1 For a representative body of literature, see, e.g., The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Martin Loughlin & Neil Walker eds., 2008); The Twilight of Constitutionalism? (Petra Dobner & Martin Loughlin eds., 2010); Transnational Governance and Constitutionalism (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., 2004). Little of the analysis in these works is explicitly conceptual: It mostly presupposes, rather than argues for, a specific understanding of the term. For an attempt to identify the essence of the concept as it is used in UK constitutional scholarship, see Jo Eric Khusnal Murkens, The Quest for Constitutionalism in Public Law Discourse, 29 Oxford J. Legal Stud. 427 (2009). Murkens's conclusion is that “h+inting at constitutionalism as a new but hollow vessel is constitutionally inaccurate, analytically fallacious, and explanatorily vacuous,” and so “e+ither entire new chapters expounding the concept of constitutionalism need to be written and inserted into public law textbooks, or its usage should be purged from the discussion.” Id. at 454– 55.Google Scholar

2 See, for example, the accounts of the questions posed by “ancient” and “modern” constitutionalism, respectively, in Charles Howard McIlwain, Constitutionalism: Ancient and Modern ch. 1–2, at 3–40 (1940).Google Scholar

3 A.V. Dicey, Introduction to the Study of the Law of the Constitution (1st ed. 1885).Google Scholar

4 The use of such labels inevitably confronts the vast critical literature which deprecates their underlying logic and, in particular, the stability of the distinction. See, for example, Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. Pa. L. Rev. 1349 (1982). Such deprecation applies both at the level of power generally understood, and in the more specific context of legal power. Nevertheless, as long as it is emphasized that the label “private” does not imply that whatever is so labeled is of no political significance—that the divide between public and private is not and cannot be a Chinese wall—then such identification is not in itself harmful and captures an analytically useful distinction, which performs a central function in, for example, determining the applicability of human rights norms. See, for example, Human Rights Act, 1998, c. 42, § 6 (Eng.).Google Scholar

5 See, for example, Stephen Tierney, Constitutional Law and National Pluralism 4 (2004), which posits a category of multi-national, multi-level states that defy “the standard classifications and categorisations prevalent in traditional analytic frameworks of liberal constitutionalism.” Id.Google Scholar

6 See generally Rachel A. Cichowski, Women's Rights, the European Court and Supranational Constitutionalism, 38 Law & Soc'y Rev. 489 (2004).CrossRefGoogle Scholar

7 See generally Transnational Constitutionalism: International and European Perspectives (Nicholas Tsagourias ed., 2007).Google Scholar

8 See Bruce Ackerman, The Rise of World Constitutionalism, 83 Va. L. Rev. 771 (1997). The term “world constitutionalism” seems to mean the spread of constitutionalism around the world (albeit in occasionally adapted forms) rather than the emergence of a distinct form of that phenomenon.CrossRefGoogle Scholar

9 The qualifier “formal” is offered in recognition of the fact that an account of globalization, in its multitude of forms, which paints it as a specific feature of the late 20th century and beyond, overlooks the interaction and mutual dependence of many nation states in times gone by; what seems true, however, is that in late modernity, the multiplications of sites of power is accompanied by a largely novel formalization of those sites and the frameworks through which power is exercised.Google Scholar

10 For the original language of societal constitutionalism, see David Sciulli, Theory of Societal Constitutionalism: Foundations of a Non-Marxist Critical Theory (1992). For a more recent texts, see Gunther Teubner, Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory?, in Transnational Governance and Constitutionalism, supra note 1, at 3; Gunther Teubner, Fragmented Foundations: Societal Constitutionalism Beyond the Nation State, in The Twilight of Constitutionalism, supra note 1, at 327. The “characterization” offered here refers to the latter rather than the former.Google Scholar

