ARTICLE: Benjamin B. SAUNDERS & Simon P. KENNEDY, "History and Constitutional Interpretation: Applying the ‘Cambridge School’ Approach to Interpreting Constitutions" (Oxford Journal of Legal Studies XL (2020), No. 3, 591-618)

 

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Abstract:

Constitutions are products of an alien culture. Constitutions are also ‘instruments of government’ and must be relevant to serve the needs of modern society. How ought we to reconcile the competing pressures that arise from the nature of a document that is at one and the same time a historical artefact and an instrument of contemporary government? We propose an answer modelled on the ‘Cambridge method’ of textual interpretation, whereby a constitution must first be considered as a historical text, on its own terms, without regard to today’s controversies. We argue that the best way of understanding a constitution is to take account of its historical context, and that meaning derived in this way ought to be the starting point when considering the provisions of the constitution. However, we consider that the historical context need not be determinative of the contemporary meaning of the constitution, and so departures from that meaning may be appropriate in some situations

(read further with OUP: DOI 10.1093/ojls/gqaa013)