King, J;
(2019)
The Democratic Case for a Written Constitution.
Current Legal Problems
, 72
(1)
pp. 1-36.
10.1093/clp/cuz001.
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Abstract
Written constitutions have often been viewed as a bridle for unchecked political majoritarianism, as a restraint on government, and hence as a limiting device rather than form of democratic political expression. Breaking with that tradition, this article sets out a democratic case for a written constitution and contrasts it with the rights-based and clarity-based cases. It then proceeds to show why the case against written constitutions – which is broadly located in a conservative critique, an anti-rationalist critique and an anti-judicialisation critique – is misguided. Nevertheless, a democratic case for a written constitution necessarily raises challenging questions about how the constitution would be enacted, and how rigidly entrenched it should be. In relation to the former, the author argues for a constituent assembly consisting of party and direct citizen representation. As for the latter, he defends a model of entrenchment that permits amendment through a simple majoritarian parliamentary procedure in conjunction with a referendum, and, most controversially, a provision requiring a new constitutional convention about once in a generation. This is the type of democratic constitution, in the author’s view, that accommodates the need for the United Kingdom constitutional order to take both rights and democracy seriously.
Type: | Article |
---|---|
Title: | The Democratic Case for a Written Constitution |
Open access status: | An open access version is available from UCL Discovery |
DOI: | 10.1093/clp/cuz001 |
Publisher version: | https://doi.org/10.1093/clp/cuz001 |
Language: | English |
Additional information: | This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions. |
UCL classification: | UCL UCL > Provost and Vice Provost Offices > UCL SLASH UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws |
URI: | https://discovery.ucl.ac.uk/id/eprint/10073099 |
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