11 See generally Neil Walker, Taking Constitutionalism Beyond the State, 56 Pol. Stud. 519 (2008); Gavin Anderson, Beyond ‘Constitutionalism Beyond the State,’ 29 J. Law & Soc'y 359 (2012).CrossRefGoogle Scholar

12 For example, Weber who defined power as “the probability that one actor within a social relationship will be in a position to carry out his own will despite resistance, regardless of the basis on which this probability rests.” Max Weber, 1 Economy and Society 53 (Guenthe Roth & Claus Wittich eds., 1968).Google Scholar

13 It is to this extent analogous with the Hobbesian definition of power of a man as being “his present means, to obtain some future apparent Good,” paraphrased by Parsons as “the generalized capacity to attain ends or goals in social relations, independently of the media employed or the status of ‘authorization’ to make decisions or impose obligations.” Thomas Hobbes, Leviathan: Or the Matter, Forme & Power of A Commonwealth, Ecclesiastical and Civil 54 (Cambridge Univ. Press 1904) (1651); Talcott Parsons, On the Concept of Political Power, 107 Proc. Am. Phil. Soc'y 232, 232 (1963).Google Scholar

14 Arendt therefore ties up her conception of power with her insistence that “men, not Man, live on the earth and inhabit the world,” stating that “human power corresponds to the condition of plurality.” Hannah Arendt, The Human Condition 7, 201 (Univ. Chicago Press 1958).Google Scholar

15 See, e.g., Nicholas Tsagourias, Constitutionalism: A Theoretical Roadmap, in Transnational Constitutionalism, supra note 8, at 1.CrossRefGoogle Scholar

16 See Kjaer, Poul F., Legitimacy Through Constitutionalism, in Legitimization in World Society 99 (Aldo Mascareño & Kathya Araujo eds., 2012).Google Scholar

17 For important works relying upon this distinction, see Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (2007); Adam Tomkins, Our Republican Constitution (2005).Google Scholar

18 In the sense that term is used by Herbert Wechsler, see Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).CrossRefGoogle Scholar

19 The different specific positions are represented by positivism on one hand and natural law perspectives on the other and, within the former, the distinction between hard and soft, or exclusive and inclusive, positivism.Google Scholar

20 Griffith, J.A.G., The Political Constitution, 42 Mod. L. Rev. 1, 10–11 (1979) (citing Ronald Dworkin, Taking Rights Seriously (1978)).Google Scholar

21 See, for example, T.R.S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (1993).Google Scholar

22 See Ronald Dworkin, Law's Empire 225–76 (1986); Ronald Dworkin, Taking Rights Seriously (1978).Google Scholar

23 Adam Tomkins identifies this portrayal of the law/politics relationship as the first of six “tenets” of legal constitutionalism. See Tomkins, supra note 17, at 11–14.Google Scholar

24 In a general sense, the claim that law cannot be wholly separated from politics is a commonplace of both legal realist thought and of the critical legal studies movement which to a point built on its insights.Google Scholar

25 Griffith, The Political Constitution, supra note 20, at 20.Google Scholar

26 Griffith, J.A.G., The Common Law and the Political Constitution, 117 Law Q. Rev. 42, 64 (2001).Google Scholar

27 Even within this distinction, Tomkins has recognized that some rights are less problematic from this point of view than are others. See Tomkins, Adam, The Role of The Courts in the Political Constitution, 60 U. Toronto L.J. 1 (2010).CrossRefGoogle Scholar

28 Hirschl, Ran, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004).Google Scholar

29 Griffith, The Political Constitution, supra note 20, at 16.Google Scholar

30 For the way in which the respective strengths of courts and legislatures have influenced the interpretation of the section 3 interpretive duty under the Human Rights Act 1998, see In Re S & In Re W, [2002] UKHL 10, [2002] 2 A.C. 291; Bellinger v. Bellinger, [2003] UKHL 21, [2003] 2 A.C. 467.Google Scholar

