This chapter explores the Manichean narrative between political and legal constitutionalism. Examining the rival arguments of Jeremy Waldron and Ronald Dworkin, this chapter argues that we need to move beyond Manicheanism in order to capture the multi-institutional modes of rights protection in contemporary constitutional democracies. It argues that both Dworkin and Waldron succumb to the nirvana fallacy, a fallacy we need to shake off if we are to devise realistic accounts of how the key institutions act, counteract, and interact in a constitutional democracy. The chapter also puts pressure on the notorious ’counter-majoritarian difficulty’, arguing that we need counter-majoritarian checks, not only in the name of rights, but in the name of democracy as well. This chapter defends the idea of ’mediated majoritarianism’. Finally, it turns to the ongoing schism between political versus legal constitutionalism in UK public law, arguing that it suffers from similar flaws to the broader Manichean narrative. Instead of a zero-sum game between courts and legislatures, the branches of government can interact in mutually respectful and supportive ways.

This chapter examines the power of the legislature to have ’the last word’ under section 33 of the Canadian Charter of Rights, and the UK Human Rights Act 1998. In both cases, the democratically elected legislature is empowered to legislate notwithstanding rights. Whilst both of these provisions have been hailed as the lynchpin of a New Commonwealth model of constitutionalism, or as an instance of weak-form review, this chapter observes that they have hardly ever been used. The task of the chapter, then, is to examine and explain ’the underuse of the override’. Departing from the dominant narrative that the legislature wanted to use the override but was thwarted by exogenous political costs, this chapter argues that the rare use of the override was part of the original design of both systems from the outset. Instead of being a tragic thwarting of democratic dialogue, or an unfortunate atrophy of constitutional powers, rare use of the override was a feature, not a bug in both systems. Supplementing the historical narrative with normative argument, the chapter defends the rare use of the override as a vindication of the collaborative constitutional ideal.

This chapter explores the normative foundations of judicial review by rounding back on the concept of office. Judicial review exists to ensure that repositories of official power act only within the scope of the powers reposed in them. Official ‘power’ is inherently limited in virtue of being translated into official ‘powers’ (i.e., vires) that are implicitly capable of judicial interpretation and enforcement. The same applies for the constrains (i.e., rules of conduct) that operate on the manner, form, and purpose of their exercise. This gives rise to a concept of the rule of law as the rule of officials acting lawfully, which is a powerful expression of the ‘rule of law, not of men’ strand of thinking that traces back to Bracton at least. Office provides a superior point of departure than the radical English notion of parliamentary soveriegnty. This makes an appropriate concept of ‘public trust’ or ‘public fiduciary law’ the best expression of the conceptual and normative basis of judicial review. Far from being a slipshod translant of private law fiduciary remedies into public law, the emerging idea of ‘public fiduciary law’ is an apt expression of the deeper logic of office.

This chapter will focus on the manner in which non-judicial actors engage in constitutional guardianship, using the Netherlands as a case study. Article 120 of the Dutch Constitution explicitly prohibits courts from examining the constitutionality of Acts of Parliament. Accordingly, it has fallen to other institutions to ensure that constitutional rules and values are duly taken into account, especially when new legislation is under consideration. The chapter will focus in particular on the role that governments and civil servants play in verifying a bill’s constitutional conformity during the drafting stage; on the Council of State, which is tasked with providing non-partisan advice to the government on new bills; and on how Parliament itself goes about confronting constitutional issues during legislative debates. The Dutch experience shows that it is possible to successfully ensure constitutional supremacy even when judges are not available to act as ultimate protectors of the national constitution.