Friend or Foe?: Bernard Williams and Political Constitutionalism
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Friend or Foe?: Bernard Williams and Political Constitutionalism Cormac S Mac Amhlaigh1 Accepted: 9 September 2020 © The Author(s) 2020
Abstract This article looks at Bernard Williams’s relevance to particular debates in constitutional theory about the legitimacy of two competing models of institutional design: political constitutionalism which endorses giving the final say on the meaning of constitutional rights to legislatures; and legal constitutionalism which endorses giving the final say on the meaning of rights to courts. Recent defences of political constitutionalism have made claims about the realism of their accounts when compared with legal constitutionalism and have co-opted Bernard Williams’s realism to support their case. This article examines these claims, concluding that these accounts of political constitutionalism rely on a distinctly non-Williamsian form of political moralism in that they assume a legitimacy for political constitutionalism which is prior to politics and political disagreement. It offers an alternative defence of political constitutionalism, a partial defence, which, it argues, is closer to the realism of Bernard Williams than these accounts. Keywords Political realism≠ · Liberalism · Legislative supremacy · Judicial supremacy · Judicial review · Fundamental rights protection
Introduction Political Constitutionalism (‘PC’) is a form of what Waldron has called ‘political’ political theory (Waldron 2013). That is, that it is a form of political theory which relates specifically to the institutions of authority and their organisation in terms of their make-up, powers and relationships inter se. As such it can be distinguished from studies of institutions based on efficiency or consequences which have more traditionally been the concern of political science, or questions of justice which have traditionally been the concern of political theory and political philosophy (Waldron * Cormac S Mac Amhlaigh [email protected] 1
Edinburgh Law School, The University of Edinburgh, Old College, South Bridge, Edinburgh EH8 9YL, UK
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2013, p. 10). Rather, as political theory, it attempts to create a link between more conventional political theory such as accounts of justice, liberty or equality, and forms of institutional design. PC puts a particular emphasis on political disagreement involving not just the good, but also the right. It can therefore be distinguished as a theory of rights from liberal accounts which take the view that disagreements about rights are soluble by recourse to an ‘original position’ (Rawls 1973), ‘overlapping consensus’ (Rawls 1993) or according to a particular constitutional settlement (Dworkin 1978). PC’s opening premise, then, is the ‘fact’ of disagreement about particular constitutional values which it then overlays with normative values of equality or equal respect and concern (Waldron 1999; Bellamy 2007). PC is therefore political in two senses: it is political in that it attempts to provide a political t
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