Constitutionalism (Stanford Encyclopedia of Philosophy) Cite this entry Search the SEP • Advanced Search • Tools • RSS FeedTable of Contents• What's New• Archives• Projected ContentsEditorial Information• About the SEP• Editorial Board• How to Cite the SEP• Special CharactersSupport the SEPContact the SEP ©Metaphysics Research Lab,CSLI,Stanford University  Open access to the SEP is made possible by a world-wide funding initiative. Please Read How You Can Help Keep the Encyclopedia FreeConstitutionalismFirst published Wed Jan 10, 2001; substantive revision Tue Feb 20, 2007Constitutionalism is the idea, often associated with the politicaltheories of John Locke and the "founders" of the American republic,that government can and should be legally limited in its powers, andthat its authority depends on its observing these limitations. Thisidea brings with it a host of vexing questions of interest not only tolegal scholars, but to anyone keen to explore the legal andphilosophical foundations of the state. How can a government be legallylimited if law is the creation of government? Does this mean that agovernment can be "self-limiting," or is there some way of avoidingthis implication? If meaningful limitation is to be possible, mustconstitutional constraints be somehow "entrenched"? Must they beenshrined in written rules? If so, how are they to be interpreted? Interms of literal meaning or the intentions of their authors, or interms of the, possibly ever-changing, values they express? How oneanswers these questions depends crucially on how one conceives thenature, identity and authority of constitutions. Does a constitutionestablish a stable framework for the exercise of public power which isin some way fixed by factors like the original meaning or intentions?Or is it a "living tree" which grows and develops in tandem withchanging political values and principles? These and other suchquestions are explored below. 1. Constitutionalism: a Minimal and a Rich Sense2. Sovereign versus Government3. Entrenchment4. "Writtenness"5. Montesquieu and the Separation of Powers6. Constitutional Law versus Constitutional Convention7. Constitutional Interpretation and Constitutional Theories8. The Fixed View and the Living Tree9. Textualism: The Meaning of a Constitution's Text10. Originalism11. Hypothetical Intent Theory12. Dworkin: Moral Theory13. Critical TheoryBibliographyOther Internet ResourcesRelated Entries1. Constitutionalism: a Minimal and a Rich SenseIn some minimal sense of the term, a "constitution" consists of a setof rules or norms creating, structuring and defining the limits of,government power or authority. Understood in this way, all states haveconstitutions and all states are constitutional states. Anythingrecognisable as a state must have some acknowledged means ofconstituting and specifying the limits (or lack thereof) placed uponthe three basic forms of government power: legislative power (makingnew laws), executive power (implementing laws) and judicial power(adjudicating disputes under laws). Take the extreme case of anabsolute monarch, Rex, who combines unlimited power in all threedomains. If it is widely acknowledged that Rex has these powers, aswell as the authority to exercise them at his pleasure, then theconstitution of this state could be said to contain only one rule,which grants unlimited power to Rex. He is not legallyanswerable for the wisdom or morality of his decrees, nor is he boundby procedures, or any other kinds of limitations or requirements, inexercising his powers. Whatever he decrees is constitutionally valid. When scholars talk of constitutionalism, however, they normally meansomething that rules out Rex's case. They mean not only that there arerules creating legislative, executive and judicial powers, but thatthese rules impose limits on those powers.[1] Often these limitationsare in the form of individual or group rights against government,rights to things like free expression, association, equality and dueprocess of law. But constitutional limits come in a variety of forms.They can concern such things as the scope of authority (e.g.,in a federal system, provincial or state governments may have authorityover health care and education while the federal government'sjurisdiction extends to national defence and transportation); themechanisms used in exercising the relevant power (e.g.,procedural requirements governing the form and manner of legislation);and of course civil rights (e.g., in a Charter or Bill ofRights). Constitutionalism in this richer sense of the term is the ideathat government can/should be limited in its powers and that itsauthority depends on its observing these limitations. In this richersense of the term, Rex's society has not embraced constitutionalismbecause the rules defining his authority impose no constitutionallimits. Compare a second state in which Regina has all the powerspossessed by Rex except that she lacks authority to legislate onmatters concerning religion. Suppose further that Regina also lacksauthority to implement, or to adjudicate on the basis of, any law whichexceeds the scope of her legislative competence. We have here the seedsof constitutionalism as that notion has come to be understood inWestern legal thought.In discussing the history and nature of constitutionalism, acomparison is often drawn between Thomas Hobbes and John Locke who arethought to have defended, respectively, the notion of constitutionallyunlimited sovereignty (e.g., Rex) versus that of sovereignty limited bythe terms of a social contract containing substantive limitations(e.g., Regina).[2] But an equally good focal point is theEnglish legal theorist John Austin who, like Hobbes, thought that thevery notion of limited sovereignty is incoherent. For Austin, all lawis the command of a sovereign person or body of persons, and so thenotion that the sovereign could be limited by law requires a sovereignwho is self-binding, who commands him/her/itself. But no one can"command" himself, except in some figurative sense, so the notion oflimited sovereignty is, for Austin (and Hobbes), as incoherent as theidea of a square circle.