Abstract
Independent courts express what is law, but cannot enforce their judgments. When announcing limits on what those in power can do, constitutional courts have cause to give the most convincing reasons they can for those in power to defer to the courts’ judgments. Where a writ- ten constitution has become widely accepted to embody and implement the will of the people, courts may strengthen the moral support for their judgments by grounding those judg- ments as deeply as possible in the constitution’s text. Where a written constitution distributes power between levels of government by enumerating and assigning subjects of power, courts may strengthen the practical support for their judg- ments by grounding those judgments as deeply as possible in the indispensable umpiring role that courts derive from the constitutional distribution of power. Where a written consti- tution enumerates subjects of power but does not elaborate on what relation to those subjects governing acts must have to fit within those powers, the written constitution requires dispute resolvers to create a law of constitutional characterization to settle the actual distribution of power between governments. In creating that law, courts can use their written constitu- tional mandate to create an implied bill of rights.
Recommended Citation
Claus, Laurence
(2021)
"The Law of Constitutional Characterization,"
National Law School of India Review: Vol. 33:
Iss.
1, Article 11.
Available at:
https://repository.nls.ac.in/nlsir/vol33/iss1/11
