Constitutionalism is the idea, often associated with the politicaltheories of John Locke and the founders of the American republic, thatgovernment can and should be legally limited in its powers, and thatits authority or legitimacy depends on its observing theselimitations. This idea brings with it a host of vexing questions ofinterest not only to legal scholars, but to anyone keen to explore thelegal and philosophical foundations of the state. How can a governmentbe legally limited if law is the creation of government? Does thismean that a government can be ‘self-limiting’? Is thiseven possible? If not, then is there some way of avoiding thisimplication? If meaningful limitation is indeed to be possible,perhaps constitutional constraints must somehow be‘entrenched’, that is, resistant to change or removal bythose whose powers are constrained? Perhaps they must not only beentrenched, but enshrined in written rules. If so, how are these rulesto be interpreted? In terms of their original, public meaning or theintentions of their authors, or in terms of the, possiblyever-developing, values and principles they express? How, in the end,one answers these questions depends crucially on how one conceives thenature, identity and authority of constitutions. Must a constitutionestablish a stable framework for the exercise of public power which isin some wayfixed by factors like original public meaning orauthorial intentions? Or can it be aliving entity whichgrows and develops in tandem with changing political values andprinciples? These and other such questions are explored below.

• 1. Constitutionalism: a Minimal and a Rich Sense
• 2. Sovereign versus Government
• 3. Entrenchment
• 4. Writtenness
• 5. Montesquieu and the Separation of Powers
• 6. Constitutional Law versus Constitutional Convention
• 7. Constitutional Interpretation
• 8. Originalism
• 9. Living Constitutionalism
• 10. The Moral Reading
• 11. Liberal vs Common Good Constitutionalism
• 12. Critical Theories
• Bibliography
• Academic Tools
• Other Internet Resources
• Related Entries

1. Constitutionalism: a Minimal and a Rich Sense

In some minimal sense of the term, a constitution consists of a set ofnorms (rules, principles or values) creating, structuring, andpossibly defining the limits of, government power or authority.Understood in this way, all states have constitutions and all statesare constitutional states. Anything recognizable as a state must havesome means of constituting and specifying the limits (or lack thereof)placed upon the three basic forms of government power: legislativepower (making new laws), executive power (implementing laws) andjudicial power (adjudicating disputes under laws).^[1] Take the extreme case of an absolute sovereign, Rex, who combinesunlimited power in all three domains. Suppose it is widelyacknowledged that Rex has these powers, as well as the authority toexercise them at his pleasure. The constitution of this state mightthen be said to contain only one rule, which grants unlimited power toRex. He is notlegally answerable for the wisdom or moralityof his decrees, nor is he bound by procedures, or any other kinds oflimitations or requirements, in exercising his powers. Whatever Rexdecrees is constitutionally valid.

When scholars talk of constitutionalism, however, they normally meansomething that rules out Rex’s case. They mean not only thatthere 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 againstgovernment, rights to things like free expression, association,equality and due process of law. But constitutional limits come in avariety of forms. They can concern such things as thescopeof authority (e.g., in a federal system, provincial or stategovernments may have authority over health care and education whilethe federal government’s jurisdiction extends to nationaldefence and transportation); themechanisms used inexercising the relevant power (e.g., procedural requirements governingthe form and manner of legislation); and of coursecivilrights (e.g., in a Charter or Bill of Rights). Constitutionalismin this richer sense of the term is the idea that governmentcan/should be limited in its powers and that its authority depends onits observing these limitations. In this richer sense of the term,Rex’s society has not embraced constitutionalism because therule conferring his powers impose no constitutional limits on them.Compare a second state in which Regina has all the powers possessed byRex except that she lacks authority to legislate on matters concerningreligion. Suppose further that Regina also lacks the power toimplement, or to adjudicate on the basis of, any law which exceeds thescope of her legislative competence. We have here the seeds ofconstitutionalism as that notion has come to be understood in Westernlegal thought.

In discussing the history and nature of constitutionalism, acomparison is often drawn between Thomas Hobbes and John Locke who arethought to have defended, respectively, the notion of constitutionallyunlimited sovereignty (e.g., Rex) versus that of sovereignty limitedby the terms of a social contract containing substantive limitations(e.g., Regina).^[3] But an equally good focal point is the English legal theorist JohnAustin who, like Hobbes, thought that the very notion of limitedsovereignty is incoherent. For Austin, all law is the command of asovereign person or body of persons, and so the notion that thesovereign could be limited by law requires a sovereign who isself-binding, who commands him/her/itself. But no one can commandhimself, except in some figurative sense, so the notion of limitedsovereignty is, for Austin (and Hobbes), as incoherent as the idea ofa square circle.^[4] Though at one time this feature of Austin’s theory had somesurface 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 constitutionaldemocracies such as one finds in the United States, Canada, Mexico andGermany, where it is abundantly clear that the powers of governmentare legally limited by a constitution. Austin’s answer to thisapparent weakness in his theory was to appeal topopularsovereignty, the idea that sovereign power ultimately resides in‘the people’, that is, the population at large.Government bodies—e.g., Parliament, the President orthe judiciary—can be limited by constitutional law, but thesovereign people remain unlimited in their powers to command. Whetherthis appeal to popular sovereignty provides Austin with an adequatemeans of dealing with constitutional democracies is questionable. ForAustin’s sovereign is supposed to be a determinate individual orgroup of individuals whose commandsto the bulk of thepopulation constitute law. But if we identify the commanders withthe people themselves, then we seem inexorably led to the paradoxicalresult identified by H.L.A. Hart—the commanders are commandingthe commanders. In short, we lapse into incoherence (Hart 1994,73–78; Austin 1995, Lecture VI).

2. Sovereign versus Government

Though there are serious difficulties inherent in Austin’sattempt to make sense of the people’s ultimate sovereignty, hisaccount, with all its weaknesses, does reveal the need to distinguishbetween two different concepts: sovereignty and government. Roughlyspeaking, we might definesovereignty as the possession ofsupreme (and possibly unlimited) normative power and authority oversome domain, andgovernment as those persons or institutionsthrough whom that sovereignty is exercised. Once some such distinctionis drawn, we see immediately that sovereignty might lie somewhereother than with the government and those who exercise the powers ofgovernment. And once this implication is accepted, we can coherentlygo on to speak oflimited government coupled withunlimited sovereignty. Arguably this is what one should sayabout constitutional democracies where the people’s sovereignauthority is thought to be ultimate and unlimited but the governmentbodies—e.g., legislatures, Presidents and courts—throughwhom that sovereignty is exercised on the people’s behalf areconstitutionally limited and subordinate. As Locke might have said,unlimited sovereignty remains with the people who have the normativepower 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 normallyapply to different entities, it nevertheless seems conceptuallypossible for them to apply to one and the same individual orinstitution. It is arguable that Hobbes insisted on the identificationof sovereign and government insofar as he seemed to require a(virtually) complete transfer of all rights and powers from sovereignindividuals to a political sovereign whose authority was to beabsolute, thus rendering it possible to emerge from the wretched stateof nature in which life is “solitary, poor, nasty, brutish and short.”^[6] In Hobbes’ theory, ultimate, unlimited sovereignty must residein the supreme governmental person or body who enjoys unlimited powerand authority to rule the commonwealth. Anything less than such anultimate, unlimited sovereign would, given human nature and the worldwe inhabit, destroy the potential for stable government and all thatit makes possible. So even if ‘sovereignty’ and‘government’ express different notions, this neither meansnor implies that the two could not pertain to one and the sameentity.

3. Entrenchment

According to most theorists, another important feature ofconstitutionalism is that the norms imposing limits upon governmentpower must be in some way, and to some degree, beentrenched,either legally or by way of constitutional convention.^[7] In other words, those whose powers are constitutionallylimited—i.e., the institutions of government—must not beconstitutionally at liberty to change or expunge those limits at theirpleasure. Most written constitutions contain amending formulae whichcan be triggered by, and require the participation of, the governmentbodies whose powers they limit. But these formulae invariably requiresomething more than a simple decision on the part of the presentgovernment, through e.g., Presidential fiat or simple majority vote inthe legislature, to invoke a change. Sometimes constitutionalassemblies are required, or super-majority votes, referendums, or theagreement of not only the central government in a federal system butalso some number or percentage of the governments or regional unitswithin the federal system.^[8] Entrenchment not only facilitates a degree of stability andpredictability over time (a characteristic aspiration ofconstitutional regimes), it is arguably a requirement ofthe verypossibility of constitutionally limited government. Were agovernment institution entitled, at its pleasure, to change the veryterms of its constitutional limitations, we might begin to questionwhether there would, in reality, be any such limitations. ConsiderRegina once again. Were she entitled, at her discretion, to remove(and perhaps later reinstate) the constitutional restrictionpreventing her from legislating on some religious matter on which shehad strong views, then it is perhaps questionable whether Regina couldsensibly be said to be bound by this requirement.^[9] On the other hand, were there a constitutional rule or conventionspecifying that Regina is entitled to remove this restriction only ifshe succeeds in convincing two thirds of her subjects to vote for thechange, then one might feel more comfortable speaking ofconstitutional limitation. Of course this constitutional meta-rule orconvention is itself subject to change or elimination—a factthat raises a host of further puzzles. For example, does such an actrequire application of the very rule in question—i.e., twothird’s majority vote—or are the sovereign people ofRegina’s society at liberty to change or expunge it attheir pleasure? If we accept (a) the distinction betweengovernment and sovereignty urged above; (b) that ultimate sovereigntyresides in the people whom Regina governs; and (c) that sovereigntycannot be self-limiting, (X cannot limitX) then wemight sensibly be led to conclude that the constitutionalmeta-rule—and hence the constitutional regime of which it is anintegral part—both exist at the pleasure of the generalpopulation of Regina’s society. Entrenchment may be an essentialelement of constitutional regimes, but it would seem thatconstitutions neither can nor should be entrenched against the actionsof a sovereign people.