[3] Though this feature of Austin's theory hassome surface plausibility when applied to the British Parliamentarysystem, where Parliament is often said to be "supreme" andconstitutionally unlimited,[4] it faces obvious difficulty when applied tomost other constitutional democracies such as one finds in the UnitedStates and Germany, where it is clear that the powers of government arelegally limited by a constitution. Austin's answer was to say thatsovereignty may lie with the people, or some other person or body whoseauthority is unlimited. Government bodies — e.g.,Parliament or the judiciary — can be limited by constitutionallaw, but the sovereign — i.e., "the people" — remainsunlimited. Whether this provides Austin with an adequate means ofdealing with constitutional democracies is highly questionable. ForAustin's sovereign is a determinate individual or group of individualswhose commands to others constitute law. But if we identifythe commanders with "the people", then we have the paradoxical resultidentified by H.L.A. Hart — the commanders are commanding thecommanders. In short, we lapse into incoherence (Hart 1994, 73-78;Austin 1995, Lecture VI).2. Sovereign versus GovernmentThough there are serious difficulties inherent in Austin's attempt tomake sense of "the people's sovereignty," his account does bring outthe need to distinguish between two different concepts: sovereignty andgovernment. Roughly speaking, we might define "sovereignty" as thepossession of supreme (and possibly unlimited) power and authority oversome domain, and "government" as those persons or bodies through whomthat sovereignty is exercised. Once some such distinction is drawn, wesee immediately that sovereignty might lie somewhere other than withthe government. And once this implication is accepted, we cancoherently go on to speak of limited government coupled withunlimited sovereignty. Arguably this is what one should sayabout constitutional democracies where the people's sovereign authorityis thought to be unlimited but the government bodies — e.g., thelegislature(s) and the courts — through whom that sovereignty isexercised on the people's behalf is constitutionally limited. As Lockeheld, unlimited sovereignty remains with the people who have thenormative power to void the authority of their government (or some partthereof) if it exceeds its constitutional limitations. Though sovereignty and government are different notions, it doesseem possible for them to apply to the same individual or body. It isarguable that Hobbes insisted on the identification of sovereign andgovernment insofar as he seemed to require a (virtually) completetransfer of all rights and powers from sovereign individuals to apolitical sovereign whose authority was to be absolute, thus renderingit possible to emerge from the wretched state of nature in which lifeis "solitary, poor, nasty, brutish and short."[5] In Hobbes' theory,supreme sovereignty must reside in the supreme governmental person orbody who enjoys unlimited power and authority to rule the commonwealth.Anything less than an unlimited sovereign would, given human nature andthe world we inhabit, destroy the very possibility of stablegovernment. So even if "sovereignty" and "government" are differentnotions, this neither means nor implies that the two could not apply toone and the same individual(s).3. EntrenchmentAccording to most theorists, a further important feature ofconstitutionalism is that the rules imposing limits upon governmentpower must be in some way be entrenched, either by law or byway of "constitutional convention."[6] In other words, thosewhose powers are constitutionally limited — i.e., the organs ofgovernment — must not be legally entitled to change or expungethose limits at their pleasure. Most written constitutions containamending formulae which can be triggered by, and require theparticipation of, the government bodies whose powers they limit. Butthese formulae invariably require something more than a simple decisionon the part of the present government to invoke a change. Sometimesconstitutional assemblies are required, or super-majority votes,referendums, or the agreement of not only the central government in afederal system but also some number or percentage of the governments orregional units within the federal system. Entrenchment not onlyfacilitates a degree of stability over time (a characteristicaspiration of constitutional regimes), it is arguably a requirement ofthe very possibility of constitutionally limited government.Were a government entitled, at its pleasure, to change the very termsof its constitutional limitations, it is questionable whether therewould, in reality, be any such limitations.Consider Regina once again. Were she entitled, at her discretion, toremove (and perhaps later reinstate) the constitutional restrictionpreventing her from legislating on religious matters, then we might askwhether she could sensibly be said to be "bound" by this requirement.On the other hand, were there a constitutional rule or conventionspecifying that Regina is entitled to remove this restriction only ifshe succeeds in convincing two thirds of her subjects to vote for thechange, then we might meaningfully speak of constitutional limitation.Of course this constitutional meta-rule or convention is itself subjectto change or elimination — a fact which raises a host of furtherpuzzles. For example, does such an act require application of the veryrule in question — i.e., two third's majority vote — or are"the people," as sovereign, at liberty to change or expunge it attheir pleasure? If we accept the distinction betweengovernment and sovereignty urged above, as well as the proposition thatsovereignty cannot be self-limiting, (X cannot limitX) then we might be led to conclude that the constitutionalmeta-rule — and hence the constitutional regime of which it is anintegral part — both exist at the pleasure of the people.Entrenchment may be an essential element of constitutional regimes, butconstitutions cannot be entrenched against the actions of "thesovereign people" at whose pleasure they exist.4. "Writtenness"Some scholars believe that constitutional rules do not exist unlessthey are in some way enshrined in a written document (e.g., Rubenfeld1998). Others argue that constitutions can be unwritten, and cite, asan obvious example of this possibility, the constitution of the UnitedKingdom. One must be careful here, however. Though the UK has nothingresembling the American Constitution and its Bill of Rights, itnevertheless contains a number of