Legal and political constitutionalism: a quick
overview
Note that:
we owe the labels ‘legal constitutionalist’ and ‘political
constitutionalist’ to the latter group of writers. While some (e.g.
Allan) have embraced the ‘legal constitutionalist’ tag, it was
introduced as a name for a constructed counterpart for the position
defended by self-professed political constitutionalists.
both camps tend to accept that they advocating the superiority of
one aspect of the constitution (or of constitutions) rather than
suggesting that any one system perfectly instantiates ‘a political
constitution’ or ‘a legal constitution’ – though this subtlety tends to
get lost when people remark, for example, that the UK’s
constitution is moving from being a political constitution towards
being a legal constitution.
Political constitutionalists emphasize:
Ubiquity of disagreement and confict
o Griffith: ‘the rights which are sought to be protected by the
many and varied protagonists of the Bill of Rights are
themselves also many and varied…. The mere statement of
these rival claims is a statement about confict.’
o The whole point of democracy is to settle inevitable political
disagreements in the fairest way possible – one way of
understanding the legal argument we can cut through this confict
to fnd some basis of our political understanding of what is due to
everyone <- Grifiths believes this is a fction, only repeating the
same conficts at a more foundational level
Majoritarian democracy as ‘more legitimate and efective then the
judicial process at resolving these disagreements’ (Bellamy) – a
procedural way of remediating on an ongoing basis these conficts,
democratic means more legitimate than judicial means – democratic
process obviously isn’t perfect/ideal – argue we should focus on
improving the democratic process rather than passing to judiciary
Political accountability
o Griffith: ‘political decisions should be taken by politicians. In
a society like ours this means by people who are removable.
It is an obvious corollary of this that the responsibility and
accountability of our rulers should be real and not
fictitious…. It is not by attempting to restrict the legal
overview
Note that:
we owe the labels ‘legal constitutionalist’ and ‘political
constitutionalist’ to the latter group of writers. While some (e.g.
Allan) have embraced the ‘legal constitutionalist’ tag, it was
introduced as a name for a constructed counterpart for the position
defended by self-professed political constitutionalists.
both camps tend to accept that they advocating the superiority of
one aspect of the constitution (or of constitutions) rather than
suggesting that any one system perfectly instantiates ‘a political
constitution’ or ‘a legal constitution’ – though this subtlety tends to
get lost when people remark, for example, that the UK’s
constitution is moving from being a political constitution towards
being a legal constitution.
Political constitutionalists emphasize:
Ubiquity of disagreement and confict
o Griffith: ‘the rights which are sought to be protected by the
many and varied protagonists of the Bill of Rights are
themselves also many and varied…. The mere statement of
these rival claims is a statement about confict.’
o The whole point of democracy is to settle inevitable political
disagreements in the fairest way possible – one way of
understanding the legal argument we can cut through this confict
to fnd some basis of our political understanding of what is due to
everyone <- Grifiths believes this is a fction, only repeating the
same conficts at a more foundational level
Majoritarian democracy as ‘more legitimate and efective then the
judicial process at resolving these disagreements’ (Bellamy) – a
procedural way of remediating on an ongoing basis these conficts,
democratic means more legitimate than judicial means – democratic
process obviously isn’t perfect/ideal – argue we should focus on
improving the democratic process rather than passing to judiciary
Political accountability
o Griffith: ‘political decisions should be taken by politicians. In
a society like ours this means by people who are removable.
It is an obvious corollary of this that the responsibility and
accountability of our rulers should be real and not
fictitious…. It is not by attempting to restrict the legal
