Searching for relevant arguments: the structure of constitutional argumentation

Being a kind of evaluation activity, constitutional review requires proceeding with a set of tasks, starting from determining criteria for constitutionality, describing prescriptive properties of challenged legal norms, and ending with their comparison, which results in the complex nature of constitutional argumentation. Analyzing what elements the structure of constitutional argumentation consists of, the author demonstrates that a primary thesis of constitutional argumentation can be presented as a normative statement containing an indication of the circumstances in which a legal norm at issue is implemented, followed by a positive or negative judgment about its constitutionality. In doing so, a constitutional review organ may specify a primary thesis by expanding or narrowing the scope of judicial review and framing constitutionally significant circumstances in which a challenged legal norm is to be enforced (typical law enforcement situation). Since the structure of argumentation expresses the connection between premises and a thesis, the article explores the grounds on which certain statements are recognized as relevant to the unfolding discussion about the constitutionality of legal norms. In the author’s view, arguments can be identified as relevant if they strengthen constitutional normativity. At the constitutionally due level, this strengthening occurs through unleashing the regulatory potential of constitutional provisions, whereas, at the level of normatively present, constitutional normativity intensifies when a constitutional review organ accurately describes prescriptive properties of challenged legal norms and indicates ways to address their unconstitutionality. Taking into account how constitutional review is exercised, the author identifies three argumentation levels: prescriptive, where a court should set constitutional standards of lawmaking; descriptive, where a court gives an accurate description of prescriptive properties of challenged legal norms; evaluative, where legal norms at issue should be directly compared to constitutional provisions. Finally, the article examines argumentation schemes used to justify court rulings that diverge from a primary thesis on constitutionality. It is shown that these arguments do not per se affect the conclusion about the unconstitutionality of the challenged legal norms but only lead to the decision to temporarily keep struck down legal norms in force.