written instruments which arguablyform a central element of its constitution. Magna Carta (1215 A.D.) isperhaps the earliest document of the British constitution, while othersinclude The Petition of Right (1628) and the Bill of Rights (1689).Furthermore, constitutional limits are also said to be found in certainprinciples of the common law, explicitly cited in landmark casesconcerning the limits of government power. The fact remains, however,that Britain seems largely to have an unwritten constitution,suggesting strongly that writtenness is not a defining feature ofconstitutionalism. Why would one think that constitutional norms must be written rules,as opposed to more informal conventions or social rules? One possiblereason is that unwritten rules are sometimes less precise and thereforemore open to "interpretation," gradual change, and ultimatelyavoidance, than written ones. If this were true, then it would bequestionable whether an unwritten rule could, as a practical matter,serve adequately to limit government power. But there is no reason toaccept this line of argument. Long standing social rules andconventions are often clear and precise, as well as more rigid andentrenched than written ones, if only because their elimination,alteration or re-interpretation typically requires widespread changesin traditional attitudes, beliefs and behaviour. And these can be verydifficult to bring about.5. Montesquieu and the Separation of PowersDoes the idea of constitutionalism require, as a matter of conceptualor practical necessity, the division of government powers urged byMontesquieu and celebrated by Americans as a bulwark against abuse ofstate power? In Regina's case, there is no such separation:legislative, executive and judicial power all reside in her person. Buthow, it might be asked, can she be the one (qua judge) who determineswhether her legislation satisfies the prescribed constitutionallimitation? Even if, in theory, Regina's constitutionprohibits her from removing her constitutional restriction at will(because she must observe the 2/3rds meta-rule) can she not alwayschoose to ignore her restrictions, or to "interpret" them so as toescape their binding force. Perhaps Bishop Hoadly was right when hesaid (1717) in a sermon before the English King: "Whoever hath anultimate authority to interpret any written or spoken laws, it is hewho is truly the Law-giver to all intents and purposes, and not theperson who first wrote or spoke them." (quoted in Gray 1986, p.12).Although some constitutional limits, e.g., one which restricts theMexican President to a single term of office, seldom raise questions ofinterpretation, many others are ripe for such questions. Regina mightargue that a decree requiring all shops to close on Sundays (the commonSabbath) does not concern a religious matter because its aim is acommon day of rest, not religious observance. Others might argue, withseemingly equal plausibility, that it does concern a religious matterand therefore lies outside Regina's legislative competence. Thatconstitutions often raise such interpretive questions gives rise to animportant question: Does the possibility of constitutional limitationon supreme legislative (and executive) power require, as a matter ofpractical politics, that the judicial power by which such limitationsare interpreted and enforced reside in some individual or group ofindividuals distinct from that in which legislative and executivepowers are vested? In modern terms, must constitutional limits on alegislative body like Parliament, the Duma or Congress, or an executivebody like the President or her Cabinet, be subject to interpretationand enforcement by an independent judiciary? Marbury v Madison settled this question in the affirmativeas a matter of American law, and most nations follow Marbury(and Montesquieu) in accepting the practical necessity of some sucharrangement. But it is not clear that the arrangement truly ispractically necessary, let alone conceptually so. Bishop Hoadlynotwithstanding, there is nothing nonsensical in the suggestion thatX might be bound by an entrenched rule, R, whoseinterpretation and implementation is left to X. This is,arguably, the situation in New Zealand where the courts are forbiddenfrom striking down legislation on the ground that it exceedsconstitutional limits. Observance and enforcement of these limits areleft to the legislative bodies whose powers are nonetheless recognizedas constitutionally limited (and subject to whatever pressures might beimposed politically when state actions are generally believed toviolate the constitution). It is important to realize that what rule,R, actually requires is not necessarily identical with whatX thinks or says that it requires. This is so even when thereis no superior institution with the authority to correct X'sjudgment when it is, or appears to be, wrong. That constitutionallimits can sometimes be interpreted so as to avoid their effect, and norecourse be available to correct mistaken interpretations and abuses ofpower, does not, then, imply the absence of constitutional limitation.But does it imply the absence of effective limitation? Perhapsso, but even here there is reason to be cautious in drawing generalconclusions. Once again, we should remember the long-standingtraditions within British Parliamentary systems (including NewZealand's) according to which Parliament alone possesses finalauthority to create, interpret and implement its own constitutionallimits. And whatever its faults, there is little doubt that Parliamentsmodelled on the British system typically act responsibly in observingtheir own constitutional limits.6. Constitutional Law versus Constitutional ConventionThe idea of constitutionalism is usually thought to requirelegal limitation on government power and authority. Butaccording to most constitutional scholars, there is more to aconstitution than constitutional law. Many people will find thissuggestion puzzling, believing their constitution to be nothing more(and nothing less) than a formal document, possibly adopted at aspecial constitutional assembly, which contains the nation's supremelaw. But there is a long-standing tradition of conceiving ofconstitutions as containing much more than constitutional law. Dicey isfamous for proposing that, in addition to constitutional law, theBritish constitutional