Constitutionalism (Stanford Encyclopedia of Philosophy)

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In some minimal sense of the term, a constitution consists of a set of
norms (rules, principles or values) creating, structuring, and
possibly defining the limits of, government power or authority.
Understood in this way, all states have constitutions and all states
are constitutional states. Anything recognizable as a state must have
some means of constituting and specifying the limits (or lack thereof)
placed upon the three basic forms of government power: legislative
power (making new laws), executive power (implementing laws) and
judicial power (adjudicating disputes under
laws).[1]
Take the extreme case of an absolute sovereign, Rex, who combines
unlimited power in all three domains. Suppose it is widely
acknowledged that Rex has these powers, as well as the authority to
exercise them at his pleasure. The constitution of this state might
then be said to contain only one rule, which grants unlimited power to
Rex. He is not legally answerable for the wisdom or morality
of his decrees, nor is he bound by procedures, or any other kinds of
limitations or requirements, in exercising his powers. Whatever Rex
decrees is constitutionally valid.

When scholars talk of constitutionalism, however, they normally mean
something that rules out Rex’s case. They mean not only that there are
norms creating legislative, executive and judicial powers, but that
these norms impose significant limits on those
powers.[2]
Often these limitations are in the form of civil rights against
government, rights to things like free expression, association,
equality and due process of law. But constitutional limits come in a
variety of forms. They can concern such things as the scope
of authority (e.g., in a federal system, provincial or state
governments may have authority over health care and education while
the federal government’s jurisdiction extends to national defence and
transportation); the mechanisms used in exercising the
relevant power (e.g., procedural requirements governing the form and
manner of legislation); and of course civil rights (e.g., in
a Charter or Bill of Rights). Constitutionalism in this richer sense
of the term is the idea that government can/should be limited in its
powers and that its authority depends on its observing these
limitations. In this richer sense of the term, Rex’s society has not
embraced constitutionalism because the rule conferring his powers
impose no constitutional limits on them. Compare a second state in
which Regina has all the powers possessed by Rex except that she lacks
authority to legislate on matters concerning religion. Suppose further
that Regina also lacks the power to implement, or to adjudicate on the
basis of, any law which exceeds the scope of her legislative
competence. We have here the seeds of constitutionalism as that notion
has come to be understood in Western legal thought.

In discussing the history and nature of constitutionalism, a
comparison is often drawn between Thomas Hobbes and John Locke who are
thought to have defended, respectively, the notion of constitutionally
unlimited sovereignty (e.g., Rex) versus that of sovereignty limited
by the terms of a social contract containing substantive limitations
(e.g.,
Regina).[3]
But an equally good focal point is the English legal theorist John
Austin who, like Hobbes, thought that the very notion of limited
sovereignty is incoherent. For Austin, all law is the command of a
sovereign person or body of persons, and so the notion that the
sovereign could be limited by law requires a sovereign who is
self-binding, who commands him/her/itself. But no one can command
himself, except in some figurative sense, so the notion of limited
sovereignty is, for Austin (and Hobbes), as incoherent as the idea of
a square
circle.[4]
Though at one time this feature of Austin’s theory had some surface
plausibility when applied to the British system of government, where
Parliament was often said to be supreme and constitutionally
unlimited,[5]
it faces obvious difficulty when applied to most other constitutional
democracies such as one finds in the United States, Canada, Mexico and
Germany, where it is abundantly clear that the powers of government
are legally limited by a constitution. Austin’s answer to this
apparent weakness in his theory was to appeal to popular
sovereignty
, the idea that sovereign power ultimately resides in
‘the people’, that is, the population at large.
Government bodies—e.g., Parliament, the President or
the judiciary—can be limited by constitutional law, but the
sovereign people remain unlimited in their powers to command. Whether
this appeal to popular sovereignty provides Austin with an adequate
means of dealing with constitutional democracies is questionable. For
Austin’s sovereign is supposed to be a determinate individual or group
of individuals whose commands to the bulk of the population
constitute law. But if we identify the commanders with the people
themselves, then we seem inexorably led to the paradoxical result
identified by H.L.A. Hart—the commanders are commanding the
commanders. In short, we lapse into incoherence (Hart 1994,
73–78; Austin 1995, Lecture VI).

Though there are serious difficulties inherent in Austin’s attempt to
make sense of the people’s ultimate sovereignty, his account, with all
its weaknesses, does reveal the need to distinguish between two
different concepts: sovereignty and government. Roughly speaking, we
might define sovereignty as the possession of supreme (and
possibly unlimited) normative power and authority over some domain,
and government as those persons or institutions through whom
that sovereignty is exercised. Once some such distinction is drawn, we
see immediately that sovereignty might lie somewhere other than with
the government and those who exercise the powers of government. And
once this implication is accepted, we can coherently go on to speak of
limited government coupled with unlimited
sovereignty. Arguably this is what one should say about constitutional
democracies where the people’s sovereign authority is thought to be
ultimate and unlimited but the government bodies—e.g.,
legislatures, Presidents and courts—through whom that
sovereignty is exercised on the people’s behalf are constitutionally
limited and subordinate. As Locke might have said, unlimited
sovereignty remains with the people who have the normative power to
void the authority of their government (or some part thereof) if it
exceeds its constitutional limitations.

Though sovereignty and government are different notions, and normally
apply to different entities, it nevertheless seems conceptually
possible for them to apply to one and the same individual or
institution. It is arguable that Hobbes insisted on the identification
of sovereign and government insofar as he seemed to require a
(virtually) complete transfer of all rights and powers from sovereign
individuals to a political sovereign whose authority was to be
absolute, thus rendering it possible to emerge from the wretched state
of nature in which life is “solitary, poor, nasty, brutish and
short.”[6]
In Hobbes’ theory, ultimate, unlimited sovereignty must reside in the
supreme governmental person or body who enjoys unlimited power and
authority to rule the commonwealth. Anything less than such an
ultimate, unlimited sovereign would, given human nature and the world
we inhabit, destroy the potential for stable government and all that
it makes possible. So even if ‘sovereignty’ and
‘government’ express different notions, this neither means
nor implies that the two could not pertain to one and the same
entity.

