UK Constitutional Law Association

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McCorkindale and Goldoni: The State of the Political Constitution: a special edition of the German Law Journal

# ChrisMcCork pic copyGoldini

The revival of the political constitution has come about in parallel with two developments, one in constitutional practice and the other in political theory. With regard to the former, the political constitution has been seen as something of a bulwark against the rise of (so-called) legal (or judicial, or common law) constitutionalism. The seeming hegemony of this latter model of constitutionalism among contemporary lawyers and political scientists has produced from (so-called) political constitutionalists a reaction against the delegation of important decisions to non-political institutions and an obsessively court-centered scholarship. Perceiving this shift in focus from political to legal institutions to be the very antithesis of the traditional Commonwealth (more particularly, Britain’s parliamentary) model of constitutionalism, and, more broadly, to be an affront to democratic sensibilities, the notion of the political constitution was retrieved and defended in a seminal article in the 1979 edition of the Modern Law Review, written (though first delivered in his Chorley Lecture the previous year) by the late John Griffith. More recently, in the work of Adam Tomkins, Richard Bellamy, and Grégoire Webber and Graham Gee, a normative interpretation has been lent to Griffith’s thesis so as to provide a full-fledged constitutional theory capable of standing as an alternative to the liberal-legal paradigm – a turn, one might say, from the political constitution to political constitutionalism.

With regard to the latter, those who have returned to the normative foundations of the political constitution in order to establish a meaningful alternative to legal constitutionalism have found a convenient bed-fellow in the concurrent revival of republican political theory inspired by the work of Philip Pettit and Quentin Skinner. This republican renaissance has provided the basis for the reconstruction of the political constitution by lending its core principle, freedom as non-domination, as that against which the assessment of institutional design and constitutional travel can be measured. Whilst many neo-republicans advocate a constitutional form almost indistinguishable from liberal variations on the theme – Pettit, for example, prescribes a constitution based on thick notions of rights and the rule of law, with a constitutional court at its apex, as the best way to achieve non-domination – in so doing they have provided us with a normative account of politics as an activity to be celebrated and performed rather than feared and closed off. It is in this tradition that Tomkins and Bellamy have sought to add normative meat to bones of the political constitution and the institution, Parliament, at its core. Whether the political constitution itself is necessarily an instantiation of republican philosophy, however, remains an open issue.

Assessing the state of the political constitution

This collection began its life as a reaction to each of these developments. Our view, and it is a view which recurs in Part I but which is forcefully challenged by Adam Tomkins in the concluding essay, is that the development of the political constitution does not depend upon its juxtaposition with (let alone any confrontation with) the legal constitution; that the development of the political constitution in a perpetual defense against the legal constitution unduly inhibits the ways that we imagine, articulate and present our case. The aim of this edition, then, is to bring together the protagonists driving the revival of the political constitution and to invite them to reflect on the meaning, the content, the normative core – the state of the political constitution – on its own terms. For this reason, Part I opens with Keith Ewing’s forceful contribution, The Resilience of the Political Constitution. Here, Ewing assesses the actual condition of the political constitution in the current British context whist reconstructing the main building blocks of British parliamentary culture. He praises the political constitution’s flexibility as its greatest virtue, one which (at least partly) explains its impressive and lasting vitality.

Next, Graham Gee and Grégoire Webber (A Grammar of Public Law) focus on what it means to speak politically about public law. Analysing constitutional language as it is (in their view, mis)used by political constitutionalists, Gee and Webber urge us to avoid blurring the complexity of political practices by resorting to (the simplicity of) an indeterminate or vague lexicon. According to the authors, confronting the nuances of the constitution head on is the only way that it is possible to approach our discipline with due political sensitivity – to think politically about Public Law – this because the intricacies of political action cannot be captured by sweeping (and all too commonly asserted) generalisations. Following this plea for a parsimonious use of language and concepts, Paul Scott offers in his contribution ([Political] Constitutions and [Political] Constitutionalism) a precious analysis of the possible relationships between law and politics in contemporary constitutional theory. Scott’s reconstruction clarifies many of the ambiguities afflicting the debate on political constitutionalism and sets out to answer one of the key questions at the heart of this collection: how can we begin to think of constitutions both as instruments for the augmentation and (at the same time) the limitation of power. Stephen Tierney (Whose Political Constitution?) next confronts the question of the popular legitimacy undergirding political constitutionalism. His contribution aims to carve out new spaces for popular mobilization that are not limited to what he sees as being an elite dichotomy of parliamentary and judicial politics. For Tierney, if political constitutionalists are serious in their attempts to revive the virtues of their tradition then they must spread their gaze from institutional politics and start to look also to alternative channels of political engagement within, and democratic authorship of, the constitution (here focusing on the instrument of the referendum as one such possibility). Finally, Marco Goldoni and Christopher McCorkindale (Why We (Still) Need A Revolution) make a case for putting conflict, and the extraordinary exercise of constituent power, at the heart of the political constitution. Taking their cue from Griffith’s 1969 essay Why We Need A Revolution, the authors argue that where it is the political institutions themselves that have become corrupt – where political accountability, political representation and political equality have failed – the conflict stoked by a constituent power re-invoked, acting-in-concert against the constitutional status quo, should be understood within the tradition of political constitutionalism: a political act of constitution making (or re-shaping) par excellence. Arguing against the reduction of politics to its parliamentary form, Goldoni and McCorkindale take the background to legislative devolution to Scotland as an example of the power of such extra-ordinary constituent moments.

