## 1. Constitutionalism: a Minimal and a Rich Sense



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



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



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


## 2. Sovereign versus Government



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



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


## 3. Entrenchment



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


## 4. Writtenness



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



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


## 5. Montesquieu and the Separation of Powers



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



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



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



So the notion of constitutionalism does not seem conceptually to
require the separation of powers advocated by Montesquieu. Nor does
that principle seem to be required as a matter of practical necessity
in all possible cases. Does this mean that separation of powers has no
place in a theory of constitutionalism? It could be suggested that,
rather than seeing Montesquieu's tripartite distinction of
government functions assigned to different government branches as a
necessary component of the very concept of separation of powers, we
should instead understand that concept in a moralized, flexible and
context-specific manner. On this view, separation of powers dictates
more generally that distribution of powers be such that a) tasks are
allocated to those institutions that are well-suited to carry them out
and b) there are effective checks on the use of government power
(Kyritsis 2017, ch 2). However, it does not necessarily prescribe
certain institutional forms such as judicial review of primary
legislation.


## 6. Constitutional Law versus Constitutional Convention



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


## 7. Constitutional Interpretation



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



Although theories of constitutional interpretation are many and
varied, they all seem, in one way or another, to ascribe importance to
a number of key factors: textual or semantic meaning; political,
social and legal history; intention; original understanding; and
moral/political theory. The roles played by each of these factors in a
theory of constitutional interpretation depend crucially on how the
theorist conceives of a constitution and its role in limiting
government power. For example, if a theorist conceives of a
constitution as foundational law whose existence, meaning and
authority derive from the determinate, historical acts of its authors
and/or those they represented(ed), and whose principal point is to
*fix* a long-standing, stable framework or set of ground rules
within which legislative, executive and judicial powers are to be
exercised by the various branches of government, she may be inclined
towards an interpretive theory which accords pride of place to
factors like authors' intentions or the meanings they (and
perhaps the general public at the time) would have ascribed to the
terms chosen for inclusion in the constitution. On what we will call
the *fixed view* of constitutions, it is natural to think that
factors like these should govern whenever they are clear and
consistent. And the reason is quite straight forward. On the fixed
view, a constitution not only aspires to establish a stable framework
within which government powers are to be exercised, it aspires to
establish one which is above, or removed from, the deep disagreements
and partisan controversies encountered in ordinary, day to day law and
politics. It aspires, in short, to be both *stable* and morally
and politically *neutral* on controversial issues such as
whether there should be laws affirming a woman's right to an
abortion, or the right of workers to a minimum wage. To be clear,
saying that a constitution aspires, on a fixed view, to be morally and
politically neutral, is not meant to deny that those who take this
stance believe that it expresses a particular political vision or a
set of fundamental commitments to certain values and principles of
political morality. Quite the contrary. All constitutional theorists
will agree that constitutions typically enshrine, indeed entrench, a
range of moral and political commitments to values like democracy,
equality, free expression, and the rule of law. But two points need to
be stressed.



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



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



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



But not all constitutional theorists believe that the foundational
role of a constitution demands that its meaning and interpretation be
somehow fixed, or that its interpretation be absolutely immune from
considerations of moral and political theory and debate. On the
contrary, many constitutional scholars and judges embrace living
constitutionalism, an approach that sees a constitution as an
evolving, living entity which, by its very nature, is capable of
responding to changing social circumstances and new (and it is hoped
better) moral and political beliefs. Along with this very different
view of constitutions come very different theories regarding the
nature and limits of legitimate constitutional interpretation. One
strand within living constitutionalism, upon which we will be focus
below, stresses the extent to which constitutional interpretation
resembles the kind of reasoning that takes place in other areas of the
law pertaining to common law legal systems, such as the law of
contracts and torts. Just as the law of contributory negligence
emerged and (continuously) evolves in common law countries in a
case-by-case, incremental manner, over many decades and as the product
of many judicial decisions, the law of equal protection, free
expression, due process and the like (continuously) evolves in modern
western democracies as constitutional cases are heard and decided.