system contains a number of "constitutionalconventions" which effectively limit government in the absence of legallimitation. These are, in effect, social rules arising within thepractices of the political community and which imposeimportant, but non-legal, limits on government powers. Anexample of a British constitutional convention is the rule that theQueen may not refuse Royal Assent to any bill passed by both Houses ofthe UK Parliament. Perhaps another example lies in a convention thatindividuals chosen to represent the State of Florida in the AmericanElectoral College (the body which actually chooses the AmericanPresident by majority vote) must vote for the Presidential candidatefor whom a plurality of Floridians voted on election night. Owing tothe fact that they are political conventions, unenforceable in courtsof law, constitutional conventions are said to be distinguishable fromconstitutional laws, which can indeed be legally enforced. If we acceptDicey's distinction, we must not identify the constitution withconstitutional law. It includes constitutional conventions as well. Wemust further recognize the possibility that a government, thoughlegally within its power to embark upon a particular course ofaction, might nevertheless be constitutionally prohibited fromdoing so. It is possible that, as a matter of law, Regina might enjoyunlimited legislative, executive and judicial powers which arenonetheless limited by constitutional conventions specifying how thosepowers are to be exercised. Should she violate one of theseconventions, she would be acting legally, but unconstitutionally, andher subjects might well feel warranted in condemning her actions,perhaps even removing her from office — a puzzling result only ifone thinks that all there is to a constitution is constitutional law. 7. Constitutional Interpretation and Constitutional TheoriesAs we have just seen, there is (often) more to a constitution thanconstitutional law. As we have also seen, constitutional norms need notalways be written rules. Despite these important observations, twofacts must be acknowledged: (1) the vast majority of constitutionalcases hinge on questions of constitutional law; and (2) modernconstitutions are predominantly written documents.[7] Consequently,constitutional cases often raise theoretical issues concerning theproper approach to the interpretation of written instruments —coloured, of course, by the special role of constitutions in definingand limiting the authority and powers of government. 8. The Fixed View and the Living TreeAlthough theories of constitutional interpretation are many and varied,they all seem, in one way or another, to ascribe importance to a selectnumber of key factors: textual meaning, political and legal history,intention, and moral/political theory. The roles played by thesefactors in a theory of constitutional interpretation depend cruciallyon how the theorist conceives of a constitution and its role inlimiting government power. For example, if a theorist views aconstitution as foundational law whose existence, meaning and authorityderive from the determinate, historical acts of its authors and/orthose they represent(ed), and whose principal point is to fixa stable framework or set of ground rules within which legislative,executive and judicial power are to be exercised by the variousbranches of government, she may be inclined towards an interpretativetheory which accords pride of place to factors like authors'intentions, and literal or plain meaning insofar as the latter isconsidered the best guide to the former. On what we will call the"fixed view" of a constitution, it is natural to think thatsuch factors should govern whenever these are clear and consistent. Andthe reason is quite straight forward. On the fixed view, a constitutionaspires to set a stable framework for the day to day decisions of lawand politics which is above, or immune from, the deep disagreements andcontroversies often encountered in ordinary law and politics. It is theagreed framework within which controversial decisions (e.g., whetherthere should be laws affirming a woman's right to an abortion or theright of workers to a minimum wage) are to be made. But if theconstitution is interpreted in light of controversial moral andpolitical theory, then its whole point is lost: it can no longer serveas the agreed, stable framework within which controversial decisionsare made. If, on the other hand, the content of the constitution isdetermined by the historical acts and intentions of its authors, or bythe precise meaning of the words they chose to express the limits theychose to create, then the role of a constitution is secured. It canserve as the stable framework its nature demands. On the fixed view,then, the role of the constitution is much like the analogous roleserved by the ground rules of a debating society. Each sets themutually agreed, stable framework within which controversial debate(and action) take place. Just as a debating society could not functionif its ground rules were constantly being revised by the debators, aconstitution cannot serve its role if its terms are constantly open torevision and reinterpretation by participants in a society's politicaland legal processes. But not all theorists believe that the foundational role of aconstitution demands that its meaning and interpretation be somehowfixed, or that its interpretation be absolutely immune fromconsiderations of moral and political theory. Some constitutionalscholars and judges view a constitution as a "living tree",which by its nature must be allowed to grow and adapt to contemporarycircumstances and beliefs about justice. One inclined towards theliving tree conception will tend to spurn appeals to strict textualmeaning and authors' intentions as attempts to impose the dead hand ofthe (possibly distant) past upon contemporary society and practice.Government must be limited in power, but our understandings of theselimitations should be allowed to evolve and adapt in light of changingcircumstances and beliefs about justice. Despite its undoubted appealto some, the living tree conception faces tough questions: is viewing aconstitution as a "living tree", malleable in the hands of contemporaryinterpreters — particularly judges — consistent with itsstatus as foundational law, and with the