According to most theorists, another important feature of
constitutionalism is that the norms imposing limits upon government
power must be in some way, and to some degree, be entrenched,
either legally or by way of constitutional
convention.[7]
In other words, those whose powers are constitutionally
limited—i.e., the institutions of government—must not be
constitutionally at liberty to change or expunge those limits at their
pleasure. Most written constitutions contain amending formulae which
can be triggered by, and require the participation of, the government
bodies whose powers they limit. But these formulae invariably require
something more than a simple decision on the part of the present
government, through e.g., Presidential fiat or simple majority vote in
the legislature, to invoke a change. Sometimes constitutional
assemblies are required, or super-majority votes, referendums, or the
agreement of not only the central government in a federal system but
also some number or percentage of the governments or regional units
within the federal
system.[8]
Entrenchment not only facilitates a degree of stability and
predictability over time (a characteristic aspiration of
constitutional regimes), it is arguably a requirement of the very
possibility
of constitutionally limited government. Were a
government institution entitled, at its pleasure, to change the very
terms of its constitutional limitations, we might begin to question
whether there would, in reality, be any such limitations. Consider
Regina once again. Were she entitled, at her discretion, to remove
(and perhaps later reinstate) the constitutional restriction
preventing her from legislating on some religious matter on which she
had strong views, then it is perhaps questionable whether Regina could
sensibly be said to be bound by this
requirement.[9]
On the other hand, were there a constitutional rule or convention
specifying that Regina is entitled to remove this restriction only if
she succeeds in convincing two thirds of her subjects to vote for the
change, then one might feel more comfortable speaking of
constitutional limitation. Of course this constitutional meta-rule or
convention is itself subject to change or elimination—a fact
that raises a host of further puzzles. For example, does such an act
require application of the very rule in question—i.e., two
third’s majority vote—or are the sovereign people of Regina’s
society at liberty to change or expunge it at their pleasure?
If we accept (a) the distinction between government and sovereignty
urged above; (b) that ultimate sovereignty resides in the people whom
Regina governs; and (c) that sovereignty cannot be self-limiting,
(X cannot limit X) then we might sensibly be led to
conclude that the constitutional meta-rule—and hence the
constitutional regime of which it is an integral part—both exist
at the pleasure of the general population of Regina’s society.
Entrenchment may be an essential element of constitutional regimes,
but it would seem that constitutions neither can nor should be
entrenched against the actions of a sovereign people.

Some scholars believe that constitutional norms do not exist unless
they are in some way enshrined in a written document (e.g., Rubenfeld
1998). But most accept that constitutions (or elements of them) can be
unwritten, and cite, as an obvious example of this possibility, the
constitution of the United Kingdom. One must be careful here, however.
Though the UK has nothing resembling the American Constitution and its
Bill of Rights, it nevertheless contains a number of written
instruments which have, for many centuries, formed central elements of
its constitution. Magna Carta (1215 C.E.) is perhaps the earliest
document of the British constitution, while others include The
Petition of Right (1628) and the Bill of Rights (1689). Furthermore,
constitutional limits are also said to be found in certain principles
of the common law, explicitly cited in landmark cases concerning the
limits of government power. The fact remains, however, that
historically the constitution of the UK has largely taken unwritten
form, suggesting strongly that writtenness is not a defining feature
of constitutionalism.

Why, despite the existence of seemingly obvious counter-examples,
might someone be led to think that constitutional norms must be
written rules, as opposed to more informal conventions or social
rules? One possible
reason[10]
is that unwritten rules and conventions are sometimes less precise
and therefore more open to interpretation, gradual change, and
ultimately avoidance, than written ones. If this were true, then one
might question whether an unwritten rule could, at least as a
practical matter, serve adequately to limit government power. But
there is no reason to accept this line of argument. Long standing
social rules and conventions are often clear and precise, as well as
more rigid and entrenched than written ones, if only because their
elimination, alteration or re-interpretation typically requires
widespread changes in traditional attitudes, beliefs and behaviour.
And these can be very difficult to bring about.

Does the idea of constitutionalism require, as a matter of conceptual
or practical necessity, the division of government powers urged by
Montesquieu and celebrated by Americans as a bulwark against abuse of
state power? In Regina’s case, there is no such separation:
legislative, executive and judicial power all reside in her person.
But how, it might be asked, can she be the one (qua judge) who
determines whether her legislation satisfies the prescribed
constitutional limitation? Even if, in theory, Regina’s
constitution prohibits her from removing her constitutional
restriction at will (because she must observe the 2/3rds meta-rule)
can she not always choose to ignore her restrictions, or to interpret
them so as to escape their binding force? Perhaps Bishop Hoadly was
right when he said (1717) in a sermon before the English King:
“Whoever hath an ultimate authority to interpret any written or
spoken laws, it is he who is truly the Law-giver to all intents and
purposes, and not the person who first wrote or spoke them.”
(quoted in Gray 1986, p.12). Although some constitutional limits,
e.g., the one which restricts the Mexican President to a single term
of office, seldom raise questions of interpretation, many others
(particularly those that concern civil rights) are ripe for such
questions. Regina might argue that a decree requiring all shops to
close on Sundays (the common Sabbath) does not concern a religious
matter because its aim is a common day of rest, not religious
observance. Others might argue, with seemingly equal plausibility,
that it does concern a religious matter and therefore lies outside
Regina’s legislative competence.

That constitutions often raise such interpretive questions gives rise
to an important question: Does the possibility of constitutional
limitation on legislative and executive power require, as a matter of
practical politics, that the judicial power by which such limitations
are interpreted and enforced reside in some individual or group of
individuals distinct from that in which these legislative and
executive powers are vested? In modern terms, must constitutional
limits on a legislative body like Parliament, the Duma or Congress, or
an executive body like the President or her Cabinet, be subject to
interpretation and enforcement by an independent judiciary?
Marbury v Madison settled this question in the affirmative as
a matter of American law, and most nations follow Marbury
(and Montesquieu) in accepting the practical necessity of some such
arrangement. But it is not clear that the arrangement truly is
practically necessary, let alone conceptually so. Bishop Hoadly
notwithstanding, there is nothing nonsensical in the suggestion that
X might be bound by an entrenched rule, R, whose
interpretation and implementation is left to X. This is,
arguably, the situation in New Zealand where the courts are forbidden
from striking down legislation on the ground that it exceeds
constitutional limits. Observance and enforcement of these limits are
left to the legislative bodies whose powers are nonetheless recognized
as constitutionally limited (and subject to whatever pressures might
be imposed politically when state actions are generally believed to
violate the constitution). It is important to realize that what rule,
R, actually requires is not necessarily identical with what
X believes or says that it requires. Nor is it identical with
whatever restrictions X actually observes in practice. This
is so even when there is no superior institution with the power and
authority to enforce compliance or to correct X’s judgment
when it is, or appears to be, wrong.

That constitutional limits can sometimes be avoided or interpreted so
as to avoid their effects, and no recourse be available to correct
mistaken interpretations and abuses of power, does not, then, imply
the absence of constitutional limitation. But does it imply the
absence of effective limitation? Perhaps so, but even here
there is reason to be cautious in drawing general conclusions. Once
again, we should remember the long-standing traditions within British
Parliamentary systems (including New Zealand’s) according to which
Parliament alone possesses final authority to create, interpret and
implement its own constitutional limits. And whatever their faults,
there is little doubt that many Parliaments modeled on the British
system typically act responsibly in observing their own constitutional
limits.

