The Puzzle and Demands of Modern Constitutionalism

Abstract

It is not obvious why constitutions should work. Written constitutions outline the institutions of ongoing democratic decision making so that those institutions cannot be used to change their own structure. And (usually) constitutions define certain rights as inviolable by ordinary democratic decision making. The central puzzle of constitutionalism is, then: How is it that a people can bind itself, and its progeny? The question, in this form, is a familiar one. But we can better inquire into it when it is posed in a more specific form: Why is it that we treat some collective decisions (the constitutional definition of rights and the structure of government) as binding on other collective decisions (the outcomes of ordinary structures of democratic decision making)? This form of the question of constitutionalism is particularly important as we increasingly recognize that the meaning of rights, such as equality, has changed over time. Most of us can no longer rely on images of rights as transcendent and immutable to justify the function they serve in our constitutional system.' At the least, we recognize that even if there are universal, immutable rights, their legal meaning requires interpretation which is not self-evident and will not be static. We confront ongoing as well as historical shifts in the definitions of constitutional rights, and the comparative perspective provided by other constitutions shows that modern democracies have made differentjudgments about which rights to constitutionalize. The Canadian Charter of Rights and Freedoms, for example, does not treat property as a constitutional right. Thus, the ways in which the definitions of constitutional rights are matters of collective choice is increasingly evident. Why, then, to restate the