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


## 8. Originalism



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



Another way in which originalists have split is over the identity of
the original object of interpretation. Walter Benn Michaels is among
those who defend *Original Intent Originalism**,* the
view that "you can't do textual interpretation without some
appeal to authorial intention and, perhaps more controversially, you
can't (coherently and non-arbitrarily) think of yourself as still
doing textual interpretation as soon as you appeal to something
beyond authorial intention..." (Michaels, 2009, 21) Keith Whittington,
Randy Barnett, and Larry Solum, on the other hand, defend *Original
Public Meaning Originalism*, commonly referred to as *New
Originalism*, which "emphasizes the meaning that the Constitution
(or its amendments) would have had to the relevant audience at the
time of its adoption." (Solum 2021) Whatever its precise contours, an
originalist theory is likely to rest on the fixed view of a
constitution. The constitution's rules and principles are fixed
by original public meaning or its authors' intentions and,
(barring formal constitutional amendment) these must not be revisited
and revised lest the authority and stability of the constitution be
threatened. Original intentions or public meanings must always govern
the interpretation of a constitution, not the new value judgements and
decisions of contemporary judges (or other interpreters) asking the
very same questions the author's actions and decisions were
supposed 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 to
appeal to other factors. In addition, original intentions and
understandings can vary from one person to the next. Sometimes the
only things upon which joint authors or members of the relevant
original audience can agree are the particular words to be included in
the constitution. The intentions behind that choice can, however, vary
significantly, as can original understandings of what those words
mean. These can range from the very general to the highly specific. At
one end of the spectrum are the various, and sometimes conflicting,
*goals* and *values* the authors of a constitutional
provision intended their creation to achieve and which an original
interpreter might understand the provision to be all about. At the
other end are the very specific *applications* the authors
might have had in mind when they chose the particular words upon which
they settled, and which would generally have been understood by the
relevant audience to cover. Did the intended or understood
applications of an equality provision encompass *equal access to
the legal system* by all groups within society? Or only something
more specific like equal access to *fairness at trial*. Did
they perhaps include *equal economic and social opportunities*
for all groups? Different authors might have intended all, none, or
some of these applications when they agreed upon the equality
provision, and similar things can be said about the corresponding
understandings of members of the original audience. As with the
general goals and values underlying a provision, there is room for
inconsistence and conflict. In light of this fact, it can often be
unhelpful, when interpreting a constitution, to rely exclusively on
original intentions or public meanings.



Let's suppose, however, that this is not the case: that there is
a way for contemporary interpreters actually to determine,
independently of their own moral and political views, either the
original intentions of constitutional authors or what the earlier
generation would have understood the relevant constitutional
provision(s) to mean. Would a constitution, understood in one of these
two ways, and serving the role ascribed to it by the fixed view, be a
good thing for a democratic society to have? Not according to many
constitutional scholars. As noted above, constitutions are intended to
last a long time and to span many generations. This is one of the main
reasons they tend to be entrenched. Suppose that an entrenched
constitution has in fact been in existence for a very long time. In
such a scenario, we should distinguish between two groups of people:
*the people-now* and *the people-then*. According to
originalism, it is the understandings and intentions of the
people-then that will control the proper application by the people-now
of constitutional provisions in contemporary settings. In other words,
the people-now will in effect be shackled in their attempts to
exercise political choice by the prior decisions of someone else --
the people-then. It's at the very least questionable whether
this scenario is consistent with our understanding of democracy as a
system of ongoing self-government. To be self-governing in an ongoing
manner, one must be able to change one's mind.



