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The hydraulics of constitutional claims: Multiplicity of actors in constitutional interpretation

Research output: Contribution to journalArticle

Original languageEnglish
Pages (from-to)211-247
Number of pages37
JournalUniversity of Toronto Law Journal
Issue number2
Early online date21 Dec 2018
DateAccepted/In press - 28 Aug 2018
DateE-pub ahead of print - 21 Dec 2018
DatePublished (current) - 1 Mar 2019


Who makes constitutional claims? This article argues that on both sides of the Atlantic a multiplicity of constitutional actors outside the courts participate in the elaboration of constitutional principles. I map out these constitutional actors by using as a case study the legal recognition of same-sex marriage in the United States, Spain, the United Kingdom, and Ireland. In all four country cases, there are common functional demands for democratic involvement in shaping constitutional meaning. Even though these demands may take various institutional and procedural forms owing to diverse political, institutional, and cultural contexts, I argue that the same overarching hydraulics effect is at play across jurisdictions. When social movements are shut out of one forum, they channel their constitutional claims through different institutional avenues. The four systems represent distinctive models of formal recognition of same-sex marriage, with different actors taking the lead and appearing to have the final say on this contested issue. However, I explain that in all four cases we can detect the voices of multiple actors, including, notably, the people themselves, in a process of legal contestation around the interpretation of fundamental constitutional principles. These voices can take different forms, and the article proposes institutional, historical, political, and cultural factors that may account for this. Thus, the article tells a story of legal development arising from inclusive interpretive communities in the context of a democratic constitutional theory. This framework facilitates dynamic constitutional interpretation that reflects evolving political and social demands instead of top-down delivery of constitutional meaning.

    Research areas

  • Comparative public law, Constitutional interpretation, Democratic constitutionalism, Ireland, Legal constitutionalism, Same-sex marriage, Spain, United Kingdom, United States



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