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.
This paper argues for judicial review – or against the rigidity of political constitutionalists’ objections to judicial review – on the basis of what is argued to be its ‘legitimating rather than its epistemic properties’. That is, this case focuses on certain features of the practice of adjudication rather than on supposed ‘epistemic virtues’ of judges of the kind used in standard legal constitutionalist defences. These features – which include things like its attentiveness to individual grievances and its rule interpretation competence – suggest that judicial review is likely to or may contribute, in certain modest ways, to the promotion of norms that are ‘commonly avowable’ in democratic societies (in Philip Pettit's republican sense of that idea). This in turn means that, when suitably informed by doctrines of deference and restraint (as per Jeff King's thesis), it is likely to or may enhance the legitimacy of political outcomes over time.
In 'Poland’s Constitutional Breakdown', Wojciech Sadurski observes that there is an unfortunate tendency to treat Poland as an instance of political constitutionalism in action. This tendency is natural. After all, in the post-2015 Polish developments, there has been a resistance to giving the courts ‘the last word’ on constitutionality of statutes, and a prioritisation of the political will unchecked by the courts. This paper uses the Polish example to probe the demands of political constitutionalism. In particular, it asks: what’s constitutionalist about ‘political constitutionalism’? If political constitutionalism prioritises the will of political elites, how do we distinguish political constitutionalism from authoritarian populism? Drawing on recent work on the theory of political constitutionalism under the British constitution, I use the British-Polish comparison to tease out the implicit constitutional constraints embedded in ‘the political constitution’.
Against the charge that majoritarian decisionmaking processes might feed populism, I claim that political constitutionalism stands as a superior kind of constitutionalism for democratic societies than its liberal or legal alternative. In doing so I argue that political constitutionalism is at odds with, and better than, the wide range of experiences labelled under the term ‘populism’. In the first part of the paper, I examine different approaches to the phenomenon of ‘populism’ and I critically analyse how constitutional theory approaches the relation between populism and constitutionalism. In the second part, I examine the problems of an excessively ‘political’ political constitutionalism. I argue that despite being the most political area of the law, constitutional law is not to be conflated with ordinary politics as some political constitutionalists argue. Finally, I conclude with some remarks on the aptness of political constitutionalism for practical constitutional authority.
Endorsement or critique of constitutional review through courts are often the central issue that separates political from legal constitutionalists. One may understand the critique of constitutional review as a core topic of political constitutionalism, a model that emphasizes that constitutions are not merely supreme statutes, but political documents, that do not limit, but constitute a political process. But given the fact that the constitution-giving and constitution-amending assembly is itself a political organ, it is far from clear how far this general point can lead. It may well be the case that a political community makes a political decision in favor of legal constitutionalism. Constitutions, then, become constitutional law, and this law is not the product of public reason, but of a political decision. This means that the democratic core of the case against judicial review might not be as democratic as it seems.