How might an originalist get round this apparent difficulty? One way
is to note that the so-called dead hand of the past can always be
removed through constitutional amendment, difficult as this process
might be to engage successfully. A second way is the one generally
pursued by new originalists, who draw a distinction between
*interpretation*, on the one hand, and *construction*,
on the other. The former is the process of discovering the
communicative meaning or content of words in the text of the
constitution, while the latter consists of putting that meaning or
content into effect by applying it in particular cases. (Barnett 1999
& 2011; Whittington 1999) According to these new public meaning
originalists, the dead hand of the past extends only to the
communicative meaning or content of the relevant text and to the
process of interpreting it. And importantly, though the communicative
meaning or content of, e.g., 'free expression', 'due
process' or 'cruel and unusual punishment' is the
same now as it was when provisions incorporating these notion were
first introduced in, e.g., the US Constitution, that unchanged
communicative meaning is not the primary focus in most controversial
constitutional cases where questions of construction take the leading
role. Here contemporary interpreters must exercise fresh judgment in
applying unchanged, but largely uncontentious, original meaning of a
constitution's terms to the complex, new and contentious
situations constitutional rights cases being to the fore. They must
construct an understanding of, e.g., the right to free expression that
allows them to decide controversial cases involving such things as
online bullying or attempts to unduly influence voters through the use
of internet bots. Given the highly abstract nature of this
constitutional right, it seems likely that judicial construction will
play the leading role in the vast majority of cases involving its
application. And if this is so, then whatever reach the dead hand of
the 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 of
restriction. But in many instances, the relevant restrictions can be
removed or changed with minimal effort, as when a problematic
common-law precedent is overturned because of changing social
circumstances, or a statute is repealed or amended because it no
longer serves useful purposes. Not so with constitutions. As noted
above, they tend to be heavily entrenched. Constitutions are also
meant to be long lasting, so as to serve the values of continuity and
stability in the basic framework within which the contentious affairs
of law and politics are conducted. The entrenched nature of
constitutions is largely unproblematic when we consider provisions
dealing with such matters as the length of term of a senator or which
branch of government is responsible for regulating public education.
But things get much more complicated and contentious when we turn to
the highly abstract, moral provisions of most modern constitutions
which have the effect of limiting the powers of government bodies in
significant ways. These special features of constitutions combine to
give rise to a fundamental question, one that causes the originalist
so much difficulty and to which living constitutionalism purports to
provide a better answer: How can one group of people, the people-then,
justifiably place entrenched constitutional impediments of a decidedly
moral nature in the way of a second group of people, the people-now,
who might live in radically different circumstances and perhaps with
radically different moral views? How, in short, can one generation
legitimately bind the moral choices of another? A satisfactory answer
to this *intergenerational problem*, living constitutionalists
contend, requires that we recognize that constitutions can grow and
adapt to ever-changing circumstances without losing their identity or
their legitimacy.



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



One version of living constitutionalism is *common law
constitutionalism*, a view developed and defended by David Strauss
and Wil Waluchow. (Strauss 2010; Waluchow 2007a) This view seeks to
constrain and regulate the evolution of constitutional rights so that
they can be both responsive to changing circumstances and yet stable
enough to accommodate rule of law values such as stability and
continuity. Common law constitutionalists assert that the evolution of
a constitution is governed largely by a body of precedents. As
precedents are set in constitutional rights cases, principles and
doctrines emerge that are subject to revision as later cases arise.
According to common law constitutionalism, these precedents, and the
principles and doctrines they support, ultimately count as much as the
written text. The former are as much a part of the constitution as the
written document created by constitutional authors. David Strauss goes
so far as to suggest, in reference to the US Constitution, that "when
a case involves the [written] Constitution, the text routinely gets no
attention. On a day-to-day basis, American constitutional law is about
precedents..." (Strauss 2010, 34)



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



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



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



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



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



Yet another response open to living constitutionalists is to note the
special institutional structures that many jurisdictions have adopted
to lessen democratic worries arising from the key role judges play in
developing constitutional rights. These concerns are particularly
acute in jurisdictions, such as the US, where the Supreme Court
effectively has the final say on the meaning and import of
constitutional rights provisions. But not all jurisdictions assign the
final say to judges. The United Kingdom, for instance practices a
version of what Mark Tushnet calls "weak-form-review." (Tushnet 2003)
It is the responsibility of the UK Supreme Court to rule on whether a
provision of Parliament is compatible with (properly interpreted)
provisions of the Human Rights Act. But neither the Court's
decision, nor its interpretation of the relevant right, is binding on
Parliament. Despite the declared incompatibility, Parliament has the
power to leave its legislation as is. The people-now, through their
elected members of Parliament, retain the final say on the
interpretation and application of the constitutional rights recognized
in 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 constitutional
rights cases. They in no way fix the limits of government power until
such time as an amendment passes or the constitution is abandoned or
replaced. On the contrary, constitutions set the terms of an ongoing
debate about the moral principles and values it enshrines. And as the
political community's understanding of these principles
develops, the very content of the constitution develops and improves
along with it. The framers' contribution to this process is that
they enacted some 'general principles' which future
interpreters must constructively interpret (Dworkin 1996, 8-9; see
relatedly Greenberg and Littman 1998). This arguably renders
Dworkin's constitutional theory a version of living
constitutionalism.



