Constitutions, Courts, and History

Preface and Acknowledgements INTRODUCTION Constitutional Adjudication Haunted by Indeterminacy CHAPTER ONE Historical Narratives in Constitutional Reasoning: Intuitions and Myths Revisited 1.1. History and tradition as accounts of the past: the need for a better distinction, or time to adopt a (not so) new methodology? 1.2. Common-law reasoning, Edmund Burke, and conservative/liberal ideals 1.3. Conclusion: towards a better understanding of historical narratives CHAPTER TWO An Overview of Arguments Used in Constitutional Adjudication 2.1. The limits of textualism in constitutional reasoning 2.2. Courts reaching beyond the text: means of construction outside the constitutional text 2.3. Arguments from context: the trace of the past, history, and traditions in constitutional cases 2.4. Conclusion: variety and recurring traits in constitutional argument CHAPTER THREE The Constitutional Text in the Light of History 3.1. Constitutions on their pasts; courts on the past of their constitutions 3.2. One Pole: the constitutional text calling for an inquiry into history 3.3. The middle of the continuum: a brief overview 3.4. The other pole: history as constitutional text in the Québec secession reference 3.5. Summary of findings: towards disenchantment CHAPTER FOUR Behind Historical Narratives: The Promise of Continuity 4.1. On the vices and virtues of continuity in constitutional adjudication 4.2. Constructing constitutional continuity from the building blocks of preferred pasts 4.3. Seeing continuity and making it make a difference: lessons from transitional justice jurisprudence 4.4. Conclusion without closure: deceived by continuity in constitutional reasoning CHAPTER FIVE The Fruits of Reconciliation: A Bittersweet Harvest 5.1. The many faces of reconciliation and their many implications 5.2. Canada: continuity and reconciliation rhetoric hand in hand 5.3. Reconciliation winning over continuity in Hungarian transitional justice jurisprudence 5.4. Indigenous people in the maze of reconciliation: the suppressed subject revisited 5.5. Conclusion: the unfulfilled promise of reconciliation CONCLUSION Bibliography Index