entrenchment, stability andprotection from unwarranted state power which seem to be crucial, ifnot essential, aspects of the very idea of constitutionally limitedgovernment? Different theories of constitutional interpretation spliton how they answer this important question.9. Textualism: The Meaning of a Constitution's TextNo one denies that the literal meanings of the actual words chosen indrafting a constitution play a key role in determining its impact upondecisions, just as they do in the interpretation of statutes, wills,consent forms, and any other written (and sometimes unwritten) legalinstruments. Despite factors such as vagueness, open texture,indeterminacy and the like, the semantic content of a constitutionalprovision, as a rule or norm intended to convey meaning through the useof words, sets limits to its proper interpretation. As Alice said,words can't just mean whatever one wants them to mean. Textualism appeals to many, but especially those who accept thefixed view of the constitution, coupled with a belief that aconstitution is, principally, one important device through whichcitizens are protected from unwarranted state power, includingunwarranted judicial power. Requiring that judges interpretconstitutional provisions in light of the meaning of the constitution'stext respects the role of its creators (sometimes, but not always, thefounders of the state) in fixing, on behalf of the community, the basicframework of government and the limits within which state power is tobe exercised. Political decisions about that proper framework and itsconstituent limits have, on this theory, already been made in a properforum by those in whose hands such decisions were rightly placed. Theirdecisions have been communicated and should not, lest stability andlegitimacy be threatened, be subject to continuous revisiting andreview, particularly by (typically unelected) judges who lack theauthority enjoyed by the constitution's authors. The discovery oftextual meaning is (it is thought) a largely factual matter, requiringnone of the moral and political reasoning appropriately undertaken bythe creators of the constitution. If constitutional change is required,the constitution itself sets procedures through which such changes canbe affected. Should these prove ineffective, and yet change still bewarranted, then the people, as the sovereign power underlyingconstitutional democracies, have the authority to abandon theconstitution, through revolution, peaceful or not, and to substitutesomething else. But so long as the constitution remains in force, thesemantic content of its rules must be taken as governing all matters ofconstitutional law.Despite its obvious appeal, Textualism — or as it is sometimescalled, "strict constuctionism" — faces a number of difficulties.First, semantic content is not always fully determinate or stable fromone generation to the next. This is especially true of words andphrases like "equality," "due process of law," "fundamental justice,""free and democratic society," "freedom of religion" and so on. Theseseem to lack the determinate and relatively stable semantic content ofphrases like "five year term" or "two-thirds majority." The evaluativeconcepts expressed by the former are highly contestable politically,perhaps even "essentially contestable," and their understanding tendsto vary from one generation to the next. They cannot therefore servethe role suggested by the fixed view.Textualism faces a further difficulty. Even when the meaning of aword or phrase used in a constitution is constant and plain for all tosee, it is not always the case that it is considered dispositive. Forexample, taken in terms of both its original and (perhaps different)contemporary meaning, the First Amendment of the American Constitutionis clearly violated by a whole host of American laws, e.g., thoseproscribing incitement, perjury and libel. Taken literally the FirstAmendment renders unconstitutional any law which in anyway restricts freedom of speech. If so, then it isunconstitutional in the United States to punish untruthful witnesses,prevent primary school teachers from uttering vicious racial slursagainst their minority students, or convict those who incite crowds toviolence. But such state actions have never been understood to violatethe First amendment, leading to the inevitable conclusion that morethan semantic meaning governs its interpretation and application. Andthis is generally, if not universally, true of modern states and theirconstitutions. But if more than meaning governs, what else counts? Themost obvious choice, especially for those attracted to the fixed view,are the "intentions" of the framers. In response to the suggestion thatthe American First Amendment prohibits laws against perjury, a defenderof the fixed view is likely to reply: "But that can't possibly be whatthe framers had in mind — what they intended — in choosingthe words they did." This leads us to a second type of interpretivetheory, Originalism, which focusses, not on word meaning, but on theintentions of those by whose actions the constitution'svarious provisions came into existence.10. OriginalismAn Originalist might claim that Textualism is partially correct butdoesn't go far enough. The original intentions of a constitution'sauthors are what really count; and the reason that textual meaning isso important is that it's often the most reliable guide to thoseintentions. The drafters of a constitution may be presumed to haveknown and had in mind the standard applications of the words they used,and to have intended the results suggested by those applications,together with the goals and values those applications were best suitedto achieve. But when textual meaning fails, direct appeal to therelevant intentions is necessary. In both kinds of cases, however, theultimate aim is to respect original intentions. Whatever its precise contours, an Originalist theory is, likeTextualism, likely to rest on the fixed view of a constitution. To besure, the constitution's rules are fixed by the authors' intentions indeciding as they did, and not by the semantic content of the wordschosen to communicate those intentions. But they are fixed nonetheless,and must, as a result, not be revisited and revised lest the authorityand stability of the constitution be threatened. The intentions ofthose by whose authority