The idea of constitutionalism requires limitation on government power
and authority established by constitutional law. But according to most
constitutional scholars, there is more to a constitution than
constitutional law. Many people will find this suggestion puzzling,
believing their constitution to be nothing more (and nothing less)
than (usually) a formal, written document, possibly adopted at a
special constitutional assembly, which contains the nation’s supreme,
fundamental law. But there is a long-standing tradition of conceiving
of constitutions as containing much more than constitutional law.
Dicey is famous for proposing that, in addition to constitutional law,
the British constitutional system contains a number of constitutional
conventions which effectively limit government in the absence of legal
limitation. These are, in effect, social rules arising within the
practices of the political community and which impose
important, but non-legal, limits on government powers. An
example of a British constitutional convention is the rule that the
Queen may not refuse Royal Assent to any bill passed by both Houses of
the UK Parliament. Perhaps another example lies in a convention that
individuals chosen to represent the State of Florida in the American
Electoral College (the body which actually chooses the American
President by majority vote) must vote for the Presidential candidate
for whom a plurality of Floridians voted on election night. Owing to
the fact that they are political conventions, unenforceable in courts
of law, constitutional conventions are said to be distinguishable from
constitutional laws, which can indeed be legally enforced. If we
accept Dicey’s distinction, we must not identify the constitution with
constitutional law. It includes constitutional conventions as well. We
must further recognize the possibility that a government, though
legally within its power to embark upon a particular course
of action, might nevertheless be constitutionally prohibited
from doing
so.[11]
It is possible that, as a matter of constitutional law, Regina might
enjoy unlimited legislative, executive and judicial powers which are
nonetheless limited by constitutional conventions specifying how those
powers are to be exercised. Should she violate one of these
conventions, she would be acting legally, but unconstitutionally, and
her subjects might well feel warranted in condemning her actions,
perhaps even removing her from office—a puzzling result only if
one thinks that all there is to a constitution is constitutional
law.

As we have just seen, there is often more to a constitution than
constitutional law. As we have also seen, constitutional norms need
not always be written rules. Despite these important observations, two
facts must be acknowledged: (1) the vast majority of constitutional
cases hinge on questions of constitutional law; and (2) modern
constitutions consist primarily of written
documents.[12]
Consequently, constitutional cases often raise theoretical issues
concerning the proper approach to the interpretation of written
instruments—colored, of course, by the special role
constitutions play – or ought to play – in defining and limiting the
authority and powers of government. Differences of view on these
matters come to light most forcefully when a case turns on the
interpretation of a constitutional provision that deals with abstract
civil rights (e.g., the right to due process of law, or to
equality).[13]
How such provisions are to be interpreted has been subject to intense
controversy among legal practitioners and theorists. As we shall see,
stark differences of opinion on this issue are usually rooted in
different views on the aspirations of constitutions or on the
appropriate role of judges within constitutional democracies.

Theories of constitutional interpretation come in a variety of forms,
but they all seem, in one way or another, to ascribe importance to a
number of key factors: textual or semantic meaning; political, social
and legal history; intention; original understanding; and
moral/political theory. The roles played by each of these factors in a
theory of constitutional interpretation depend crucially on how the
theorist conceives of a constitution and its role in limiting
government power. Simplifying somewhat, there are two main rival views
on this question. On the one side, we find theorists who view a
constitution as foundational law whose principal point is to
fix a long-standing framework within which legislative,
executive and judicial powers are to be exercised by the various
branches of government. Such theorists will tend towards
interpretative theories which accord pride of place to factors like
the intentions of those who created the
constitution, or the original public understandings
of the words chosen for inclusion in the constitution. On such a
fixed view of constitutions, it is natural to think that
factors like these should govern whenever they are clear and
consistent. And the reason is quite straight forward. From this
perspective, a constitution not only aspires to establish a framework
within which government powers are to exercised, it aspires to
establish one which is above, or removed from, the deep disagreements
and partisan controversies encountered in ordinary, day to day law and
politics. It aspires, in short, to be both stable and morally
and politically neutral. To be clear, in saying that a
constitution aspires, on a fixed view, to be morally and politically
neutral, I in no way mean to deny that those who take this stance
believe that it expresses a particular political vision or a set of
fundamental commitments to certain values and principles of political
morality. Quite the contrary. All constitutional theorists will agree
that constitutions typically enshrine, indeed entrench, a range of
moral and political commitments to values like democracy, equality,
free expression, and the rule of law. But two points need to be
stressed.

First, fixed views attempt to transform questions about the moral and
political soundness of these commitments into historical questions,
principally concerning beliefs about their soundness. The
task is not to ask: What do we now think about values like
equality and freedom of expression? Rather, it is to ask: What did
they—the authors of the constitution or those on whose
authority they created the constitution—in fact think about
those values? What was their original understanding of them,
or the understanding among most members of the general population that
existed at the time of the constitution’s creation (or amendment, if
the provision in question was introduced at a later time)? So
stability and neutrality are, on fixed views, served to the extent
that a constitution is capable of transforming questions of political
morality into historical ones.

Second, no proponent of the fixed view will deny that the abstract
moral commitments expressed in a constitution tend to be widely, if
not universally shared among members of the relevant political
community. In that sense, then, the constitution, despite the moral
commitments it embodies, is neutral as between citizens and their many
more partisan differences of opinion on more particular moral
questions. Not everyone in a modern, constitutional democracy like the
US or Germany agrees on the extent to which the right to free
expression demands the liberty to express opinions that display and
promote hatred toward an identifiable religious or racial group. But
virtually no one would deny the vital importance of expressive freedom
in a truly free and democratic society. On fixed views, then,
constitutions can be seen as analogous to the ground rules of a
debating society. Each sets the mutually agreed, stable framework
within which controversial debate (and action) is to take place. And
just as a debating society could not function if its ground rules were
constantly open to debate and revision at point of application, a
constitution could not serve its role if its terms were constantly
open to debate and revision by participants within the political and
legal processes it aspires to govern. We avoid this result, according
to those whose espoused the fixed view, to the extent that we are able
to replace controversial moral and political questions with historical
questions about the intentions of constitutional authors in creating
what they did, or about how the language they chose to express a
constitutional requirement was publicly understood at the time it was
chosen.

To sum up: the desire for stability and neutrality leads modern
proponents of the fixed view to view constitutional interpretation as
an exercise which, when undertaken properly, focuses on authors’
intentions or on original understandings of the meaning and import of
the words chosen to express agreed limits on government power and
authority. Only if interpreters restrict themselves to such factors,
and do not attempt to insert their own contentious views under the
guise of ‘interpretation’, can the role of a constitution
be secured. Only then can it serve as the politically neutral, stable
framework its nature demands. Theorists who espouse this particular
view of constitutional interpretation are generally called
‘originalists’.

