The conundrum of constitutionally conforming interpretation

This paper examines the doctrine or canon of constitutionally conforming interpretation in constitutional adjudication in Portugal. It begins by posing the following conundrum unveiled by the doctrine: on the one hand, it is very hard if at all possible to draw a line between constitutionally conforming interpretation and judicial review of constitutionality; on the other hand, statutory construction is always already constitutionally conformed, namely by basic principles and fundamental rights. It follows that there are no obvious conceptual limits to the jurisdiction of a specialized constitutional court. Following a brief description of the main features of the Portuguese system of judicial review of legislation, which departs from the standard post-war model in a number of noteworthy respects, the paper discusses the ways in which the case law of the Constitutional Court manages the challenge to its own jurisdictional boundaries posed by the doctrine of constitutionally conforming interpretation in two main realms of activity: incidental control and abstract review. It then concludes that the Portuguese case illustrates the unsettled ambivalence between two grand conceptions of constitutional adjudication in a liberal democracy: a restrictive one as a counterpart to the democratic legislature and an expansive one as the paramount forum of constitutional interpretation.