constitutional rights. In addition, rights-protective courts may believe that the
anxieties about the judicial articulation of social rights can be substantially
addressed by acknowledging only relatively modest powers to enforce those rights
through judicial decree. Mark Tushnet, for example, has noted what may
be, in some systems, a preference for combining strong articulations of social
entitlements with relatively weak judicial enforcement powers (Tushnet 2004 ).
6 Constitutional Interpretation and
Change
.........................................................................................................................................................................................
Constitutions cannot fulWll their functions simply by existing; they must be
implemented. The foundational task in implementing a constitution is interpret-
ation. Researchers have diVered profoundly in their views as to the nature of the
interpretive enterprise, and whether legal actors, most notably judges, are guided
substantially in their constitutional judgments by what the Constitution says or
rather by personal preferences external to the law.
The position that legal actors are wholly unconstrained by what a constitution
says seems implausible; the rules that a constitution formally embodies surely do
matter. For example, if the United States Constitution permitted Congress to oust
presidents on grounds more easily demonstrated than ‘‘high crimes or misde-
meanors,’’ the balance of powers between the elected branches of the federal
government would surely be diVerent than they are today. Likewise, if the text
speciWcally stated, ‘‘Neither Congress, nor any state shall inXict a sentence of death
for any crime,’’ then the United States would have a diVerent system of justice from
the one that has developed under the more general proscription of ‘‘cruel and
unusual punishment.’’ Nonetheless, the relationship between constitutional text
and the actual behavior of governments remains diYcult to specify. Whether, for
example, Britons enjoy materially less communicative liberty than do Americans
because they lack a written Bill of Rights is debatable. 9 We may wonder whether
Japanese women enjoy greater equality than do American women, notwithstanding
the provision of the Japanese Constitution that ‘‘there shall be no discrimination in
political, economic or social relations because of... sex.’’ Indeed, because of the
likely gaps that exist everywhere between constitutional text and the realities of
9 The absence of a written Bill of Rights in Great Britain may be of especially tenuous signiWcance
since the United Kingdom became a signatory, in 1953 , to the European Convention on Human
Rights, which has been ‘‘a fruitful source of rights for the individual’’ (DeSmith and Brazier 1989 , 426 ).
202 peter m. shane