Expounding the Constitution: Essays in Constitutional Theory

doi:10.1017/CBO9780511511042

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.

"...An eclectic array of writing with transnational panache....Huscroft has done a fine job of collecting interesting essays. The book presents a politically and philosophically balanced view of constitutional theory....The essays are fairly accessible....Huscroft's introduction helps weave the patchwork of essays together....Altogether, the book is a good read, and is recommended for those interested in constitutional theory and interpretation, judicial review, and legal philosophy."
--Adam Shajnfeld (J.D., Columbia), The Law and Politics Book Review

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Contents

Frontmatter
pp i-iv
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Contents
pp v-vi
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Preface
pp vii-viii
- By Grant Huscroft, Professor and Associate Dean, University of Western Ontario in London
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Contributors
pp ix-x
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Introduction
pp 1-18
- By Grant Huscroft, Professor of Law, University of Western Ontario
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PART I - MORALITY AND THE ENTERPRISE OF INTERPRETATION
pp 19-20
- By Grant Huscroft, Professor and Associate Dean, University of Western Ontario in London
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1 - What Does Constitutional Interpretation Interpret?
pp 21-37
- By Steven D. Smith, Warren Distinguished Professor of Law, University of San Diego
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2 - Do Judges Reason Morally?
pp 38-64
- By Jeremy Waldron, University Professor, New York University
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3 - Constitutional Morality and Bills of Rights
pp 65-92
- By W. J. Waluchow, Professor of Philosophy, McMaster University
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4 - Justification and Rights Limitations
pp 93-116
- By Bradley W. Miller, Assistant Professor of Law, University of Western Ontario
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PART II - JUDICIAL REVIEW, LEGITIMACY, AND JUSTIFICATION
pp 117-118
- By Grant Huscroft, Professor and Associate Dean, University of Western Ontario in London
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5 - Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling the Issues
pp 119-137
- By Larry Alexander
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6 - The Incoherence of Constitutional Positivism
pp 138-160
- By David Dyzenhaus, Professor of Law and Philosophy, University of Toronto
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7 - The Travails of Justice Waldron
pp 161-183
- By James Allan, Garrick Professor of Law, University of Queensland
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8 - Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication
pp 184-216
- By Aileen Kavanagh, Reader in Law, University of Leicester
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PART III - WRITTEN AND UNWRITTEN CONSTITUTIONAL PRINCIPLES
pp 217-218
- By Grant Huscroft, Professor and Associate Dean, University of Western Ontario in London
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9 - Constitutional Justice and the Concept of Law
pp 219-244
- By T. R. S. Allan, Professor of Public Law and Jurisprudence, University of Cambridge
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10 - Written Constitutions and Unwritten Constitutionalism
pp 245-276
- By Mark D. Walters, Associate Professor of Law, Queen's University
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11 - Unwritten Constitutional Principles
pp 277-312
- By Jeffrey Goldsworthy, Professor of Law, Monash University
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Index
pp 313-317
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Expounding the Constitution

Essays in Constitutional Theory

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Contents

Frontmatter
pp i-iv

Contents
pp v-vi

Preface
pp vii-viii

Contributors
pp ix-x

Introduction
pp 1-18

PART I - MORALITY AND THE ENTERPRISE OF INTERPRETATION
pp 19-20

1 - What Does Constitutional Interpretation Interpret?
pp 21-37

2 - Do Judges Reason Morally?
pp 38-64

3 - Constitutional Morality and Bills of Rights
pp 65-92

4 - Justification and Rights Limitations
pp 93-116

PART II - JUDICIAL REVIEW, LEGITIMACY, AND JUSTIFICATION
pp 117-118

5 - Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling the Issues
pp 119-137

6 - The Incoherence of Constitutional Positivism
pp 138-160

7 - The Travails of Justice Waldron
pp 161-183

8 - Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication
pp 184-216

PART III - WRITTEN AND UNWRITTEN CONSTITUTIONAL PRINCIPLES
pp 217-218

9 - Constitutional Justice and the Concept of Law
pp 219-244

10 - Written Constitutions and Unwritten Constitutionalism
pp 245-276

11 - Unwritten Constitutional Principles
pp 277-312

Index
pp 313-317

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Expounding the Constitution

Essays in Constitutional Theory

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