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The Metaethics of Constitutional Adjudication$
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Bosko Tripkovic

Print publication date: 2017

Print ISBN-13: 9780198808084

Published to Oxford Scholarship Online: February 2018

DOI: 10.1093/oso/9780198808084.001.0001

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Constitutional Identity

Constitutional Identity

(p.13) 2 Constitutional Identity
The Metaethics of Constitutional Adjudication

Bosko Tripkovic

Oxford University Press

The chapter examines the metaethical foundations of the argument from constitutional identity. This argument locates the source of value in a set of deep and self-identifying evaluative commitments that develop in a society in virtue of the fact that it has a constitution. Drawing on comparative constitutional practice, the chapter argues that constitutional identity has two dimensions: general constitutional identity relies on the notion that constitutions entail common evaluative commitments that are applicable in any constitutional system of government, and particular constitutional identity relies on specific values discernible from moral judgments that have been made in local constitutional practices. The chapter contends that the argument from constitutional identity incorporates the tension between the emotive-local and reasonable-universal dimension of moral value, and extends into other types of value-based arguments in constitutional reasoning. The chapter concludes that constitutional identity cannot be a self-standing source of value in constitutional adjudication.

Keywords:   constitutional interpretation, constitutional reasoning, constitutional adjudication, constitutional review, judicial review, constitutional identity, moral reading, metaethics, values, rights

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