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Philosophical Foundations of Constitutional Law$
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David Dyzenhaus and Malcolm Thorburn

Print publication date: 2016

Print ISBN-13: 9780198754527

Published to Oxford Scholarship Online: April 2016

DOI: 10.1093/acprof:oso/9780198754527.001.0001

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Reflections on What Constitutes ‘a Constitution’

Reflections on What Constitutes ‘a Constitution’

The Importance of ‘Constitutions of Settlement’ and the Potential Irrelevance of Herculean Lawyering*

(p.75) 4 Reflections on What Constitutes ‘a Constitution’
Philosophical Foundations of Constitutional Law

Sanford Levinson

Oxford University Press

The author argues that both philosophers of law and constitutional theorists have focused unproductively on the interpretation of what he calls the ‘constitution of conversation’ and have thus neglected what he calls the ‘constitution of settlement’—those parts of a constitution that are ‘settled’ in the way that their meaning cannot be contested in the process of legal argument before a court, no matter the skill of the lawyers and judges. These parts are thus subject to change only by constitutional amendment, a political process not well understood by philosophers of law. And these parts are, he suggests, at least as worthy of the attention of those interested in the philosophical foundations of constitutional law as those that currently occupy legal theorists.

Keywords:   constitution of conversation, constitution of settlement, constitutional interpretation, constitutional amendment, Dworkin

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