The Modern Constitutional State: A Defence
(2014) 40 Queen’s Law Journal 165
48 Pages Posted: 26 Sep 2015
Date Written: September 25, 2015
In the world of constitutional law, theory and practice are moving in opposite directions. As a matter of legal practice, since the end of the Second World War a groundbreaking constitutional paradigm has emerged. This paradigm integrates (1) a constitution that exhaustively establishes the conditions for the valid exercise of all public authority, (2) a constitutionally entrenched bill of rights that delineates the right of persons, by virtue of their dignity, to just governance, and (3) a politically independent judicial body to which any individual can bring a constitutional complaint challenging the validity of any exercise of public authority that violates a constitutional right. As a matter of theoretical justification, however, this phenomenon remains enigmatic. Its defenders often argue that modern constitutionalism is justified because it contributes to the realization of some morally desirable outcome, for example, elevated levels of public debate or just decisions. Such justifications are open to a devastating skeptical challenge: The various benefits that constitutionalism is purported to bring may be realized in its absence, while the presence of constitutional arrangements provide no guarantee that the benefits will accrue.
This essay formulates a justification of modern constitutionalism that is not vulnerable to this objection. Instead of justifying modern constitutionalism by appealing to benefits that could be achieved in its absence, the author argues that modern constitutionalism is a systematic response to a moral problem involving public authority that every legal system must address, but that cannot be addressed apart from the legal and institutional structure of a modern constitutional state. The problem — common to all precursors of modern constitutionalism — is not that the government necessarily exercises public authority in a manner that violates the human dignity of the ruled, but that in the event of a violation one or more persons are left without legal recourse. To address this problem, one requires a legal and institutional structure that enables any individual to challenge the validity of any exercise of public authority by raising a constitutional complaint. This is exactly what the modern constitutional state — and only the modern constitutional state — provides.
Keywords: constitutional law, rights, human dignity, judicial review, Canada, South Africa, Germany, accountability, Waldron, Harel
JEL Classification: K10
Suggested Citation: Suggested Citation