The aim of this paper is to soften the contrast between the moral theory of liberal constitutionalism and the various competing normative accounts of constitutionalism that, for ease of reference, I shall call collectively political. It will be argued that this contrast is to a great extent the result of both sides unnecessarily taking extreme positions and misunderstanding (some of) their own theoretical commitments. Once some of those commitments are relaxed and others jettisoned, we will see that the choice between the two views is not either-or.
More specifically, against standard liberal constitutionalist accounts it will be claimed that there is no mysterious constitutional logic that necessitates the existence of constitutional review of primary legislation. And against standard political constitutionalist accounts it will be claimed that it is not necessarily an affront to political equality to give this kind of power to unelected judges.