Not all constitutional theorists believe that the sole or overriding
role of a constitution is to set a stable, neutral framework for the
rough and tumble of partisan law and politics. Nor do all theorists
believe that constitutional interpretation consists of an attempt to
ascertain original understandings or authorial intentions. On the
contrary, many constitutional scholars embrace living
constitutionalism, an approach that sees a constitution as an
evolving, living entity which, by its very nature, is capable of
responding to changing social circumstances and new (and it is hoped
better) moral and political beliefs. Along with this very different
view of constitutions come very different theories regarding the
nature and limits of legitimate constitutional interpretation. One
strand within living constitutionalism, upon which we will be focus
below, stresses the extent to which constitutional interpretation
resembles the kind of reasoning that takes place in other areas of the
law pertaining to common law legal systems, such as the law of
contracts and torts. Just as the law of contributory negligence
emerged and evolved in common law countries in a case-by-case,
incremental manner, over many decades and as the product of many
judicial decisions, the law of equal protection, free expression, due
process and the like has evolved in modern western democracies as
constitutional cases have been decided over the years.

Disputes between originalists and living constitutionalists are among
the liveliest and most contentious to have arisen in constitutional
scholarship over the past several decades. Debates have tended to
focus on abstract civil rights provisions of constitutions, such as
the due process clause of the American Constitution, or Section 7 of
the Canadian Charter of Rights and Freedoms, which “guarantees
the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of
fundamental
justice.”[14]
Given the fixed view to which they are committed, contemporary
originalists view anything more than an attempt to discover, so as to
preserve and apply, original understandings of such provisions as
constitutional revision or ‘construction’, often masquerading as the
interpretation of an unchanged
original.[15]
On the other side, we find the living constitutionalists who view
originalism as a reactionary, overly conservative theory serving only
to tie a democratic community to the ‘dead hand of the
past.’ Originalists, their opponents claim, render us incapable
of responding rationally and responsibly to changing social
circumstances and improved moral views concerning the requirements of
the abstract values and principles articulated in modern
constitutions. Living constitutionalists, the originalist counters,
recommend constitutional practices that threaten a number of cherished
values, among them the rule of law and the separation of powers. They
are, in effect, happy to place the constitution in the hands of
contemporary judges who are licensed, under the guise of interpreting
it, to change the constitution to suit their own political
inclinations and moral preferences. And this, originalists claim, only
serves to thwart cherished values secured by having a stable,
politically neutral constitution, and may render all talk of genuine
constitutional constraint meaningless.

Originalism[16]
comes in a wide variety of forms (Bork 1990; Scalia 1997; Whittington
1999b; Barnett 2004; Solum 2008). An originalist might claim that her
view follows necessarily from a more general theory of interpretation:
to interpret is necessarily to retrieve something that
existed at the time of authorship—an original object. Another
might be happy to acknowledge that interpretation could,
theoretically, take the form of an innovative or
creative interpretation that evaluates or in some way changes
an original, as might be the case with a revolutionary interpretation
of a play or work of art. But such a theorist might go on to add that,
for reasons of political morality having to do with, e.g., the
principles of democracy, the rule of law, and values underlying the
separation of powers, such innovative interpretations ought never be
pursued by constitutional interpreters. The object of constitutional
interpretation should, to the greatest extent possible, remain fixed
by factors like original public understandings or authorial
intentions. Yet another originalist might be content to leave a little
leeway here, suggesting something like the following: though there is
a presumption, perhaps a very heavy one, in favor of interpretation as
retrieval of an original, it is one which can, on very rare occasions,
be overcome. For example, this originalist might say that the
presumption in favor of retrieval can be defeated when there is a
discernible and profound sea change in popular views on some important
issue of political morality implicated by an abstract constitutional
provision. This was arguably the case in the United States with
respect to slavery and equal protection. Presumably ‘equal
protection’ was originally understood, both by the authors of
the 14th Amendment and by the people on whose behalf they
acted, as fully consistent with segregation. This concrete
understanding of equal protection is now, of course, widely condemned.
Its wholesale rejection served as the main inspiration behind
Brown v. Board of Education, whose innovative interpretation
of the equal protection clause arguably changed or replaced the
original understanding of the
notion.[17]
Yet another concession, in this case one that seems embraced by all
originalists, concerns the force and effect of authoritative court
interpretations of the constitution. Many originalists believe that
Roe v.
Wade
[18]
rested on a mistaken interpretation of the United States
Constitution, one that flew in the face of original understandings and
intentions; but virtually no originalist will go so far as to deny
that any contemporary interpretation of the First, Fourth, Fifth,
Ninth and Fourteenth Amendments is justified only if it can be
reconciled with that decision. In other words, virtually all
originalists agree that established precedent can sometimes trump
original understanding. Whether this apparent concession is in the end
consistent with the spirit of originalism is, perhaps, questionable.
Such “faint-hearted originalism” (Scalia 1989) may reduce,
in the end, to a form of living
constitutionalism.[19]
Indeed, as we shall see in the next section, the role of judicial
interpretations of abstract constitutional provisions is central to
that prominent form of living constitutionalism which views
constitutional interpretation as resting on a form of common-law
reasoning.

Another way in which originalists have split is over the identity of
the original object of interpretation. One originalist might focus on
the retrieval of original public understandings of key constitutional
phrases like ‘freedom of speech’, ‘the principles of fundamental
justice’ or ‘cruel and unusual punishment’, while another might wish
interpreters to zero in on the original intentions of the relevant
constitutional authors. But one must be careful here. Original public
understanding is likely to matter to this second originalist because
the primary means of conveying one’s intentions in the context of
legal enactment are the words one chooses to express one’s intentions.
And those words cannot convey one’s intentions unless some standard
meaning or common understanding is assumed, a standard public meaning
to which both authors and readers have access and in terms of which
the latter can, and are expected to, grasp the former’s intentions.
But that meaning or understanding cannot be anything other than the
original one because authors do not have crystal balls and therefore
have no access to future understandings. So an original intention
theorist will inevitably have interpreters pay considerable attention
to original public understandings – perhaps to the point that her
theory actually collapses into a form of public understanding
originalism. Similar things will be true of an originalist whose
principal focus is original public understanding: she need not dismiss
entirely the relevance of original intentions, at least in some cases.
Should it turn out, for instance, that original public understanding
leads to unforeseen applications or results that we have good
historical evidence to believe the authors did not intend, or would
have flatly rejected had they known what we now know, an originalist
might allow such actual or hypothetical intentions to override
original public understandings.

Among the ways in which one might be able to determine that
constitutional authors did not intend, or would not have wished to
endorse, a particular concrete application or result suggested by the
original public understanding of a constitutional provision is by
appeal to the general goals or purposes we have
reason to believe they intended to achieve in enacting what they did.
Sometimes these goals and purposes, often called further
intentions,
are explicitly expressed in the preamble to a
constitution, as is often true in the case of ordinary statutes. But
such statements of purpose in constitutions tend to be very broad and
highly abstract and are often of very limited use in dealing with the
more specific questions that arise under particular constitutional
provisions.[20]
So appeal is sometimes made to official (and nonofficial) debates and
discussions surrounding the drafting, adoption or ratification of the
constitution or of the particular provision in question. Sometimes
appeal is even made to widely shared beliefs at the time on the
relevant issue. It’s virtually certain that hanging, for example, was
widely held in eighteenth-century America to be a quick and relatively
humane form of execution. Thus one might have very good historical
reason to believe that it could not have been among the intentions of
the Eighth Amendment’s drafters to ban such a practice. An originalist
interpretation of that Amendment might draw support from this fact in
an argument purporting to demonstrate the constitutional validity of
hanging.

