Waldron, Waluchow and the Merits of Constitutionalism

In this article, I critically evaluate the positions of Professors Jeremy Waldron and W.J. Waluchow on the right-based merits of entrenched constitutions and strong judicial review. I support Waluchow in arguing that (i) prohibitions on the constitutional entrenchment of rights and resultant prohibitions of strong judicial review may be only superficially fair or democratic, since fair procedure alone can neither eliminate pre-existing inequalities nor ultimately take the autonomy vital to self-governance seriously (whether individual or collective). Secondly, (ii) if deep dissensus fails to exist on all substantive matters of rights, the constitutional entrenchment of rights combined with strong judicial review can indeed be achieved fairly. I then propose that (iii) the anti-constitutionalist concern about being governed by the 'dead hand of the past' is self-refuting, for the alternative is simply another constraint on autonomy. While this is largely consistent with Waluchow's position vis-a-vis Waldron's majoritarianism, I end by expressing serious concerns regarding whether the common law (and the 'constitutional morality' that Waluchow claims can be derived from it) can act as a sufficiently robust basis for the protection of liberal and egalitarian rights.