Book Announcement: Expounding the Constitution, Edited by Huscroft

Grant Huscroft (University of Western Ontario - Faculty of Law) has posted Expounding the Constitution: Essays in Constitutional Theory (EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY, Grant Huscroft, ed., New York: Cambridge University Press, 2008) on SSRN. Here is the abstract:

Constitutional interpretation is a serious matter in any political community committed to the rule of law. Widespread disagreement about the most fundamental moral issues is to be expected, and it is bound to play itself out in the interpretation of legal rights. The essays that make up this volume - contributed by some of the most accomplished legal philosophers and constitutional law scholars in the common law world - address three pressing issues in contemporary constitutional interpretation and constitutional theory: (1) the role of moral reasoning in constitutional interpretation; (2) the legitimacy and justification of judicial review; and (3) the place of unwritten constitutional principles in the constitutional order. Although these papers reflect the jurisdictional roots of their authors, they are theoretical works of wide application rather than doctrinal accounts of the workings of the constitution of any particular jurisdiction.

Contents

Part I Morality and the Enterprise of Interpretation
1. Steven D. Smith, "What Does Constitutional Interpretation Interpret?"
2. Jeremy Waldron, "Do Judges Reason Morally?"
3. W.J. Waluchow, "Constitutional Morality and Bills of Rights"
4. Bradley W. Miller, "Justification and Rights Limitations"

Part II Judicial Review, Legitimacy, and Justification
5. Larry Alexander, "Constitutions, Judicial Review, Moral Rights, and Democracy: Disentangling the Issues"
6. David Dyzenhaus, "The Incoherence of Constitutional Positivism"
7. James Allan, "The Travails of Justice Waldron"
8. Aileen Kavanagh, "Deference or Defiance?: The Limits of the Judicial Role in Constitutional Adjudication"

Part III Written and Unwritten Constitutional Principles
9. T.R.S. Allan, "Constitutional Justice and the Concept of Law"
10. Mark D. Walters, "Written Constitutions and Unwritten Constitutionalism"
11. Jeffrey Goldsworthy, "Unwritten Constitutional Principles"

And from the Introduction:

Dyzenhaus then turns his sights on Jeffrey Goldsworthy, who has argued in favour of a moderate form of originalism. According to Dyzenhaus, no term in a constitution – not even a boilerplate term like “peace, order, and good government” in the Australian Constitution – cannot be given a new meaning by courts in the right circumstances. A judge could invoke the term “good government,” he argues, to limit the power of the Australian Parliament if it were to attempt to change the system of government by installing a dictatorship.

Judges committed to constitutional positivism are, on Dyzenhaus’s account, attempting to do the impossible. They are committed to recognizing a legislative monopoly on law-making, but they are operating in a common-law legal order. The best they can do is to attempt to curb judicial activism, which Dyzenhaus defines as the propensity of judges to affirm their interpretation of a bill of rights over the legislature’s. Even here, however, they are unlikely to be successful. Indeed, to the extent that judges discover inconsistency between legislation and their understanding of a bill of rights, they will, themselves, be activists.

The problem, in short, is that constitutional positivists have been overtaken by events. As Dyzenhaus puts it, “their understanding of their obligation of fidelity to law is inconsistent with many of the pieces of constitutional furniture in place.” In effect, he challenges them to acknowledge the need for the extensive legal reform he says is necessary to make their views tenable.