Constitutionalism Reborn

59 Pages Posted: 20 Apr 2021 Last revised: 6 Jul 2021

See all articles by Rivka Weill

Rivka Weill

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School

Date Written: April 19, 2021

Abstract

As Conservatives have come to dominate the US Supreme Court, originalist interpretation methods will determine constitutional disputes. While the Court rejects the use of comparative constitutional law to interpret the Constitution, even its Conservative members accept the legitimacy of resorting to British sources, if the language of the Constitution was derived from the UK. This practice of reliance on British precedents seems natural yet perplexing. It is natural because the US seceded from the UK. It is perplexing since the US constitutional revolution stands for rejection of the British model of parliamentary sovereignty.

This Article intends to redefine the relationship between the US and UK constitutional models. While the literature perceives the two as polar-opposites, I suggest that there is, in fact, a common Anglo-American constitutional model, which has been informing the US’ character since its founding. It is not that we misunderstood the American model of popular sovereignty and supreme Constitution. Rather, we did not realize that parallel developments were taking place in the UK. The political actors on both sides of the pond were aware of this reality, but the jurisprudence missed it. Shifting the paradigm and accepting the existence of this common model will enable us to grapple with the most burning current dilemmas of our time on both sides of the Atlantic. It lends new legitimacy to examining British sources to better understand American constitutional law, even if the textual provision per se is not attributable to the UK. We may now study how the common model intended the dynamics between the different constitutional actors to play out. While the US felt powerless to deal with a President who does not care for constitutional norms, the Article reveals how the model designated enforcement mechanisms for constitutional norms/conventions, including court packing and judicial review. British debates on reforming an obstructionist second chamber resonate with current American discourse on reforming the US Supreme Court and the Senate. Both American institutions were modeled after the House of Lords. The Article develops the two types of court packing justified in the US under the common model to remedy breach of constitutional norms. It further discusses the inevitability of filibuster reform. Similarly, while Brexit is incomprehensible in a parliamentary sovereignty system, Parliament’s reluctant adherence to the 2016 “consultative” referendum’s results is a natural outgrowth of the common Anglo-American rule of the People.

Keywords: originalism, filibuster, court packing, constitutional norms, trumpism, brexit, senate reform, judicial reform, parliamentary sovereignty, popular sovereignty

Suggested Citation

Weill, Rivka, Constitutionalism Reborn (April 19, 2021). Columbia Journal of Transnational Law, 2021, Available at SSRN: https://ssrn.com/abstract=3830074 or http://dx.doi.org/10.2139/ssrn.3830074

Rivka Weill (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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