Friend or Foe?: Bernard Williams and Political Constitutionalism
20 Pages Posted: 6 Jun 2019
Date Written: June 5, 2019
This paper looks at Bernard Williams’s contribution to realist normative theory, and in particular its 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 defenses of political constitutionalism have made claims about the realism of their accounts when compared with legal constitutionalism, and have co-opted Bernard William’s realism to support their case. This paper 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 defense of political constitutionalism, a partial defense, which, it argues, is closer to the realism of Bernard Williams than these accounts.
Keywords: legislative supremacy, judicial supremacy, judicial review, fundamental rights, political realism, political liberalism
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