Liberalism may not have won the global victory that some commentators predicted, but constitutionalism certainly has. The vast majority of countries in the world, democratic and non-democratic alike, have written constitutions that are designed to entrench the basic legal structure of their regime. Most constitutions also enumerate a list of rights and general principles that purport to have a higher legal standing than ordinary law, and most countries entrust the interpretation of their constitution to a court of law. I will not try to speculate here about why this is the case. My aim is to scrutinize the idea of constitutionalism from a moral point of view, arguing that constitutionalism does not quite deserve the celebration that it has occasioned.
The argument proceeds as follows: after a preliminary outline of the main features of constitutionalism, I will present what I take to be the main moral concerns about its legitimacy. I will then consider a number of arguments that have been offered to answer those concerns, arguing that the arguments fail to meet the challenge. I will conclude with a few words about the moral implications of this failure and some suggestions for reform.
Andrei Marmor, "Are Constitutions Legitimate?," 20 Canadian Journal of Law and Jurisprudence (January 2007)