to be closely related with Supreme Court and judicial powers. In1983, Marshall have set up the judicial review system, American became the first country of the world which established judicial review system. In America, Supreme Court and state court both have power to do judicial review, they both have power to interpret constitution. But verdict of Supreme Court is the final verdict. The system of American constitutional interpretation has deep jurisprudential basis, which including the pursuit of judicial supremacists tradition, the requirements for the separation and balancing system, the pursuit of liberality-democracy and rule by law.Chapter 3 mainly refers to the theory of American constitutional interpretation. There are many factors which affect American constitutional interpretation, such as tangle some changes of social economy, changeable political transition which from Administrative agencies, legislative body, public opinion and court system, different values and judicial trends of judges which possess different characters, these factors which affect the judges to do different constitutional interpretation more or less. Although there are so many factors which affect constitutional interpretation, we just pay close attention to judges' different orientation which be affected by judicial philosophy, different orientation which be affected by Hermeneutics-focus's shift and judges' different orientation which be affected by different political environment. The state of American constitutional interpretation turn to be active or conservative which be affected by different judicial philosophy, but, they both are bigoted, not the best choice in judicial field. The intellectual genealogy of Hermeneutics can be divided into three, Hermeneutics which take the writer as the center and Hermeneutics schema which marked as the state that divided into subjectivity and objectivity, Hermeneutics which take the reader as the center and Hermeneutics schema which marked as the state that field of vision is fused and Hermeneutics which take the text as the center and emphasizes text's immutability. In the development of Hermeneutics, the focus of Hermeneutics has a shift from the theory that take the writer as the center to the theory that take the reader as the center, then to the theory that take the text as the center, because of this influence, constitutional interpretation accordingly appear to be three theories, which are the theory that insist constitution interpretation should pursue the constitutional law-maker's original intention, the theory that insist constitution interpretation should pursue interpreters'intention, the theory that insist constitution interpretation should pursue texts' intention. In different social and political environment, it requires people to make a choice which is better need for the current events between democracy and rule by law. Accordingly American judges' interpretation to constitution inevitably was affected by this political environment too. This dilemma became a difficulty which troubled the judges.Chapter 4 mainly refers to the methods of American constitutional interpretation. Here constitutional interpretation methods refers to the methods which happened when the Supreme Court interpret constitution. This is a summary and conclusion to the methods which advocate by American scholars, and introduce emphatically methods which scholars pay more attention to. They are originalism and nonoriginalism, interpretivism and uninterpretivism, textualism, structualism, moral interpretation methods, historical interpretation methods and so on. Of course, there maybe some overlaps when summarizing theories and ideas of constitutional interpretation, for example, some scholars think there are some cross connections between originalism and nonoriginalism, interpretivism and uninterpretivism. The part about moral interpretation method especially refers to the idea of Dwokin and moral reading. We wish we can present a whole recognition about American constitution interpretation methods. So in the sixth section of this chapter, we have done a simple introduction to other interpretation methods, e.g. historical interpretation methods, theory interpretation methods, precedent interpretation methods. Although grand justices have their own orientation, conservative or liberal, Supreme Court didn't do formal choice from these theories, didn't explicit its standpoint of theory. And even if Supreme Court judges have their own orientation and openly assert they stands conservatism or liberalism, they are not strict conservatism or liberalism in those cases. Only one constitutional interpretation method can't successfully instruct judges' verdict or offer definite and entirely reasonable solution to all constitutional questions. These theories are not diametrically opposed, they often overlap and cross connect.Chapter 5 mainly refers to the application American constitutional interpretation. To American scholars, research of American constitutional interpretation methods can not be simply explained, they more appeal to cases and carrier. This chapter chooses one concrete constitutional clause, the first section of the fourteenth amendment, as analytical basis. American people always think highly of the pursuit of equality and liberty, the cases about equal right constantly appeal to court, the same state happens to Supreme Court, so we choose equal right as analytical basis. Meanwhile we regard the scope of equal right is so wide, we sum up and sort cases about equal right which resort to Supreme Court, it shows several main types, the cases pursuing equal right on citizen right, the cases pursuing equal right on electoral right, the cases pursuing equal right on race and the cases pursuing equal right on sex. The dissertation reveal judges will use different interpretation methods to solve different cases which sort into same category, even if facing the same cases about equal right, judges can still do different constitutional interpretation in different periods.Chapter 6 mainly refers to realistic significance and contribution. The last chapter expounds our country's related researches, rethinks profoundly our country's constitutional interpretation, introspect on present situation of our country's constitutional interpretation, which state of American constitutional interpretation can be used for enlightenment and reference to our country. Before talking about the question if constitution can be interpreted, we should solve the question if constitution can be used as legal source. In our country, constitution can be applied into judicial cases. But department law related to concrete case has concrete and explicit provision, the case can appeal to department law, the court should appeal to department law. Only when we can't find the department law which can be applied to the case, can the court appeal to the constitution, should not refuse to hear the case with short of legal basis grounds. The interpretation in our constitutional judicial application is different from the legislative interpretation of legislative institution, judges'interpretation of Anglo-American country and interpretation of philosophy. Our judges have sufficient practical experience, their verdicts are mostly the result which in view of law, condition of our country and people, it's more persuasive and article than scholars'pure theoretical argument. Now, our country still stands at initial stage that building legal society, we should pursue judicial restraint doctrine is the main doctrine, judicial activism is the supplementary, achieving judicial activism which is in judicial restraint doctrine under control, we can build a balance between judicial restraint doctrine and judicial activism which is accord with social status and helpful to legal construction. Our judges'interpretation is application after comprehension, this comprehension and interpretation are prerequisite to application of law, it combines to the comprehension in persons' consciousness, easy to reason and do argument in the legal syllogism. Facing to the status of our constitutional interpretation methods, we think we should reconstruct the system of Chinese constitutional interpretation methods, develop our existing theoretical mode from decisive methodology to confluent mode.