1 See Bellamy, Richard, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (2007) [hereinafter Political Constitutionalism: A Republican Defence]. See also, Richard Bellamy, Political Constitutionalism and the Human Rights Act, 9 Int'l. J. Const. L. 86 (2011) [hereinafter Political Constitutionalism]. This is another essential essay for this debate. For other major works of political constitutionalists, see Adam Tomkins, Our Republican Constitution (2005); Waldron, Jeremy, Law and Disagreement (1999). Another author whose work belongs to the constellation of political constitutionalism is Keith Ewing. See Keith Ewing, The Bonfire of Liberties (2010). See also, Grégoire Webber, The Negotiable Constitution: On the Limitation of Rights (2009). While there are good arguments to deem popular constitutionalism as the germane U.S. version of political constitutionalism, it remains open the question whether a presidential regime can be compatible with a political constitution. This paper will limit itself to take into account the works concerned with the Commonwealth model of constitutionalism.Google Scholar

2 See Webber, Grégoire & Gee, Graham, What Is a Political Constitution?, 30 O.J.L.S. 273 (2010).Google Scholar

3 For the sake of the argument of this article, constitutional reasoning is understood as comprising both constitutional justification of legal acts (constitutional argumentation) and the interpretation of constitutional norms (be they rules, principles, or conventions). See András Jakab, Judicial Reasoning in Constitutional Courts. A European Perspective, 14 German L.1215 (2013).Google Scholar

4 Political constitutionalists may reply to this objection that this is not relevant to their research. Nonetheless, for an approach that puts a lot of emphasis on the political dimension of constitutionalism, a clear grasp of the dynamics of politics seems an essential component.Google Scholar

5 Bellamy, , Political Constitutionalism, supra note 1, at 110.Google Scholar

6 See Wilkinson, Michael, Political Constitutionalism and the European Union, 76 M.L.R. 191 (2012).Google Scholar

7 See Waldron, Jeremy, Representative Lawmaking, 89 B.U. L. Rev. 335 (2009).Google Scholar

8 See, e.g., Martin Loughlin, Foundations of Public Law (2010).Google Scholar

9 Bellamy, , Political Constitutionalism, supra note 1, at 91.Google Scholar

10 There is a tendency to conflate principles and rights. This point won't be expanded in this article.Google Scholar

11 For an analysis of the deliberative properties of constitutional courts, see John Ferejohn & Pasquale Pasquino, Constitutional Courts as Deliberative Institutions Towards an Institutional Theory of Constitutional Justice, in Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective 21 (Wojciech Sadurski ed., 2002).Google Scholar

12 For a comparative survey, see Tim Koopmans, Courts and Political Institutions: A Comparative View (2003).Google Scholar

13 This is the view of rights as side-constraints put forward by Nozick, see Robert Nozick, Anarchy, State and Utopia 26–35 (1974).Google Scholar

14 Dworkin, Ronald, Taking Rights Seriously 91 (1977).Google Scholar

15 Robert Alexy's main claim is that constitutional rights are principles that embody maximizing reasons. Such reasons are teleological because they strive towards optimization. For an interpretation of Alexy's law of balancing as a mix of deontological and teleological reasons which take into account his theory of legal argumentation, see George Pavlakos, Constitutional Rights, Balancing and the Structure of Autonomy, 24 Can. J.L. & Jurisprudence 129 (2011).Google Scholar

16 David M. Beatty, The Ultimate Rule of Law 171 (2004) (commenting bluntly that proportionality is an “essential, unavoidable part of every constitutional text” and “a universal criterion of constitutionality.”).Google Scholar

17 Another important feature of this understanding of rights is that they are deemed to own a certain peremptory force. As Waldron notes, rights seems to have special importance in normative reasoning. See Jeremy Waldron, Introduction, in Theories of Rights 14 (Jeremy Waldron ed., 1984).Google Scholar

18 For the reconstruction, see Webber, supra note 1, at 85.Google Scholar

19 For the classic references, see Waldron, Law and Disagreement, supra note 1, at 98–100.Google Scholar

20 Rawls, John, Political Liberalism 151 n.16 (1993).Google Scholar

21 According to Bellamy, a proceduralist version of public reason has seven tenets: (1) It has to be open and transparent; (2) it has to aim at the common good; (3) it has to employ a set of public rules and reasons that are agreed upon by all; (4) public reasoning should not consider private goods; (5) public reason should be accessible to all members of the public; (6) it can be undertaken by the public; and (7) it can endeavor to produce decisions all members will find acceptable.Google Scholar

22 Rawls, , supra note 20, at 465.Google Scholar

23 Bellamy, , Political Constitutionalism: A Republican Defence, supra note 1, at 164. Cf. Waldron, supra note 1, at 191–92.Google Scholar

