Philosophical Foundations of Constitutional Law

Constitutional law has been and remains an area of intense philosophical interest, and yet the debate has taken place in a variety of different fields with very little to connect them. In a collection of essays bringing together scholars from several constitutional systems and disciplines, Philosophical Foundations of Constitutional Law unites the debate in a study of the philosophical issues at the very foundations of the idea of a constitution: why one might be necessary; what problems it must address; what problems constitutions usually address; and some of the issues raised by the administration of a constitutional regime.

Although these issues of institutional design are of abiding importance, many of them have taken on new significance in the last few years as law-makers have been forced to return to first principles in order to justify novel practices and arrangements in their constitutional orders. Thus, questions of constitutional 'revolutions', challenges to the demands of the rule of law, and the separation of powers have taken on new and pressing importance. The essays in this volume address these questions, filling the gap in the philosophical analysis of constitutional law.

The volume will provoke specialists in philosophy, politics, and law to develop new philosophically grounded analyses of constitutional law, and will be a valuable resource for graduate students in law, politics, and philosophy.

David Dyzenhaus, University Professor of Law and Philosophy, University of Toronto, Malcolm Thorburn, Associate Professor of Law, University of Toronto

David Dyzenhaus is University Professor of Law and Philosophy at the University of Toronto. He is the author of many books and essays at the intersection of political philosophy, legal philosophy, and public law theory.

Malcolm Thorburn is Associate Professor of Law at the University of Toronto. Until 2012, he held the Canada Research Chair in Crime, Security and Constitutionalism at Queen's University. He has been a visiting fellow at the Australian National University (2008); Ludwig Maximilians University, Munich (2011); the French National Centre for Criminology (CESDIP), Paris (2011); and Magdalen College, Oxford (2011-12). He is an associate editor of the New Criminal Law Review and a member of the editorial boards of Law and Philosophy and Criminal Law and Philosophy.

Introduction
Part I: What is a Constitution?
1. The Idea of a Constitution: A Plea for Staatsrechtslehre, David Dyzenhaus
2. The Unwritten Constitution as a Legal Concept, Mark Walters
3. On Constitutional Implications and Constitutional Structure, Aharon Barak
4. Reflections on What Constitutes 'a Constitution': The Importance of 'Constitutions of Settlement' and the Potential Irrelevance of Herculean Lawyering, Sanford Levinson
5. Constitutional Amendment and Political Constitutionalism: A Philosophical and Comparative Reflection, Rosalind Dixon and Adrienne Stone
Part II: Constitutional Authority
6. Constitutional Legitimacy Unbound, Evan Fox-Decent
7. Constituent Power and the Constitution, Hans Lindahl
8. Popular Sovereignty and Revolutionary Constitution- Making, Richard Stacey
9. Constitutional Reason of State, Thomas Poole
Part III: Constitutional Rights and their Limitations
10. The Rule of Law, Trevor Allan
11. The Constitutional Separation of Powers, Aileen Kavanagh
12. The Framework Model and Constitutional Interpretation, Jack M. Balkin
13. Philosophical Foundations of Judicial Review, Cristina Lafont
Part IV: Constitutional Rights and their Limitation
14. Equality Rights and Stereotypes, Sophia Moreau
15. Proportionality, Malcolm Thorburn