The Legal Theory Bookworm recommends A Common Law Theory of Judicial Review: The Living Tree by W. J. Waluchow. Here is a description:
In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics’ most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.
And from Howard Ellis’s review:
This is a book written by a philosophy professor for an audience of professional philosophers, and yet it is reasonably accessible to the non-professional reader. It is virtually jargon-free and is written in an engaging and clear style. Waluchow mostly steers clear of the modern controversies mentioned above, with passing reference made to abortion and same-sex marriage. In the latter instance he takes a position in support of same-sex marriage but only as an example of how his theory of judicial review might work in practice and how that theory could be justified. The book will be of most value to the student of jurisprudence who wants to look behind the political issues to more fundamental questions of democratic self-governance.
Here is a link to the Table of Contents (PDF). Highly recommended!