Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny.
• Draws on both legal and political theory • Features material from both the US and the UK • Strong argument against the growing conventional wisdom that written constitutions and judicial review promotes individual rights
Introduction; Part I. Legal Constitutionalism: 1. Constitutional rights and the limits of judicial review; 2. The rule of law and the rule of persons; 3. Constitutionalism and democracy; Part II. Political Constitutionalism: 4. The norms of political constitutionalism: non-domination and political equality; 5. The forms of political constitutionalism: public reason and the balance of power; 6. Bringing together norms and forms: the democratic constitution; Conclusion.
'In this seminal work, Richard Bellamy defends political constitutionalism against legal constitutionalism, contesting the currently fashionable view that democracy and human rights are best protected by judges and formal constitutions rather than by politicians and the ordinary processes of democratic politics. Its uncommon grasp of both theoretical argument and the empirical complexity of actual political systems makes this book a major contribution to the debate on how democracy can be renewed and the current flight from politics arrested.' Andrew Gamble, University of Cambridge
'This new and timely book from one of Britain's leading political theorists is his most important work to date. Providing a robust defence and, indeed, celebration of political constitutionalism Professor Bellamy simultaneously explains what's wrong with legal constitutionalism and offers a valuable corrective to errors in some recent republican writing, which has failed to see that it is to democratic politics, and not to the courts of law, that we must primarily look to secure the republican values of popular sovereignty and non-domination. Coming at a time of considerable constitutional flux in both Britain and the European Union, Political Constitutionalism will be essential reading for political theorists and constitutional lawyers alike.' Adam Tomkins, University of Glasgow; author of Our Republican Constitution (2005)
'In this timely work, Political Constitutionalism, Richard Bellamy presents an original republican re-interpretation and defence of existing representative democratic constitutionalism against the legal constitutionalists, who would give the constitution to the courts, and against the deliberative democrats, who discount majority rule and party competition. It is a major contribution to the debate over democracy and constitutionalism.' James Tully, University of Victoria
'How to guard against abuses of government power? Richard Bellamy argues from the institutional record that we should put our faith in electoral rather than legal process. He offers a powerful challenge that none of us can ignore. And along the way he provides a masterful overview of recent debates around this crucial issue.' Philip Pettit, Princeton University
'… broad-ranging and ambitious … he does the great service of reminding us of the important role that political actions (such as bargaining and compromising) and political institutions (such as political parties and various electoral systems) have to play as (democratic) alternatives to judicial intervention in the upholding of rights.' Political Studies Review
'… an excellent means of exposing brighter law students to high-level political theory and offers a salutary rebuff to lawyers' hubris.' The Times Higher Education Supplement
' … offers a thorough-going critique of legal constitutionalism… The author's claims are defended by an array of forceful arguments, clearly expounded; and the work provides an impressive overview of current debates over democracy and judicial review … No legal constitutionalist could fail to enjoy the stimulating challenge Bellamy's new book provides.' Cambridge Law Journal
'This dense monograph is a timely and very important contribution to contemporary normative debates on democracy … Bellamy's outstanding contribution is to demonstrate the implications that the principle of non-domination has for understanding the nature and norms of democracy'. European Political Science
`Richard Bellamy has written a powerful critique of judicial review. At the same time, he has offered a serious, sustained defense of unicameral parliamentary supremacy … the array [of arguments] he marshals is impressive, drawing on political science as well as moral, political, and legal theory … in his well-researched book …' International Journal of Constitutional Law
'… a welcome reminder of how effective the politics of democratic opposition, compromise, representation, and so on are at ensuring the preservation of values that Republicans and the liberal tradition both prize.' Modern Law Review
'This is a complex and sometimes dense argument, which takes considerable trouble to engage with hard cases and to address potential criticisms. In particular, it constitutes a significant contribution to discussion of the institutional requirements of non-domination. Even those who disagree with Bellamy's conclusions will be challenged by his arguments, and will benefit from following his close engagement with a comprehensive range of arguments in legal theory and political philosophy, and the way in which evidence from political science is brought to bear on these debates.' Contemporary Political Thought