Expounding the Constitution: Essays in Constitutional Theory

Abstract

Constitutional interpretation is a serious matter in any political community committed to the rule of law. Widespread disagreement about the most fundamental moral issues is to be expected, and it is bound to play itself out in the interpretation of legal rights. The essays that make up this volume - contributed by some of the most accomplished legal philosophers and constitutional law scholars in the common law world - address three pressing issues in contemporary constitutional interpretation and constitutional theory: (1) the role of moral reasoning in constitutional interpretation; (2) the legitimacy and justification of judicial review; and (3) the place of unwritten constitutional principles in the constitutional order. Although these papers reflect the jurisdictional roots of their authors, they are theoretical works of wide application rather than doctrinal accounts of the workings of the constitution of any particular jurisdiction.

Contents

Part I Morality and the Enterprise of Interpretation 1. Steven D. Smith, "What Does Constitutional Interpretation Interpret?" 2. Jeremy Waldron, "Do Judges Reason Morally?" 3. W.J. Waluchow, "Constitutional Morality and Bills of Rights" 4. Bradley W. Miller, "Justification and Rights Limitations"

Part II Judicial Review, Legitimacy, and Justification 5. Larry Alexander, "Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling the Issues" 6. David Dyzenhaus, "The Incoherence of Constitutional Positivism" 7. James Allan, "The Travails of Justice Waldron" 8. Aileen Kavanagh, "Deference or Defiance?: The Limits of the Judicial Role in Constitutional Adjudication"

Part III Written and Unwritten Constitutional Principles 9. T.R.S. Allan, "Constitutional Justice and the Concept of Law" 10. Mark D. Walters, "Written Constitutions and Unwritten Constitutionalism" 11. Jeffrey Goldsworthy, "Unwritten Constitutional Principles"

Keywords: Constitutional theory, judicial review, comparative constitutional law, bills of rights, unwritten constitutional principles, moral reasoning

JEL Classification: K10, K19, K30, K39