What are Constitutions, and What Should (and Can) They Do?
University of San Diego School of Law
January 13, 2010
Social Philosophy & Policy, Vol. 28, 2010
San Diego Legal Studies Paper No. 10-005
A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other non-constitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from non-constitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.
I shall proceed as follows: In section I, I take up law’s principal function of settling controversies over what we are morally obligated to do. In section II, I then relate law’s settlement function to the role of constitutional law. In particular, I discuss how constitutional law is distinguished from ordinary law. And I also discuss the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III, I address the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, I discuss constitutional change, both change that occurs through a constitution’s own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.
Number of Pages in PDF File: 39
Keywords: constitution, validity, entrenchment, rights, principles, interpretation, morality, structures, judicial review
JEL Classification: K10, K39Accepted Paper Series
Date posted: January 15, 2010
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