Fixed and Non-fixed Meaning in Constitutional Interpretation: Waluchow’s Answer to Humpty Dumpty’s Paradox

This chapter discusses the concept of interpretation in Waluchow’s book A Common Law Theory of Judicial Review: The Living Tree as a standpoint for a reorientation of the idea of charter review. In Waluchow’s argument, the problems usually regarded as inherent to constitutionalism and to the judicial entrenchment of a charter of rights are strongly reoriented as soon as we abandon an image of fundamental rights as fixed limits. The chapter is divided into two parts. The first part presents the conception of interpretation as a conversational model—that is, the idea that interpreters are bound to a plain meaning that has already been given, either by literal comprehension or a conventional reading, and need only be enforced by the interpreter. It then summarizes the methods of interpretation at hand, since this conversational model is acknowledged as correct. In the second part, the chapter presents the non-fixed meaning conception of interpretation and discusses which elements are necessary for it to take place. The chapter concludes by raising some epistemological problems of the common law theory of constitutional interpretation—particularly the fact that it depends on some basic intuitions of the interpreter regarding a community’s constitutional morality.