a constitution is made must always govern itsinterpretation, not the new value judgments and decisions ofcontemporary judges (or any other interpreters) asking the very samequestions the founders intentions were supposed to have settled.Originalism faces a number of difficulties, some shared withTextualism. For example, original intentions are often unclear, if notcompletely indeterminate, leaving the interpreter with the need toappeal to other factors. The original intentions of the authors of aconstitution can vary from one person to the next. Sometimes the onlythings upon which joint authors of a text can agree are the wordschosen. The intentions behind that choice can, however, varysignificantly. These can range, for example, from the very general tothe highly specific. At one end of the spectrum are the various, andsometimes conflicting goals and values the authors of aprovision intended their creation to achieve. At the other end are thevery specific applications the authors might have had in mindwhen they chose the particular words upon which they settled. Did theintended applications of an equality provision encompass equalaccess to the legal system by all groups within society? Or onlysomething more specific like equal access to fairness attrial? Did they perhaps include equal economic and socialopportunities for all groups within society? Different authorsmight have "intended" all, none, or some of these applications whenthey agreed upon the equality provision. And as with the general goalsand values underlying a provision, there is room for inconsistency andconflict. Constitutional authors, no less than legislators, unionactivists, or the members of a church synod, can have different goalsand applications in mind and yet settle on the same set ofwords. In light of this fact, it is often unhelpful to rely onoriginal intentions when interpreting a constitution.11. Hypothetical Intent TheoryOne of the most serious difficulties faced by Originalism is thatcontemporary life is often very different from the life contemplated bythe authors of a constitution. As a result, many intended applicationsmay now seem absurd or highly undesirable in light of new scientificand social developments and improved moral understanding. Modern lifeincludes countless situations which the authors of a constitution couldnot possibly have contemplated, let alone intended to be dealt with inany particular way. The right to free speech which found its way intomany constitutions in the early modern period, could not possibly havebeen intended by its defenders to encompass, e.g., pornography on theinternet. In response to such difficulties, an Originalist might appealto what we can call "hypothetical intent." The basic idea is that weshould always consider, in such instances, the hypothetical question ofwhat the original authors would have intended to be done inthe case at hand had they known what we now know to be true. We are, onthis view, to put ourselves imaginatively in the authors' shoes, anddetermine, in light of their intended goals and values, and possibly byway of analogy with their intended applications, what they would havewanted to be done in the new circumstances. The Hypothetical Intent Theory faces difficulties too. First, thetheory presupposes that we can single out one, consistent set ofvalues, goals and applications attributable to the authors, in terms ofwhich we are to ask the question: What would they have wanted to havedone given these (intended) values, goals and applications? But as wehave already seen, the authors of a constitution invariably havedifferent things in mind when they agree on a constitutional text.Second, even if we could single out, at some appropriate level ofgenerality, a set of goals, values and applications from which ourhypothetical inquiry is to proceed, it is unlikely that there willalways be a uniquely correct answer to the question of what the authorswould have intended in these cases which they did not anticipate andcould not possibly have imagined. What would an 18th centuryfounder, firmly in favour of freedom of speech, have thought aboutchild pornography on the internet? Thirdly, and perhaps mostimportantly, we are left with the question of why it much matters whata long dead group of individuals might have wanted done were theyapprised of what we now know. The main appeal of the original intenttheory is that it appears to tie constitutional interpretation tohistorical decisions actually made by individuals withauthority to decide questions concerning the proper limits ofgovernment power. If we are now to consider, not what they diddecide, but what they might have decided had they known whatwe now know, then the question naturally arises: Why not just forgetthis theoretically suspect, hypothetical exercise and make thedecisions ourselves? There is some plausibility in the claim that thedecision should be made in light of the very general goals and valuesprobably intended by the authors — if, that is, one coulddiscover what these were and if they could all be rendered consistent.But why should we wish to perpetuate their possibly misguided viewsabout the appropriate ways in which to secure these goals and values?Unless we reject completely the idea that there might be moralprogress, or the idea that any such progress must always be dismissedfor the sake of a fixedness allegedly guaranteed by adherence toauthors' intent, there seems little reason to believe that we should beso tied. To think otherwise might well be to allow the dead hand of thepast to govern the affairs of today.True enough, it might be replied. But the alternative is one whichundermines the very point of constitutions. If we view a constitutionas a living tree whose limitations are constantly open to revisitingand revision in light of changing times and (one hopes) improvedmoral/political understanding, then it can no longer function as astable instrument whose very point and purpose is to limit the power ofgovernment — particularly, though not exclusively, arbitraryjudicial power. Arguments of political morality may be necessary toframe a constitution, but if judges and other contemporary interpretersare allowed to construe it in light of how they choose to understandthose limits, then the possibility of limitation vanishes. But does it?One theorist who thinks