A crucial element in Dworkin's constitutional theory is his
general claim that the law of a community, including its
constitutional law, includes more than any explicit text or decisions
authoritatively adopted or made in accordance with accepted
procedures. It does, of course, include many such elements and these
can be found, paradigmatically, in statute books, judicial decisions
and, of course, written constitutions. These are often termed
'positive law.' But the positive law in no way exhausts
the law according to Dworkin. Most importantly, for our purposes here,
it in no way exhausts that part of the law referred to as 'the
constitution'. In Dworkin's view, a constitution includes
the principles of political morality that provide the best explanation
and moral justification - i.e., the best interpretation - of
whatever limits have been expressed in positive law, including the
constitution and any decisions taken in application of it. Hence,
constitutional interpretation must always invoke a theory of political
morality. One concerned to interpret the limits on government power
and authority imposed by a constitution must construct an interpretive
theory that provides the written constitution, and the many decisions
taken under it, with their best explanation and moral
justification.



There are, for our purposes here, three important implications of
Dworkin's theory of constitutional interpretation. First,
original intentions and understandings at best set the stage for the
ongoing debates of political morality that constitutional rights cases
both require and license. They seldom, if every settle matters.
Second, constitutional rights cases require the kind of
decision-making which is, according to originalism, properly
undertaken only by those with the authority to fix the limits on
government power contained within a constitution - i.e., its authors
or framers. The kind of morally and politically uncontroversial
judicial decision-making, within a stable framework established by
other responsible agents, to which originalism aspires, is simply
impossible on Dworkin's theory. Dworkin's theory, like (or
as a form of) living constitutionalism, requires wholesale rejection
of the fixed view. The constitution is not a finished product, handed
down in a form fixed till such time as its amending formula is
invoked, or the constitution abandoned or replaced. Rather, it is a
work in progress requiring continual revisiting and reworking as our
moral and political theories concerning its limits are refined and, it
is hoped, improved. It is, in short, a living thing.



A third, related implication of Dworkin's theory, is that judges
in constitutional cases do not simply implement decisions made by
others - the constitution's authors or framers. On the
contrary, they are partners with the authors in an ongoing political
project, one that requires participants, then and now, to engage in
the kind of moral and political decision-making which, on the fixed
view, settled matters when the constitution was first adopted (or
amended). The limits to government power are, on Dworkin's
theory, continually and essentially contestable. Interpreting the
contestable terms of a constitution is an ongoing task, requiring that
each and every interpreter provide her own best, and undoubtedly
imperfect, interpretation of the limits placed on government by her
constitution and the various official decisions taken under it. The
latter can never be fixed.


## 11. Liberal vs Common Good Constitutionalism



One's understanding of how constitutions limit power and how
they ought to be interpreted depends, as noted above, on one's
conception of their role. For some, that role must be set against the
background of the value pluralism that is characteristic of many
modern societies. In light of this pluralism, they say, constitutions
should not be committed to a particular understanding of the good but
should, rather, serve to guarantee those essentials of political
justice adherence to which is necessary for legitimating government
power to citizens who hold a variety of comprehensive doctrines, that
is, conceptions of justice and the good life. This so-called
'liberal principle of legitimacy' is taken to issue in an
austere list of 'constitutional essentials' (Rawls 1996,
227ff; Michelman 2022, 51ff; Sager 2004, ch 8). According to one
suggestion, the liberal principle of legitimacy sits more comfortably
with the fixed view of constitutions and their meaning. Arguably, it
is better served when the interpretation of constitutional essentials
track their 'central range' (Rawls 1996, 273), thus
presumably eliciting broad convergence. However, for other authors
such as Michelman, the liberal principle of legitimacy might in fact
be satisfied by a certain mode of constitutional argument, one
oriented towards reciprocity, even when its application to concrete
constitutional issues is disputed (Michelman 2022, 105 ff). In this
picture, reciprocity takes seriously the fact of value pluralism and
the corresponding requirement that constitutional arrangements be
acceptable to all. But its precise contours are sensitive to the
suitably constrained moral judgment of citizens and officials.



