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2 See J.A.G. Griffith, The Political Constitution, 42 Mod. L. Rev. 1 (1979).Google Scholar

3 See id. at 12.Google Scholar

4 See Adam Tomkins, Our Republican Constitution 63 (2005). Adam Tomkins illustrates this point with the classic example of clean air:Google Scholar

5 Hannah Arendt, The Human Condition 8 (Univ. of Chicago Press, 2d ed. 1998) (1958). Hannah Arendt captures this brilliantly. “Plurality,” she said, “is the condition of human action because we are all the same, that is, human, in such a way that nobody is every the same as anyone else who ever lived, lives, or will live.” Id.Google Scholar

6 Griffith, supra note 2, at 3; see also Tomkins, supra note 4, at 63 (noting that the “clean air” example is a good one).Google Scholar

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8 Id. (emphasis added).Google Scholar

9 Indeed, the brief for both this collection and the workshop held in its preparation was precisely to move beyond the dichotomy of the political/legal constitution and to begin to define and promote the political constitution on its own terms.Google Scholar

10 See Griffith, supra note 2, at 16. On referendums as a device of political constitutionalism, see Stephen Tierney, Whose Political Constitution? Citizens and Referendums, 14 German L.J. 2173 (2013). Not all political constitutionalists would agree with Tierney that the referendum is on all fours with constitutionalism, however, particularly where the result of a referendum is to compel Parliament—the political institution par excellence—to legislate or not to legislate, contrary to its wishes. Here we use “compel” in a soft sense, as the results of referendums, at least in the UK, tend not to be legally binding upon government or Parliament, which retains the constitutional authority to “make or unmake any law whatever”.Google Scholar

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13 See Woolf, Lord, Droit Public—English Style, Pub. L. 57, 69 (1995). Thus, when Lord Woolf said that there are “advantages” in courts making clear the limits of Parliament's supremacy, he defended his position with the, in our view, dubious claim that these are limits only “of the most modest dimensions which I believe any democrat would accept.“ Id. (emphasis added).Google Scholar

14 See Morgan, supra note 1, at 13–14.Google Scholar

15 See Isaiah Berlin, Two Concepts of Liberty (1958). Most notably, Isaiah Berlin stated that the distinction between positive and negative liberty owed much to Benjamin Constant's own division between liberties—ancient and modern.Google Scholar

16 See Constant, Benjamin, The Liberty of the Ancients Compared with That of the Moderns, in Benjamin Constant: Political Writings 307, 312 (Biancamaria Fontana ed., 2001) (1819).Google Scholar

17 Id. at 310–11.Google Scholar

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19 VI, King James, The Trew Law of Free Monarchies: Or The Reciprock and Mutuall Dutie Betwixt a Free King, and His Naturall Subjects, in James VI and I: Political Writings 62, 76 (Johann P. Sommerville ed., 1994) (1598).Google Scholar

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21 See Arendt, Hannah, On Revolution 240–44 (1963). Arendt's critique of Robespierre and Sant-Just is particularly striking here.Google Scholar

22 See e.g., Henry Parker, The Case Against Shipmony (1642); Henry Parker, Jus Populi (1644). The writings of Parliament's propagandist-in-chief, Henry Parker, amid the 17^th century conflicts between Parliament and the Crown.Google Scholar

23 Constant, supra note 18, at 326. For a more detailed account of the often ignored nuances to Constant's position and the argument that he should be seen not only as a defender of negative liberty, but as one of the most forceful proponents of political liberty in the civic republican tradition, see Christopher McCorkindale, Recovering the Public: The Curious Case of Benjamin Constant, in The Public In Law 35 (Claudio Michelon et al. eds., 2012).Google Scholar

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28 Ministry of Justice, Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Freedom of Information Act 2000, 2011, Cm. 8236 (U.K.), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/162298/post-legislative-assessment-of-the-foi-act.pdf.pdf (assessing the Freedom of Information Act 2000 post-legislation).Google Scholar

29 It is the combination of these exemptions and the veto power that led Rodney Austen to deride the Freedom of Information Act 2000 as no more than “a fraud on democratic accountability.” Rodney Austin, The Freedom of Information Act 2000—A Sheep in Woolf's Clothing?, in The Changing Constitution 401, 415 (Jeffrey Jowell & Dawn Oliver eds., 2000). On the other hand, long-time Freedom of Information proponents Carol Harlow and Richard Rawlings have described the 2000 Act as being “one of the world's more restrictive pieces of information legislation.” Carol Harlow & Richard Rawlings, Law and Administration 474 (2009).Google Scholar

