Between Clause-bound Literalism and Value Imposition: A Positivist Noninterpretivist Theory of Judicial Review
This chapter shows why both positivist interpretivism and nonpositivist noninterpretivism are inadequate theories of constitutional interpretation. It addresses the shortcomings of these theories, attempts to demonstrate that each has important contributions to make toward an adequate theory of judicial review. The chapter outlines the position of the positivist noninterpretivist. Using the positivist interpretivist criterion for judging legislative enactments unconstitutional, only those enactments that violate clear passages in the Constitution could legitimately be struck by the courts as unconstitutional. The central defect in positivist interpretivism is that that theory does not sanction judicial imposition of any extraconstitutional values. Positivist noninterpretivism has the court look to the understanding and will of a consensus of the people with respect to unclear constitutional provisions in order to determine the meaning of such provisions. For the positivist noninterpretivist the will of the sovereign, even with respect to questions of fundamental law, is fluid and mutable; it changes as the will of the people changes.