Kant and the constitutional review Kantian principles of the neo-constitutionalist constitutionalism

Abstract

Kants political and legal theory is now thought to be one of the most important contributions to the theory of modern constitutionalism. The paper is an attempt to distil the fundamental principles of constitutional law as implemented in modern constitutional review from the writings of Kant. It examines the idea of the constitution as a social contract and its relation to popular sovereignty. Second, the principles of “republican constitution”-liberty, equality and independence (autonomy)-follow. These principles condense the essence of what we now call fundamental constitutional rights. Third, the transcendental maxim of legislation, that is, the publicity is analysed; the principle of the publicity of legislation is (under various names like equality, public reasoning and discussion, freedom of speech) fundamental for modern constitutionalism (or neo-constitutionalism). Constitutional courts are organs of the “public use of reason” so important for Kant and revived recently by Rawls. The last section is a discussion of the relationship of morality and constitutional government. Kant regarded the law as a coercive order a precondition for moral autonomy but he did not qualifi ed constitutional principles “moral”. Thus, the Kantian interpretation of constitutionalism does not support the moral reading or interpretation of the constitution; instead, the principles of the “lawful” constitution are based (like the maxims of morality) on practical reason.