Part II is devoted to a study of the relationship between the courts and political institutions. In this respect, it should be understood as the second part of a diptych. Whilst Part I stressed the importance of thinking the politics of political constitutionalism autonomously, the second part seeks to address judicial review and the role of the courts within a political constitution, beyond a stark contrast with legal constitutionalism. As a result, this part documents the changing attitude of political constitutionalists towards (albeit weak-form) judicial review, accepting (if it was ever doubted) that the idea of the political constitution entails a necessarily legal (even judicial) element, even if it is not defined by it. The first article, by Stephen Gardbaum (The Case for the New Commonwealth Model of Constitutionalism), proposes a normative evaluation of what he calls ‘the New Commonwealth Model’ of constitutionalism. Gardbaum makes a convincing argument in favour of weak-form judicial review as the best articulation of both political and legal constitutionalism by showing that this form of review is capable of ‘taking rights seriously’ whilst still treating them as claims to be resolved by political institutions. In his essay The Relation between Political Constitutionalism and Weak-Form Judicial Review, Mark Tushnet, in order to prove the compatibility of weak-form review with political constitutionalism, describes the (political) preconditions which make such a relationship possible. In so doing, he comes to the conclusion that weak-form judicial review is especially suitable for the enforcement of second and third generation rights. Janet Hiebert, in The Human Rights Act: Ambiguity about Parliamentary Sovereignty, examines the controversial Hirst judgment on prisoner voting rights in the UK. Here, Hiebert offers a careful reconstruction of the Parliamentary debates which followed Hirst and outlines the ambiguity of the last phase of parliamentary protection of rights under the UK’s Human Rights Act – that phase which enables (perhaps even expects?) Parliament to implement remedial (and rights enhancing) legislation in light of a negative judgment by domestic or, in this case, supra-national courts. Her thesis is that Parliament, in its response to Hirst, failed adequately (if at all) to address the substantive issue – whether the legislation in question was incompatible with a fundamental right – because it was fixated with a different controversy, the perceived challenge to its own sovereignty.

For Griffith, writing in 1979 against the back drop of calls for sweeping constitutional reform including (but not restricted to) the adoption of a legally enforceable bill of rights, the political objection to such a move was clear: first, “that law is not and cannot be a substitute for politics,” that political controversies should not be disguised and even distorted as legal ones, and secondly, that “requir[ing] a supreme court to make certain kinds of political decisions does not make that decisions any less political.” Taking as our starting point Griffith’s view that rights claims are no more than that, claims to be put on the table and balanced against any other (be they political, moral, social, economic, ethical, religious or other claims), we believe that in the work of Gardbaum, Tushnet and Hiebert can be seen the genius of the Human Rights Act and (to a greater or lesser extent) other weak-form models of judicial review: the potential both to engage head on with questions of rights (and even the incompatibility of primary legislation with those rights) whilst nevertheless returning even successful rights claims back to the political arena qua claims, for resolution. Whilst neither Gardbaum, Hiebert nor Tushnet would attribute to themselves the label of ‘political constitutionalist’, at least not so explicitly, it is our view that in this body of work it is possible to locate the reinvigoration of the political constitution in (or, at the very least, the reconciliation of the political constitution with) the age of rights.

