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PHILOS 4C03 PhiloOfConstitutionalLaw

Academic Year: Winter 2017

Term: Winter

Day/Evening: D

Instructor: Dr. Wil Waluchow

Email: walucho@mcmaster.ca

Office: University Hall 302

Phone: 905-525-9140 x 23465


Office Hours: TBA

Course Objectives:



An examination of issues surrounding the nature and justification of constitutional review. Issues to be addressed include: the very nature of constitutions and constitutional charters of rights; the legitimacy of empowering judges (apparently) to thwart the will of parliament or congress by striking down the legislative efforts of these democratically elected bodies; the reasoning undertaken by judges when they decide hard constitutional cases.

Textbooks, Materials & Fees:

Miscellaneous readings, all available on Avenue.

Method of Assessment:


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

2. Take-Home Exam, 3-5 pages in length (posted February 9; due February 20)……….…..30%

3. Critical research essay due March 29 (Word Limit: 3000....................................................50%


Policy on Missed Work, Extensions, and Late Penalties:

  1. 5 marks (out of 100) will be deducted from Essay grades and Take-Homes for every 100 words in excess of the prescribed limit.
  2. 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. 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

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:


Jan 5                Introduction to Constitutionalism and Judicial Review; Waluchow, Judicial Review

Jan 12              Freeman, “Constitutional Democracy and the Legitimacy of Judicial Review”

Jan 19              Waldron “Freeman’s Defence of Judicial Review”; Waldron, “A Rights-Based Critique of Judicial Review”

Jan 26              Kavanagh, “Participation and Judicial Review: A Reply to Waldron”

Feb 2                   Harel, “ Why Constitutionalism Matters: The Case for Robust Constitutionalism” 

Feb 9               Waluchow “The Living Tree”; Waluchow “Constitutions as Living Trees: An Idiot Defends”

Feb 16             Huscroft “The Trouble with Living Tree Constitutionalism”

Feb 28             Mid-Term Recess – no class

Mar 2               Huscroft Visit

Mar 9               No Class – Waluchow away

Mar 16             Waluchow, “Constitutional Morality and Bills of Rights”

Mar 23             Marmor, “Are Constitutions Legitimate?”

Mar 30             Waldron, “Judges as Moral Reasoners”

Apr  6              Sadurski, “Rights and Moral reasoning: An Unstated Assumption — A comment on Jeremy Waldron’s ‘Judges as Moral Reasoners’”

Other Course Information:


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. Given the numbers enrolled in the course, seminar presentations will be joint efforts.

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 . Essays must be submitted electronically via Avenue to Learn. You are required to keep copies (electronic or hard) of all work submitted.

4. The scale used by the Registrar's Office will be used to convert number grades to final letter grades.

5. Course evaluations will be done at the end of the course.

6. It is the policy of the Philosophy Department that all email communication  between students and instructors (including TAs) must originate from their official McMaster University email accounts. This policy protects  the confidentiality and sensitivity of information and confirms the identities of both the student and instructor. Philosophy department instructors will delete messages that do not originate from McMaster email account.