Constitutional Essentials

Abstract

Abstract This work examines closely the constitution-centered proposition on political legitimacy, offered by John Rawls in Political Liberalism in response to the problem posed for government by consent by facts of deep-lying disagreement among citizens. An answer, Rawls thought, could lie in the possibility of a framework law for a society’s politics—a “constitution,” including a bill of rights—that all, despite other disagreements, could find reason to accept. The work offers explication of the thought behind Rawls’s proposal, while also placing it in relation to a duality of functions—–“regulatory” and “justificatory”—for which lawyers in constitutional-democratic societies typically look to their countries’ bodies of constitutional law. Conflicts in practical implications from these functional attributions, the work suggests, can help explain the persistence of debates in constitutional-democratic venues over topics ranging from choices between “legal” and “political”—or between “written” and “unwritten”—constitutions, to thinness versus thickness in formulations of constitutional principles and guarantees, the place of constitutional fidelity among liberal political virtues, activism versus restraint in the conduct of judicial constitutional review, original-meaning versus moral-reading approaches to constitutional interpretation, and extension of constitutional substantive guarantees beyond negative restraints on the government to take in affirmative state obligations for satisfaction of the basic material needs of citizens, and for protection of them against oppression from nongovernmental social powers. The book also looks into whether some later-arriving work from Rawls signifies modification of the procedurally dependent basis for political justification than it finds in the first edition of Political Liberalism.