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Constitutionalism and Justice

This chapter is founded on the conviction that legal institutions and legal procedures are not mere means to achieve some desirable contingent outcomes: the protection of rights, the flourishment of democracy, coherence, and stability, and so forth. Instead, often institutions which are typically justified on these grounds are valuable as such. More specifically, it argues that constitutionalism can be justified not merely as a contingent means to bring about justice (or other desirable ends) but as a necessary component of a just polity. This chapter disputes the methodological starting point of what has been labelled in the past as ‘instrumentalist constitutionalism’ and defends robust constitutionalism. This chapter is organized as follows. Section II exposes some of the difficulties in traditional constitutional instrumentalism. Section II defends two aspects of constitutionalism on non-instrumentalist grounds: binding constitutional directives and judicial review.