What does it mean to interpret the constitution? Does constitutional interpretation involve moral reasoning, or is legal reasoning something different? What does it mean to say that a limit on a right is justified? How does judicial review fit into a democratic constitutional order? Are attempts to limit its scope incoherent? How should a jurist with misgivings about the legitimacy of judicial review approach the task of judicial review? Is there a principled basis for judicial deference? Do constitutional rights depend on the protection of a written constitution, or is there a common law constitution that is enforceable by the courts? How are constitutional rights and unwritten constitutional principles to be reconciled? In this book, these and other questions are debated by some of the world's leading constitutional theorists and legal philosophers. Their essays are essential reading for anyone concerned with constitutional rights and legal theory.
• Includes some of the world's leading constitutional law theorists • Spans constitutional law issues in the US, Canada, the UK, New Zealand, and Australia • Addresses not only the impact of bills of rights but also the place of unwritten constitutional rights in the constitutional order
Part I. Morality and the Enterprise of Interpretation: 1. What does constitutional interpretation interpret? Steven D. Smith; 2. Do judges reason morally? Jeremy Waldron; 3. Constitutional morality and bills of rights W. J. Waluchow; 4. Justification and rights limitations Bradley W. Miller; Part II. Judicial Review, Legitimacy, and Justification: 5. Constitutions, judicial review, moral rights, and democracy: disentangling the issues Larry Alexander; 6. The incoherencies of constitutional positivism David Dyzenhaus; 7. The travails of Justice Waldron James Allan; 8. Deference rather than defiance: the limits of the judicial role in constitutional adjudication Aileen Kavanagh; Part III. Unwritten Constitutional Principles: 9. Constitutional justice and the concept of law T. R. S. Allan; 10. Written constitutions and unwritten constitutionalism Mark D. Walters; 11. Unwritten constitutional principles Jeffrey Goldsworthy.