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Hastings Constitutional Law Quarterly

Authors

Richard Stith

Abstract

As the distinction between interpretation and politics diminishes, the need for pluralism in interpretation increases. The Article argues, first, that the rule of law requires that no one tribunal possess the power to subordinate a whole legal system to its politicized rule.

The Article then uses comparative legal study to analyze two tested alternatives to concentrating interpretive authority in a single court. Under the "separation of powers" approach, some or many jurisdictionally distinct institutions are granted powers to interpret and apply the constitution and the laws. A multiplicity of interpreters helps to prevent domination by any one legal ideology and to encourage reasoned dialogue about the meaning of law.

"Checks and balances" likewise can hobble doctrinal despotism by requiring various degrees of coordination among interpreters of the law. Under the version that this Article favors, each interpretation of law (or at least of constitutional law) binds only as to the claims in the case at hand, with no stare decisis control over future decisions. The efforts of any interpreter to dominate and control political developments may thus be checked and balanced by loyalty to the law and constitution themselves, wherever that interpreter seems to stray too far from the source of its authority. In this way, even in a skeptical age, courts and other public authorities are given an incentive to construct arguments convincingly moored to governing law. Despite its difficulties, we need not abandon the rule of law.

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