31 See, e.g., Howell A. Lloyd, Constitutionalism, in The Cambridge History of Political Thought 1450–1700 254 (J. H. Burns ed., 1994) (noting that “the term signifies advocacy of a system of checks upon the exercise of political power”). See also Wil Waluchow, Constitutionalism, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2008) (“Constitutionalism is the idea … that government can and should be limited… and that its authority depends on its observing these limits.”), available at http://plato.stanford.edu/entries/constitutionalism/.Google Scholar

32 Hayek, F.A., Law, Legislation and Liberty, Vol. 2: The Mirage of Social Justice 61 (1978). Murkens takes Hayek's claim as one of the two seemingly opposed descriptions of the concept which demonstrate the pervasive disagreement that the topic attracts; the other is Maurice Vile's claim that “the history of Western constitutionalism has been the history of the constant pressure to maintain the ultimate authority of the legislature.” See Murkens, supra note 1, at 430.Google Scholar

33 These latter limits are of obvious importance within federal systems. In the United Kingdom, their previous relevance in the context of Irish Home Rule, of various sorts, has been revived as a result of the New Labour project of devolution.Google Scholar

34 The relationship between procedural and substantive limits is complex, as demonstrated by debates in the United Kingdom about Parliamentary Sovereignty. Can a body that, on many readings, remains substantively unlimited nevertheless be bound procedurally? Or does any possibility of such procedural limitation segue inexorably into the substantive and undermine the claim as to the supposed absence of substantive limitation? ‘Manner and form’ theorists such as Jennings believe that Parliament can bind itself as to the manner and form of its future legislative process and that such binding is compatible with the ongoing sovereignty of the Parliament. See, e.g., Ivor Jennings, The Law and the Constitution 151–68 (5th ed. 1959).Google Scholar

35 This is an aspect of the qualified rights under the ECHR, reflected in the requirement that any interference with those rights must, as a minimum condition, be ‘prescribed by law’ or ‘in accordance with law.'Google Scholar

36 Exemplified by debate between continuing and self-embracing variants of Parliamentary sovereignty. See H. W. R. Wade, The Basis of Legal Sovereignty, 13 Cambridge L.J. 172 (1955).CrossRefGoogle Scholar

37 The view that the rule of law is a good in itself—indeed, an “unqualified human good”—is most famously found in E.P. Thomson, Whigs and Hungers: Origin of the Black Act 266 (1975).Google Scholar

38 See, for example, the discussion in Martin Loughlin, Sword & Scales: An Examination of the Relationship Between Law & Politics 187–92 (2000).Google Scholar

39 See generally Loughlin & Walker, supra note 1. The absolute minimum of limitation derives from the need to distinguish an exercise of the relevant power from something which resembles it, but is in fact different. So, for example, even if we say that laws are whatever the sovereign commands, we nevertheless require a means to distinguish a command from other pronouncements.Google Scholar

40 Martin Loughlin & Neil Walker, Introduction, in The Paradox of Constitutionalism: Constituent Power and Constitutional Form 1 (Martin Loughlin & Neil Walker eds., 2007).CrossRefGoogle Scholar

41 Lindahl, Hans, Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood, in The Paradox of Constitutionalism: Constituent Power and Constitutional Form 11 (Martin Loughlin & Neil Walker eds., 2007).CrossRefGoogle Scholar

42 See, i.e., Tomkins, supra note 17, at 2, suggesting that the “reality of government” is that “those in political office are liable to try to do whatever they can politically get away with.”Google Scholar

43 The extent to which this describes the actual effect of rights-based constitutional limitations is beyond the scope of this paper; suffice it to note that to believe the judiciary will be both willing and able to resist a tyrannical act that has already overcome the existing political barriers seems to demonstrate a certain complacency, and is difficult to square with much of what we know about past judicial responses to illiberal action, particularly in wartime.Google Scholar

