Political constitutionalism

Abstract

For 'legal constitutionalists', written constitutions, constitutive of the legal and political system, superior to other legislation, entrenched against change, and enumerating justiciable rights, guarantee equal respect and concern for all citizens. Judicial review is thus an essential support of democracy. In this book, Richard Bellamy offers a robust argument against this view of constitutions, and particularly of judicial review. The book is driven by a deeply engaged argument against the movement towards constitutionalization in the European and British contexts and the contempt for politics which he sees this as implying. Bellamy argues that this view relies on questionable normative and empirical assumptions. The extent of reasonable disagreement about basic values, interests, rights themselves and what counts as a fair outcome, as well as courts' lack of public accountability mean that such systems, rather than reliably protecting fundamental democratic ideals, constitute a form of arbitrary rule. '[W]e cannot see an agreed constitutional framework of rights as somehow offering the basis and limits for the ordinary political process' (p. 25). The 'political constitutionalism' that he sees as more legitimate and more effective gives citizens an equal say in shaping legislation and framing constitutional change through the democratic mechanisms of open elections between competing parties and decision-making by majority rule. Thus he offers a procedural defence of democracy, in which the democratic process is the constitution, providing due process and able to reform itself continually. The book first criticizes the emphasis on the guarantee of constitutional rights through judicial review and the argument that this supports democracy either substantively or procedurally. Bellamy criticizes counter-majoritarian arguments for judicial review, showing that in practice the differences with respect to majorities between courts and legislatures are less than often assumed. Judicial review does not provide security for minorities. In practice, what have been seen as landmark judicial decisions on civil rights were less significant than contemporary political decisions and legislation. Against allegedly more dialogical forms of 'commonwealth' judicial review, Bellamy argues that, even in these systems, the judiciary tends to dominate the legislature. The second chapter provides an extended argument on the rule of law, often the basis for justifying a central role for courts. Bellamy argues that, as there is no inherently 'good' law, and no rule of law independent of persons, the validity of law depends on it being subject to appropriate processes, which are always politically determined. 'In both politics and law, a concern for the public interest and equality before the law comes from the balancing of particular interests and views rather than from the imposition of a general or universal perspective from outside the political or legal system' (p. 89). So he claims that the rule of law, rather than requiring an entrenched constitution, is in many respects identical to rule by democracy. He then engages with accounts in which judicial review is an integral part of democracy, either substantively or procedurally. He examines and rejects in turn arguments that depict judicial review as realizing democracy (Dworkin and Rawls), as protecting democratic values (Ely), as providing the preconditions for democracy (Habermas), or as the outcome of an exceptional democratic process (Ackerman). He concludes that although liberals aim to show citizens equal concern and respect, whether this can be achieved through judicial review is neither established theoretically nor borne out in practice. The second half of the book elaborates the theory of political constitu-tionalism, and defends it from the legal constitutionalists' fear of majority tyranny. Although paralleling Waldron's critique of judicial review in the name of self-government, this is distinctively based on the republican idea of freedom as non-domination. Given the 'circumstances of politics', strategies of depoliticization constitute a form of domination – either by setting boundaries to the political sphere, or applying an 'apolitical politics' to discuss and settle particular issues (p. 147). Freedom is threatened not only by interference (or the broader notion of oppression), but also by domination, the power to interfere with others or to override their opinions and interests, which makes oppression more likely, and which Bellamy sees as neglected by legal constitutionalists (p. 151). While applying the republican idea of freedom as non-domination developed by Pettit, Bellamy draws interestingly different conclusions on the legal and political institutions necessary to promote freedom. The former has endorsed a version of contestatory democracy incorporating the separation of powers and judicial review. Bellamy argues that Pettit's theory also relies too heavily on an objectivist idea of 'common recognizable interests' and 'an idealized politics from which all the sources of reasonable disagreement have been removed' (p. 175). This too provides a source of judicial domination. Thus '[w]e cannot rely on a constitution to secure the participatory conditions of equal concern and respect. Not only is there no clear way, including that of a special democratic process, whereby we might reliably frame such a constitution, but there is also no legitimate expertise for interpreting such a framework with Book Reviews