4. Writtenness

Some scholars believe that constitutional norms do not exist unlessthey are in some way enshrined in a written document (e.g., Rubenfeld1998). But most accept that constitutions (or elements of them) can beunwritten, and cite, as an obvious example of this possibility, theconstitution of the United Kingdom. One must be careful here, however.Though the UK has nothing resembling the American Constitution and itsBill of Rights, it nevertheless contains a number of writteninstruments which have, for many centuries, formed central elements ofits constitution. Magna Carta (1215 C.E.) is perhaps the earliestdocument of the British constitution, while others include ThePetition of Right (1628) and the Bill of Rights (1689). Furthermore,constitutional limits are also said to be found in certain principlesof the common law, explicitly cited in landmark cases concerning thelimits of government power. The fact remains, however, thathistorically the constitution of the UK has largely taken unwrittenform, suggesting strongly that writtenness is not a defining featureof constitutionalism.

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

5. Montesquieu and the Separation of Powers

Does the idea of constitutionalism require, as a matter of conceptualor practical necessity, the division of government powers urged byMontesquieu and celebrated by Americans as a bulwark against abuse ofstate 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) whodetermines whether her legislation satisfies the prescribedconstitutional limitation? Even if,in theory, Regina’sconstitution prohibits her from removing her constitutionalrestriction at will (because she must observe the 2/3rds meta-rule)can she not always choose to ignore her restrictions, or to interpretthem so as to escape their binding force? Perhaps Bishop Hoadly wasright when he said (1717) in a sermon before the English King:“Whoever hath an ultimate authority to interpret any written orspoken laws, it is he who is truly the Law-giver to all intents andpurposes, 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 termof office, seldom raise questions of interpretation, many others(particularly those that concern civil rights) are ripe for suchquestions. Regina might argue that a decree requiring all shops toclose on Sundays (the common Sabbath) does not concern a religiousmatter because its aim is a common day of rest, not religiousobservance. Others might argue, with seemingly equal plausibility,that it does concern a religious matter and therefore lies outsideRegina’s legislative competence.

That constitutions often raise such interpretive questions gives riseto an important question: Does the possibility of constitutionallimitation on legislative and executive power require, as a matter ofpractical politics, that the judicial power by which such limitationsare interpreted and enforced reside in some individual or group ofindividuals distinct from that in which these legislative andexecutive powers are vested? In modern terms, must constitutionallimits on a legislative body like Parliament, the Duma or Congress, oran executive body like the President or her Cabinet, be subject tointerpretation and enforcement by an independent judiciary?Marbury v Madison settled this question in the affirmative asa matter of American law, and most nations followMarbury(and Montesquieu) in accepting the practical necessity of some sucharrangement. But it is not clear that the arrangement truly ispractically necessary, let alone conceptually so. Bishop Hoadlynotwithstanding, there is nothing nonsensical in the suggestion thatX might be bound by an entrenched rule,R, whoseinterpretation and implementation is left toX. This is,arguably, the situation in New Zealand where the courts are forbiddenfrom striking down legislation on the ground that it exceedsconstitutional limits. Observance and enforcement of these limits areleft to the legislative bodies whose powers are nonetheless recognizedas constitutionally limited (and subject to whatever pressures mightbe imposed politically when state actions are generally believed toviolate the constitution). It is important to realize that what rule,R, actually requires is not necessarily identical with whatX believes or says that it requires. Nor is it identical withwhatever restrictionsX actually observes in practice. Thisis so even when there is no superior institution with the power andauthority to enforce compliance or to correctX’sjudgment when it is, or appears to be, wrong.

That constitutional limits can sometimes be avoided or interpreted soas to avoid their effects, and no recourse be available to correctmistaken interpretations and abuses of power, does not, then, implythe absence of constitutional limitation. But does it imply theabsence ofeffective limitation? Perhaps so, but even herethere is reason to be cautious in drawing general conclusions. Onceagain, we should remember the long-standing traditions within BritishParliamentary systems (including New Zealand’s) according towhich Parliament alone possesses final authority to create, interpretand implement its own constitutional limits. And whatever theirfaults, there is little doubt that many Parliaments modeled on theBritish system typically act responsibly in observing their ownconstitutional limits.

So the notion of constitutionalism does not seem conceptually torequire the separation of powers advocated by Montesquieu. Nor doesthat principle seem to be required as a matter of practical necessityin all possible cases. Does this mean that separation of powers has noplace in a theory of constitutionalism? It could be suggested that,rather than seeing Montesquieu’s tripartite distinction ofgovernment functions assigned to different government branches as anecessary component of the very concept of separation of powers, weshould instead understand that concept in a moralized, flexible andcontext-specific manner. On this view, separation of powers dictatesmore generally that distribution of powers be such that a) tasks areallocated to those institutions that are well-suited to carry them outand b) there are effective checks on the use of government power(Kyritsis 2017, ch 2). However, it does not necessarily prescribecertain institutional forms such as judicial review of primarylegislation.

6. Constitutional Law versus Constitutional Convention

The idea of constitutionalism requires limitation on government powerand authority established by constitutional law. But according to mostconstitutional scholars, there is more to a constitution thanconstitutional 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 aspecial constitutional assembly, which contains the nation’ssupreme, fundamental law. But there is a long-standing tradition ofconceiving of constitutions as containing much more thanconstitutional law. Dicey is famous for proposing that, in addition toconstitutional law, the British constitutional system contains anumber of constitutional conventions which effectively limitgovernment in the absence of legal limitation. These are, in effect,social rules arising within the practices of thepoliticalcommunity and which impose important, butnon-legal, limitson government powers. An example of a British constitutionalconvention is the rule that the British Monarch may not refuse RoyalAssent to any bill passed by both Houses of the UK Parliament. Perhapsanother example lies in a convention that individuals chosen torepresent the State of Florida in the American Electoral College (thebody which actually chooses the American President by majority vote)must vote for the Presidential candidate for whom a plurality ofFloridians voted on election night. Owing to the fact that they arepolitical conventions, unenforceable in courts of law, constitutionalconventions are said to be distinguishable from constitutional laws,which can indeed be legally enforced. If we accept Dicey’sdistinction, we must not identify the constitution with constitutionallaw. It includes constitutional conventions as well. We must furtherrecognize the possibility that a government, thoughlegallywithin its power to embark upon a particular course of action, mightnevertheless beconstitutionally prohibited from doing so.^[11] It is possible that, as a matter of constitutional law, Regina mightenjoy unlimited legislative, executive and judicial powers which arenonetheless limited by constitutional conventions specifying how thosepowers are to be exercised. Should she violate one of theseconventions, she would be acting legally, but unconstitutionally, andher subjects might well feel warranted in condemning her actions,perhaps even removing her from office—a puzzling result only ifone thinks that all there is to a constitution is constitutionallaw.

7. Constitutional Interpretation

As we have just seen, there is often more to a constitution thanconstitutional law. As we have also seen, constitutional norms neednot always be written rules. Despite these important observations, twofacts must be acknowledged: (1) the vast majority of constitutionalcases hinge on questions of constitutional law; and (2) modernconstitutions consist primarily of written documents.^[12] Consequently, constitutional cases often raise theoretical issuesconcerning the proper approach to the interpretation of writteninstruments—colored, of course, by the special roleconstitutions play – or ought to play – in defining andlimiting the authority and powers of government. Differences of viewon these matters come to light most forcefully when a case turns onthe interpretation of a constitutional provision that deals withabstract 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 intensecontroversy among legal practitioners and theorists, and it is uponsuch provisions that this entry will focus. As we shall see, starkdifferences of opinion on this issue are usually rooted in differentviews on the aspirations of constitutions or on the appropriate roleof judges within constitutional democracies.

Although theories of constitutional interpretation are many andvaried, they all seem, in one way or another, to ascribe importance toa number of key factors: textual or semantic meaning; political,social and legal history; intention; original understanding; andmoral/political theory. The roles played by each of these factors in atheory of constitutional interpretation depend crucially on how thetheorist conceives of a constitution and its role in limitinggovernment power. For example, if a theorist conceives of aconstitution as foundational law whose existence, meaning andauthority derive from the determinate, historical acts of its authorsand/or those they represented(ed), and whose principal point is tofix a long-standing, stable framework or set of ground ruleswithin which legislative, executive and judicial powers are to beexercised by the various branches of government, she may be inclinedtowards an interpretive theory which accords pride of place tofactors like authors’ intentions or the meanings they (andperhaps the general public at the time) would have ascribed to theterms chosen for inclusion in the constitution. On what we will callthefixed view of constitutions, it is natural to think thatfactors like these should govern whenever they are clear andconsistent. And the reason is quite straight forward. On the fixedview, a constitution not only aspires to establish a stable frameworkwithin which government powers are to be exercised, it aspires toestablish one which is above, or removed from, the deep disagreementsand partisan controversies encountered in ordinary, day to day law andpolitics. It aspires, in short, to be bothstable and morallyand politicallyneutral on controversial issues such aswhether there should be laws affirming a woman’s right to anabortion, or the right of workers to a minimum wage. To be clear,saying that a constitution aspires, on a fixed view, to be morally andpolitically neutral, is not meant to deny that those who take thisstance believe that it expresses a particular political vision or aset of fundamental commitments to certain values and principles ofpolitical morality. Quite the contrary. All constitutional theoristswill agree that constitutions typically enshrine, indeed entrench, arange of moral and political commitments to values like democracy,equality, free expression, and the rule of law. But two points need tobe stressed.

First, fixed views attempt to transform questions about the moral andpolitical soundness of these commitments into historical questions,principally concerningbeliefs about their soundness. Thetask is not to ask: What dowe now think about values likeequality and freedom of expression? Rather, it is to ask: What didthey—the authors of the constitution or those on whoseauthority they created the constitution—in fact think aboutthose values? What wastheir original understanding of them,or the understanding among most members of the general population thatexisted at the time of the constitution’s creation (oramendment, if the provision in question was introduced at a latertime)? So stability and neutrality are, on fixed views, served to theextent that a constitution is capable of transforming questions ofpolitical morality into historical ones.