24 Pettit, Philip, Republicanism: A Theory of Freedom and Government 58 (1997).Google Scholar

25 Estlund, David, Democratic Authority 76 (2008). A very similar argument is proposed by Henry Richardson, Democratic Autonomy 63–64 (2002).Google Scholar

26 Griffith, John, The Political Constitution, 42 M.L.R. 1, 14 (1979). He famously remarked that Article 10 of the ECHR looked “like the statement of a political conflict pretending to be a resolution of it.”Google Scholar

27 Bellamy, , Democracy as Public Law: The Case of Rights, 14 German L.J 1017 (2013) [hereinafter Democracy as Public Law].CrossRefGoogle Scholar

28 According to Raz, rights are intermediate conclusions in arguments from values to duties. Joseph Raz, The Morality of Freedom 181 (1986).Google Scholar

29 Id. at 255.Google Scholar

30 Joseph, Raz, Ethics in the Public Domain 55 (1994) (“[P]art of the justifying reason for the right is its contribution to the common good.”). Cf, Bellamy, Political Constitutionalism, supra note 1, at 31.Google Scholar

31 Finnis, John, Natural Law and Natural Rights 210–211 (2d ed. 2011).Google Scholar

32 For the classic criticism of pre-commitment devices, see Waldron, supra note 1, at 282–312.Google Scholar

33 Bellamy notes that constitutional entrenchment with judicial review produce an uncompromising view of rights because from this perspective. See Bellamy, Political Constitutionalism: A Republican Defence, supra note 1, at 49 (“[T]here appears to be no room for acknowledging reasonable disagreements about them and looking for ways to accommodate different points of view. The collective simply has no business expressing an opinion or interfering with the individual's legitimate sphere of personal choice.”).Google Scholar

34 For a strong criticism of the HRA, see K.D. Ewing & Joo-Cheong Tham, The Continuing Futility of the Human Rights Act, 2008 P.L. 668. For a work more supportive of a legal reading, see Aileen Kavanagh, Constitutional Review Under the UK Human Rights Act (2009). For a conciliatory interpretation of the effects of the HRA, see Alison Young, Parliamentary Sovereignty and the Human Rights Act (2008).Google Scholar

35 For another argument in support of weak judicial review, see Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Rights (2008).Google Scholar

36 When a right is qualified in the ECHR, three points ought to be taken into consideration: Public interference with the rights will be lawful (1) if the interference is prescribed by law, (2) necessary in a democratic society and (3) in order to protect a certain, listed, public interest.Google Scholar

37 This is Alexy's own formula. See Robert Alexy, A Theory of Constitutional Rights 102 (2002) (“The greater the degree of non-satisfaction of, or detriment to, one principle, the greater the importance of satisfying the other.”).Google Scholar

38 Bellamy, , Democracy as Public Law, supra note 27.Google Scholar

39 But see Adrienne Stone, Judicial Review Without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review, 28 O.J.L.S. 1 (2008).Google Scholar

40 Webber, , supra note 1, at 128.Google Scholar

41 Cesare Pinelli notes that it is not clear whether legislators deal with rights in the same sense of courts. See Cesare Pinelli, Constitutional Reasoning and Political Deliberation, 14 German L.J 1171 (2013).Google Scholar

42 Dworkin, , supra note 14 at 91.Google Scholar

43 Bellamy, , Democracy as Public Law, supra note 27.Google Scholar

44 Waldron, Jeremy, Can There Be a Democratic Jurisprudence?, 58 Emory L. J. 688, 700 (2009).Google Scholar

45 It has to be noted that the debate in the plenary session is now considered not a truly deliberative stage, where every part is willing to listen to the other and maybe change his mind, but it is more about showing one's position on an issue. Parliamentary records show that only during the French Third Republic and in the United Kingdom for some years after 1867 did parliamentary debates change the opinions of some participants. Cf. Suvi Soininen, A Rubber Stamp or a Stage of Debate?, in The Parliamentary Style of Politics 61, 63 (Suvi Soininen & Tapani Turkka eds., 2008).Google Scholar

46 Rummens, Stefan, Staging Deliberation: The Role of Representative Institutions in the Deliberative Democratic Process, 20 J. Pol. Phil. 23, 32 (2012).Google Scholar

47 Waldron, , supra note 44, at 690.Google Scholar

48 For the classic statement, see Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1369 (2006).Google Scholar

49 Tomkins, Adam, The Role of the Courts in the Political Constitution, 60 U. Toronto L.J. 1 (2010).CrossRefGoogle Scholar