not is Ronald Dworkin, whose theory ofconstitutional interpretation attempts to do justice to both thesepoints of view.12. Dworkin: Moral TheoryFor Dworkin, historical factors like semantic meaning and intention,though always important, are in no way dispositive. They in no wayfix the limits of government power until such time as anamendment passes or a revolution occurs. On the contrary, constitutionsframe the terms of an ongoing political debate about the moralprinciples of justice, fairness and due process underlying a nation'sconstitutional limits on government power. And as the politicalcommunity's understanding of these principles develops and (it ishoped) improves, the very content of the constitution develops andimproves along with it. A crucial element in Dworkin's constitutional theory is his generalclaim that the law of a community includes more than any explicit rulesand decisions authoritatively adopted in accordance with acceptedprocedures. It does, of course, include many such rules and decisionsand these can be found, paradigmatically, in statute books, judicialdecisions and, of course, written constitutions. These are often termed"positive law." But the positive law in no way exhausts the lawaccording to Dworkin. Most importantly, for our purposes, it in no wayexhausts that part of law we call "the constitution." In Dworkin'sview, a constitution includes the principles of political moralitywhich provide the best explanation and moral justification —i.e., the best interpretation — of whatever limits have beenexpressed in positive law. Hence, constitutional interpretation mustalways invoke a theory of political morality. One concerned tointerpret the limits upon government power and authority imposed by aconstitution must look to an interpretive theory which provides thepositive constitutional law with its morally best explanation andjustification.The development of an interpretive theory of the constitution is,Dworkin acknowledges, an extremely difficult task, and people of goodwill and integrity will reasonably disagree about which theory is best.There is no mechanical, morally neutral test to apply, only thecompeting interpretations of those whose task it is to interpret. Thisdoes not mean, however, that attempting to evaluate theories isfoolish, or that there really is no such thing as a best theory sincethere is no mechanical way of discovering it. The presence ofdisagreement, controversy, and uncertainty in constitutional cases,does not entail that there are no right answers to the questions posed,and no uniquely correct theory which determines what those answers areand hence what the constitution actually requires. The presence of suchfactors entails only that interpreters must, as they must do in allinterpretive enterprises, including the arts, the sciences, and thelaw, exercise judgment in fashioning their interpretive theories.Dworkin goes so far as to argue that in a mature legal system therealmost always is a best constitutional theory, and judges (andlegislators) are duty-bound to try their best to discern and implementits requirements in making their decisions.There are, for our purposes, three important implications ofDworkin's theory of constitutional interpretation. First, originalintentions and semantic meaning at best set the stage for the ongoingdebates of political morality which constitutional cases both requireand licence. They seldom, if ever, settle matters. Second,constitutional cases require the kind of decision-making which is, onthe Originalist and Textualist theories, properly undertaken only bythose who have already fixed the constitutional limits contained withinthe constitution — i.e., its authors or framers. The kind ofmorally and politically uncontroversial decision-making, within astable framework established by other responsible agents, to which theOriginalist and Textualist theories aspire, is simply impossible onDworkin's theory. Dworkin's theory requires wholesale rejection of thefixed view. The constitution is not a finished product handed down in aform fixed till such time as its amending formula is invokedsuccessfully or a revolution occurs. Rather it is a work in progressrequiring continual revisiting and reworking as our moral and politicaltheories concerning its limits are refined and improved. It is, inshort, a living tree.A third, related implication of Dworkin's theory is that judges inconstitutional cases are not merely agents of the authors of aconstitution whose role is simply to carrying out the politicaldecisions already made by the authors. On the contrary, they arepartners with the authors in an ongoing political project, one whichrequires participants, both then and now, to engage in the kind ofmoral/political decision-making which, on the fixed view, settledmatters when the constitution was first adopted (and/or amended). Thelimits to government power are, on Dworkin's theory, essentiallycontestable, ad infinitum. If there is a correct theory of aconstitution, it requires, for its development and elaboration, aninterpreter of super-human powers of moral, political and legalreasoning. In short, it requires Dworkin's ideal judgeHercules.[8] But Hercules is a product of Dworkin'simagination, and so the project of interpreting the contestable termsof a constitution is an ongoing one, requiring each and everyinterpreter to provide her own best, and undoubtedly imperfect,interpretation of the limits placed upon government by herconstitution. The latter is never fixed.13. Critical TheoryThat it requires the skill, acumen and insight of a Hercules is seen bymany theorists as a serious drawback of Dworkin's approach toconstitutional interpretation. If ordinary judges, with their limitedskill, integrity and objectivity are at liberty to interpretconstitutional limits in light of their own, highly contestable moraltheories of the constitution, then the inevitable result is a kind ofunbridled judicial activism which threatens both the stability and thelegitimacy of the constitution and the limits on government power whichit is supposed to represent. Instead of limitations appropriately fixedand settled by, morally and politically uncontroversial factors likehistorical intentions and plain meaning, we would have "limitations"continually in flux and subject to different interpretations bydifferent judges with their own theories of political morality. Thoseof an originalist or texualist bent will see in such consequencessufficient reason to reject Dworkin's theory in favour of theiralternative. But for many constitutional scholars, originalism andtextualism are no less problematic than Dworkin's interpretive theory.For some of these "critical theorists," semantic meaning, historicalintentions, and herculean interpretive theory, all fail, in one way orthe other, to fix meaningful limits upon government power.