Political Constitutionalism and the Question of Constitution‐Making

Abstract

The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitutionmaking usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems inherent to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism.

Three Models of Republican Rights: Juridical, Parliamentary and Populist

“…Bellamy is sceptical about the role of populist politics which, he suggests, risks substituting narrow, sectional claims for the authoritative decisions of representatives absent the discipline of electoral coalition-building and compromise. But this relies upon a misplaced faith in representative politics as somehow self-policing (Goldoni, 2014). In its determination to protect the integrity of laws by parliament from the counter-majoritarian difficulty of judicial review, parliamentary republicanism fails to appreciate the role of more collective and democratic modes of contestation.…”