The Role of the Courts in the Political Constitution

The article sketches the beginnings of a theory of what the courts should do in the political constitution. As such, it differs from most of the literature on political constitutionalism (which tends to say more about what courts should not do) and most of the literature about what courts should do in constitutional law (which tends to be framed in a legal constitutionalist perspective). First, arguments are presented about how a political constitutionalist might distinguish between rights which are best left to political institutions and those which better lend themselves to judicial enforcement. Second, the argument is made that in constitutional litigation the courts should focus as much (if not more) on powers and evidence as on rights. The article closes with brief consideration of the legislature's role in the political constitution and of the courts' role in supporting the legislature. Throughout, the article takes the British constitution as its principal case study, but the implications of the argument presented here extend beyond Britain alone.