[9] As a result,reliance on such factors in constitutional adjudication only serve: (a)to rationalize the purely political decisions of judges pursuing,consciously or not, their own political ideologies. Furtherconsequences include (b) a serious affront to democracy: a small cadreof unelected, elitist judges end up substituting their own, highlycontentious views about the proper limits of government power for theconsidered judgments of the people's respresentatives, i.e., thosemembers of Congress or Parliament duly elected to exercise, on behalfof the people, the latter's sovereign right to participate in politicaldecisions affecting their rights (Waldron); and possibly (c)suppression of those — women, minority racial groups, the poor,and so on — whose interests are not adequately recognized andprotected by the dominant, mainstream ideologies to which judges havean affinity. Instead of the curbing of arbitrary government power forwhich the idea of constitutionalism is supposed to stand, we havepolitical suppression disguised in a cloak of false constitutionallegitimacy. So critical theorists are highly skeptical of constitutionalpractice and theories which applaud constitutionalism as a bulwarkagainst oppression.[10] As we saw at the outset, a key element inthe idea of constitutionalism is that government can/should be limitedin its powers and that its authority depends on observance of thoselimits. We further noted that the authority of constitutions in liberaldemocracies is generally thought to lie in "the people." One furtherimplication of some critical theories is: (d) that the concept of "thepeople" is as much a fabrication as is Dworkin's Hercules. Instead of"we the people", western societies are comprised of various groupscompeting either for domination (e.g., white males and the wealthy) orfor recognition and the elimination of oppression (e.g., the poor,women, and racial minorities). The law, including constitutional law,is a powerful tool which has, historically, been utilized by dominantgroups to secure and maintain their superior status. As such, aconstitution is anything but the protection from unwarranted power thatits champions have heralded over the centuries. What is taken to be theplain meaning of the word "equality" is what the dominant groupunderstands it to be. What is taken to be the obvious historicalintentions of the framers is whatever intentions fit the ideologies ofthe dominant groups. What is taken to be the best moral theoryunderlying the constitution is nothing more than a rationalization ofcurrent social structures, all of which systematically oppress theinterests of women, minorities and the poor.Critical theories represent a serious challenge not only toconventional theories and established practices of constitutionalinterpretation, but to the very idea of constitutionalism itself— the idea that government can and should be limited in wayswhich serve to protect us from unwarranted state power. According tooriginalists and textualists, the constitution protects us from judgesand other officials by restricting them to politically uncontroversial,neutral decisions about historical intentions and semantic meanings.According to Dworkin, it is Hercules' best moral theory of theconstitution which serves as the bulwark against oppression. Onecrucial feature of Hercules' theory is that it is often at odds withreceived opinion, in particular with the self-serving convictions andprejudices of the various dominant groups within society. FollowingHercules' moral theory of the constitution will, Dworkin believes, leada judge to protect the rights of oppressed groups from the power ofdominant groups, especially when that power has the sanction oflegislation. But the ordinary judge is not, critical theorists willinsist, identical with Hercules. On the contrary, he is an ordinary,flawed human being with all the intellectual and moral shortcomings,weaknesses and biases of his fellow humans. He is also, more often thannot, a member of a dominant group (e.g., wealthy, white males) whoshares the social background, education, perspective, and values ofthat group. As a result, his conceptions of the relevant contestedconcepts (e.g., equality or freedom of expression) will be theirconceptions — i.e., conceptions which serve the interests of thedominant groups against whom the constitution is (at least largely)meant to serve as protection. But if semantic meaning, intentions andHercules' best theory are all at the mercy of dominant ideologies andthe whims and convictions of judges, then the kind of protectionsheralded by the idea of constitutionalism may be a myth, and a harmfulone at that. So what is the solution according to critical theorists?The proffered solutions vary considerably from one critical theorist tothe next, depending on how radical or skeptical the theorist tends tobe. A revolutionary communist might advocate the complete overthrow ofconstitutional, democratic government, while many liberal feminists arecontent to work within existing constitutional systems to eradicate thevestiges of patriarchy which have survived recent feminist movements(Strossen 1995). Waldron agues that we should abandon the practice ofjudicial review of legislation under constitutional bills of rights andleave political decisions where they belong: the people and theirrepresentatives, i.e., legislative bodies like Parliament and Congress.But whatever the preferred solution, all critics of constitutionalismseem to agree that progress can be made only if the myths surroundingconstitutional protection — the constraining force of meaning,intention, and objectively true moral theory — are all exposed,and that the true political forces at work in constitutional practiceare acknowledged and dealt with openly. 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