Introduction

Constitutionalism involves the constraint of power by subordinating it to a legal framework. It underpins the principle of separation of powers as a device for institutional design . In Möllers’ analysis, a system of checks and balances is an important aspect of this principle. A varied set of instruments and institutions is available to organise such a system. So-called ‘political’ and ‘legal’ constitutionalists have opposing thoughts regarding the organisation of checks on parliamentary decision-making. Political constitutionalists, in favouring the organisation of checks within the political sphere, reject (strong) judicial review of parliamentary acts by courts as advocated by legal constitutionalists. These days, constitutional review is institutionalised in most European countries. Nevertheless, the ideas underpinning political constitutionalism are strongly present in several EU Member States, though they conflict with the mechanisms of judicial review imposed within the European legal space.

This contribution does not intend to replicate the persistent debate between political and legal constitutionalists, or ‘old’ and ‘new’ constitutionalism. Möllers rightly reminds us that there is ‘not one correct theory of constitutional review for all legal orders’ to solve this dispute. Instead, this article examines whether political constitutionalism provides an argumentatively sound and strategically recommendable theory for national legal systems embedded in the European legal space. Therefore, the core tenets of political constitutionalism are presented only in so far as they explain the adherent's rejection of constitutional review. Next, this chapter will examine how legal systems that embrace political constitutionalism respond to European supremacy claims.

This chapter discusses the UK, the Netherlands, Denmark, Sweden and Finland. In Sweden and Denmark, constitutional review existed before or separate to membership of the EU or ECHR. However, due to the requirement of manifest conflict in force until 2009, Sweden is not regarded as a typical representative of judicial constitutional review ex post. In Denmark as well, courts judge statutes in utmost rare occasions. In both countries, majority rule and the position of parliament are central, restraining courts from challenging laws enacted by a democratically elected body. In the Netherlands, the constitution explicitly allows for the judicial review of parliamentary acts against treaties. At the same time, it prohibits constitutional review of parliamentary acts, and justifications for this review ban resemble the ideas expressed by political constitutionalists. Hence, while the core tenets of political constitutionalism are not pushed to their limits, they do underpin practice and constitutional debate.