Miguel Poiares Maduro, In Search of a Meaning and Not in Search of the Meaning: Judicial Review and the Constitution in Times of Pluralism, Wisconsin Law Review 541 (2013)
This Article revisits the traditional debate on the role of courts in relation to the constitution. It highlights how this debate often ignores the nature of constitutionalism itself. It is argued that, first, traditional theories of judicial review fail to fully recognize and engage with the pluralist character of constitutionalism and, second, that constitutionalism is incompatible with the single institutional preferences expressed by those different theories of judicial review. This argument is linked to a conception of constitutionalism that does not limit its role to taming politics and entrenching certain values so as to protect them from ordinary politics. Instead, constitutionalism is also about making politics possible and productive. This conception of constitutionalism has important consequences for the role of courts and the nature of constitutional interpretation. Constitutions are more about framing the search for meaning in a political community than the revelation of a meaning that has been previously set into constitutional rules. The Article concludes by putting forward a model of discursive interpretation that, it is argued, better fits the role to be played by courts in light of the current nature of constitutionalism.