But perhaps things are not quite this simple. Suppose we agreed that
the goal of the Eighth Amendment’s authors was to ban cruel and
unusual punishments, and that they, along with virtually every other
American of the day, believed that hanging did not fall within the
extension of that phrase. In other words, what we might call their
concrete understanding of the abstract notion
‘cruel and unusual punishment’, was such as to permit the
use of hanging. If so, and if a contemporary interpreter believes that
all forms of capital punishment, including hanging, is in actual
fact
cruel and unusual, then she might fashion an argument of the
following sort, one which has, at least superficially, an originalist
flavor. Respecting the general intentions of the authors—to ban
cruel and unusual punishment—actually requires that
hanging be deemed unconstitutional, even though the authors (and those
on whose authority they acted) would have rejected this claim.
Recognizing the fallibility of their own moral views, the intentions
of the authors of the Eighth Amendment might have been that government
bodies observe an abstract, partly moral standard forbidding
governments from acting in a manner properly characterizes as cruel
and unusual. This might actually have been their purpose in framing
the Eighth Amendment in the way that they did, as expressing an
abstract principle as opposed to a more detailed provision listing the
specific kinds of concrete practices they wished to forbid, that is,
their concrete understanding of ‘cruel and unusual
punishment’. This is a concrete understanding they fully
realized could be wrong, and their aim or intention was not to
enshrine this possibly erroneous understanding but to prohibit what
truly is cruel and unusual. Respecting their intentions under these
conditions would, therefore, require holding as unconstitutional
whatever truly does come within the extension of the relevant
provision, that is, whatever truly does constitute penal behaviour
that is cruel and unusual. Imagine now that one could bring the
authors of the Eighth Amendment to life and that one could convince
them, via sound empirical and moral argument, that capital punishment
in all its forms is in actual fact cruel and unusual. How might they
respond to the claim that the only way to respect their intentions is
to continue to accept, as constitutional, the practice of hanging?
Their likely response would be to say: “We meant to ban
punishments that are in actual fact cruel and unusual, not what we can
now see that we, along with virtually everyone else at the time,
incorrectly understood that ban to entail. If we had wanted
specifically to ban only the things we thought at the time constitute
cruel and unusual punishment, we would have chosen our words
differently. We would have explicitly banned those things.”
Whether appeal to intentions in this way is enough to render one an
originalist—if only a faint-hearted one—is perhaps
questionable, however. Such an appeal may well transform the resultant
theory of constitutional interpretation into something very close to a
form of living
constitutionalism.[21]

In any event, originalists can differ on the role, in constitutional
interpretation, of goals and purposes, often referred to as
further intentions. An originalist might be prepared to allow
some further intentions to override original concrete understandings
in some cases, while another might reject the use of such intentions
altogether. One reason for the latter’s reluctance—and for the
focus by most contemporary originalists on ordinary public meaning, as
opposed to original intentions—is likely to be that the
historical evidence concerning the existence and content of such
intentions tends to be highly unreliable or inaccessible to later
interpreters. One of the essential functions of law is the guidance of
behavior. Yet one cannot be guided by a law unless one understands it,
knows what it means. And if its meaning depends on factors about which
there is great dispute, or which are largely inaccessible, as is quite
often the case when it comes to the intentions of long-dead authors,
then one cannot be guided by the law. Hence, rule-of-law arguments can
be used to justify precluding (significant) appeal to authors’
intentions (further or otherwise) in all but exceptional cases. A
second reason for rejecting appeal to further intentions is the fact
that there is an important difference between what a constitution
actually says or means and what those who created it might have wanted
or intended to achieve in creating it. Interpretation is an attempt to
retrieve so as to conserve or enforce the former, not the latter.

Originalism, as a general family of theories which ties constitutional
interpreters to original understandings and/or intentions, is subject
to a number of objections. For example, original intentions and
understandings are often very unclear, if not largely indeterminate,
leaving the interpreter with the need to appeal to other
factors.[22]
Sometimes the only things upon which joint authors can agree are the
words actually chosen. Yet another serious difficulty faced by
originalism is one alluded to above: contemporary life is often very
different from the life contemplated by those who lived at the time of
the constitution’s adoption. As a result, many concrete applications
or results suggested by original intentions and understandings may now
seem absurd or highly undesirable in light of new scientific and
social developments and improved moral understanding. Furthermore,
modern life includes countless situations that our predecessors could
not possibly have contemplated, let alone intended or meant to be
dealt with in a particular way. The right to free speech that found
its way into many constitutions in the early modern period could not
possibly have been understood (or intended) by its defenders to
encompass, e.g., pornography on the internet.

In response to this latter difficulty, an originalist might appeal to
what might be called hypothetical intent or understanding.
The basic idea is that an interpreter should always consider, in cases
involving new, unforeseen circumstances, the hypothetical question of
what her predecessors would have intended or wanted
to be done in the case at hand had they known what we now
know to be true. We are, on this view, to put ourselves imaginatively
in the shoes of those who went before us. We are to determine, perhaps
in light of their general beliefs, values and intended goals and
purposes, and perhaps by way of analogy with concrete applications we
have reason to believe they clearly accepted at the time, what they
would have wanted done in the new circumstances we now face. But this
move is problematic. First, it presupposes that we can single out one,
consistent set of purposes, values and concrete applications
attributable to our predecessors. Yet people invariably have different
things in mind even when they agree on a constitutional text.Some
might have believed that the right to free expression protects hate
speech, while others might thought that banning such speech
constitutes a justifiable limit on that right. Second, even if we
could single out an acceptable set of purposes, values and
applications from which our hypothetical inquiry could proceed, it
seems unlikely that there will always be a uniquely correct answer to
the counterfactual question of what the authors would have wanted or
intended to be done in light of these factors. If so, then it is
likely that a modern interpreter will, in the end, have to be guided
by his own moral views is selecting an answer to this counter-factual
question. What the interpreter believes the authors would
have decided may well end up being nothing over and above what he
believes they should decide were they with us today.

So we are left with the question of why we should speculate about what
a long-dead group of individuals might have intended or
wanted done were they apprised of what we now know. The main appeal of
originalism is that it appears to tie constitutional interpretation to
morally neutral, historical facts about actual
beliefs, intentions and decisions of individuals with the
legitimate authority to settle fundamental questions concerning the
proper shape and limits of government powers. If we are now to
consider, not what they did decide, believe or understand,
but what they should decide were they to exist today and know
what we now know, then the main appeal of originalism vanishes. And so
the question naturally arises: Why not just forget this theoretically
suspect, counterfactual exercise and make the decisions ourselves?