44 This category of non-rights-based, but nevertheless constitutional, limitations is frequently neglected in the consideration of political constitutionalism, perhaps because such non-rights-based constitutional limits do not possess a moral dimension comparable to that possessed by those involving rights; their relatively technical nature makes them less likely to feature in the discourse of laymen, and discussion of them makes little room for the sort of grand rhetoric associated with human or fundamental rights.Google Scholar

45 The division of powers between the federal government and the states is an eternal feature of constitutional discourse in the United States. In the United Kingdom, notwithstanding that the devolution settlements do not subtract from the legislative competence of the Westminster Parliament, there has been a revival of the relevant jurisprudence in recent years as a consequence of devolution. See, e.g., Imperial Tobacco Ltd v. Lord Advocate [2012] UKSC 61, [102]–[125] (appeal taken from Scot.) (noting particularly the distinction between single and dual enumeration in the judgment of Lord Reed).Google Scholar

46 Griffith, supra note 20. The ambiguity in Griffith's account between superficial descriptivism and a sort of crypto-normativity is explored in Graham Gee and Gregoire Webber, What is a Political Constitution?, 30 Oxford J. Legal Stud. 273, 280–81 (2010).Google Scholar

47 Implicit in my identification of Britain's political constitution as an ideal type is the suggestion that similar, but somehow diluted, arrangements exist elsewhere. It is not, however, entirely clear that this is the case. In his category of constitutions exhibiting “legislative supremacy,” Gardbaum includes the Netherlands and Luxembourg, but the presence in each system of a written constitution means that these might fall to be treated as qualitatively different. In that case, it would seem fairer to treat the United Kingdom as wholly sui generis and unsuited to useful comparison for any other system. See Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 715 (2001).Google Scholar

48 Or, where the parliament Acts 1911 and 1949 are employed, only the Commons—though, of course, the use of this process brings with it new extra-institutional political obstacles.Google Scholar

49 But cf. Barber, Nick, The Afterlife of Parliamentary Sovereignty, 9 Int'l J. Const. L. 144 (2011); Aileen Kavanagh, Constitutional Review under the UK Human Rights Act 310–37 (2009).Google Scholar

50 That is, orders considered to be distinctive for the reason that, in final analysis, the only limitations are political.Google Scholar

51 This idea has a long history and maintains a vibrant existence amongst the judiciary in particular. For Lord Hailsham's remarks on the creation of an “elective dictatorship,” see lord Hailsham, The Dilemma of Democracy: Diagnosis and Prescription (1978). For the claim that this belief has motivated the evolution of principles permitting greater judicial scrutiny of executive action, see Jonathan Sumption, F.A. Mann, Lecture: Judicial and Political Decision-Making: The Uncertain Boundary (Nov. 8, 2011), available at http://www.pem.cam.ac.uk/wp-content/uploads/2012/07/1C-Sumption-article.pdf. Empirical work suggests, however, that the executive cannot take Parliamentary support for granted to the extent that this trope claims. See, i.e., Philip Cowley, The Rebels: How Blair Mislaid his Majority (2005).Google Scholar

52 Cabinet loyalty to the executive is, in large part, guaranteed by the doctrine of collective responsibility, whereby a member of the Government must publicly defend its policies or, if he cannot, must resign.Google Scholar

53 Jackson v. AG, [2005] UKHL 56, [2006] 1 A.C. 262 (H.L.) [102] (appeal taken from Eng).Google Scholar

54 The exception is House of Lords reform, the completion of which is frequently opposed for exactly the reason that a fully elected Chamber will exacerbate the problems of insufficient accountability supposedly inherent in the operation of the House of Commons. This need not be the case; what is true is that to avoid this eventuality would require a fundamental rethinking of the relationship between Commons and Lords of a sort from which proposed reforms have generally shied away.Google Scholar

