Our Constitutional Unsettlement
Forthcoming in 'Public Law' (Summer, 2014)
25 Pages Posted: 3 Apr 2014
Date Written: March 24, 2014
This paper argues that the United Kingdom is now in a state of constitutional unsettlement. A state of constitutional unsettlement is not, first, a settled constitution, nor is it, secondly, an unsettled constitution, nor thirdly, is it a written Constitutional settlement. Yet all of these other conditions are significant in placing the circumstances of constitutional unsettlement in historical and comparative relief. The UK used to have something like a settled constitution, though it meant, and continues to mean, very different things to different people; we then, quite recently, moved into the phase of an unsettled constitution, but one whose terminus has offered neither a return to a settled constitution nor arrival at a new – and for the UK unprecedented, documentary Constitutional settlement. Instead, the unsettled constitution has become normalized – or at least regularized – as a state of constitutional unsettlement, in which questions of EU membership, of devolution and independence, of human rights protection etc, are subject to continuous disputation with deeply uncertain long-term consequences, regardless of how they may be resolved in the present tense. There is much to be concerned with in our state of constitutional unsettlement. Nevertheless, the very idea of a condition of constitutional unsettlement need not be considered in principle and inevitably pathological. Rather, as a state of affairs that is be in the process of becoming more and more embedded in contemporary public life and less and less capable of wholesale or even measured undoing or transformation, then, short of fatalistic acceptance, we may have no option but to look for the positives. And, having done so, we may find in certain virtues of transparency, the primacy of the political, fluidity and adaptability of outcome, and less exclusive conceptions of constitutional identity, more positives than might have been anticipated.
Keywords: British constitution; European Union; Scottish independence; human rights; written Constitution; unwritten constitution
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