Second, no proponent of the fixed view will deny that the abstractmoral commitments expressed in a constitution tend to be widely, ifnot universally shared among members of the relevant politicalcommunity. In that sense, then, the constitution, despite the moralcommitments it embodies, is neutral as between citizens and their manymore partisan differences of opinion on more particular moralquestions. Not everyone in a modern, constitutional democracy like theUS or Germany agrees on the extent to which the right to freeexpression demands the liberty to express opinions that display andpromote hatred toward an identifiable religious or racial group. Butvirtually no one would deny the vital importance of expressive freedomin a truly free and democratic society. On fixed views, then,constitutions can be seen as analogous to the ground rules of adebating society. Each sets the mutually agreed, stable frameworkwithin which controversial debate (and action) is to take place. Andjust as a debating society could not function if its ground rulescould be revised by a debater in order to win the debate, aconstitution could not serve its role if its terms were constantlyopen to debate and revision by participants within the political andlegal processes it aspires to govern in order to achieve a desiredresult. We avoid this possibility, according to those who espouse thefixed view, to the extent that we are able to replace controversialmoral and political questions with historical questions about theintentions of constitutional authors in creating what they did, orabout how the terms they chose to express constitutional requirementswere publicly understood at the time they were chosen.

To sum up: the desire for stability and neutrality leads modernproponents of the fixed view to view constitutional interpretation asan exercise which, when undertaken properly, focuses on authors’intentions or on original understandings of the meaning and import ofthe words chosen to express agreed limits on government power andauthority. Those who endorse this fixed view generally espouse whathas come to be known asoriginalism. Only if interpretersrestrict themselves to original intentions and/or understandings, anddo not attempt to insert their own contentious views under the guiseof ‘interpretation’, can the role of a constitution besecured. Only then, originalists maintain, can it serve as thepolitically neutral, stable framework its nature demands.

But not all constitutional theorists believe that the foundationalrole of a constitution demands that its meaning and interpretation besomehow fixed, or that its interpretation be absolutely immune fromconsiderations of moral and political theory and debate. On thecontrary, many constitutional scholars and judges embrace livingconstitutionalism, an approach that sees a constitution as anevolving, living entity which, by its very nature, is capable ofresponding to changing social circumstances and new (and it is hopedbetter) moral and political beliefs. Along with this very differentview of constitutions come very different theories regarding thenature and limits of legitimate constitutional interpretation. Onestrand within living constitutionalism, upon which we will be focusbelow, stresses the extent to which constitutional interpretationresembles the kind of reasoning that takes place in other areas of thelaw pertaining to common law legal systems, such as the law ofcontracts and torts. Just as the law of contributory negligenceemerged and (continuously) evolves in common law countries in acase-by-case, incremental manner, over many decades and as the productof many judicial decisions, the law of equal protection, freeexpression, due process and the like (continuously) evolves in modernwestern democracies as constitutional cases are heard and decided.

Disputes between fixed-view originalists and living constitutionalistsare among the liveliest and most contentious to have arisen inconstitutional scholarship over the past several decades. Debates havetended to focus on abstract civil rights provisions of constitutions,such as the due process clause of the American Constitution, orSection 7 of the Canadian Charter of Rights and Freedoms, which’guarantees the right to life, liberty and security of theperson and the right not to be deprived thereof except in accordancewith the principles of fundamental justice.^[14] Given the fixed view to which they are committed, contemporaryoriginalists view anything more than an attempt to discover, so as topreserve and apply, original understandings of, or the intentionsbehind, such provisions as constitutional revision or‘construction,’ often masquerading as the interpretationof an unchanged original.^[15] On the other side, we find the living constitutionalists who tend toview originalism as a reactionary, overly conservative theory servingonly to tie a democratic community to the ‘dead hand of thepast.’ Originalists, their opponents claim, render us incapableof responding rationally and responsibly to changing socialcircumstances and improved moral views concerning the requirements ofthe abstract values and principles articulated and endorsed in modernconstitutions. Living constitutionalists, the originalist counters,recommend constitutional practices that threaten a number of cherishedvalues, among them the rule of law and the separation of powers. Theyare, in effect, happy to place the constitution in the hands ofcontemporary judges who are permitted, under the guise ofinterpreting it, tochange the constitution to suit their ownpolitical inclinations and moral preferences. And this, originalistsclaim, only serves to thwart cherished values secured by having astable, politically neutral constitution, and may render all talk ofgenuine constitutional constraint meaningless.

8. Originalism

Originalismcomes in a wide variety of forms (Bork 1990;Scalia 1997; Whittington 1999b; Barnett 2004; Solum 2008). Anoriginalist might claim that her view follows necessarily from a moregeneral theory of interpretation: to interpret is necessarily toretrieve something that existed at the time ofauthorship—an original object. Another might be happy toacknowledge that interpretation could, theoretically, take the form ofaninnovative orcreative interpretation thatevaluates or in some way changes an original, as might be the casewith a revolutionary interpretation of a play or work of art. But sucha theorist might go on to add that, for reasons of political moralityhaving to do with, e.g., the principles of democracy, the rule of law,and values underlying the separation of powers, such innovativeinterpretations ought never be pursued by constitutional interpreters.The object of constitutional interpretation should, to the greatestextent possible, remain fixed by factors like original publicunderstandings or authorial intentions. Yet another originalist mightbe content to leave a little leeway here, suggesting something likethe following: though there is a presumption, perhaps a very heavyone, in favor of interpretation as retrieval of an original, it is onewhich can, on very rare occasions and for truly exceptional reasons,be overcome. For example, this originalist might say that thepresumption in favor of retrieval can be defeated when there is adiscernible and profound sea change in popular views on some importantissue of political morality implicated by an abstract constitutionalprovision. This was arguably the case in the United States withrespect to slavery and equal protection. Presumably ‘equalprotection’ was originally understood, both by the authors ofthe 14^th Amendment and by the people on whose behalf theyacted, as fully consistent with segregation. This concreteunderstanding of equal protection is now, of course, widely condemned.Its wholesale rejection served as the main inspiration behindBrown v. Board of Education, whose innovative interpretationof the equal protection clause arguably changed or replaced theoriginal understanding of the notion.^[16] Yet another concession, in thiscase one that seems embraced by all originalists, concerns the forceand effect of authoritative court interpretations of the constitution.Many originalists believe thatRoe v. Wade^[17] rested on a mistakeninterpretation of the United States Constitution, one that flew in theface of original understandings and intentions; but virtually nooriginalist would have gone so far as to deny, beforeRoe wasoverturned by the US Supreme Court inDobbs,^[18]that any contemporary interpretation of the First, Fourth, Fifth,Ninth and Fourteenth Amendments could be justified only if it can bereconciled with that decision. In other words, virtually alloriginalists agree that established precedent can sometimes overrideoriginal understanding. Whether this apparent concession is in the endconsistent 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 judicialinterpretations of abstract constitutional provisions is central tothat prominent form of living constitutionalism which viewsconstitutional interpretation as resting on a form of common-lawreasoning.

Another way in which originalists have split is over the identity ofthe original object of interpretation. Walter Benn Michaels is amongthose who defendOriginal Intent Originalism, theview that “you can’t do textual interpretation without someappeal to authorial intention and, perhaps more controversially, youcan’t (coherently and non-arbitrarily) think of yourself as stilldoing textual interpretation as soon as you appeal to somethingbeyond authorial intention...” (Michaels, 2009, 21) Keith Whittington,Randy Barnett, and Larry Solum, on the other hand, defendOriginalPublic Meaning Originalism, commonly referred to asNewOriginalism, which “emphasizes the meaning that the Constitution(or its amendments) would have had to the relevant audience at thetime of its adoption.” (Solum 2021) Whatever its precise contours, anoriginalist theory is likely to rest on the fixed view of aconstitution. The constitution’s rules and principles are fixedby original public meaning or its authors’ intentions and,(barring formal constitutional amendment) these must not be revisitedand revised lest the authority and stability of the constitution bethreatened. Original intentions or public meanings must always governthe interpretation of a constitution, not the new value judgements anddecisions of contemporary judges (or other interpreters) asking thevery same questions the author’s actions and decisions weresupposed to have settled.

Originalism in all its many forms has undergone extensive critique.For example, original intentions and public meaning are often unclear,if not largely indeterminate, leaving the interpreter with the need toappeal to other factors. In addition, original intentions andunderstandings can vary from one person to the next. Sometimes theonly things upon which joint authors or members of the relevantoriginal audience can agree are the particular words to be included inthe constitution. The intentions behind that choice can, however, varysignificantly, as can original understandings of what those wordsmean. These can range from the very general to the highly specific. Atone end of the spectrum are the various, and sometimes conflicting,goals andvalues the authors of a constitutionalprovision intended their creation to achieve and which an originalinterpreter might understand the provision to be all about. At theother end are the very specificapplications the authorsmight have had in mind when they chose the particular words upon whichthey settled, and which would generally have been understood by therelevant audience to cover. Did the intended or understoodapplications of an equality provision encompassequal access tothe legal system by all groups within society? Or only somethingmore specific like equal access tofairness at trial. Didthey perhaps includeequal economic and social opportunitiesfor all groups? Different authors might have intended all, none, orsome of these applications when they agreed upon the equalityprovision, and similar things can be said about the correspondingunderstandings of members of the original audience. As with thegeneral goals and values underlying a provision, there is room forinconsistence and conflict. In light of this fact, it can often beunhelpful, when interpreting a constitution, to rely exclusively onoriginal intentions or public meanings.

Let’s suppose, however, that this is not the case: that there isa way for contemporary interpreters actually to determine,independently of their own moral and political views, either theoriginal intentions of constitutional authors or what the earliergeneration would have understood the relevant constitutionalprovision(s) to mean. Would a constitution, understood in one of thesetwo ways, and serving the role ascribed to it by the fixed view, be agood thing for a democratic society to have? Not according to manyconstitutional scholars. As noted above, constitutions are intended tolast a long time and to span many generations. This is one of the mainreasons they tend to be entrenched. Suppose that an entrenchedconstitution has in fact been in existence for a very long time. Insuch a scenario, we should distinguish between two groups of people:the people-now andthe people-then. According tooriginalism, it is the understandings and intentions of thepeople-then that will control the proper application by the people-nowof constitutional provisions in contemporary settings. In other words,the people-now will in effect be shackled in their attempts toexercise political choice by the prior decisions of someone else —the people-then. It’s at the very least questionable whetherthis scenario is consistent with our understanding of democracy as asystem of ongoing self-government. To be self-governing in an ongoingmanner, one must be able to change one’s mind.