But if we are not to be tied in these ways to the so-called dead hand
of the past when we engage in constitutional interpretation, how are
we to proceed? The dominant alternative, living constitutionalism,
takes its inspiration from the difficulties in originalism sketched in
the preceding paragraphs. It does so by construing a
constitution—or at least those parts of it that incorporate
abstract
principles[23]—as
a living entity whose limitations are sometimes open to revisiting
and revision in light of those changing times and (one hopes) improved
moral/political understandings that tend to cause originalists so much
trouble.

Whatever else might be said of law, this much is undeniably true:
where law exists, our conduct is subject to various forms of
restriction. But in many instances, the relevant restrictions can be
removed or changed with minimal effort, as when a problematic
common-law precedent is overturned because of changing social
circumstances, or a statute is repealed or amended because it no
longer serves useful purposes. Not so with constitutions. As noted
above, they tend to be heavily entrenched. Constitutions are also
meant to be long lasting, so as to serve the values of continuity and
stability in the basic framework within which the contentious affairs
of law and politics are conducted. The entrenched nature of
constitutions is largely unproblematic when we provisions dealing with
such matters as the length of term of a senator or which branch of
government is responsible for regulating public education. But things
get much more complicated and contentious when we turn to the highly
abstract, moral provisions of most modern constitutions which have the
effect of limiting the powers of government bodies in significant
ways. These special features of constitutions combine to give rise to
a fundamental question, one that causes the originalist so much
difficulty and to which living constitutionalism purports to provide a
better answer: How can one group of people justifiably place
entrenched constitutional impediments of a decidedly moral nature in
the way of a second group of people who might live in radically
different circumstances and perhaps with radically different moral
views? How, in short, can one generation legitimately bind the moral
choices of another? A satisfactory answer to this
intergenerational problem, living constitutionalists contend,
requires that we recognize that constitutions can grow and adapt to
ever-changing circumstances without losing their identity or their
legitimacy.

According to living constitutionalists, the meaning or content of an
entrenched provision like section 3(1) of the German Basic Law, which
proclaims that “All persons shall be equal before the
law,” consists in the rights or principles of political morality
they express, not what those rights or principles were generally
understood to require at the time of enactment or were believed or
intended to require by those who chose to include them in the
constitution. The choice to employ abstract moral terms (e.g.,
‘cruel and unusual punishment’) instead of more concrete,
non-moral terms (e.g., ‘public hanging’ or ‘drawing
and quartering’), is presumably made in recognition of at least
four crucial facts: (1) it’s important that governments not violate
certain important rights of political morality; (2) constitutional
authors do not always agree fully on what concretely is required in
the many scenarios and cases in which those rights are, or will later
be seen to be, relevant; (3) constitutional authors can anticipate
neither the future nor the many scenarios and cases in which these
important rights will be in some way relevant; and (4) even when they
do agree on what those rights concretely require at the moment of
adoption, and are comfortable binding themselves and their
contemporaries to these concrete understandings, they are not
particularly comfortable doing so in respect of future generations who
will live in very different times and may think very differently. And
so the decision is made to express constitutional commitments in very
abstract terms—‘cruel and unusual punishment’ versus
‘drawing and quartering’—leaving it to later
generations to substitute their possibly different concrete
understandings for those of the authors or those who lived at the time
of authorship. The result is that as concrete understandings of the
entrenched constitutional-rights provisions evolve, the results
warranted by these provisions can legitimately change right along with
them. And importantly for the living constitutionalist who does not
wish to surrender to the charge that she counsels infidelity to the
constitution, these changes can occur without the constitution having
changed, as would be true were a process of formal amendment
successfully invoked and an abstract, rights provision removed from
the constitution.

Despite its undoubted appeal, (at least to many) living
constitutionalism is subject to a number of significant objections.
Perhaps the most prominent ones are these: (a) the theory renders all
talk of constitutional interpretation, properly understood as the
retrieval of existing meaning, utterly senseless: constitutional
interpretation becomes nothing more than unconstrained, constitutional
creation or construction masquerading as interpretation; (b) living
constitutionalism robs the constitution of its ability to serve its
guidance function—how can individuals be guided by a
constitution whose application to their conduct and choices will be
determined by the unconstrained views of later so-called
interpreters?; and (c) living constitutionalism violates the
separation of powers doctrine—if the constitution and its limits
become whatever contemporary interpreters take them to mean, and if
those interpreters tend to be found almost exclusively in courts
populated by individuals who were appointed not elected, then
democratically unaccountable judges end up deciding what the proper
limits of government power shall be, a task for which they are
eminently unqualified and which ought to be reserved for individuals
(e.g., the authors of the constitution) with the democratic authority
to serve that function. Hence the appeal of originalism.

Living constitutionalists have a number of responses to these
objections. For instance, it might be argued that the theory in no way
results in the unconstrained, arbitrary exercise of judicial power its
opponents often portray it to be. Living constitutionalists like
Strauss (2010) and Waluchow (2007a) suggest that the ongoing
interpretation of a constitution’s abstract rights provisions is a
process much like the process by which judges develop equally
abstract, common-law notions like ‘negligence’ and
‘the reasonable use of force.’ According to Strauss, the
U.S. constitutional system

has become a common law system, one in which precedent and past
practices are, in their own way as important as the written U.S.
Constitution itself…[I]t is not one that judges (or anyone
else) can simply manipulate to fit their own ideas. (Strauss 2010, 3)

On this view, constitutional interpretation must accommodate itself to
previous attempts to interpret and apply the abstract rights
provisions expressed in the constitution’s text. These prior
interpretive decisions serve as constitutional precedents. And just as
the traditional rules of precedent combine respect for the (albeit
limited) wisdom and authority of previous decision makers (legislative
and judicial) with an awareness of the need to allow adaptation in the
face of changing views, and new or unforeseen circumstances, so too
must constitutional interpreters respect the wisdom and authority of
previous interpreters, while allowing the constitution to adapt so as
to respond to changing views, and new or unforeseen circumstances.
Living constitutional interpretation, though flexible and adaptive, is
no less constrained and disciplined than reasoning under common
law.

Another response open to living constitutionalists is to deny that
their theory of interpretation ignores the special role played by a
constitution’s text and its authors. The text plays a key role insofar
as any constitutional interpretation, innovative as it may be, must be
consistent with that text, until such time as it is formally changed
via some acknowledged process of constitutional amendment. There is no
reason to deny that original understandings of a constitution’s
abstract provisions can also be highly relevant to later
interpretations. This is especially so for interpretations that occur
shortly after the constitution’s adoption, when worries about binding
future generations is not in play. Original understandings simply
cannot be dispositive, at least not in perpetuity. In the end, the
relative importance of factors like textual meaning, original
understandings, later interpretations, and intended purposes, may be,
as Joseph Raz suggests (1996, 176–91), fundamentally a question
of political morality which cannot be answered in the abstract and
without considering what it is that justifies, at that particular
moment of interpretation, having an entrenched constitution at all,
let alone one with such and such particular content. Sometimes,
retrieval of an existing concrete understanding will be required,
especially when the constitution is in its infancy and was partly
meant to settle a range of concrete moral questions as to the proper
limits of government power, at least for a while. But if an
interpreter has good reason to believe that this settlement function
has been overtaken by other more pressing concerns, perhaps the need
to adapt in light of dramatically changed circumstances or much better
moral understanding, then a more innovative interpretation may be
called for. And once again, to say that constitutional interpreters
must sometimes be innovative is not to say that a constitution can be
interpreted to mean whatever the interpreter wants it to mean.

