How (not) to argue the merits of liberal constitutionalism

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. It is more a matter of the right or optimal mix of institutional forms that instantiate the virtues or respond to the concerns that we associate with each view.

Even on this proposal, there is a lot for liberal and political constitutionalists to disagree about. But, contrary to common wisdom, there is a plateau of agreement whereupon their contest can constructively play out. Our institutional creativity is likely to be thereby enriched.

Legitimacy – not justice – and the case of judical review

This paper argues that the ‘political constitutionalists’ – along with the leading lights of the Judicial Power Project – are right that what matters in this debate is legitimacy, not justice. By that I mean that the case for (or against) judicial review ought to be made on the basis of (in Bellamy’s phrase) its ‘legitimating rather than its epistemic properties’.

I think the political constitutionalists, however, have tended to make their argument against judicial review based on a caricature of the legal constitutionalists’ case – that the latter imagine judges operating like deliberators in the Rawls' original position.

There is a significant shift – a republican shift, I suggest – in the post-Political Liberalism John Rawls, whereby legitimacy, not justice, comes to take centre stage. 'Reciprocity' replaces the original position. I think the theoretical case for judicial review, if it can be made, must be made from within this democratic – late Rawls/republican – frame.

From Political to Collaborative Constitutionalism

UK public law theory has long been dominated by a juxtaposition between political and legal constitutionalism. Scholars argue fervently in favour of rival conceptions of the constitutional order, where each camp defends either the political or judicial actors as having the lead role in the constitutional scheme.  In this paper, I will argue that this oppositional narrative of ‘political versus legal constitutionalism’ has engendered an unduly polarised, dichotomised and reductivist picture of the constitutional order.  In order to understand and illuminate key features of the working constitution, I argue that we need to move beyond the polarities of legal versus political constitutionalism towards a more inclusive and relational account of the constitutional order grounded in the value of collaboration.  Moving from political to collaborative constitutionalism helps us to put political constitutionalism in its place i.e. as one dimension of a multi-dimensional order where all three branches of government have a valuable role to play.

‘Political’ political constitutionalism and the populist challenge

Against the charge that majoritarian decisionmaking processes might feed populism, in this paper 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 will 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 this, my critique to the most common reaction from constitutional law to populism is twofold. In the second part of the paper, I examine two kinds of problems of an excessively ‘political’ political constitutionalism. Finally, I will conclude with some remarks on the aptness of political constitutionalism for practical constitutional authority.

The political constitutionalist case against political constitutionalism

Endorsement or critique of constitutional review through courts is 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. 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.