Brexit’s Lessons for Constitutional Theory

Drawing on first hand participation in the legal and parliamentary constitutional developments caused by the Brexit crisis in the United Kingdom, this talk will explore what the experience tells us about certain fundamental concepts in constitutional theory. In particular, it will explore what light the experience sheds on the ideas of popular constitutionalism and constituent power, on the nature of legal interpretation, on the role of courts, legislatures and civil society in a constitutional crisis, and reflections on the distinction between so-called legal and political constitutionalism. It will also reflect on whether the existence of a codified constitution would have made much of a difference.

The British Case of Prorogation as an instance of constitutional fracture

This paper argues that the Supreme Court’s Miller II decision, quashing Boris Johnson’s prorogation of Parliament, is best seen as the dramatic culmination of a constitutional struggle triggered by the powerful but incomplete mandate of the Brexit referendum. This struggle between Executive and Legislature that started with the Miller I Article 50 case was overtly for control over Brexit and the parliamentary proceedings by which its terms and timing were determined; but also between two competing models – often dubbed ‘Westminster’ and ‘Whitehall’ – of the UK constitution. Miller II was the capstone of a series of aggressive moves, made by both sides, that instantiated in concrete ways the conflict between these two models that, in ordinary times, are often opposed only in abstract. Propelled by the extraordinary stakes and circumstances of Brexit, the repeated collisions of these competing visions saw the constitutional fabric fracturing to expose its fragile normative architecture.

Constitutionalism Reborn

This Article argues that the forces affecting Brexit are rooted in 19th century Britain. It deconstructs the familiar narrative that casts the US as the archetype of a popular sovereignty model with a formal supreme Constitution and judicial review. In that narrative, the UK is cast as the antithesis. This Article reveals that, even as this narrative was becoming orthodoxy during the 19th century, the UK was already operating under a model similar to the US, demonstrating a continued commitment to popular, rather than parliamentary, sovereignty. The challenges encountering popular sovereignty have remained the same over the past two centuries though gaining new dimensions: enfranchisement, protectionism, territorial divisions, and allocation of legislative power. The common Anglo-American model sheds new light on the meaning of the government’s mandate at elections, the rise of party power, the status of constitutional conventions and the conditions that would legitimize court packing.