Political constitutionalism

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. Book Reviews