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PHILOS 4C03 Philo Of Constitutional Law

Academic Year: Fall 2016

Term: Fall

Day/Evening: D

Instructor: Dr. Wil Waluchow

Email: walucho@mcmaster.ca

Office: University Hall 302

Phone: 905-525-9140 x 23465


Office Hours: Fridays 12:30-1:30 or by appointment

Course Objectives:


Modern democratic societies are marked by deep disagreement on a wide range of moral issues, such as whether a transgender individual is entitled to use a bathroom of that person’s choice, or whether a criminal code provision that bans physician-assisted suicide violates an individual’s right to life, liberty, or security of the person. Sometimes the law (usually via legislation) settles the relevant moral disagreement in a way that most of us find acceptable. But not always.

Sometimes the law’s solution appears (to some) to violate a moral right our constitution purports to protect. When this happens, courts are often called on to settle the constitutional question through a process called judicial review. But judicial review of legislation is itself morally controversial. If there are no indisputable moral truths on which judges can draw when they attempt to determine whether a law conforms with a constitutionally protected moral right, on what resources may they legitimately draw? In this course, we will examine one possible solution to this puzzle, one that draws on John Rawls’ notion of public reason. The basic idea is that a court’s decision in such cases is justified when and only when it is consistent with public reason – i.e., when it is publicly justifiable as consistent with principles and convictions that no reasonable person could reject as unreasonable.

Textbooks, Materials & Fees:

1. Ronald Den Otter, Judicial Review in an Age of Moral Pluralism (Cambridge UP, 2009)

2. Miscellaneous readings, all available on Avenue.

Method of Assessment:

1. Seminar Presentation.............................................................................................................20%

2. Take-Home Exam, 3-5 pages in length (posted October 6; due October 20)………….…..30%

3. Critical research essay due December 1 (Word Limit: undergraduate, 3000; graduate, 4,000).........................................................................................................................................50%


Policy on Missed Work, Extensions, and Late Penalties:


1. Seminar presentations will be judged on the basis of two criteria: 1. success in outlining the main themes and arguments of the readings assigned for that week; 2. success in highlighting one or more philosophically interesting issues worthy of class discussion. It is possible that some seminar presentations will be joint efforts. This will depend on the number of students enrolled in the class.

2. 5 marks (out of 100) will be deducted from Essay grades and Take-Homes for every 100 words in excess of the prescribed limit.

3. 5 marks per day (out of 100) will also be deducted for late Take-Homes and Essays. Exceptions will be made only if you have a legitimate excuse. For undergraduates, a legitimate excuses is whatever your Faculty Office will accept. Take your documentation to your Faculty Office. In due time they will send me a memo. In the case of Graduate Students, see me.

Please Note the Following Policies and Statements:

Academic Dishonesty

You are expected to exhibit honesty and use ethical behaviour in all aspects of the learning process. Academic credentials you earn are rooted in principles of honesty and academic integrity.

Academic dishonesty is to knowingly act or fail to act in a way that results or could result in unearned academic credit or advantage. This behaviour can result in serious consequences, e.g. the grade of zero on an assignment, loss of credit with a notation on the transcript (notation reads: "Grade of F assigned for academic dishonesty"), and/or suspension or expulsion from the university.

It is your responsibility to understand what constitutes academic dishonesty. For information on the various types of academic dishonesty please refer to the Academic Integrity Policy, located at www.mcmaster.ca/academicintegrity

The following illustrates only three forms of academic dishonesty:

  1. Plagiarism, e.g. the submission of work that is not one’s own or for which other credit has been obtained.
  2. Improper collaboration in group work.
  3. Copying or using unauthorized aids in tests and examinations.

Email correspondence policy

It is the policy of the Faculty of Humanities that all email communication sent from students to instructors (including TAs), and from students to staff, must originate from each student’s own McMaster University email account. This policy protects confidentiality and confirms the identity of the student.  Instructors will delete emails that do not originate from a McMaster email account.

Modification of course outlines

The University reserves the right to change dates and/or deadlines etc. for any or all courses in the case of an emergency situation or labour disruption or civil unrest/disobedience, etc. If a modification becomes necessary, reasonable notice and communication with the students will be given with an explanation and the opportunity to comment on changes. Any significant changes should be made in consultation with the Department Chair.

McMaster Student Absence Form (MSAF)

In the event of an absence for medical or other reasons, students should review and follow the Academic Regulation in the Undergraduate Calendar Requests for Relief for Missed Academic Term Work. Please note these regulations have changed beginning Fall 2015. You can find information at mcmaster.ca/msaf/. If you have any questions about the MSAF, please contact your Associate Dean's office.

Academic Accommodation of Students with Disabilities

Students who require academic accommodation must contact Student Accessibility Services (SAS) to make arrangements with a Program Coordinator. Academic accommodations must be arranged for each term of study. Student Accessibility Services can be contacted by phone 905-525-9140 ext. 28652 or e-mail sas@mcmaster.ca. For further information, consult McMaster University's Policy for Academic Accommodation of Students with Disabilities.

Academic Accommodation for Religious, Indigenous and Spiritual Observances

Students requiring academic accommodation based on religion and spiritual observances should follow the procedures set out in the Course Calendar or by their respective Faculty. In most cases, the student should contact his or her professor or academic advisor as soon as possible to arrange accommodations for classes, assignments, tests and examinations that might be affected by a religious holiday or spiritual observance.

Topics and Readings:


Other Course Information:

  • Essays must be submitted electronically via Avenue to Learn. You are required to keep copies (electronic or hard) of all work submitted.
  • The scale used by the Registrar's Office will be used to convert number grades to final letter grades.
  • Course evaluations will be done at the end of the course