Jean Leclair (Université de Montréal – Faculty of Law) has posted Foreword: Unwritten Constitutional Principles: The Challenge of Reconciling Political and Legal Constitutionalisms (McGill Law Journal, Vol. 65, No. 2, 2019) on SSRN. Here is the abstract:
This foreword takes the shape of a short essay. After delineating what exactly is controversial about unwritten constitutional principles (UCPs), I inquire into the role of speculative reason and political struggle in constitutional evolution, and how our emphasis, as legal scholars, on one over the other testifies to our understanding of democracy and constitutionalism, and therefore impacts on the degree of latitude we are willing to allow to judges in recognizing and enforcing UCPs. Through it all, I argue for a just equilibrium to be struck between legal and political constitutionalism and, more particularly, for the cultivation of a measure of skepticism towards a judge’s or a scholar’s capacity at finding the best answer to a question of law.