Justifying constitutional review in the legitimacy register

Abstract

In this article I restate and sharpen key claims of my book Where Our Protection Lies, responding to the reviews written by Donald Bello Hutt, Alon Harel, and Matthias Klatt for this symposium. I first explicate the role that practice plays in my argument against critics of constitutional review and, more broadly, in my account of the value of democratic representation. This allows me to clarify and defend the general methodology I employ in the book, which I label moralised constitutional theory (MCT). Against Bello Hutt I argue that MCT does not merely rationalise existing practice; it heeds existing practice only to the extent that it can morally legitimate state power in the special way that constitutional law is meant to do. I then go on to evaluate Harel’s suggestion that constitutional review evinces the proper attitude towards rights; it expresses the idea that certain activities are off limits to government regulation. By contrast, legislative protection of our rights puts at the majority’s mercy. I contend that this suggestion has a problematic fit with contemporary constitutional practice. More importantly, it does not take into account that being subject to the authority of a judge also raises concerns about domination, and those concerns must be balanced against the expressive benefits of constitutional review, if there are any. Finally, I register a worry concerning the rapprochement that Klatt urges between our respective theories. Although both theories subscribe to the view that the content of our constitutional rights and duties is determined by the proper balance of moral considerations pertaining to the content of political decisions, on the one hand, and the features of the institutional structure that has produced them, on the other, I am sceptical that these considerations operate as optimisation requirements.