Concise Comments On Methodology Of Constitutional Interpretation

Constitutional interpretation is accompanied by constitutional application. With spreading the sense of human rights and expanding the protection of fundamental rights, each country pays more and more attention on constitutional application. The theory of constitutional interpretation which is the basic also has more attention. However there is no a perfect theory of constitutional interpretation even in the United States which has various of theories. What the practice of judicial review had done in two hundred history tells us that the key of contention is the approach of constitutional interpretation above all theories of constitutional interpretation. Different approach of interpretation results in different conclusion. Choosing the approach of interpretation is to distributing the rights among all institutions in nature. So, there is not only theory's value but also practice' value in studying of the approach of interpretation.There is no the same system of judicial review as the United States in our country, but it never means that there is on need of interpreting constitution. It is greatly useful for our system construction by referring to and absorbing the concerning foreign theories. Analyzing the theories of the United States can reflect the advantages and the disadvantages of our country's and know what should be paid more attention. All is useful for our theory of constitutional interpretation.This thesis can be divided into four parts:Because of the common conflict between the practice and the theory, the first part of the thesis illustrates some basic questions relating to the approach of constitutional interpretation. They are : How to justify the system of judicial review under the reproach of counter-majority; Why the constitution enacted by the predecessor is still valid in our times? How to justify the federal supreme court as the body of constitutional interpretation. Those three questions are relating to the reproach being countered by the choice of approach of interpretation. They are premises of constitutional interpretation. And choosing rational approachs of interpretation in return will reduce the oppugns to those three questions.The second part is to give a comment on the theory of approach of constitutional interpretation of the United States. After analyseing and evaluating some classifying of approach of interpretation, I give my view: Every factor of constitutional interpretation is subtle and complicated, so it is hard to obtain the prescribed effect if classifying the approach of interpretation. The methodology is not as the same as other, it can't justify itself by the opposite's unjustified. Therefore, we should analyse the single factor independently. Then I introduce some authority of the United States, such as Robert H Bork, Keith E. Whittington, Ronald Dworkin and Andrei Marmor.In the third part, I summarize the factors which have impacted in the practice of the United States' constitutional interpretation. They are the intention of framers, the intention of the original people, the original meanings of the text, the current meanings of the text, the purpose of the constitution, the value of interpreter, the moral of current people, the factor of politics, social avail, prcedents and so on. Because of inevitable limitations, no single factor can be dominant. But from the theories and the practice, there are some factors which are inevitable in the process of constitutional interpretation. They are text, the value of interpreter and political factor.The constitutional text is stationary, but the behaviors applying to it are flexible. The constitutional interpretation has encountered many difficulties. The fourth part trys to search the rational approachs of interpretation. We should consider all factors and treat each factor equally, especially take the inevitable factors into account. We should take different measures according to different questions. More important, we should adopt a correct attitude and reasonable sense to restrict ourselves as an interpreter. Our environment of constitutional interpretation is different from the United States. And up to present, we have been short of chance of constitutional interpretation practice. But we can check our actuality comparing with the system of constitutional interpretation in United States and absorb the useful experience on the protection of the fundamental rights.