Justification by constitution and tiered constitutional design?

Abstract

Constitutions serve to legitimate the exercise of public power. Yet their scope is often subject to reasonable disagreement among citizens in a democracy. As Frank Michelman notes, this points to an understanding of democratic constitutions as a framework for contestation, rather than entrenched set of binding legal constraints. This understanding, however, arguably overlooks the difference between ordinary constitutional norms and those that protect the ‘democratic minimum core’. For the latter, there is far less scope for reasonable disagreement, and greater prudential importance to conceptualizing constitutions as entrenched norms authorized strong-form judicial review. The essay thus explores the idea of a ‘tiered’ approach to constitutional design, which combines elements of strong and weak constitutional entrenchment, and judicial review. In doing so, it further considers the role that transnational norms or practices could play in helping delineate these different constitutional tiers.