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Politics and constitutional jurisgenesis: A cautionary note on political constitutionalism
Published online by Cambridge University Press: 22 March 2018
Abstract:
This article aims to provide an alternative account of political constitutionalism by situating it in a broader process of constitutional politics than the traditional court vs parliament debate has suggested. Drawing upon Robert Cover’s distinction between the jurispathic and the jurisgenerative constitution, I argue that parliamentary decision-making is not necessarily more congenial to a jurisgenerative constitutional order than judicial review as political constitutionalists contend. I trace the jurispathic character of current scholarship on political constitutionalism to the presupposition of institutional sovereignty in a narrow understanding of constitutional politics, which its defenders share in common with the supporters of judicial supremacy. To move towards a robust version of non-court-centred jurisgenerative constitutionalism, which I call constitutional jurisgenesis, we need to rethink the place of politics in a constitutional order. From Cover’s idea of constitutional nomos I take two further lessons for this new understanding of constitutional politics. First, constitutional theory should reconsider the role of institutional sovereignty in the relationship between law and politics in constitutional orders. Second, to engage the people in constitutional politics, we need to shift attention from the popular sovereignty-centred debate to constitutional narratives, which are oriented towards nomos-building.
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References
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178 See Robertson, D, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton University Press, Princeton, NJ, 2010) 1CrossRefGoogle Scholar.
179 See Bickel (n 136) 68–71.
180 See Kahn (n 164) 190–6.
181 See Kramer (n 131) 162–4; Post and Siegel (n 150) 427; Robertson (n 178) 382; Waldron, J, ‘Partly Laws Common to All Mankind’: Foreign Law in American Courts (Yale University Press, New Haven, CT, 2012) 100–8, 220–3Google Scholar.
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183 Ibid 44.
184 See Faigman, DL, Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford University Press, Oxford, 2008) 49CrossRefGoogle Scholar.
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186 See Balkin, JM, ‘A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason’ in Brooks and Gewirtz (eds) (n 185) 211; LH LaRue, Constitutional Law as Fiction: Narrative in the Rhetoric of Authority (Pennsylvania State University Press, University Park, PA, 1995) 2–3Google Scholar, 11. Cf Kahn, PW, Making the Case: The Art of the Judicial Opinion (Yale University Press, New Haven, CT, 2016) 18–45CrossRefGoogle Scholar.
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188 Ibid 1858–68.
189 Ibid 1864. It is also noteworthy that narrative here is more than storytelling. Rather, constitutional narratives are structured and constrained by what Frederick Schauer calls ‘the uniqueness of constitutional language’, especially its ‘presuppositional nature’. See Schauer, F, ‘An Essay on Constitutional Language’ (1982) 29 UCLA Law Review 797, 803–4. Cf von Arnauld (n 77) 317Google Scholar.
190 Cf M Minow, ‘Stories in Law’ in Brooks and Gewirtz (eds) (n 185) 24, 30.
191 See LaRue (n 186) 21.
192 See Kahn (n 164) 171–2.
193 See Faigman (n 184) 1; LaRue (n 186) 9–10.
194 But see Faigman (n 184) 3–13.
195 See ibid 46–8, 51–6.
196 Compare Faigman (n 184) 49 with LaRue (n 186) 125–7. See also von Arnauld (n 77) 324–5.
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199 Somek (n 130) 196–201.
200 Soifer (n 29) 75–6. But see Post (n 8) 10.
201 Soifer (n 29) 79–80.