Competing Constitutionalism Flashcards
What is constitutionalism?
The idea that government power should be limited and guided by a constitution—either written (like the U.S.) or unwritten and based on laws, conventions, and political practices (like the UK)
Why do we need theories of constitutionalism?
To describe how the constitution works, critically analyse its strengths and weaknesses, and propose reforms
What does John Maynard Keynes suggest about constitutional ideas?
That politicians often unknowingly follow old theoretical ideas, showing how powerful constitutional theories can shape real-world politics
What is political constitutionalism?
A theory where Parliament has supreme authority and constitutional matters are resolved by elected officials, not courts
Who is a key thinker in political constitutionalism, and what did he argue?
J.A.G. Griffith
He argued that law should not replace politics and that the UK constitution is based on political practice, not fixed legal rules
What is legal constitutionalism?
A theory where courts play a central role in protecting constitutional principles and limiting government power, especially to safeguard rights
Name two key differences between political and legal constitutionalism
- Political: Parliament has the final say; Legal: Courts have the final say
- Political: Constitution is flexible; Legal: Constitution is entrenched
What are the dangers of political constitutionalism, according to legal constitutionalists?
Majoritarianism can lead to rights violations, and judicial review is necessary to check Parliament’s power
What is the Commonwealth Model of constitutionalism?
A hybrid where courts can review laws under a bill of rights, but Parliament retains the final say
Why is the debate between political and legal constitutionalism important?
Because it affects how constitutional principles like parliamentary sovereignty, the rule of law, and judicial power operate in real legal and political contexts
What does Richard Bellamy argue about judicial review?
That judicial review is essentially “politics by legal means”—courts are engaging in political decision-making, which should instead be handled by elected representatives
How does the UK constitution reflect both political and legal constitutionalism?
Through a blend of models—e.g., Parliament remains sovereign, but laws like the Human Rights Act 1998 give courts power to review legislation, creating a balance between democracy and judicial oversight