How might an originalist get round this apparent difficulty? One wayis to note that the so-called dead hand of the past can always beremoved through constitutional amendment, difficult as this processmight be to engage successfully. A second way is the one generallypursued by new originalists, who draw a distinction betweeninterpretation, on the one hand, andconstruction,on the other. The former is the process of discovering thecommunicative meaning or content of words in the text of theconstitution, while the latter consists of putting that meaning orcontent into effect by applying it in particular cases. (Barnett 1999& 2011; Whittington 1999) According to these new public meaningoriginalists, the dead hand of the past extends only to thecommunicative meaning or content of the relevant text and to theprocess of interpreting it. And importantly, though the communicativemeaning or content of, e.g., ‘free expression’, ‘dueprocess’ or ‘cruel and unusual punishment’ is thesame now as it was when provisions incorporating these notion werefirst introduced in, e.g., the US Constitution, that unchangedcommunicative meaning is not the primary focus in most controversialconstitutional cases where questions of construction take the leadingrole. Here contemporary interpreters must exercise fresh judgment inapplying unchanged, but largely uncontentious, original meaning of aconstitution’s terms to the complex, new and contentioussituations constitutional rights cases being to the fore. They mustconstruct an understanding of, e.g., the right to free expression thatallows them to decide controversial cases involving such things asonline bullying or attempts to unduly influence voters through the useof internet bots. Given the highly abstract nature of thisconstitutional right, it seems likely that judicial construction willplay the leading role in the vast majority of cases involving itsapplication. And if this is so, then whatever reach the dead hand ofthe past might have, it will end up being quite minimal.

9. Living Constitutionalism

Whatever else might be said of law, this much is undeniably true:where law exists, our conduct is subject to various forms ofrestriction. But in many instances, the relevant restrictions can beremoved or changed with minimal effort, as when a problematiccommon-law precedent is overturned because of changing socialcircumstances, or a statute is repealed or amended because it nolonger serves useful purposes. Not so with constitutions. As notedabove, they tend to be heavily entrenched. Constitutions are alsomeant to be long lasting, so as to serve the values of continuity andstability in the basic framework within which the contentious affairsof law and politics are conducted. The entrenched nature ofconstitutions is largely unproblematic when we consider provisionsdealing with such matters as the length of term of a senator or whichbranch of government is responsible for regulating public education.But things get much more complicated and contentious when we turn tothe highly abstract, moral provisions of most modern constitutionswhich have the effect of limiting the powers of government bodies insignificant ways. These special features of constitutions combine togive rise to a fundamental question, one that causes the originalistso much difficulty and to which living constitutionalism purports toprovide a better answer: How can one group of people, the people-then,justifiably place entrenched constitutional impediments of a decidedlymoral nature in the way of a second group of people, the people-now,who might live in radically different circumstances and perhaps withradically different moral views? How, in short, can one generationlegitimately bind the moral choices of another? A satisfactory answerto thisintergenerational problem, living constitutionalistscontend, requires that we recognize that constitutions can grow andadapt to ever-changing circumstances without losing their identity ortheir legitimacy.

According to living constitutionalists, the meaning or content of anentrenched provision like section 3(1) of the German Basic Law, whichproclaims that ‘All persons shall be equal before thelaw,’ consists in the rights or principles of political moralitythey express, not what those rights or principles were generallyunderstood to require at the time of enactment or were believed orintended to require by those who chose to include them in theconstitution. 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 ‘drawingand quartering’), is presumably made in recognition of at leastfour crucial facts: (1) it’s important that governments notviolate certain important rights of political morality; (2)constitutional authors do not always agree fully on what concretely isrequired in the many scenarios and cases in which those rights are, orwill later be seen to be, relevant; (3) constitutional authors cananticipate neither the future nor the many scenarios and cases inwhich these important rights will be in some way relevant; and (4)even when they do agree on what those rights concretely require at themoment of adoption, and are comfortable bindingthemselvesand their contemporaries to these concrete understandings, they arenot particularly comfortable doing so in respect of future generationswho will live in very different times and may think very differently.And so the decision is made to express constitutional commitments invery abstract terms—‘cruel and unusual punishment’versus ‘drawing and quartering’—leaving it to latergenerations to substitute their possibly different concreteunderstandings for those of the authors or those who lived at the timeof authorship. The result is that as concrete understandings of theentrenched constitutional-rights provisions evolve, the resultswarranted by these provisions can legitimately change right along withthem. And importantly for the living constitutionalist who does notwish to surrender to the charge that she counsels infidelity to theconstitution, these changes can occur without the constitution havingchanged, as would be true were a process of formal amendmentsuccessfully invoked and an abstract, rights provision removed fromthe constitution.

One version of living constitutionalism iscommon lawconstitutionalism, a view developed and defended by David Straussand Wil Waluchow. (Strauss 2010; Waluchow 2007a) This view seeks toconstrain and regulate the evolution of constitutional rights so thatthey can be both responsive to changing circumstances and yet stableenough to accommodate rule of law values such as stability andcontinuity. Common law constitutionalists assert that the evolution ofa constitution is governed largely by a body of precedents. Asprecedents are set in constitutional rights cases, principles anddoctrines emerge that are subject to revision as later cases arise.According to common law constitutionalism, these precedents, and theprinciples and doctrines they support, ultimately count as much as thewritten text. The former are as much a part of the constitution as thewritten document created by constitutional authors. David Strauss goesso far as to suggest, in reference to the US Constitution, that “whena case involves the [written] Constitution, the text routinely gets noattention. On a day-to-day basis, American constitutional law is aboutprecedents...” (Strauss 2010, 34)

Despite its undoubted appeal, (at least to many) livingconstitutionalism is subject to a number of significant objections.Perhaps the most prominent ones are these: (a) the theory renders alltalk of constitutional interpretation, properly understood as theretrieval of existing meaning, utterly senseless: constitutionalinterpretation becomes nothing more than unconstrained, constitutionalcreation or construction masquerading as interpretation; (b) livingconstitutionalism robs the constitution of its ability to serve itsguidance function—how can individuals be guided by aconstitution whose application to their conduct and choices will bedetermined by the unconstrained views of later so-calledinterpreters?; and (c) living constitutionalism violates theseparation of powers doctrine—if the constitution and its limitsbecome whatever contemporary interpreters take them to mean, and ifthose interpreters tend to be found almost exclusively in courtspopulated by individuals who were appointed not elected, thendemocratically unaccountable judges end up deciding what the properlimits of government power shall be, a task for which they areeminently unqualified and which ought to be reserved for individuals(e.g., the authors of the constitution) with the democratic authorityto serve that function.

Living constitutionalists have a number of responses to theseobjections. For instance, it might be argued that the theory in no wayresults in the unconstrained, arbitrary exercise of judicial power itsopponents often portray it to be. Living constitutionalists likeStrauss (2010) and Waluchow (2007a) suggest that the ongoinginterpretation of a constitution’s abstract rights provisions isa process much like the process by which judges develop equallyabstract, common-law notions like ‘negligence’ and‘the reasonable use of force.’ According to Strauss, theU.S. constitutional system

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

On this view, constitutional interpretation must accommodate itself toprevious attempts to interpret and apply the abstract rightsprovisions expressed in the constitution’s text. These priorinterpretive decisions serve as constitutional precedents. And just asthe traditional rules of precedent combine respect for the (albeitlimited) wisdom and authority of previous decision makers (legislativeand judicial) with an awareness of the need to allow adaptation in theface of changing views, and new or unforeseen circumstances, so toomust constitutional interpreters respect the wisdom and authority ofprevious interpreters, while allowing the constitution to adapt so asto respond to changing views, and new or unforeseen circumstances.Living constitutional interpretation, though flexible and adaptive, isno less constrained and disciplined than reasoning under commonlaw.

Another response open to living constitutionalists is to deny thattheir theory of interpretation ignores the special role played by aconstitution’s text and its authors. The text plays a key roleinsofar as any constitutional interpretation, innovative as it may be,must be consistent with that text, until such time as it is formallychanged via some acknowledged process of constitutional amendment.There is no reason to deny that original understandings of aconstitution’s abstract provisions can also be highly relevantto later interpretations. This is especially so for interpretationsthat occur shortly after the constitution’s adoption, whenworries about binding future generations is not in play. Originalunderstandings simply cannot be dispositive, at least not inperpetuity. In the end, the relative importance of factors liketextual meaning, original understandings, later interpretations, andintended purposes, may be, as Joseph Raz suggests (1996,176–91), fundamentally a question of political morality whichcannot be answered in the abstract and without considering what it isthat justifies, at that particular moment of interpretation, having anentrenched constitution at all, let alone one with such and suchparticular content. Sometimes, retrieval of an existing concreteunderstanding will be required, especially when the constitution is inits infancy and was partly meant to settle a range of concrete moralquestions as to the proper limits of government power,at leastfor a while. But if an interpreter has good reason to believethat this settlement function has been overtaken by other morepressing concerns, perhaps the need to adapt in light of dramaticallychanged circumstances or much better moral understanding, then a moreinnovative interpretation may be called for. And once again, to saythat constitutional interpreters must sometimes be innovative is notto say that a constitution can be interpreted to mean whatever theinterpreter wants it to mean.

Yet another response open to living constitutionalists is to note thespecial institutional structures that many jurisdictions have adoptedto lessen democratic worries arising from the key role judges play indeveloping constitutional rights. These concerns are particularlyacute in jurisdictions, such as the US, where the Supreme Courteffectively has the final say on the meaning and import ofconstitutional rights provisions. But not all jurisdictions assign thefinal say to judges. The United Kingdom, for instance practices aversion of what Mark Tushnet calls “weak-form-review.” (Tushnet 2003)It is the responsibility of the UK Supreme Court to rule on whether aprovision of Parliament is compatible with (properly interpreted)provisions of the Human Rights Act. But neither the Court’sdecision, nor its interpretation of the relevant right, is binding onParliament. Despite the declared incompatibility, Parliament has thepower to leave its legislation as is. The people-now, through theirelected members of Parliament, retain the final say on theinterpretation and application of the constitutional rights recognizedin the Human Rights Act.