55 In this sense, the project fails to stay true to Lord Hailsham, who declared the entrenchment of minority rights in the constitution the “the least important part of the whole package” he was recommending: the true evil, he declared, “lies not in an excess of democracy, but in too little,” in accordance with which he also recommended a fully federal constitutional structure for the United Kingdom. See Hailsham, supra note 51, at 226.Google Scholar

56 Roberto Unger, What Should Legal Analysis Become? 72–73 (1996).Google Scholar

57 The opposite is, of course, also true. Extra-constitutional political factors are as likely to permit or encourage the intensification of public power rather than its limit, directing its exercise to their own ends rather than providing a brake upon it.Google Scholar

58 The current Conservative/Liberal Democratic coalition being very clearly exceptional when compared against 20^th century trends.Google Scholar

59 And the rather brutal failure of the ill-conceived Alternative Vote referendum in May 2011—by 67.9 to 32.1%—suggests that, regardless of whatever merits proportional representation in general, the first-past-the-post system is likely to remain in place for the foreseeable future.Google Scholar

60 Of course, in the absence of a more proportionate electoral system, the sense in which exercise of power is founded on a majority in the first place might be called into question.Google Scholar

61 Murkens recognizes this, summarizing the term as “shorthand for the creation, carrying out, and control of public power.” Murkens, supra note 1. He also quotes Turpin and Tomkins’ view of constitutionalism as an idea of “a constitutional order which acknowledges the necessary power of government while placing conditions and limits upon its exercise.” Id. at 431 (quoting Colin Turpin & Adam Tomkins, British Government and the Constitution 34 (2011)). Murkens calls this “ahistoric,” but for present purposes, the main problem is that it is too weak: If constitutionalism only acknowledges the power of government, then we are still left in need of an account of where that power comes from and why, and what particular form of it should be acknowledged. Better in this regard is Graham Gee's suggestion that Griffith's work on political constitutionalism should be understood as proposing “a political model of constitutionalism” which, like all such models, “must include an account of the norms creating, structuring and defining the authority of the governing institutions.” Graham Gee, The Political Constitutionalism of J.A.G. Griffith, 28 Legal Stud. 20, 28 (2008). See also Loughlin, supra note 38, at 192–95.Google Scholar

62 Jeremy Waldron, Law and Disagreement 102 (1999).CrossRefGoogle Scholar

63 This is the Hartian rule of recognition, the allegiance to a particular political fact which must prevail amongst officials within a legal system must be agreed. H.L.A. Hart, The Concept of Law 94–110 (2d ed. 1994).Google Scholar

64 The most obvious candidate is the right to administrative justice in the form of judicial review. See, e.g., Jackson v. AG, [2005] UKHL 56, [2006] 1 A.C. 262 (H.L.) [102] (appeal taken from Eng.)Google Scholar

65 See supra text accompanying note 10.Google Scholar

66 The concept of economic constitutionalism has also been used to describe a separate phenomenon, whereby economic matters are determined at the constitutional level, rather than as part of the ordinary law. This, too, evinces a laxness in the use of the terminology.Google Scholar

67 Van Gend en Loos v. Nederlandse Administratie der Belastingen, CJEU Case C-26/62, 1963 E.C.R. 1.Google Scholar

68 See, for example, Bellamy, supra note 17, and Tomkins, supra, note 17.Google Scholar

69 The terminology of the zero-sum game in this context is used by Graham Gee. Gee, supra note 61, at 21, 29 (citing Ian Leigh, Secrets of The Political Constitution, 62 Mod. L. Rev. 298, 308 (1999)).CrossRefGoogle Scholar