Opposing this approach is common good constitutionalism, according to
which constitutions, even of pluralistic societies like the United
States, are geared towards advancing - and must be interpreted in
light 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 based
on the principles that government helps direct persons, associations,
and society generally toward the common good, and that strong rule in
the interest of attaining the common good is entirely
legitimate" (Vermeule 2020). More specifically:



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



Vermeule's constitutional theory, further developed in his
*Common Good Constitutionalism*, arguably represents a new
alternative to the constitutional theories discussed above. But
perhaps not. Vermeule himself characterizes his view as
'methodologically Dworkinian,' noting that it
"advocates a very different set of substantive moral commitments
and priorities from Dworkin's, which were of a conventionally
left-liberal bent" (Vermeule 2020). This may lead one to wonder
whether Vermeule's theory truly is an alternative to
Dworkin's theory of constitutions and their interpretation, or
instead an alternative account of the conclusions Dworkin's
ideal judge, Hercules, (a mythical judge who always gets things right
and whose decisions set the standard fallible judges strive to meet)
would draw were he to set out to offer a grand interpretation of US
constitutional law. (On Hercules, see Dworkin 1986, 239 ff.) Whatever
answer one provides to this question, it is nevertheless worth
considering whether the moral vision underlying Vermeule's
common good constitutionalism is one that only religious conservatives
who share his moral views can endorse. And if it is, then should it
frame our understanding of the nature and role of the constitutions of
western liberal democracies? There is also the concern that common
good constitutionalism has the potential to untether constitutional
interpretation from both constitutional text and constitutional
precedent, thus providing judges with far too much power to use the
law to further that particular moral vision. (See, e.g., Barnett
2020)


## 12. Critical Theories



Although constitutionalism has been widely embraced round the world,
it is by no means without its detractors. This is especially true when
we turn to those constitutions that not only create and regulate the
offices of government but also purport to protect abstract rights of
political morality. Some critics--we'll call these the
*hard critics*--assert that such apparently
rights-protective constitutions cannot effectively and legitimately
serve to protect individuals against the oppressive forces of
 governments.[20]
 On the contrary, they
only serve to shroud legal and political practice in a false cloak of
legitimacy. Other critics--we'll call these the
*democratic critics*--are not so utterly dismissive of
rights-protecting constitutions. Rather, their main concern is to
challenge the role that democratically unaccountable judges typically
play in the interpretation and application of constitutional rights.
This concern appears to arise most forcefully in relation to the
interpretive theories of Dworkin, the moral judgments of common good
constitutionalism and the judicial precedents of living
constitutionalists. But the concern is no less acute when we consider
new originalism and the ways in which it resorts to the constitutional
constructions of judges.



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



So hard critics are highly skeptical of constitutional practice and of
those theories that applaud constitutionalism as a bulwark against
 oppression.[21]
 As noted at the outset
of this entry, a key element in the idea of constitutionalism is that
government can/should be limited in its powers and that its authority
depends on observance of those limits. It was further noted that the
authority of constitutions in constitutional democracies is generally
thought to rest with 'the people.' One further claim of
hard critical theories is: (d) that the concept of 'the
people' is very much a fabrication. Instead of being composed of
a group of individuals united in their concern for basic rights,
western societies are comprised of various groups competing either for
domination (e.g., white males and the wealthy) or for recognition and
the elimination of oppression (e.g., the poor, women, and racial
minorities). The law, including constitutional law, is a powerful tool
which has, historically, been utilized by dominant groups to secure
and maintain their superior status.