10. The Moral Reading

Among the most influential critics of originalism was Ronald Dworkin,for whom historical factors like original meanings and intentions,though often important, are in no way dispositive in constitutionalrights cases. They in no way fix the limits of government power untilsuch time as an amendment passes or the constitution is abandoned orreplaced. On the contrary, constitutions set the terms of an ongoingdebate about the moral principles and values it enshrines. And as thepolitical community’s understanding of these principlesdevelops, the very content of the constitution develops and improvesalong with it. The framers’ contribution to this process is thatthey enacted some ‘general principles’ which futureinterpreters must constructively interpret (Dworkin 1996, 8–9; seerelatedly Greenberg and Littman 1998). This arguably rendersDworkin’s constitutional theory a version of livingconstitutionalism.

A crucial element in Dworkin’s constitutional theory is hisgeneral claim that the law of a community, including itsconstitutional law, includes more than any explicit text or decisionsauthoritatively adopted or made in accordance with acceptedprocedures. It does, of course, include many such elements and thesecan be found, paradigmatically, in statute books, judicial decisionsand, of course, written constitutions. These are often termed‘positive law.’ But the positive law in no way exhauststhe law according to Dworkin. Most importantly, for our purposes here,it in no way exhausts that part of the law referred to as ‘theconstitution’. In Dworkin’s view, a constitution includesthe principles of political morality that provide the best explanationand moral justification – i.e., the best interpretation – ofwhatever limits have been expressed in positive law, including theconstitution and any decisions taken in application of it. Hence,constitutional interpretation must always invoke a theory of politicalmorality. One concerned to interpret the limits on government powerand authority imposed by a constitution must construct an interpretivetheory that provides the written constitution, and the many decisionstaken under it, with their best explanation and moraljustification.

There are, for our purposes here, three important implications ofDworkin’s theory of constitutional interpretation. First,original intentions and understandings at best set the stage for theongoing debates of political morality that constitutional rights casesboth require and license. They seldom, if every settle matters.Second, constitutional rights cases require the kind ofdecision-making which is, according to originalism, properlyundertaken only by those with the authority to fix the limits ongovernment power contained within a constitution – i.e., its authorsor framers. The kind of morally and politically uncontroversialjudicial decision-making, within a stable framework established byother responsible agents, to which originalism aspires, is simplyimpossible on Dworkin’s theory. Dworkin’s theory, like (oras a form of) living constitutionalism, requires wholesale rejectionof the fixed view. The constitution is not a finished product, handeddown in a form fixed till such time as its amending formula isinvoked, or the constitution abandoned or replaced. Rather, it is awork in progress requiring continual revisiting and reworking as ourmoral and political theories concerning its limits are refined and, itis hoped, improved. It is, in short, a living thing.

A third, related implication of Dworkin’s theory, is that judgesin constitutional cases do not simply implement decisions made byothers – the constitution’s authors or framers. On thecontrary, they are partners with the authors in an ongoing politicalproject, one that requires participants, then and now, to engage inthe kind of moral and political decision-making which, on the fixedview, settled matters when the constitution was first adopted (oramended). The limits to government power are, on Dworkin’stheory, continually and essentially contestable. Interpreting thecontestable terms of a constitution is an ongoing task, requiring thateach and every interpreter provide her own best, and undoubtedlyimperfect, interpretation of the limits placed on government by herconstitution and the various official decisions taken under it. Thelatter can never be fixed.

11. Liberal vs Common Good Constitutionalism

One’s understanding of how constitutions limit power and howthey ought to be interpreted depends, as noted above, on one’sconception of their role. For some, that role must be set against thebackground of the value pluralism that is characteristic of manymodern societies. In light of this pluralism, they say, constitutionsshould not be committed to a particular understanding of the good butshould, rather, serve to guarantee those essentials of politicaljustice adherence to which is necessary for legitimating governmentpower to citizens who hold a variety of comprehensive doctrines, thatis, conceptions of justice and the good life. This so-called‘liberal principle of legitimacy’ is taken to issue in anaustere list of ‘constitutional essentials’ (Rawls 1996,227ff; Michelman 2022, 51ff; Sager 2004, ch 8). According to onesuggestion, the liberal principle of legitimacy sits more comfortablywith the fixed view of constitutions and their meaning. Arguably, itis better served when the interpretation of constitutional essentialstrack their ‘central range’ (Rawls 1996, 273), thuspresumably eliciting broad convergence. However, for other authorssuch as Michelman, the liberal principle of legitimacy might in factbe satisfied by a certain mode of constitutional argument, oneoriented towards reciprocity, even when its application to concreteconstitutional issues is disputed (Michelman 2022, 105 ff). In thispicture, reciprocity takes seriously the fact of value pluralism andthe corresponding requirement that constitutional arrangements beacceptable to all. But its precise contours are sensitive to thesuitably constrained moral judgment of citizens and officials.

Opposing this approach is common good constitutionalism, according towhich constitutions, even of pluralistic societies like the UnitedStates, are geared towards advancing – and must be interpreted inlight of – a robust, unitary vision of the common good of society.According to its foremost contemporary proponent, Adrian Vermeule,constitutions and constitutional interpretation “should be basedon the principles that government helps direct persons, associations,and society generally toward the common good, and that strong rule inthe interest of attaining the common good is entirelylegitimate” (Vermeule 2020). More specifically:

[t]his approach should take as its starting point substantive moralprinciples that conduce to the common good, principles that officials(including, but by no means limited to, judges) should read into themajestic generalities and ambiguities of the written Constitution.These principles include … a candid willingness to‘legislate morality’ – indeed, a recognition thatall legislation is necessarily founded on some substantive conceptionof morality, and that the promotion of morality is a core andlegitimate function of authority. Such principles promote the commongood and make for a just and well-ordered society. (Vermeule 2020)

Vermeule’s constitutional theory, further developed in hisCommon Good Constitutionalism, arguably represents a newalternative to the constitutional theories discussed above. Butperhaps not. Vermeule himself characterizes his view as‘methodologically Dworkinian,’ noting that it“advocates a very different set of substantive moral commitmentsand priorities from Dworkin’s, which were of a conventionallyleft-liberal bent” (Vermeule 2020). This may lead one to wonderwhether Vermeule’s theory truly is an alternative toDworkin’s theory of constitutions and their interpretation, orinstead an alternative account of the conclusions Dworkin’sideal judge, Hercules, (a mythical judge who always gets things rightand whose decisions set the standard fallible judges strive to meet)would draw were he to set out to offer a grand interpretation of USconstitutional law. (On Hercules, see Dworkin 1986, 239 ff.) Whateveranswer one provides to this question, it is nevertheless worthconsidering whether the moral vision underlying Vermeule’scommon good constitutionalism is one that only religious conservativeswho share his moral views can endorse. And if it is, then should itframe our understanding of the nature and role of the constitutions ofwestern liberal democracies? There is also the concern that commongood constitutionalism has the potential to untether constitutionalinterpretation from both constitutional text and constitutionalprecedent, thus providing judges with far too much power to use thelaw to further that particular moral vision. (See, e.g., Barnett2020)

12. Critical Theories

Although constitutionalism has been widely embraced round the world,it is by no means without its detractors. This is especially true whenwe turn to those constitutions that not only create and regulate theoffices of government but also purport to protect abstract rights ofpolitical morality. Some critics—we’ll call these thehard critics—assert that such apparentlyrights-protective constitutions cannot effectively and legitimatelyserve to protect individuals against the oppressive forces of governments.^[20] On the contrary, theyonly serve to shroud legal and political practice in a false cloak oflegitimacy. Other critics—we’ll call these thedemocratic critics—are not so utterly dismissive ofrights-protecting constitutions. Rather, their main concern is tochallenge the role that democratically unaccountable judges typicallyplay in the interpretation and application of constitutional rights.This concern appears to arise most forcefully in relation to theinterpretive theories of Dworkin, the moral judgments of common goodconstitutionalism and the judicial precedents of livingconstitutionalists. But the concern is no less acute when we considernew originalism and the ways in which it resorts to the constitutionalconstructions of judges.

According to hard critics, factors like original understandings andthe supposed discipline of common law reasoning seldom, if ever,succeed in establishing meaningful limits upon government power. As aresult, reliance on such factors in constitutional adjudication onlyserves: (a) to rationalize the purely political decisions of judgespursuing, consciously or not, their own political ideologies. Furtherconsequences include: (b) a serious affront to democracy. In mostconstitutional democracies, the judges who ultimately decideconstitutional cases are appointed, not elected. That is, they holdoffice not because they were selected to do so by the democraticcommunity, but because of a decision on the part of a President, aPrime Minister, a small group of fellow judges, or a judicialcommittee of Parliament. Furthermore, these appointed judges tend tocome from the privileged classes of society. The end result is a smallgroup of unelected, elitist judges with the power to substitute theirown, highly contentious views about the proper limits of governmentpower for the considered judgments of the people’srepresentatives, e.g., those members of Congress or Parliament dulyelected to exercise, on behalf of the people, the latter’ssovereign right to participate in political decisions affecting theirbasic rights. And possibly (c): suppression of those—women,minority racial groups, the poor, and so on—whose interests arenot adequately recognized and protected by the dominant, mainstreamideologies to which these elite judges have an affinity. Instead ofthe curbing of rights-threatening government power for which the ideaof constitutionalism is supposed to stand, we have politicalsuppression disguised in a cloak of false constitutionallegitimacy.

So hard critics are highly skeptical of constitutional practice and ofthose theories that applaud constitutionalism as a bulwark against oppression.^[21] As noted at the outsetof this entry, a key element in the idea of constitutionalism is thatgovernment can/should be limited in its powers and that its authoritydepends on observance of those limits. It was further noted that theauthority of constitutions in constitutional democracies is generallythought to rest with ‘the people.’ One further claim ofhard critical theories is: (d) that the concept of ‘thepeople’ is very much a fabrication. Instead of being composed ofa group of individuals united in their concern for basic rights,western societies are comprised of various groups competing either fordomination (e.g., white males and the wealthy) or for recognition andthe elimination of oppression (e.g., the poor, women, and racialminorities). The law, including constitutional law, is a powerful toolwhich has, historically, been utilized by dominant groups to secureand maintain their superior status.

