John Hart Ely and Antonin Scalia

the north american philosophy of constitution

Abstract

The issue of this article is to analyse some of the possible answers which the constitutional hermeneutics can provide to the incompleteness of the law. The deep point of our problem focused in this article is that the typical Constitutions from Western democracies has evident limitations on the setting of its contents, remaining wide spheres of uncertainty, still covered and maximised by the limitation of the natural language, whose interpretation and determination on the concrete case is problematic. Adopting that all efforts from the law natural of the constitutions can´t obtain success to read a detailed and accurate text, stand out the task of interpretation of the Constitution. To analyse that problem the article delimitate the analysis area clearly at the horizon of the debate between the originalism and interpretativism. The proposal of this article is to foster the debate proposed by that traditions of constitutional hermeneutics specially in its approach on the problem of the incompleteness of the Constitutions and the judicial ways to answer the concrete problems, designing the enlargement of the possibilities to understand the limits of the free judicial creation and the constraints in its mission to enforce the law in the Rule of Law. To perform this analysis the theoretical references which was mobilized was John Ely and Antonin Scalia.