The argument of Part I has been largely negative, criticising the claims and aspirations of legal constitutionalism. I now want to explore how these criticisms coalesce around the positive case for a political constitutionalism. Part II seeks to explain why the legal constitutionalist's fears about democracy prove misguided, with democratic decision-making actively promoting, rather than threatening, constitutional values. Moreover, unlike constitutional judicial review, democracy performs this constitutional role in ways that are congruent with these values being subject to the ‘circumstances of politics’. As we have seen, defenders of legal constitutionalism tend to focus on the capacity of a judicially protected and entrenched constitution to secure appropriate substantive results or outputs – notably, the defence of a given theorist's favoured view of individual rights, legality and democracy. While far from indifferent to these concerns, a political constitutionalism also looks at inputs. As such, it focuses on the legitimacy of the processes whereby we define and promote or restrict rights through legislation and administrative action. From this perspective, a failure to acknowledge the disagreements that surround constitutional values, and the resulting need for political mechanisms to resolve them, can itself be a source of domination and arbitrary rule that impacts negatively on rights and the rule of law.

Chapter 1 identified the core impetus of legal constitutionalism in the emphasis on rights and the need to protect them from political encroachments, not least by supposedly tyrannous democratic majorities.