30 See Paul Cairney, The Scottish Political System Since Devolution: From New Politics to the New Scottish Government (2011); see also Stewart Davidson, Alastair Stark & Gordon Heggie, Best Laid Plans … The Institutionalisation of Public Deliberation in Scotland, 82 Pol. Q. 379 (2011) (describing the “failure” of a new politics to take hold).Google Scholar

31 It seems to be the case that a section 4 declaration will almost certainly attract some form of remedial action, usually through the ordinary legislative process as opposed to the expedited process provided for in section 10 of the HRA. See Stephen Gardbaum, Reassessing the New Commonwealth Model of Constitutionalism, 8 Int'l J. Const. L. 167 (2010). It is, of course, no part of our argument to suggest that the judiciary ought to be empowered to strike down primary legislation. The point here is no more and no less about the gravitational pull towards the center that occurs even here.CrossRefGoogle Scholar

32 See Griffith, supra note 12, at 391.Google Scholar

33 See Polybius, Book VI.4, in The Rise of the Roman Empire (Ian Scott-Klivert trans., 1979) (describing the final stage of anacyclosis). Polybius’ classic account states:Google Scholar

34 See Niccolò Machiavelli, Book 1.5, in The Discourses 115 (Bernard Crick ed., Leslie J. Walker trans., 1970). Walker translates this from “chi vuole acquistare o chi vuole mantenere,” that is, those who want to acquire or those who want to keep—which he equates with the typical English distinction of haves and have nots.Google Scholar

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43 See Philip Pettit, Republicanism: A Theory of Freedom and Government (1997); see also Quentin Skinner, Liberty Before Liberalism (1998). Both authors have refined their views in subsequent work, moving closer, if tentatively so, to the position described in this article. See, e.g., Philip Pettit, On the People's Terms: A Republican Theory and Model of Democracy (2012); Quentin Skinner Visions of Politics: Volume II: Renaissance Virtues (2002). For recent accounts of republicanism, see Legal Republicanism: National and International Perspectives (Samantha Besson & José Luis Marti eds., 2009) and Republicanism and Political Theory (Cécile Laborde & John Maynor eds., 2008).Google Scholar

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48 See Adam Tomkins, Public Law (2003); Adam Tomkins, Our Republican Constitution (2005). As Tomkins explains in this collection, however, his position has somewhat shifted since those books were published. Adam Tomkins, What's Left of the Political Constitution?, 14 German L.J. 2275 (2013).Google Scholar

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50 For we can be sure that, if the antithesis of the political constitution is a constitution of judges, then those judges are well prepared to act on those same failings and to redefine the constitution on their terms. Indeed, in a Hamlyn Lecture delivered in 1949, Mr. Justice Denning—as he then was—had this to say about the failings of the political constitution:Google Scholar

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54 This is the view of Bernard Crick, who defines politics as a precise thing which “arises from accepting the fact of the simultaneous existence of different groups, hence different interests and different traditions, within a territorial unit under common rule.” Bernard Crick, In Defence of Politics 17–18 (1962).Google Scholar

55 This is the case, for example, in the United States. See Mark Tushnet, Taking the Constitution Away from the Courts (1999). It might also be possible to see popular constitutionalism as a variation on political constitutionalism that is particular to the United States. See, e.g., Larry Kramer, The People Themselves (2004).Google Scholar

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59 For a philosophical elaboration of this point, see the sophisticated account offered by Thomas Christiano. Thomas Christiano, The Constitution of Equality (2008).Google Scholar

60 See Waldron, Jeremy, Can There be a Democratic Jurisprudence?, 58 Emory L.J. 675 (2009); see also Richard Ekins, the Nature of Legislative Intent 119–40 (2012).Google Scholar

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93 While the initial Maryhill and Somerset APTU was a short-lived affair, its very coming into being inspired the creation of similar associations across the country, many of which last the course.Google Scholar

94 Given that a huge number of Scots fell off the electoral register altogether in order to avoid detection for nonpayment, official figures were impossible to gather.Google Scholar

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107 Id.Google Scholar

108 Christopher Harvie & Peter Jones, The Road to Home Rule 154 (2000). In surrendering to opponents of the First Past the Post system, the Labour Party was consoled by the knowledge that, with the adoption of this compromise, it would be almost impossible for the SNP ever to win a majority in the chamber. That conventional wisdom (pun not intended), of course, was shattered at the 2011 elections to the Scottish Parliament, which defied all odds (and indeed the electoral system itself) to return a single party, SNP majority, to the chamber. The result of the Scottish independence referendum on 18 September 2014 will tell us just how historically significant (and transformative) that anomaly might be.Google Scholar

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