A particularly vivid example of this last consequence is arguablyfound inLochner v New York, a notorious case in which theUnited States Supreme Court ruled that a New York State law requiringthat bakery employees work no more than ten hours per day and sixtyhours per week violated the Fourteenth Amendment, which asserts thatno State may “deprive any person of life, liberty, or property,without due process of law.”.^[22] The FourteenthAmendment, the Court held, entails ‘the right and liberty of theindividual to contract’ for a longer work week. TheLochner decision gave rise to what is commonly called‘theLochner era,’ a period stretching roughlyfrom 1905 till 1937 in which the Supreme Court struck down numerousFederal and State statutes aimed at improving the working conditionsof employees. As such, it may well have been a period during which theUnited States Constitution, in the hands of an elitist Court, servedonly to legitimize overt political suppression. According to hardcritics, theLochner era is but one small piece of a muchlarger picture.

To sum up, according to hard critics, a constitution is anything butthe protection from unwarranted government power that its championshave heralded over the centuries. What is taken to be the obviousmeaning of a key term like ‘equal before the law’ is whatthe dominant group understands or claims it to be. What is taken to bethe obvious original understandings or historical intentions of theconstitution’s authors are whatever understandings or intentionsfit the ideologies of the dominant groups. What is taken to be thebest articulation of the right to equality emerging from a fair anddisciplined common-law analysis of that right, from a Dworkinianinterpretive theory, or from an articulation of the common good isnothing but a rationalization of current social structures, all ofwhich systematically oppress the interests of women, minorities andthe poor.

As noted above, democratic critics tend not to be as utterlydismissive of constitutions and constitutional rights protections astheir more hard-line cousins. Their principal objections revolvearound a practice with which these aspects of modern constitutionalregimes are typically associated:judicial or constitutionalreview. This is the practice whereby courts are sometimes calledupon to review a law or some other official act of government (e.g.,the decision of an administrative agency like the US Food and DrugAdministration or the Canadian Radio-television and TelecommunicationsCommission) to determine its compatibility with the constitution.^[23] Particular instances ofthis practice vary considerably. As noted above, in somejurisdictions, such as the United States, judicial review includes thepower to ‘strike down’ or nullify a law duly passed by alegislature body or administrative body and the decision is final andirreversible. In other jurisdictions, the courts either do not havethe power to strike down or nullify, or a decision to do so isreversible by some other body of government. As we saw, courts in theUnited Kingdom do not have the power to invalidate Parliament’slegislation, that is, declare it void and of no force and effect. Butthey do have the authority, under section 4 of the Human Rights Act1998, officially to declare legislation incompatible withTheHuman Rights Act. Upon such a declaration, Parliament usuallyundertakes to amend or repeal the offending legislation. But should itchose not to do so, the legislation remains valid and the courts haveno further legal recourse. In Canada, the Supreme Court has the powerto strike down a law which it believes unjustifiably infringes a rightguaranteed in Sections 2 or 7–15 ofThe Canadian Charter ofRights and Freedoms, but Section 33 of that sameChartergrants Parliament or the legislature of a province the power tooverride that decision. This co-called ‘notwithstandingclause’ allows Parliament or a provincial legislature to declarethat, notwithstanding its unjustifiable infringement of an enumeratedright, the offending legislation will stand as constitutionally valid.Insofar as these two versions of weak-form review leave the finaldecision regarding the meaning and scope of a constitutional right andthe limits it imposes on government powers in the hands of thelegislature, it is touted by its defenders as consistent withdemocratic principle. According to critics of weak-form review,however, the practice strips the constitution of one of its most vitalfunctions: the protection of individual and minority rights againstwhat Mill, following de Tocqueville, famously called ‘thetyranny of the majority.’^[24]

Among the most influential of contemporary democratic critics isJeremy Waldron. Waldron is, to put it mildly, no fan of constitutionalreview. Nor is he enamored of the grandiose constitutional chartersand bills of rights which serve as the most contentious ground interms of which that power is often exercised by courts. According toWaldron and his fellow democratic critics, constitutional review underan entrenched charter or bill of rights is fraught with boththeoretical and practical difficulty. It threatens democracy and isboth fundamentally unfair and politically dangerous. It also relies onoutmoded views about the nature of moral rights—that there areobjective, universal rights of political morality to which charters orbills of rights make reference, upon which there is widespreadagreement within democratic communities, and to which judges cansensibly and justifiably be asked to appeal in protecting citizensagainst recalcitrant exercises of government power. While it is truethat constitutional review need not be based on an appeal to abstractrights of political morality (it could, for example, be restricted toquestions such as whether Congress or a provincial legislature hasfollowed proper procedure) and true that it need not include theability actually to strike down legislation, the main focus ofdemocratic critics has been on strong-form constitutional review whichexemplifies these two features.

According to democratic critics it is difficult to underestimate theconsiderable power which constitutional review under an entrenchedcharter or bill of rights places in the hands of judges who are, inmodern constitutional democracies, typically unelected and hence notdirectly accountable to the democratic community. Despite their lackof accountability, these judges are assigned the task of providingauthoritative answers to the deeply controversial questions ofpolitical morality that arise under constitutional review and withrespect to which there is so much deep disagreement. Examples canrange from the permissibility of abortion or physician-assistedsuicide, to the banning of hate speech or the publication of violentand degrading pornography on the internet. On the basis of these highlycontroversial answers they end up determining what shall be deemedlawful in the community. This is far too much political power for asmall group of unelected people to wield over an entire democraticcommunity, no matter how learned and wise they might happen to be. Butperhaps more importantly, the granting of such power is fundamentallyundemocratic in principle: individual citizens have, in effect, beendisenfranchised by this arrangement. Each citizen of voting age shouldhave an equal right, in a democratic society, to contribute to thecreation of the laws by which she is governed. This she exercisesdirectly via the ballot box and by whatever contributions to publicdiscourse and debate about controversial issues she chooses to make.She also does so indirectly via the legislative votes of her electedrepresentatives, whose task is to represent her interests andopinions. Yet with strong-form constitutional review all this has beenreplaced by subjection to the pronouncements of judges. The dulyconsidered views of citizens and their representatives about the lawsby which they are to be governed, arrived at (it is hoped) throughfair processes of democratic decision-making, have, in effect, beenset aside in favour of the contentious moral pronouncements of ahandful of democratically unaccountable, elite judges. This unhappysituation is further exacerbated by the undeniable fact that judges onappeal courts often disagree vehemently among themselves about rightsof political morality and must often, in the end, rely on majorityvoting to settle their own disagreements. It is not at all uncommon tosee split votes when a court deals with a contentious issue of moralprinciple like affirmative action, abortion or pornography. And oftenthese split votes follow patterns which are closely correlated withthe all too discernible political leanings of judges.^[25] Add to this the factthat judges render decisions which all too often appear to conflictnot only with views widely shared in the community at large, but alsowith their own previous decisions in earlier cases, and what mightseem like a marvelous idea in the abstract—constitutionallyguaranteeing moral rights and fundamental interests against the abuseof government power—is transformed into a living nightmare. Anightmare in which democracy, fairness and the rule of law have, ineffect, been abandoned and replaced by the rule of a few men andwomen, by a kind of ‘judicial oligarchy.’ And no matterthe high esteem in which we tend to hold our judges in modernconstitutional democracies, this is not a form of government to beeagerly embraced.

Critical theories, both hard and democratic, represent a seriouschallenge not only to conventional theories and established practicesof constitutional interpretation, but to the very idea ofconstitutionalism itself—the idea that government can and shouldbe limited in ways that serve to protect us from unwarranted statepower. According to originalism, the constitution protects us fromjudges and other officials by restricting them (largely) topolitically and morally uncontroversial, neutral decisions abouthistorical intentions and understandings. According to one strand ofliving constitutionalism, our evolving constitution can do the samewhile at the same time allowing the constitution to grow and adapt tochanging circumstances and (it is hoped) better moral understandings.It can effect this balancing act so long as the judges, in whom thepower of constitutional interpretation and enforcement has largelybeen placed, are willing to subject their deliberations to thediscipline of common law reasoning. Critics, however, remain highlyskeptical. Ordinary judges are not, critical theorists will insist,Platonic kings and queens, dispensing justice in the light ofobjective moral truth. We must always remember, critics insist, thatour judges are ordinary, flawed human beings with all the intellectualand moral shortcomings, weaknesses and biases of their fellow humanbeings. They are also, more often than not, members of a dominantgroup (e.g., wealthy, white males) who share the social background,education, perspective, and moral values of that group. But ifconstitutions are all at the mercy of dominant ideologies and thewhims and convictions of elite judges, then the kind of protectionsheralded by the idea of constitutionalism may be a myth, and a harmfulone at that.

So what is the solution according to critical theorists? The profferedsolutions can vary considerably, depending on how hard-line thetheorist tends to be. A theocrat might advocate the complete overthrowof constitutional, democratic government, while a liberal feministcritic might be content to work within existing constitutional systemsto eradicate the vestiges of patriarchy which have survived recentfeminist movements (MacKinnon, 1989; Strossen 1995). Waldron and hisfellow democratic critics ague that we should abandon the practice ofconstitutional review of legislation under entrenched charters orbills of rights and leave political decisions where they belong: thepeople and their elected and accountable representatives (Waldron,1992, 2006; Marmor, 2007). Yet another avenue of response is tohighlight the extent to which the critics’ most powerfulobjections apply only to strong-form review, where judicial decisionsare final and can have the effect of nullifying the efforts ofdemocratically accounted legislatures. Having pointed this out, thenext move is to recommend weaker forms of review which arguablyreflect a healthier balance between respect for fundamental rights, onthe one hand, and the importance of democratic procedure on the other(Gardbaum, 2013). Were an effective version of something likeCanada’s Section 33 override included within a constitution, thecourts might well be able to maintain their intended role as defendersof rights, while leaving the final word to the legislature in caseswhere intractable differences of opinion run deep.

