Popular Revolution or Popular Constitutionalism? Reflections on the Constitutional Politics of Quebec Secession

The Least Examined Branch: The Role of Legislatures in the Constitutional State, R. Bauman and T. Kahana, eds., pp. 480-98, Cambridge University Press, 2006

U Toronto, Legal Studies Research Paper No. 13-05

10 Pages Posted: 9 Dec 2005 Last revised: 11 Sep 2017

See all articles by Sujit Choudhry

Sujit Choudhry

Center for Constitutional Transitions; Center for Global Constitutionalism, WZB Berlin Social Science Center

Date Written: 2006

Abstract

Constitutional theorists are in the midst of a debate over the appropriate institutional arrangements for the interpretation and enforcement of constitutional norms in a constitutional democracy. For legal constitutionalists, supreme authority to interpret and enforce the constitution rests with the courts. Popular constitutionalists, by contrast, permit and even require that members of the executive and legislative branches independently interpret the constitution in the course of performing their function. In this chapter, I question the legal constitutionalist belief (expressed by Frederic Schauer) that equates constitutional strategies of precommitment with legal constitutionalism and judicial supremacy. Along with popular constitutionalists, I would argue that it would be a mistake to infer that the boundaries of judicial decision making are coterminous with the limits of the constitution. The choice is not between legal constitutionalism and its populist alternative. Rather, the true choice is when and to what extend to opt for one or the other. Indeed, the challenge may be to design arrangements that permit the responsive and even tentative allocation of institutional responsibility for resolving constitutional questions.

Suggested Citation

Choudhry, Sujit, Popular Revolution or Popular Constitutionalism? Reflections on the Constitutional Politics of Quebec Secession (2006). The Least Examined Branch: The Role of Legislatures in the Constitutional State, R. Bauman and T. Kahana, eds., pp. 480-98, Cambridge University Press, 2006; U Toronto, Legal Studies Research Paper No. 13-05. Available at SSRN: https://ssrn.com/abstract=869261

Sujit Choudhry (Contact Author)

Center for Constitutional Transitions ( email )

HOME PAGE: constitutionaltransitions.org

Center for Global Constitutionalism, WZB Berlin Social Science Center ( email )

Reichpietschufer 50
D-10785 Berlin, 10785
Germany

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