What are Constitutions, and What Should (and Can) They Do?

Social Philosophy & Policy, Vol. 28, 2010

San Diego Legal Studies Paper No. 10-005

39 Pages Posted: 15 Jan 2010  

Larry Alexander

University of San Diego School of Law

Date Written: January 13, 2010

Abstract

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.

Keywords: constitution, validity, entrenchment, rights, principles, interpretation, morality, structures, judicial review

JEL Classification: K10, K39

Suggested Citation

Alexander, Larry, What are Constitutions, and What Should (and Can) They Do? (January 13, 2010). Social Philosophy & Policy, Vol. 28, 2010; San Diego Legal Studies Paper No. 10-005. Available at SSRN: https://ssrn.com/abstract=1536040

Lawrence Alexander (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

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