A particularly vivid example of this last consequence is arguably
found in *Lochner v New York*, a notorious case in which the
United States Supreme Court ruled that a New York State law requiring
that bakery employees work no more than ten hours per day and sixty
hours per week violated the Fourteenth Amendment, which asserts that
no State may "deprive any person of life, liberty, or property,
without due process of
 law.".[22]
 The Fourteenth
Amendment, the Court held, entails 'the right and liberty of the
individual to contract' for a longer work week. The
*Lochner* decision gave rise to what is commonly called
'the *Lochner* era,' a period stretching roughly
from 1905 till 1937 in which the Supreme Court struck down numerous
Federal and State statutes aimed at improving the working conditions
of employees. As such, it may well have been a period during which the
United States Constitution, in the hands of an elitist Court, served
only to legitimize overt political suppression. According to hard
critics, the *Lochner* era is but one small piece of a much
larger picture.



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



As noted above, democratic critics tend not to be as utterly
dismissive of constitutions and constitutional rights protections as
their more hard-line cousins. Their principal objections revolve
around a practice with which these aspects of modern constitutional
regimes are typically associated: *judicial or constitutional
review*. This is the practice whereby courts are sometimes called
upon to review a law or some other official act of government (e.g.,
the decision of an administrative agency like the US Food and Drug
Administration or the Canadian Radio-television and Telecommunications
Commission) to determine its compatibility with the
 constitution.[23]
 Particular instances of
this practice vary considerably. As noted above, in some
jurisdictions, such as the United States, judicial review includes the
power to 'strike down' or nullify a law duly passed by a
legislature body or administrative body and the decision is final and
irreversible. In other jurisdictions, the courts either do not have
the power to strike down or nullify, or a decision to do so is
reversible by some other body of government. As we saw, courts in the
United Kingdom do not have the power to invalidate Parliament's
legislation, that is, declare it void and of no force and effect. But
they do have the authority, under section 4 of the Human Rights Act
1998, officially to declare legislation incompatible with *The
Human Rights Act*. Upon such a declaration, Parliament usually
undertakes to amend or repeal the offending legislation. But should it
chose not to do so, the legislation remains valid and the courts have
no further legal recourse. In Canada, the Supreme Court has the power
to strike down a law which it believes unjustifiably infringes a right
guaranteed in Sections 2 or 7-15 of *The Canadian Charter of
Rights and Freedoms*, but Section 33 of that same *Charter*
grants Parliament or the legislature of a province the power to
override that decision. This co-called 'notwithstanding
clause' allows Parliament or a provincial legislature to declare
that, notwithstanding its unjustifiable infringement of an enumerated
right, the offending legislation will stand as constitutionally valid.
Insofar as these two versions of weak-form review leave the final
decision regarding the meaning and scope of a constitutional right and
the limits it imposes on government powers in the hands of the
legislature, it is touted by its defenders as consistent with
democratic principle. According to critics of weak-form review,
however, the practice strips the constitution of one of its most vital
functions: the protection of individual and minority rights against
what Mill, following de Tocqueville, famously called 'the
tyranny of the
 majority.'[24]




