What would a pluralist institutional approach to constitutional interpretation look like? Some methodological implications

Abstract

Abstract This article makes the case for adopting a genuinely pluralist perspective when studying constitutional interpretation and sets out the principal forms such inquiries can take. While it has now been accepted that the court-centricity that characterized much of the earlier work on constitutional interpretation must be recalibrated, the approach taken in much constitutional scholarship remains underinclusive, as the role of executives, agencies, ad hoc commissions, and social actors in constructing the meaning of the constitutional text is often downplayed, or altogether overlooked. We argue that a pluralist perspective is necessary to fully appreciate the practice of constitutionalism in each jurisdiction and enable more informed analyses of the relationship between constitutions and law-making. Through a series of case studies, we further demonstrate that, while nonjudicial interpretation is an important practice in all countries, such a perspective could be particularly apposite in dominant-party states, as well as those favoring political constitutionalism, where courts are unlikely to position themselves as the principal, let alone exclusive, authority on what the constitution means. This article also explores the methodological implications in designing pluralistic constitutional interpretation studies, focusing on the questions that await investigation, the core variables at play, and the particular hazards in collating and assessing the materials that must be reckoned with.