Where is the constitution ambiguous

In Part II, we explain how a reliance on historical practice fits with various non-originalist and originalist approaches to constitutional interpretation. We turn in Part IV from the relationship between methodology and practice to the relationship between practice and ambiguity. In responding to Justice Scalia, we also offer thoughts on how best to define a historical gloss approach, including how to specify its limits. Bradley, Curtis A. Law Commons. Advanced Search. Privacy Copyright.

The author concludes that despite its flaws, Article III's judicial system is still a model system of dispute resolution. To view the content in your browser, please download Adobe Reader or, alternately, you may Download the file to your hard drive. Advanced Search. Privacy Copyright. Vanderbilt Law School Faculty Publications. Authors Tracey E. The interpretive implications of the Constitution have received attention from time to time, but far more attention has been focused on its remedial dimensions, which are encapsulated in subsection 52 1 of the Constitution Act, This fundamental constitutional rule is augmented by section 24 of the Canadian Charter of Rights and Freedoms, which provides for applications "to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

To what extent can legislative interpretation be used to avoid a constitutional inconsistency? And is there an interpretive role for constitutional norms beyond serving as a basis for a judicial remedy that turns on invalidity?

These questions implicate two related presumptions that the courts apply in dealing with constitutional questions. One is persuasive in nature the presumption of validity , and the other is interpretive the presumption of compliance.

However, the interpretive presumption operates only when there is ambiguity in the legislative text. This article begins by considering the presumption of compliance and the application of the ambiguity threshold in relation to constitutional norms, principally those recognized by the Charter.

It first looks at how the Supreme Court of Canada has addressed the ambiguity threshold in interpretive questions, and then looks at how it has more recently eliminated this threshold in relation to interpretive questions arising in the exercise of administrative discretion. This has produced distinctly different interpretive approaches as between courts and administrative tribunals.

It is difficult to justify this inconsistency, and the article concludes that the ambiguity threshold for considering constitutional norms should be eliminated generally in favour of a more principled approach to managing the scope of legislative interpretation.

In every interpretive exercise, the interpreter--whether a court or some other body or person--must select the particular interpretive tools that lead to a compelling conclusion. This involves using those tools that provide a compelling basis for an interpretive result.