Acontextual Constitutionalism and the Relationship between the People, Constituent Power and the State: On Nicholas Barber’s The Principles of Constitutionalism

24 Jerus. Rev. Leg. Stud. 94 (2021)

15 Pages Posted: 11 Jan 2022 Last revised: 18 Jan 2022

See all articles by Rivka Weill

Rivka Weill

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

Date Written: December 20, 2019

Abstract

In the following review, I seek to challenge Barber’s account of the principles of constitutionalism. There can be no greater tribute to his work than trying to challenge some of its premises. Part II asserts that Barber’s identification of the state as the locus of sovereign power may be true and satisfactory for international law purposes, but his book does not account for the role of constituent power as the locus of sovereign power for internal constitutional law purposes. Part III asserts that Barber’s treatment of separation of powers as an invisible hand mechanism can be refined to include the courts’ role in enforcing this principle of constitutionalism. Part IV discusses some of the important undeveloped implications of Barber’s perception of the welfare state as forming part of the principle of the rule of law. Parts V and VI challenge Barber’s dichotomous treatment of the public and private spheres. Only in his discussion of political parties, does he acknowledge that bodies may have a dual character, both public and private. But, even then, he ignores bans on political parties, which are widespread in comparative constitutional law. These bans may affect the role he designates to political parties in democracies. Part VII concludes by challenging the role that Barber assigns to the subsidiarity principle in states. It argues that, Barber’s account of constitutionalism does not fully account for constitutionalism as I found it to be in my work: anti-secessionist and self-preserving. This presents a challenge to Barber’s account in light of his criteria that the principles of constitutionalism should account for constitutionalism as manifested in the real world. Our different perspectives on constitutionalism may be partially attributed to the fact that while Barber’s account of the principles of constitutionalism assumes that the state creates the people, my critique suggests that the people (as a territorial concept) constitute the state and its constitution. The state is an abstract construct that needs organs to breathe life to it.

Keywords: constituent power, territorial sovereignty, popular sovereignty, parliamentary sovereignty, secession, nationalism

Suggested Citation

Weill, Rivka, Acontextual Constitutionalism and the Relationship between the People, Constituent Power and the State: On Nicholas Barber’s The Principles of Constitutionalism (December 20, 2019). 24 Jerus. Rev. Leg. Stud. 94 (2021), Available at SSRN: https://ssrn.com/abstract=4001432 or http://dx.doi.org/10.2139/ssrn.4001432

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

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