How (not) to argue the merits of liberal constitutionalism

The aim of this paper is to soften the contrast between the moral theory of liberal constitutionalism and the various competing normative accounts of constitutionalism that, for ease of reference, I shall call collectively political. It will be argued that this contrast is to a great extent the result of both sides unnecessarily taking extreme positions and misunderstanding (some of) their own theoretical commitments. Once some of those commitments are relaxed and others jettisoned, we will see that the choice between the two views is not either-or. It is more a matter of the right or optimal mix of institutional forms that instantiate the virtues or respond to the concerns that we associate with each view.

Even on this proposal, there is a lot for liberal and political constitutionalists to disagree about. But, contrary to common wisdom, there is a plateau of agreement whereupon their contest can constructively play out. Our institutional creativity is likely to be thereby enriched.