50 Id. at 1.Google Scholar

51 Id. at 6.Google Scholar

52 Which method of legal reasoning is compatible with and can enhance the political constitution? Bellamy identifies in the analogical style of reasoning the most suitable approach for a political constitutionalist reading. This kind of analogical reasoning presents three advantages. The first is that by focusing on the details of the case and looking for similar other cases, the court is avoiding eliciting political controversy over the issue. The second merit is that analogical reasoning overcomes the vagueness of rules and principles by focusing on the complexities of the case at hand. The third advantage comes from analogy's connection to the doctrine of stare decisis, in a way that encourages the relevance of judicial precedent. The merits of the latter point are numerous. It respects the principle of equality before the law by dictating that we treat similar cases similarly. It also makes room for the idea of consistency in constitutional interpretation; Bellamy here explicitly endorses Cass Sunstein's arguments. See Cass Sunstein, Legal Reasoning and Political Conflict (1996).Google Scholar

53 Paul Craig has noted a contradiction between the idea that rights claims are statement of political conflicts on one side and the acceptance of some absolute rights on the other side. See Paul Craig, Political Constitutionalism and the Judicial Role: A Response, 9 Int'l. J. Const. L. 112, 121 (2011).Google Scholar

54 Tomkins, , supra note 1, at 27–29; Jeremy Waldron, Judges as Moral Reasoners, 7 Int'l. J. Const. L. 2 (2009).Google Scholar

55 Mattias Kumm has remarked that this legalistic limit does not affect contemporary rights adjudication in Europe under proportionality analysis. See Mattias Kumm, Institutionalising Socratic Contestation, 2 Eur. J. Legal Stud. 1, 5–13; Cf. Victor Ferreres Commella, Constitutional Courts and Democratic Values: A European Perspective (2009).Google Scholar

56 In a recent report published in the AHRC Public Policy Series, it is noted that many explicit and implicit uses of proportionality-style reasoning have been registered, in particular in the Joint Committee of Human Rights. Murray Hunt et al., Parliaments and Human Rights: Redressing the Democratic Deficit, 5 AHRC Pub. Pol. Series, 2012, at 40.Google Scholar

57 Craig, , supra note 53, at 118.Google Scholar

58 For the classic reference, see Stephen Gardbaum, Reassessing the New Commonwealth Constitutional Model, 8 Int'l. J. Const. L. 167 (2010); see also Gardbaum, Stephen, The New Commonwealth Model of Constitutionalism: Theory and Practice (2013).Google Scholar

59 On the difference between strong and weak review, see Tushnet, supra note 35.Google Scholar

60 The Canadian version provides the model for dialogic weak form review. See Peter Hogg & Allison Bushell, The Charter Dialogue Between the Court and Legislatures, 35 Osgoode Hall L.J. 75 (1997).Google Scholar

61 Bellamy, , Democracy as Public Law, supra note 27.Google Scholar

62 Tushnet, Mark, New Forms of Judicial Review and the Persistence of Rights—And Democracy-Based Worries, 38 Wake Forest L. Rev 813, 818 (2003). For a survey of different versions, see Tushnet, supra note 35, at 24–32.Google Scholar

63 See Hiebert, Janet, Governing Like Judges?, in the Legal Protection of Human Rights: Sceptical Essays 40, 47 (Tom Campbell et al. eds., 2011) (explaining this phenomenon as a consequence of the possible appeals to the European Court of Human Rights which generate expectation of compliance with judicial rulings and “discourages government from pursuing legislation that is patently inconsistent with relevant precedents or, at the very least, forces it to make difficult political calculations as to whether it is willing to incur the risks associated with passing legislation that will likely be subject to a negative judicial ruling.”).Google Scholar

64 Geddis, Andrew, Inter-Institutional “Rights Dialogue” Under the New Zealand Bill of Rights Act, in the Legal Protection of Human Rights: Sceptical Essays, supra note 63, at 87, 89.Google Scholar

65 Benton, Meghan, The Tyranny of the Enfranchised Majority? The Accountability of States to Their Non-Citizen Population, 16 Res Publica 397 (2010).Google Scholar

66 For a nuanced reconstruction, see Colin Murray, A Perfect Storm: Parliament and Prisoner Disenfranchisement, 65 Parliamentary Aff. 1, 6–11 (2012).Google Scholar

67 Hirst v. United Kingdom, ECHR App. No. 74025/01 38 Eur. H.R. Rep. 40 (2004).Google Scholar

68 Hirst v. United Kingdom (No. 2), ECHR App. No. 74025/01 (Oct. 6, 2005), http://hudoc.echr.coe.int/.Google Scholar

69 Id. ¶ 82.Google Scholar

70 Id. ¶ 79.Google Scholar

71 Greens & M.T. v. United Kingdom, ECHR App. No. 60041/08, 2010 Eur. Ct. H.R. 1826 (2010).Google Scholar

72 Nicol, Danny, Legitimacy of the Commons Debate on Prisoner Voting, 2011 P.L. 681, 681.Google Scholar

73 Id. at 691.Google Scholar

74 Id. at 683.Google Scholar

75 Harlow, Carol, The Concepts and Methods of Reasoning of the New Public Law: Legitimacy 1 (London Sch. of Econ. Law, Society and Economy, Working Paper No. 19, 2010).Google Scholar