In recent years another solution has been offered by populism.Although often seen as antithetical to constitutionalism (Müller2016) because of its perceived tendency towards totalitarianism,populism could instead be viewed as a reaction to a specific form ofconstitutionalism and the type of constitutional practice to which itlends itself (Vergara 2020). Thus understood, populism targetsconstitutional constraints that take political power away from thepeople and place it in the hands of elites, most notably the judgeswho decide constitutional cases but also, to some extent, electedrepresentatives. Conversely, it favors constitutional arrangementsthat allow for or encourage broad public participation anddeliberation in respect of controversial issues of political morality,especially with a view to empowering and engaging in the politicalprocess the marginalised and excluded segments of society (Gargarella2022). Although this solution is animated by egalitarianism, just likeWaldron and other democratic critics, it insists that it is not enoughto point to the legislature –even a reasonably well formedone– as the forum that vindicates political equality. Indeed, wemay have to look beyond traditional institutional forms toreinvigorate the polity.

Whatever the preferred solution, all critics of constitutionalism seemto agree that progress can be made only if the myths surroundingconstitutional protection—the constraining force of originalunderstanding, intention, history, the discipline of common law, andso on— are all exposed, and that the true political forces atwork in constitutional practice are acknowledged and dealt withopenly. Whether the idea of constitutionalism can survive the lessonsof such critical scrutiny is a very good question.

