Jacob Weinrib

Queen's University at Kingston, Faculty of Law, Faculty Member

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Jacob Weinrib is an Associate Professor at the Queen’s Faculty of Law. He graduated from the Combined JD/PhD Program in Law and Philosophy at the University of Toronto, where he studied as a Vanier Scholar and received the David Savan Dissertation Prize. Before joining Queen’s, he held a SSHRC Postdoctoral Fellowship at the New York University School of Law as a Global Hauser Research Fellow in the Center for Constitutional Transitions (2013-4) and as a Dworkin-Balzan Fellow in the Center for Law and Philosophy (2014-2015). Weinrib is the author of Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (Cambridge: Cambridge University Press, 2016).

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The Principles of Constitutional Reform

Kantian Review

In legal orders around the world, commitments to democracy, liberalism, and constitutionalism are... more In legal orders around the world, commitments to democracy, liberalism, and constitutionalism are increasingly eroding. Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this paper are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance, and refinement of liberal democratic constitutional orders. As a constructive matter, I will draw on Immanuel Kant's constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong. In legal orders around the world, commitments to democracy, liberalism, and constitutionalism are increasingly eroding (Huq and Ginsburg 2018; Kurlantzick 2014; Plattner 2015; Scheppele 2019). Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this paper are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance, and refinement of liberal democratic constitutional orders. As a constructive matter, I will draw on Immanuel Kant's constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong. Political and constitutional theorists offer two basic ways of thinking about modifications to an existing constitutional order. The animating principle of the procedural paradigm is that the structure of a constitutional order must answer to the deeply held convictions of the people that it governs. Constitutions enable citizens to transform their convictions into supreme law through a particular procedure, often requiring an enhanced majority. Accordingly, in order to determine whether a particular constitutional amendment is valid, one must ask whether the relevant procedure has been satisfied. The opposing preservationist paradigm advances the competing idea that the purpose of a constitutional amendment is to refine the existing order, not to destroy it. Accordingly, in addition to satisfying the relevant procedure, amendments must satisfy a substantive criterion by conforming to the identity of the existing constitutional order. Thus, even an amendment that satisfies the most demanding procedure-say, the unanimous approval of citizens or their representatives-could be invalid.

Jacob Weinrib

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