70 Such account is, it is submitted, still accurate in its generality, but must be made subject to a now-familiar series of caveats regarding the possibility that sovereignty is not the exclusive province of the Parliament but is instead bipolar (e.g., Sir Stephen Sedley, Human Rights: A Twenty-First Century Agenda, 3 Pub. L. 1995, 386, 389); that Parliament's legislation is controlled by rule of law requirements emanating from the common law (e.g., Jackson v. AG, [2005] UKHL 56, [2006] 1 A.C. 262 (H.L.) [102] (appeal taken from Eng.)); and that the traditional account has been rendered invalid by the decision in Factortame (no. 2). R v. Sec'y of State for Transp. ex parte Factortame Ltd. [1991] 1 A.C. 603 (appeal taken from Eng.). It is further complicated by the decision in Thoburn v. Sunderland City Council, [2003] Q.B. 151 (Eng.), in which Lord Justice John Laws posited a category of ‘constitutional statutes’ to which ordinary rules of implied repeal do not apply.Google Scholar

71 These are the two poles Gardbaum considers to have been shown as not exhaustive by the ‘New Commonwealth Model.’ Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707 (2001).CrossRefGoogle Scholar

72 For accounts of weak review, see Mark Tushnet, Weak-Form Judicial Review and “Core” Civil Liberties, 41 Harv. C.R.-C.L. L. Rev. 1 (2006), with emphasis on pages 3 through 11; Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2009). The New Commonwealth Model has been identified by Stephen Gardbaum. Gardbaum, supra note 70; Stephen Gardbaum, Reassessing the New Commonwealth Model of Constitutionalism, 8 Int'l J. Const. L. 167 (2010). On dialogic models of constitutionalism, see Peter Hogg & Allison Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights isn't Such a Bad Thing After All) 35 Osgoode Hall L.J. 75 (1997), and, for a recent survey of the topic, Yap Po Jen, Defending Dialogue, Pub. L., Jul. 2012, at 527.Google Scholar

73 Hart, supra note 63, at 79–99.Google Scholar

74 Representation of the People Act 1983, c. 2, sch. 1, para. 50 (Eng.).Google Scholar

75 See, for example, The Prince's Case, [1606] EWHC (Ch) J6 (Eng.): “If an Act be penned, that the King with the assent of the Lords, or with the assent of the Commons, it is no Act of Parliament for three ought to assent to it scil. The King, the Lords and the Commons.” The extent of the investigation that courts will undertake into the process by which legislation was enacted is, however, limited by the enrolled bill rule, as adopted in R v. The Countess of Arundel, [1616] EWCH (Ch) J11 (Eng.), and confirmed in Edinburgh & Dalkeith Railway Co. v. Wauchope, [1842] UKHL 710 (appeal taken from Eng.), where it was stated by Lord Campbell that “All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode of its passing.”Google Scholar

76 The Parliament Acts 1911 and 1949 permit a bill to become “an Act of Parliament,” notwithstanding that it has never received the consent of the House of Lords. Parliament Act 1911, 1 & 2 Geo.5, c. 13 (Eng.); Parliament Act 1949, 1 & 2 Geo.5, c 13 (Eng.).Google Scholar

77 E.g., Fixed-term Parliaments Act 2011, c. 14 (Eng.).Google Scholar

78 See, for example, Life Peerages Act 1958, 6 & 7 Eliz.2, c. 21 (Eng.); Parliamentary Voting System and Constituencies Act 2011, c. 1 (Eng.).Google Scholar

79 See, again, the example of the Parliament Acts 1911 and 1949. Parliament Act 1911, supra note 76; Parliament Act 1949, supra note 76.Google Scholar

80 Erskine May: Parliamentary Practice 227 (Malcolm Jack et al. eds., 2011).Google Scholar

81 As in Article 5 of the U.S. Constitution which lays down a mix of two-third and three-quarter super-majority requirements for the proposing and ratification of amendments. U.S. Const. art. V.Google Scholar

82 Scholars have long considered the question of whether some amendments might in fact be unconstitutional and therefore not possible without overhauling the entire order. For examples of such doctrines as developed in Ireland and India, see Gary Jeffrey Jacobsohn, An Unconstitutional Constitution? A Comparative Perspective, 4 Int'l J. Const. L. 460 (2006).CrossRefGoogle Scholar