Law: Journal of the Higher School of Economics
Pierre Schlag, On Creativity in Constitutional Interpretation, 2014 Law: J. Higher Sch. Econ., no. 2, at 142, available at https://scholar.law.colorado.edu/articles/1280/.
In the present article a particular aspect of constitutional interpretation will be considered. This aspect is called "creative" and involves retrieving the meaning of an object of interpretation. It is with regard to this particular aspect or moment of interpretation that creativity is often viewed as something to be avoided, to be shunned. If the task at hand is to "retrieve" some meaning, then the idea that this meaning can be created, in whole or in part, seems quite simply antithetical to the enterprise at hand. It suffices to note that many jurists and legal thinkers believe that interpretation as retrieval is an essential aspect of constitutional interpretation. Constitutional interpretation, is shaped by the legitimating need to anchor decisions in authority. That is very much part of the legitimation structure of constitutional law—important not just to the citizenry, but to judges and to legal academics. Over the practice and the idea of constitutional interpretation have become marked with the forms of this legitimation structure. The notion then that judges would be creative in their interpretations seems antithetical to both the practice and the idea of legal interpretation. The introduction of creativity in constitutional interpretation accordingly appears to deny the authority of authority.
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