Although constitutionalism has been widely embraced round the world,
it is by no means without its detractors. This is especially true when
we turn to those constitutions that not only create and regulate the
offices of government but also purport to protect abstract rights of
political morality. Some critics—we’ll call these the hard
critics
—assert that such apparently rights-protective
constitutions cannot effectively and legitimately serve to protect
individuals against the oppressive forces of
governments.[24]
On the contrary, they only serve to mask legal and political practice
in a false cloak of legitimacy. Other critics—we’ll call these
the democratic critics—are not so utterly dismissive of
rights-protecting constitutions. Rather, their main concern is to
challenge the role that democratically unaccountable judges typically
play in the interpretation and application of such constitutions.

According to hard critics, factors like original understandings and
the supposed discipline of common law reasoning seldom, if ever,
succeed in fixing meaningful limits upon government power. As a
result, reliance on such factors in constitutional adjudication only
serves: (a) to rationalize the purely political decisions of judges
pursuing, consciously or not, their own political ideologies. Further
consequences include: (b) a serious affront to democracy. In most
constitutional democracies, the judges who ultimately decide
constitutional cases are appointed, not elected. That is, they hold
office not because they were selected to do so by the democratic
community, but because of of a decision on the part of a President, a
Prime Minister, a small group of fellow judges, or a judicial
committee of Parliament. Furthermore, these appointed judges tend to
come from the privileged classes of society. The end result a small
groups of unelected, elitist judges with the power to substitute their
own, highly contentious views about the proper limits of government
power for the considered judgments of the people’s representatives,
e.g., those members of Congress or Parliament duly elected to
exercise, on behalf of the people, the latter’s sovereign right to
participate in political decisions affecting their basic rights. And
possibly (c): suppression of those—women, minority racial
groups, the poor, and so on—whose interests are not adequately
recognized and protected by the dominant, mainstream ideologies to
which these elite judges have an affinity. Instead of the curbing of
rights-threatening government power for which the idea of
constitutionalism is supposed to stand, we have political suppression
disguised in a cloak of false constitutional legitimacy.

So hard critics are highly skeptical of constitutional practice and of
those theories that applaud constitutionalism as a bulwark against
oppression.[25]
As noted at the outset of this entry, a key element in the idea of
constitutionalism is that government can/should be limited in its
powers and that its authority depends on observance of those limits.
It was further noted that the authority of constitutions in
constitutional democracies is generally thought to rest with
‘the people’. One further implication of hard critical
theories is: (d) that the concept of ‘the people’ is very
much a fabrication. Instead of being composed of a group of
individuals united in their concern for basic rights, western
societies are comprised of various groups competing either for
domination (e.g., white males and the wealthy) or for recognition and
the elimination of oppression (e.g., the poor, women, and racial
minorities). The law, including constitutional law, is a powerful tool
which has, historically, been utilized by dominant groups to secure
and maintain their superior status.

A particularly vivid example of this last consequence is arguably
found in Lochner v New York a notorious case in which the
United States Supreme Court ruled that a New York State law requiring
that bakery employees work no more than ten hours per day and sixty
hours per week violated the Fourteenth Amendment, which asserts that
no State may “deprive any person of life, liberty, or property,
without due process of
law.”.[26]
The Fourteenth Amendment, the Court held, entails “the right and
liberty of the individual to contract” for a longer work week“ The
Lochner decision gave rise to what is commonly called ”the
Lochner era, a period stretching roughly from 1905 till 1937
in which the Supreme Court struck down numerous Federal and State
statutes aimed at improving the working conditions of employees. As
such, it may well have been a period during which the United States
Constitution, in the hands of an elitist Court, served only to
“legitimize” overt political suppression. According to hard critics,
the Lochner era is but one small piece of a much larger
picture.

To sum up, according to hard critics, a constitution is anything but
the protection from unwarranted government power that its champions
have heralded over the centuries. What is taken to be the obvious
meaning of a key term like ‘equal before the law’ is what
the dominant group understands or claims it to be. What is taken to be
the obvious original understandings or historical intentions of the
constitution’s authors are whatever understandings or intentions fit
the ideologies of the dominant groups. What is taken to be the best
articulation of the right to equality emerging from a fair and
disciplined common-law analysis of that right, is nothing but a
rationalization of current social structures, all of which
systematically oppress the interests of women, minorities and the
poor.

As noted above, democratic critics tend not to be as utterly
dismissive of constitutions and constitutional rights protections as
their more hard-line cousins. Their principal objections revolve
around a practice with which these aspects of modern constitutional
regimes are typically associated: judicial or constitutional
review
. This is the practice whereby courts are sometimes called
upon to review a law or some other official act of government (e.g.,
the decision of an administrative agency like the US Food and Drug
Administration or the Canadian Radio-television and Telecommunications
Commission) to determine its compatibility with the
constitution.[27]
Particular instances of this practice vary considerably. In some
jurisdictions, such as the United States, judicial review includes the
power to ‘strike down’ or nullify a law duly passed by a
legislature body or administrative body and the decision is final and
irreversible. In other jurisdictions, the courts either do not have
the power to strike down or nullify, or a decision to do so is
reversible by some other body of government. For example, courts in
the United Kingdom do not have the power to invalidate Parliament’s
legislation, that is, declare it void and of no force and effect. But
they do have the authority, under section 4 of the Human Rights Act
1998, officially to declare legislation incompatible with The
European Convention on Human Rights
. Upon such a declaration,
Parliament usually undertakes to amend or repeal the offending
legislation. But should it chose not to do so, the legislation remains
valid and the courts have no further legal recourse. In Canada, the
Supreme Court has the power to strike down a law which it believes
unjustifiably infringes a right guaranteed in Sections 2 or 7–15 of
The Canadian Charter of Rights and Freedoms, but Section 33
of that same Charter grants Parliament or the legislature of
a province the power to override that decision. This co-called
“notwithstanding clause” allows Parliament or a provincial legislature
to declare that, notwithstanding its unjustifiable infringement of an
enumerated right, the offending legislation will stand as
constitutionally valid. The more robust form of constitutional review
practiced in the United States has come to be known as “strong-form
review,” while the less robust versions embraced by the United Kingdom
and Canada are called “weak-form
review.”[28]
Insofar as weak-form review leaves the final decision regarding the
meaning and scope of a constitutional right and the limits it impose
on government powers in the hands of the legislature, it is touted by
its defenders as consistent with democratic principle. According to
its critics, however, it strips the constitution of one of its most
vital functions: the protection of individual and minority rights
against what Mill, following de Tocqueville, famously called “the
tyranny of the majority.”
[29]

