Does Liberal Constitutionalism Need an Alternative?

Abstract

This article argues for a fundamental re-thinking of the debate between political and legal constitutionalism regarding the permissibility of constitutional review. To this effect it proposes we jettison or qualify some key premises and assumptions of the two views that hamper theoretical progress. First, against liberal constitutionalists who view constitutional review as an essential feature of all legitimate constitutional orders the article claims that we must do away with the notion that constitutional review follows from the logic of constitutions. If it is necessarily permissible, it must be by virtue of the moral case that can be made in its favour; however, attempts to construct such a case invariably fall short; constitutional review is, at best, only contingently permissible. Second, against those who oppose constitutional review across the board the article maintains that it is not necessarily an affront to political equality to give unelected judges the power to veto primary legislation. To be sure, elected institutions must have a significant say in policy. Yet, their contribution must fit into a constitutional arrangement also shaped by other important political considerations, which sometimes compete with political equality. The article concludes that, rather than deliver a knockdown blow on their opponents, liberal and political constitutionalists would do well to focus their energies on how best to combine judicial and non-judicial guarantees of the constitution.