The issue is closed by Adam Tomkins, who asks What Is Left of the Political Constitution?. This typically robust contribution represents a subtle but important shift from the position that he has adopted (so influentially) in earlier work. Tomkins makes a powerful case for interpreting the British constitution as neither a purely political nor a purely legal construct. Instead, he argues that ours is a mixed constitution, and a healthy one at that. The mixed constitution here is not to be taken in the classic sense of a constitution representative of different (and conflicting) social classes, but instead as a variant mix of intertwined legal and political aspects. Despite this, Tomkins is still able to show that “plenty” is left of the political constitution, whose institutions and core values by necessity feature heavily in that mix.

Anticipating some potential fault-lines

Whilst these papers represent a first step in providing a dedicated internal debate on the state of the political constitution, we accept that many questions remain open for discussion and further exploration. As we see it, (and here one caveat is in order: what follows are mere suggestions offered in the spirit of opening such debate), at least four future developments in the literature on political constitutions and political constitutionalism seem to present themselves with particular urgency. First, and looking even further inwards, it seems to us that political constitutionalists take the meaning of ‘the political’ for granted – that it is bound up in its parliamentary (or at least its institutional) form – and that a more expansive critique of the content of the political, in both its constituted and constituent forms, would enrich the normative foundations of the tradition. Secondly, the relationship between and the interconnectedness of political and economic institutions, cultures and constitutions – an inseparable relationship according to Griffith – stands in need of closer scrutiny now, as the response to the global financial crisis limits and even usurps democratic choice and freedom, more than ever, and – less dramatically but perhaps more pervasively – the rise of the regulatory state transforms the functions of our political agents as well as the potential of our politics and the values which underpin it. Thirdly, and this time looking outwards, if we accept, as Griffith did (and as Ewing discusses in his paper) that all constitutions are political then we can see the potential for political constitutionalists within the commonwealth tradition both to inform and to learn from a comparative approach to the study of the political and how best to capture and preserve it, both institutionally and extra-institutionally. The invitation by Graham Gee and Grégoire Webber to use the political constitution as a model for the study of public law, and to think and speak politically about public law is one that we believe should be taken up in order to enrich the somewhat dry and legalistic approach which currently pervades much of the comparative public law literature. Finally, a fourth possible trajectory consists in an analysis of the relationship between national and both subnational and supranational jurisdictions. Within the state, and we only begin to tackle this point in our contribution to this volume, the devolution of power can be seen as both a response to political claims and the creation of new sites of (intra and extra-institutional) political action, where the conditions of the political at the centre have somehow failed. Beyond the state, globalisation and the rise of supranational bodies have had an obvious impact on political constitutions, not least of all by transferring some political questions away from accountable and representative national institutions to alternative sites of discourse (often concealing the political nature of their jurisdiction behind the fig leaf of juristic or technocratic – and therefore, the claim, a-political – justifications). Of course, this is not an original observation. As noted, Janet Hiebert in this issue (the relationship between political constitutionalism and human rights courts), and Richard Bellamy elsewhere (on the relationship between political constitutionalism and the constitution(alism) of the European Union), have begun to push political constitutionalism beyond the confines of the unitary sovereign state. However, on these institutions and more besides, there remains much to be done. Other supranational bodies – the WTO, the World Bank and the IMF to name but a few – are making decisions or issuing directives with a direct impact on the ability of the political constitution (as it is traditionally understood) adequately to represent those who are affected by those decisions, and effectively and meaningfully to hold to account those who make those decisions. Given the enormous scale of powers increasingly exercised on the supranational plane, an attempt to think politically about the constitution of (again, both in the sense of enabling and of limiting) that power appears essential.

Some closing remarks

In these pages, then, we hope to lay the ground work for the next stage of the debates around the political constitution. If the first wave of political constitutionalism began with Griffith, and concerned the functions of the political constitution, and the second with Tomkins, with Bellamy, and with Gee and Webber, concerning the normative foundations of the political constitution, then here we mark the beginning of a third wave: the celebration and the articulation, on its own terms, of the potential for politics to open up hitherto obscured or even unknown (indeed perhaps, in advance, unknowable) constitutional possibilities – this is to say, the political reconstruction of the political constitution.

http://www.germanlawjournal.com/

Marco Goldoni is a Lecturer in Legal Theory at the University of Glasgow

    Christopher McCorkindale is a Lecturer in Public Law at the University of Strathclyde

Suggested Citation: M. Goldoni & C. McCorkindale, ‘The State of the Political Constitution: A Special Edition of the German Law Journal’  UK Const. L. Blog (20 December 2013) (available at http://ukconstitutionallaw.org).

One comment on “McCorkindale and Goldoni: The State of the Political Constitution: a special edition of the German Law Journal

  1. Pingback: Sixth Disposition Warranties | Cranberry Cottage

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