Among the most influential of contemporary democratic critics is
Jeremy Waldron. Waldron is, to put it mildly, no fan of constitutional
review. Nor is he enamored of the grandiose constitutional charters
and bills of rights which serve as the most contentious ground in
terms of which that power is often exercised by courts. According to
Waldron and his fellow democratic critics, constitutional review under
an entrenched charter or bill of rights is fraught with both
theoretical and practical difficulty. It threatens democracy and is
both fundamentally unfair and politically dangerous. It also relies on
outmoded views about the nature of moral rights—that there are
objective, universal rights of political morality to which charters or
bills of rights make reference, upon which there is widespread
agreement within democratic communities, and to which judges can
sensibly and justifiably be asked to appeal in protecting citizens
against recalcitrant exercises of government power. While it is true
that constitutional review need not be based on an appeal to abstract
rights of political morality—it could, for example, be
restricted to questions such as whether Congress or a provincial
legislature has followed proper procedure—and true that it need
not include the ability actually to strike down legislation, the main
focus of democratic critics has been on strong-form constitutional
review which exemplifies these two features.

According to democratic critics it is difficult to underestimate the
considerable power which constitutional review under an entrenched
charter or bill of rights places in the hands of judges who are, in
modern constitutional democracies, typically unelected and hence not
directly accountable to the democratic community. Despite their lack
of accountability, these judges are assigned the task of providing
authoritative answers to the deeply controversial questions of
political morality that arise under judicial review and with respect
to which there is so much deep disagreement. Examples can range from
the permissibility of abortion or physician-assisted suicide, to the
banning of hate speech or the publication of violent and degrading
pornography on the intenet. On the basis of these highly controversial
answers they end up determining what shall be deemed lawful in the
community. This is far too much political power for a small group of
unelected people to wield over an entire democratic community, no
matter how learned and wise they might happen to be. But perhaps more
importantly, the granting of such power is fundamentally undemocratic
in principle: individual citizens have, in effect, been
disenfranchised by this arrangement. Each citizen of voting age should
have an equal right, in a democratic society, to contribute to the
creation of the laws by which she is governed. This she exercises
directly via the ballot box and by whatever contributions to public
discourse and debate about controversial issues she chooses to make.
She also does so indirectly via the legislative votes of her elected
representatives, whose task is to represent her interests and
opinions. Yet with strong-form constitutional review all this has been
replaced by subjection to the pronouncements of judges. The duly
considered views of citizens and their representatives about the laws
by which they are to be governed, arrived at (it is hoped) through
fair processes of democratic decision-making, have, in effect, been
set aside in favour of the contentious moral pronouncements of a
handful of democratically unaccountable, elite judges. This unhappy
situation is further exacerbated by the undeniable fact that judges on
appeal courts often disagree vehemently among themselves about rights
of political morality and must often, in the end, rely on majority
voting to settle their own disagreements. It is not at all uncommon to
see split votes when a court deals with a contentious issue of moral
principle like affirmative action, abortion or pornography. And often
these split votes follow patterns which are closely correlated with
the all too discernible political leanings of
judges.[30]
Add to this the fact that judges render decisions which all too often
appear to conflict not only with views widely shared in the community
at large, but also with their own previous decisions in earlier cases,
and what might seem like a marvelous idea in the
abstract—constitutionally guaranteeing moral rights and
fundamental interests against the abuse of government power—is
transformed into a living nightmare. A nightmare in which democracy,
fairness and the rule of law have, in effect, been abandoned and
replaced by the rule of a few men and women, by a kind of
‘judicial oligarchy’. And no matter the high esteem in
which we tend to hold our judges in modern constitutional democracies,
this is not a form of government to be eagerly embraced.

Critical theories, both hard and democratic, represent a serious
challenge not only to conventional theories and established practices
of constitutional interpretation, but to the very idea of
constitutionalism itself—the idea that government can and should
be limited in ways that serve to protect us from unwarranted state
power. According to originalism, the constitution protects us from
judges and other officials by restricting them (largely) to
politically and morally uncontroversial, neutral decisions about
historical intentions and understandings. According to one strand of
living constitutionalism, our evolving constitution can do the same
while at the same time allowing the constitution to grow and adapt to
changing circumstances and (it is hoped) better moral understandings.
It can effect this balancing act so long as the judges, in whom the
power of constitutional interpretation and enforcement has largely
been placed, are willing to subject their deliberations to the
discipline of common law reasoning. Critics, however, remain highly
skeptical. Ordinary judges are not, critical theorists will insist,
Platonic kings and queens, dispensing justice in the light of
objective moral truth. We must always remember, critics insist, that
our judges are ordinary, flawed human beings with all the intellectual
and moral shortcomings, weaknesses and biases of their fellow human
beings. They are also, more often than not, members of a dominant
group (e.g., wealthy, white males) who share the social background,
education, perspective, and values of that group. But if constitutions
are all at the mercy of dominant ideologies and the whims and
convictions of elite judges, then the kind of protections heralded by
the idea of constitutionalism may be a myth, and a harmful one at
that.

So what is the solution according to critical theorists? The proffered
solutions can vary considerably, depending on how hard-line the
theorist tends to be. A theocrat might advocate the complete overthrow
of constitutional, democratic government, while a liberal feminist
critic might be content to work within existing constitutional systems
to eradicate the vestiges of patriarchy which have survived recent
feminist movements (MacKinnon, 1989; Strossen 1995). Waldron and his
fellow democratic critics ague that we should abandon the practice of
constitutional review of legislation under entrenched charters or
bills of rights and leave political decisions where they belong: the
people and their elected and accountable representatives (Waldron,
1992, 2006; Marmor, 2007). Yet another avenue of response is to
highlight the extent to which the critics’ most powerful objections
apply only to strong-form review, where judicial decisions are final
and can have the effect of nullifying the efforts of democratically
accounted legislatures. Having pointed this out, the next move is to
recommend weaker forms of review which arguably reflect a healthier
balance between respect for fundamental rights, on the one hand, and
the importance of democratic procedure on the other (Gardbaum, 2013).
Were an effective version of something like Canada’s Section 33
override included within a constitution, the courts might well be able
maintain their intended role as defenders of rights, while leaving the
final word to the legislature in cases where intractable differences
of opinion run
deep.[31]
But whatever the preferred solution, all critics of constitutionalism
seem to agree that progress can be made only if the myths surrounding
constitutional protection—the constraining force of original
understanding, intention, history, the discipline of common law, and
so on— are all exposed, and that the true political forces at
work in constitutional practice are acknowledged and dealt with
openly. Whether the idea of constitutionalism can survive the lessons
of such critical scrutiny is a very good
question.

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