Bibliography

• Ackerman, Bruce, 1991,We The People: Foundations,Cambridge, MA: Harvard University Press.
• –––, 1998,We The People 2:Transformations, Cambridge, MA: Harvard University Press.
• –––, 2007, “The Living Constitution”Harvard Law Review, 120: 1737. [Available online].
• Adler, Matthew & Kenneth Himma (eds.), 2009,The Rule ofRecognition and the U.S. Constitution, New York: OxfordUniversity Press.
• Alexy, Robert, 2002,A Theory of Constitutional Rights,Oxford: Oxford University Press.
• Allan, T.R.S., 2001,Constitutional Justice: A Liberal Theoryof the Rule of Law, Oxford: Oxford University Press.
• Alexander, Larry (ed.), 1998,Constitutionalism,Cambridge: Cambridge University Press.
• –––, 2016, “Was Dworkin anOriginalist”, in W. Waluchow & S. Sciaraffa (eds.),TheLegacy of Ronald Dworkin, New York: Oxford University Press.
• Alexander, Larry & Kay, Richard, 1988, “Adherence toOriginal Intentions in Constitutional Adjudication: Three Objectionsand Responses”,Northwestern University Law Review, 82:226.
• Alexander, Larry & Solum, Larry, 2005, “Popular?Constitutionalism?”,Harvard Law Review, 118(5):1594–1640.
• Altman, Andrew, 1990,Critical Legal Studies: A LiberalCritique, Princeton: Princeton University Press.
• Austin, J.L., 1995,The Province of JurisprudenceDetermined, Cambridge: Cambridge University Press.
• Balkin, Jack M., 2011,Living Originalism, Cambridge, MA:Harvard University Press.
• –––, 2016, “The Roots of the LivingConstitution”,Boston University Law Review, 92:1129–1160.
• Barak, A., 2005,Purposive Interpretation in Law,Princeton: Princeton University Press.
• Barber, N.W., 2010,The Constitutional State, Oxford:Oxford University Press.
• Barber, Sotirios & J. Fleming, 2007,ConstitutionalInterpretation: The Basic Questions, Oxford: Oxford UniversityPress.
• Barnett, Randy E., 1999, “An Originalism forNonoriginalists”,Loyola Law Review, 45:611–54.
• –––, 2004,Restoring the Constitution: ThePresumption of Liberty, Princeton: Princeton UniversityPress.
• –––, 2011, “Interpretation andConstruction”,Harvard Journal of Law and PublicPolicy, 34: 65.
• –––, 2016,Our Republican Constitution:Securing The Liberty and Sovereignty of We The People, New York:Broadside Books.
• Bellamy, R., 2007,Political Constitutionalism: A RepublicanDefence of the Constitutionality of Democracy, Cambridge:Cambridge University Press.
• Berman, Mitchell, 2009, “Originalism is Bunk”,NewYork University Law Review, 84: 1–96.
• –––, 2010, “Constitutional Constructionsand Constitutional Decision Rules: Thoughts on the Carving ofImplementation”,Constitutional Commentary, 16:39–69.
• Berman, Mitchell & Toh, Kevin, 2014, “On WhatDistinguishes New Originalism From Old: A Jurisprudential Take,”Fordham Law Review, 82: 545–576.
• Bentham, Jeremy, 1838–1843, “ConstitutionalCode”, inWorks of Jeremy Bentham (Volume 9), pp.119–124, Bowring (ed.), Edinburgh: William Tait.
• Bickel, Alexander, 1962,The Least Dangerous Branch: TheSupreme Court at the Bar of Politics, New Haven: Yale UniversityPress.
• Blackstone, Sir William, 1765–69,Commentaries on theLaws of England, 4 volumes, Oxford: Clarendon Press.
• Blaustein, Albert P. & Gisbert H. Flanz (ed.), 1994,Constitutions of the Countries of the World, Dobbs Ferry, NY:Oceana Publications.
• Bobbit, Philip, 1991,Constitutional Interpretation,Oxford: Blackwell.
• Bork, Robert, 1971, “Neutral Principles and Some FirstAmendment Problems”,Indiana Law Journal, 47(1):17.
• –––, 1990,The Tempting of America: ThePolitical Seduction of the Law, New York: Macmillan.
• Brest, Paul, 1980, “The Misconceived Quest for the OriginalUnderstanding”,Boston University Law Review, 60(2):204–238;.
• Brink, David, 2016, “Originalism and ConstructiveInterpretation”, in W. Waluchow & S. Sciaraffa (eds.),The Legacy of Ronald Dworkin, New York: Oxford UniversityPress.
• Christiano, Thomas, 2008,The Constitution of Equality:Democratic Authority and Its Limits, Oxford: Oxford UniversityPress.
• de Tocqueville, Alexis, 1835,Democracy in America, HenryReeve (trans.), New York: Dearborn.
• Den Otter, Ronald, 2009,Judicial Review in the Age of MoralPluralism, Cambridge: Cambridge University Press.
• Dicey, A.V., 1915,Introduction to the Study of the Law of theConstitution, 8^th edition, London: Macmillan.
• Dworkin, Ronald, 1986,Law’s Empire, Cambridge, MA:Harvard University Press.
• –––, 1996,Freedom’s Law: The MoralReading of the American Constitution, Cambridge, MA: HarvardUniversity Press.
• –––, 1997, “The Arduous Virtue ofFidelity: Originalism, Scalia, Tribe and Nerve”,Fordham LawReview, 65: 1249.
• Eisgruber, Christopher, 2001,ConstitutionalSelf-Government, Cambridge, MA: Harvard University Press.
• Elster, John & Rune Slagstad (eds.), 1988,Constitutionalism and Democracy, Cambridge: CambridgeUniversity Press.
• Ely, John, 1980,Democracy and Distrust, Cambridge, MA:Harvard University Press.
• Fallon, Richard H. Jr., 2001,ConstitutionalImplementation, Cambridge, MA: Harvard University Press.
• Freeman, Samuel, 1990, “Constitutional Democracy and theLegitimacy of Judicial Review”,Law and Philosophy,9(4): 327–370.
• –––, 1992, “Original Meaning: DemocraticInterpretation and the Constitution”,Philosophy and PublicAffairs, 21: 3.
• Gardbaum, Stephen 2013,The New Commonwealth Model ofConstitutionalism: Theory and Practice, Cambridge: CambridgeUniversity Press.
• Gargarella, Roberto, 2022,The Law as a Conversation AmongEquals, Cambridge: Cambridge University Press.
• Goldsworthy, Jeffrey, 2009, “Constitutional Interpretation:Originalism”,Philosophy Compass, 4(4): 682–702. [Available online].
• Gray, John Chipman, 1986, “A Realist Conception ofLaw”, inPhilosophy of Law, Feinberg & Gross(eds.), 3^rd edition, Belmont, CA: Wadsworth.
• Greenberg, Mark, and Littman, Harry, 1998, “The Meaning of‘Original Meaning’”,Georgetown LawJournal, 86: 569.
• Grey, Thomas, 1975, “Do We Have An UnwrittenConstitution?”,Stanford Law Review, 27(3):703–718.
• –––, 1979, “Constitutionalism: An AnalyticFramework”,Nomos, XX (Constitutionalism, R.Pennock & J. Chapman, eds.), 189–209.
• Harel, Alon, 2014, “The Case for Robust Constitutionalism”, inWhy Law Matters, Oxford: Oxford University Press,147–230.
• Hart, H.L.A., 1994,The Concept of Law, 2^ndedition, Oxford: Oxford University Press.
• Hobbes, Thomas, 1642,De Cive (The PhilosophicalRudiments Concerning Government and Society), various editions.
• –––, 1651,Leviathan, variouseditions.
• Hogg, Peter, 2020,Constitutional Law of Canada, Toronto:Thomson Reuters.
• Hohfeld, Wesley, 1919,Fundamental Legal Conceptions asApplied in Legal Reasoning: And Other Legal Essays, New Haven,Yale University Press.
• Huscroft, Grant and I. Brodie (eds.), 2004,Constitutionalismin the Charter Era, Markham, Ontario: Butterworth’s.
• Huscroft, G. & Bradley Miller (eds.), 2008,Expounding theConstitution: Essays in Constitutional Theory, Cambridge:Cambridge University Press.
• –––, 2011,The Challenge of Originalism:Theories of Constitutional Interpretation, Cambridge: CambridgeUniversity Press.
• Huscroft, Grant & Miller, Bradley & Webber,Grégoire (eds.),2014, Proportionality and the Rule of Law:Rights, Justification, Reasoning, Cambridge: Cambridge UniversityPress.
• Kavanagh, Aileen, 2003, “The Idea of a LivingConstitution”,Canadian Journal of Law andJurisprudence, 16: 55.
• –––, 2009,Constitutional Review Under theHuman Rights Act, Cambridge: Cambridge University Press.
• –––, 2015, “A Hard Look at the LastWord”,Oxford Journal of Legal Studies, 45:825–847.
• Kramer, Larry, 2004,The People Themselves: PopularConstitutionalism and Judicial Review, New York: OxfordUniversity Press.
• Kyritsis, Dimitrios, 2017,Where Our Protection Lies:Separation of Powers and Constitutional Review, Oxford: OxfordUniversity Press.
• Langvatan, Silje & Kumm Mattias & Sadurski, Wojciech(eds.), 2020,Public Reason and Courts, Cambridge: CambridgeUniversity Press.
• Leiter, Brian, 2015, “Constitutional Law, Moral Judgment,and the Supreme Court as Super Legislature”,Hastings LawJournal, 66: 1601.
• Locke, John, 1690,Two Treatises of Government, variouseditions, especially Book II, Chapters XI–XIV.
• Lyons, David, 1993a, “Constitutional Interpretation andOriginal Meaning”, inMoral Aspects of Legal Theory: Essayson Law, Justice and Political Responsibility, Cambridge:Cambridge University Press.
• –––, 1993b, “A Preface to ConstitutionalTheory”, inMoral Aspects of Legal Theory: Essays on Law,Justice and Political Responsibility, Cambridge: CambridgeUniversity Press.
• MacCallum, Gerald, 1970, “Legislative Intent”, inRobert Summers (ed.)Essays in Legal Philosophy, Oxford:Basil Blackwell, 237.
• MacKinnon, Catherine, 1987,Feminism Unmodified: Discourses onLife and Law, Cambridge, MA: Harvard University Press.
• –––, 1989,Toward a Feminist Theory of theState, Cambridge, MA: Harvard University Press.
• –––, 1993,Only Words, Cambridge, MA:Harvard University Press.
• Marmor, Andrei, 2007,Law in the Age of Pluralism,Oxford: Oxford University Press, Chapter 4 (“Are ConstitutionsLegitimate”) and Chapter 8 (“The Immorality ofTextualism”,).
• Marshall, Geoffrey, 1971,Constitutional Theory, Oxford:Oxford University Press.
• –––, 1984,Constitutional Conventions: TheRules and Forms of Political Accountability, Oxford: OxfordUniversity Press.
• McIlwain, Charles, 1947,Constitutionalism: Ancient andModern, Ithaca, NY: Cornell University Press.
• Michaels, Walter Benn, 2009, “A New Defense of OldOriginalism”,Western New England Law Review, 31:21.
• Michelman, Frank, 1998, “Constitutional Authorship”,in ed. L. Alexander,Constitutionalism, Cambridge: CambridgeUniversity Press.
• –––, 2022,Constitutional Essentials: On theConstitutional Theory of Political Liberalism, New York: OxfordUniversity Press.
• Mill, John Stuart, 1859,On Liberty, variouseditions.
• Möller, Kai, 2012,The Global Model of ConstitutionalRights, Oxford: Oxford University Press.
• Montesquieu, Baron de, 1748/1949,The Spirit of the Laws,Thomas Nugent (trans.), F. Neumann (ed.), New York: HafnerPublishing.
• Müller, Jan Werner, 2016,What is Populism?,Philadelphia: University of Philadelphia Press.
• Paine, Tom, 1791/1969, “The Rights of Man”, inTheEssential Thomas Paine, New York: New American Library,1969.
• Pennock, R. & J. Chapman (ed.), 1979,Constitutionalism:(Nomos XX), New York: New York University Press.
• Rakove, Jack (ed.), 1990,Interpreting the Constitution: TheDebate Over Original Intent, Boston: Northeastern UniversityPress.
• Raz, Joseph, 1996, “Intention in Interpretation”, inR. George, (ed.)The Autonomy of Law, Oxford: OxfordUniversity Press.
• –––, 1998, “On the Authority andInterpretation of Constitutions: Some Preliminaries”, in ed. L.Alexander,Constitutionalism, Cambridge: Cambridge UniversityPress.
• Rehnquist, William, 1976, “The Notion of a LivingConstitution”,Texas Law Review, 54: 693.
• Richards, David, 1986,Toleration and the Constitution,New York: Oxford University Press.
• Rosati, Connie 2016, “The Moral Reading of Constitutions”, in W. Waluchow & S. Sciaraffa (eds.),The Legacy ofRonald Dworkin, New York: Oxford University Press.
• Rubenfeld, Jed, 1998, “Legitimacy and Interpretation”,in ed. L. Alexander,Constitutionalism, Cambridge: CambridgeUniversity Press.
• Sager, Lawrence, 2004,Justice in Plainclothes: A Theory ofAmerican Constitutional Justice, New Haven: Yale UniversityPress.
• Sartori, Giovanni, (1962), “Constitutionalism: A PreliminaryDiscussion”,The American Political Science Review,56: 853–64.
• Scalia, Antonin, 1989, “Originalism: The Lesser Evil”,University of Cincinnati Law Review, 57: 849.
• –––, 1997,A Matter of Interpretation:Federal Courts and the Law, Princeton: Princeton UniversityPress.
• Shklar, Judith, 1987,Montesquieu, Oxford: OxfordUniversity Press.
• Smith, Patricia (ed.), 1992,Feminist Jurisprudence, NewYork: Oxford University Press.
• Solum, Lawrence B., 2008, “Semantic Originalism”,.Illinois Public Research Paper, No. 07–24. [available online] .
• –––, 2010, “TheInterpretation-Construction Distinction”,ConstitutionalCommentary, 27: 95–118.
• –––, 2011, “What is Originalism? TheEvolution of Contemporary Originalist Theory”,SocialScience Research Network, April 28, 2011, [Available online].
• –––, 2013, “Originalism and ConstitutionalConstruction”,Fordham Law Review, 82: 453.
• –––, 2015, “The Fixation Thesis: The Roleof Historical Fact in Original Meaning”,Notre Dame LawReview, 91: 1–78.
• –––, 2017, “OriginalistMethodology”,University of Chicago Law Review, 84:269–295.
• –––, 2019, “Originalism Versus LivingConstitutionalism: The Conceptual Structure of the GreatDebate”,Northwestern University Law Review, 113:1243–1296.
• –––, 2021, “The Public Meaning Thesis: AnOriginalist Theory of Constitutional Meaning”,BostonUniversity Law Review, 101: 1953–2048.
• –––, 2021, “Legal Theory Lexicon 019:Originalism”, [available online], last revised June 20, 2021.
• Stevens, Katharina, 2017, “Why Constitutional Meaning is NotNecessarily Fixed”,Problema, 11: 177–214.
• Strauss, David, 2010,The Living Constitution, New York:Oxford University Press.
• Strossen, Nadine, 1995,Defending Pornography, New York:Scribner.
• Sunstein, Cass, 1996,Legal Reasoning and PoliticalConflict, New York: Oxford University Press.
• Thayer, J.B., 1893, “The Origin and Scope of the AmericanDoctrine of Constitutional Law”,Harvard Law Review,7(3): 129–156.
• Tribe, Laurence, 1978,American Constitutional Law, NewYork: Foundation Press.
• –––, 1995, “Taking Text and StructureSeriously: Reflections on Free-Form Method in ConstitutionalInterpretation”,Harvard Law Review, 108(6):1221–1303.
• Tushnet, Mark, 1988,Red, White and Blue: A Critical Analysisof Constitutional Law, Cambridge, MA: Harvard UniversityPress.
• –––, 1992, “Constitutional Interpretation,Character and Experience”,Boston University LawReview, 72(4): 747.
• –––, 1999,Taking the Constitution Away Fromthe Courts, Cambridge, MA: Harvard University Press.
• –––, 2003, “Forms of Judicial Review andExpressions of Constitutional Patriotism”,Law andPhilosophy, 22: 353.
• Unger, Roberto, 1986,The Critical Legal StudiesMovement, Cambridge, MA: Harvard University Press.
• Vergara, Camilla, 2020, “Populism as Plebeian Politics:Inequality, Domination, and Popular Empowerment”,TheJournal of Political Philosophy, 28: 222.
• Vermeule, Adrian, 2009,Law and The Limits of Reason, NewYork: Oxford University Press.
• –––, 2022,Common GoodConstitutionalism, Cambridge: Polity Press.
• Waldron, Jeremy, 1993, “A Rights-Based Critique ofConstitutional Rights”,Oxford Journal of LegalStudies, 13(1): 18–51.
• –––, 1998, “Precommitment andDisagreement”, in Alexander (ed.),Constitutionalism,Cambridge: Cambridge University Press.
• –––, 1999a,The Dignity of Legislation,Cambridge: Cambridge University Press.
• –––, 1999b,Law and Disagreement,Oxford: Oxford University Press.
• –––, 2006, “The Core of the Case AgainstJudicial Review”,Yale Law Journal, 115:1346–1406.
• Waluchow, W.J., 2005, “Constitutions as Living Trees: AnIdiot Defends”,Canadian Journal of Law andJurisprudence, 18(2): 207–247.
• –––, 2007a,A Common Law Theory of JudicialReview: The Living Tree, Cambridge: Cambridge UniversityPress.
• –––, 2007b, “Judicial Review”,Philosophy Compass, 2(2): 258–266. [available online].
• –––, 2011, “Democracy and the Living TreeConstitution”,Drake University Law Review, 59:1001–46.
• –––, 2012, “ConstitutionalInterpretation”, in ed. Marmor AndreiThe RoutledgeCompanion to Philosophy of Law, New York: Routledge, Chapter3.9.2.
• –––, 2017, “The Living Tree”, ineds. Peter Oliver, Patrick Macklem & Nathalie Des Rosiers (eds.),The Oxford Handbook of the Canadian Constitution, New York:Oxford University Press, 891–909.
• Webber, Grégoire, 2009,The Negotiable Constitution: Onthe Limitations of Rights, Cambridge: Cambridge UniversityPress.
• Whittington, Keith, 1999a,Constitutional Construction,Cambridge, MA: Harvard University Press.
• –––, 1999b,Constitutional Interpretation:Textual Meaning, Original Intent, and Judicial Review, Lawrence:Kansas University Press.
• –––, 2004, “The New Originalism”,Georgetown Journal of Law and Public Policy, 22: 559.
• –––, 2013, “Originalism: A CriticalIntroduction”,Fordham Law Review, 82(2):375–409.
• –––, 2015,The Powers of JudicialReview, New York: Oxford University Press.

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Acknowledgements

A special word of thanks to Scott Shapiro for his very helpfulcomments on an earlier draft of this revised entry.