76 Joint Committee on Human Rights, Human Rights Judgments, 2011, H.C. 873-I, at 47–48.Google Scholar

77 Waldron, Jeremy, A Rights-Based Critique of Constitutional Rights, 13 O.J.L.S. 18, 40 (1993).Google Scholar

78 On May 22, 2012, the Grand Chamber handed down its judgment in Scoppola v. Italy (No. 3), ECHR App. No. 126/05 (May 22, 2012), http://hudoc.echr.coe.int/. The implication of the ruling is that the UK would not be required to grant the right to vote to all prisoners, but a wide margin of appreciation would be afforded when deciding on the specific scope of this right to vote. The Court held a partial ban on the right to vote to be proportionate.Google Scholar

79 John, Ely, Democracy and Distrust: A Theory of Judicial Review 75–77 (1980).Google Scholar

80 See Bellamy, , Political Constitutionalism: A Republican Defence, supra note 1, at 255–258 (recognizing that this problem can affect the political process).Google Scholar

81 Of course, the acknowledgement of this issue does not imply that courts are the best candidates. One might think, for example, at the role played by social movements. Nonetheless, the criticism still stands: The ordinary political process cannot always cope properly with this issue.Google Scholar

82 Hiebert, Janet, Charter Conflicts: What Is Parliament's Role? 49 (2002).Google Scholar

83 Harel, Alon & Eylon, Yuval, The Right to Judicial Review, 92 Va. L. Rev. 187, 191 (2006).Google Scholar

84 To a certain extent, how much an institution is willing to take up this kind of responsibility is a matter, at least partially, of constitutional culture. Carlo Guarnieri has stressed the fact that in some continental countries, courts have adopted a progressive and active judicial attitude thanks to their institutional setting. See Carlo Guarnieri, Courts and Marginalized Groups: Perspectives from Continental Europe, 5 Int'l. J. Const. L. 187 (2007). This is not the right place to expand upon this claim.Google Scholar

85 Tushnet, Mark, Taking the Constitution Away from the Courts 159 (1999). For a different judgment on the role of constitutional adjudication for social and economic rights, see Jeff King, Judging Social Rights (2012).Google Scholar

86 See also Dixon, Rosalind, Creating Dialogue About Socioeconomic Rights: Strong-Form Versus Weak-Form Judicial Review Revisited, 5 Int'l. J. Const. L. 391 (2007).Google Scholar

87 One exception is Tomkins, supra note 1, at 67–114.Google Scholar

88 It should be noted that Bellamy rejects Pettit's version of republican democracy because the latter is based on the idea of a so-called editorial intervention of the people, but not an authorial one.Google Scholar

89 For a recent discussion of the notion of constitutional identity, see Gary Jacobsohn, Constitutional Identity (2010).Google Scholar

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91 See Bobbio, Norberto, The Age of Rights (1991).Google Scholar

92 H.L.A. Hart, The Concept of Law 125 (2d ed. 1994).Google Scholar

93 Cf. Jed Rubenfeld, Revolution by Judiciary: The Structure of American Constitutional Law 17–18 (2005).Google Scholar

94 See Bratman, Michael E., Structures of Agency: Essays (2007). In legal philosophy, the planning theory has been developed by Scott Shapiro, Legality (2011).Google Scholar

95 For the notion of exclusionary reasons, see Joseph Raz, Practical Reason and Norms (1975).Google Scholar

96 See Bratman, Michael, Intention, Plans and Practical Reason 180 (1987). The problem with the planning theory is that it requires only a form of instrumental rationality. In this respect, no claim is made here that political constitutionalism should be concerned only with instrumental rationality. But this aspect will be developed on another occasion.Google Scholar

97 Carl Schmitt, Constitutional Theory 77–82 (Jeffrey Seitzer trans., Duke Univ. Press Books 2008) (1928).CrossRefGoogle Scholar

98 This is a basic insight of the American School of Constitutional Development. See, e.g., Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (1993).Google Scholar

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101 For a full-fledged treatment of the different layers of political action, see Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (2009).Google Scholar

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107 Loughlin, Martin, The Idea of Public Law 4 (2003). See also Robert Cover, Nomos and Narrative, 97 Harv. L. Rev. 4 (1983) (making the point that constitutions need narratives for determining their content).Google Scholar

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