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



According to democratic critics it is difficult to underestimate the
considerable power which constitutional review under an entrenched
charter or bill of rights places in the hands of judges who are, in
modern constitutional democracies, typically unelected and hence not
directly accountable to the democratic community. Despite their lack
of accountability, these judges are assigned the task of providing
authoritative answers to the deeply controversial questions of
political morality that arise under constitutional review and with
respect to which there is so much deep disagreement. Examples can
range from the permissibility of abortion or physician-assisted
suicide, to the banning of hate speech or the publication of violent
and degrading pornography on the internet. On the basis of these highly
controversial answers they end up determining what shall be deemed
lawful in the community. This is far too much political power for a
small group of unelected people to wield over an entire democratic
community, no matter how learned and wise they might happen to be. But
perhaps more importantly, the granting of such power is fundamentally
undemocratic in principle: individual citizens have, in effect, been
disenfranchised by this arrangement. Each citizen of voting age should
have an equal right, in a democratic society, to contribute to the
creation of the laws by which she is governed. This she exercises
directly via the ballot box and by whatever contributions to public
discourse and debate about controversial issues she chooses to make.
She also does so indirectly via the legislative votes of her elected
representatives, whose task is to represent her interests and
opinions. Yet with strong-form constitutional review all this has been
replaced by subjection to the pronouncements of judges. The duly
considered views of citizens and their representatives about the laws
by which they are to be governed, arrived at (it is hoped) through
fair processes of democratic decision-making, have, in effect, been
set aside in favour of the contentious moral pronouncements of a
handful of democratically unaccountable, elite judges. This unhappy
situation is further exacerbated by the undeniable fact that judges on
appeal courts often disagree vehemently among themselves about rights
of political morality and must often, in the end, rely on majority
voting to settle their own disagreements. It is not at all uncommon to
see split votes when a court deals with a contentious issue of moral
principle like affirmative action, abortion or pornography. And often
these split votes follow patterns which are closely correlated with
the all too discernible political leanings of
 judges.[25]
 Add to this the fact
that judges render decisions which all too often appear to conflict
not only with views widely shared in the community at large, but also
with their own previous decisions in earlier cases, and what might
seem like a marvelous idea in the abstract--constitutionally
guaranteeing moral rights and fundamental interests against the abuse
of government power--is transformed into a living nightmare. A
nightmare in which democracy, fairness and the rule of law have, in
effect, been abandoned and replaced by the rule of a few men and
women, by a kind of 'judicial oligarchy.' And no matter
the high esteem in which we tend to hold our judges in modern
constitutional democracies, this is not a form of government to be
eagerly embraced.



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



So what is the solution according to critical theorists? The proffered
solutions can vary considerably, depending on how hard-line the
theorist tends to be. A theocrat might advocate the complete overthrow
of constitutional, democratic government, while a liberal feminist
critic might be content to work within existing constitutional systems
to eradicate the vestiges of patriarchy which have survived recent
feminist movements (MacKinnon, 1989; Strossen 1995). Waldron and his
fellow democratic critics ague that we should abandon the practice of
constitutional review of legislation under entrenched charters or
bills of rights and leave political decisions where they belong: the
people and their elected and accountable representatives (Waldron,
1992, 2006; Marmor, 2007). Yet another avenue of response is to
highlight the extent to which the critics' most powerful
objections apply only to strong-form review, where judicial decisions
are final and can have the effect of nullifying the efforts of
democratically accounted legislatures. Having pointed this out, the
next move is to recommend weaker forms of review which arguably
reflect a healthier balance between respect for fundamental rights, on
the one hand, and the importance of democratic procedure on the other
(Gardbaum, 2013). Were an effective version of something like
Canada's Section 33 override included within a constitution, the
courts might well be able to maintain their intended role as defenders
of rights, while leaving the final word to the legislature in cases
where intractable differences of opinion run
 deep.



In recent years another solution has been offered by populism.
Although often seen as antithetical to constitutionalism (Muller
2016) because of its perceived tendency towards totalitarianism,
populism could instead be viewed as a reaction to a specific form of
constitutionalism and the type of constitutional practice to which it
lends itself (Vergara 2020). Thus understood, populism targets
constitutional constraints that take political power away from the
people and place it in the hands of elites, most notably the judges
who decide constitutional cases but also, to some extent, elected
representatives. Conversely, it favors constitutional arrangements
that allow for or encourage broad public participation and
deliberation in respect of controversial issues of political morality,
especially with a view to empowering and engaging in the political
process the marginalised and excluded segments of society (Gargarella
2022). Although this solution is animated by egalitarianism, just like
Waldron and other democratic critics, it insists that it is not enough
to point to the legislature -even a reasonably well formed
one- as the forum that vindicates political equality. Indeed, we
may have to look beyond traditional institutional forms to
reinvigorate the polity.



Whatever the preferred solution, all critics of constitutionalism seem
to agree that progress can be made only if the myths surrounding
constitutional protection--the constraining force of original
understanding, intention, history, the discipline of common law, and
so on-- are all exposed, and that the true political forces at
work in constitutional practice are acknowledged and dealt with
openly. Whether the idea of constitutionalism can survive the lessons
of such critical scrutiny is a very good question.