Although constitutionalism has been widely embraced round the world,it is by no means without its detractors. This is especially true whenwe turn to those constitutions that not only create and regulate theoffices of government but also purport to protect abstract rights ofpolitical morality. Some critics—we’ll call these the hardcritics—assert that such apparently rights-protectiveconstitutions cannot effectively and legitimately serve to protectindividuals against the oppressive forces of governments. On the contrary, they only serve to mask legal and political practicein a false cloak of legitimacy. Other critics—we’ll call thesethe democratic critics—are not so utterly dismissive ofrights-protecting constitutions. Rather, their main concern is tochallenge the role that democratically unaccountable judges typicallyplay in the interpretation and application of such constitutions.
To sum up, according to hard critics, a constitution is anything butthe protection from unwarranted government power that its championshave heralded over the centuries. What is taken to be the obviousmeaning of a key term like ‘equal before the law’ is whatthe dominant group understands or claims it to be. What is taken to bethe obvious original understandings or historical intentions of theconstitution’s authors are whatever understandings or intentions fitthe ideologies of the dominant groups. What is taken to be the bestarticulation of the right to equality emerging from a fair anddisciplined common-law analysis of that right, is nothing but arationalization of current social structures, all of whichsystematically oppress the interests of women, minorities and thepoor.
Essays on United States Constitution
Living constitutionalists have a number of responses to theseobjections. For instance, it might be argued that the theory in no wayresults in the unconstrained, arbitrary exercise of judicial power itsopponents often portray it to be. Living constitutionalists likeStrauss (2010) and Waluchow (2007a) suggest that the ongoinginterpretation of a constitution’s abstract rights provisions is aprocess much like the process by which judges develop equallyabstract, common-law notions like ‘negligence’ and‘the reasonable use of force.’ According to Strauss, theU.S. constitutional system