Interpreting Fundamental Rights from the (Parliamentary) Bench. Notes on Constitutional Argumentation in Legislative Debates

Many legal systems have traditionally relied on special judicial bodies as ultimate interpreters of the meaning of fundamental rights. An example of this is the Spanish Constitutional Court, charged with the task of defending the 1978 Constitution against any measure that contravenes its contents, values or principles—as the court construes them. However, for several decades now this situation has been called into question as a threat to the principles of democracy and popular sovereignty. If parliament represents the will of the people, what justifies that the Constitutional Court, which is not directly elected by citizens and is not accountable to them, can invalidate parliamentary legislation? Based on this idea, a political-deliberative conception of constitutionalism has developed which competes with traditional, legal-judicial approaches to constitutionalism. Within political-deliberative constitutionalism we find different strands and proposals; but all are united in emphasising the role of parliament as the primary constitutional interpreter. However, there is little empirical or applied research on the actual capacity of parliament and its members at the task of constitutional interpretation, especially with regard to fundamental rights. This chapter attempts to explore this capacity in the case of the Spanish parliament: I will analyse some legislative deliberations and look for traces of constitutional argumentation and interpretation, with the aim of contributing, from a practical point of view, to the scholarly discussion about who should have the “last word” on the meaning of our fundamental rights.