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This chapter examines the role of political and legal constitutionalism in structuring the response to terrorism since 2001. It begins by sketching two claims about the legal regulation of antiterrorism policy in the United States in 2012. The first claim is that the policies pursued by the Obama administration are not much different from those pursued by the Bush administration after around 2006. The second claim is that notwithstanding the Supreme Court's decisions that those detained but not criminally charged with terrorism offenses are entitled to writs of habeas corpus, very few detainees have been released as a direct result of a final coercive judicial order. When suitably fleshed out, these claims are largely correct. The rest of the chapter argues that political constitutionalism provides a better explanation for the state of affairs described in this chapter.

Why is it important to study the genesis of bills of rights? Alongside symbolizing a society's understandings of some of its most important rights and values, this chapter argues that a bill of rights has significant direct effects at least within advanced democracies with an adequate ‘support structure’ for rights litigation. It sum, the presence and type of bill of rights can critically effect whether power is constituted and controlled via ordinary political institutions (political constitutionalism) or whether decisions are controlled through a legalized judicial process (legal constitutionalism). Despite this, the socio‐political origins of bills of rights have rarely been systematically studied. This chapter forwards the case for studying the historically largely common but recently highly divergent experiences of four Westminster democracies (Australia, Canada, New Zealand, and the United Kingdom) in order to build up an understanding of bill of rights genesis in internally stable, advanced democratic settings. The chapter also provides a brief outline of the postmaterialist trigger thesis explanation which developed out of this study.

The chapter examines the argument that democratic dialogue is able to provide a stable theory of constitutionalism, distinct from legal and political constitutionalism in that it provides for a combination of legal and political controls. The chapter argues that this is not the case. Both political and legal constitutionalism provide for a combination of legal and political controls over human rights. Although it is often argued that dialogue occupies a middle ground between legal and political constitutionalism, by combining legal and political controls, this chapter argues that there is no middle ground for democratic dialogue to occupy, unless we provide inaccurate accounts of legal and political constitutionalism. Rather than providing a distinct account of the constitution, democratic dialogue appears to be either non-existent or ubiquitous.

The chapter investigates whether democratic dialogue differs from legal and political constitutionalism because it rests on a different set of foundational assumptions. It argues that political constitutionalism, legal constitutionalism, and democratic dialogue are best understood as being on a spectrum, where democratic dialogue focuses on different issues than those which form the main focus of legal and political constitutionalism. Legal constitutionalism focuses on legal controls, modifying these when there is a need to respect political controls. Political constitutionalism focuses on political controls, recognizing how legal controls may enhance political accountability. Democratic dialogue focuses on inter-institutional interactions, examining when these interactions are valuable. The chapter introduces the concepts of constitutional collaboration and constitutional counter-balancing, arguing that accounts of democratic dialogue need both of these forms of inter-institutional interaction.

This chapter examines the performance of legal and political constitutionalism in the United States and the United Kingdom, in dealing with terrorism since 2001. The United States is ordinarily described as having a constitutional system that is highly legalized, the United Kingdom as one in which constitutional values are promoted primarily through politics. With respect to terrorism policy, the U.S. system’s legalized approach has produced relatively little in restraints imposed by the courts on executive and legislative policy. Yet, there have been restraints, which emerged from the operation of the political system both in the formal separation-of-powers sense and from the informal pressure of public opinion on lawmakers. The picture in the United Kingdom, ordinarily described as the home of parliamentary supremacy and political constitutionalism, is interestingly different because there the courts appear to have placed significant restrictions on the exercise of executive and legislative authority.

This chapter gives a view for and of Scotland. It highlights the different constitutional status given to Convention rights under the Scotland Act 1998. These constitute absolute and non-negotiable limits on the powers of the Scottish government and the Scottish Parliament, limits which are to be enforced by and before the courts. This new constitutional position of judicial primacy has led to certain political tensions within Scotland which have become focused, in particular, on the UK Supreme Court when exercising its devolution jurisdiction. The consequent juridicalisation of (Scottish) politics has resulted in a certain politicisation of (Scots) law, and a new and uncertain marriage between Scottish political nationalism and the formerly depoliticised legal, ecclesiastical, and romantic nationalisms which had characterised Scotland since the 1707 Union.

This essay investigates the idea of legal accountability, applicable to public authorities, by reflection on some major debates within constitutional theory. Theories of legal and political constitutionalism are compared and debate over the constitutional foundations of judicial review is examined. It is argued that a largely instrumentalist view of law, in tune with legal positivism, has hindered our grasp of ideas critical to the principle of accountability. A view of the rule of law as a fundamental safeguard of freedom is defended: legality is an important moral value linked to other democratic political values. Accountability to law is more than compliance with positive law: it means respect for principles of legality and legal process that characterize the British constitution, interpreted as the charter of a free and democratic legal order. Judicial review of administrative action, defending fundamental rights, is justified by a legal constitutionalism rooted in genuinely republican conceptions of law and liberty.

In the text the author tackles the issue of constitutional crisis in Central and Eastern Europe (CEE). It analyses the social source of constitutionalism in CEE after 1989. It criticizes the mainstream approach to the crisis as labelling rather than developing tools for analyses. It proposes different interpretations of the present crisis as the potential development of a new post-conventional constitutionalism in this part of the world. The new post-conventional constitutionalism is deeply rooted in historical narratives and is an escape from legal constitutionalism.

The chapter investigates whether democr atic dialogue is distinct because it provides a dynamic account of constitutions, focusing on interactions between institutions and the way in which human rights values are formed through these interactions. It explains how dynamic interactions are common to all accounts of democratic dialogue. However, it also recognizes that there are accounts of both legal and political constitutionalism which focus on dynamic interactions. As such, although dynamic interactions may be a necessary component of democratic dialogue, it is not sufficient to distinguish democratic dialogue from legal and political constitutionalism. Again, we appear to be left with the conclusion that democratic dialogue is either ubiquitous or non-existent.

Poland’s constitutional breakdown of 2015 constitutes an interesting, if unfortunate, case study of the relationship between populism and democracy, and the related concept of ‘illiberal democracy’. Without generalizing this finding, the chapter argues that in Poland, illiberal democracy is largely an oxymoron. By dismantling various checks and balances, and the many democratic institutions related to elections and judicial review, the ruling party greatly weakens the democratic character of the state. The temptation to consider Poland as a case of ‘political constitutionalism’, in contrast to ‘legal constitutionalism’, should be resisted. The chapter considers how Poland lacks many of the democratic prerequisites critical for ‘political constitutionalism’. The Polish variant of populism is aggressively anti-pluralistic, anti-deliberative, and hostile to minorities. The system can be better described as that of ‘plebiscitarian authoritarianism’. It is also antithetical to the ideal of the rule of law, in particular in its disregard for the various unwritten clauses (constitutional conventions) supplementing the constitutional text.

The chapter argues that institutional interactions can facilitate a better protection of human rights, help to engage citizens in the protection of rights, and provide a means of checks and balance. The chapter develops a normative framework for democratic dialogue, evaluating the type of inter-institutional interactions better able to facilitate democratic dialogue. It argues that institutions should focus on facilitating constitutional collaboration, with constitutional counter-balancing being used when one institution believes the other has transgressed the proper scope of its constitutional powers. It argues that to facilitate a better protection of human rights, institutions should give weight to the reasoning of other institutions, according to their relative ability to reason about rights. It recognizes that dialogue can, if misinterpreted, harm the separation of powers and the independence of the judiciary. It needs to be applied in a manner which is sensitive to the distribution of power in any particular constitution.

The chapter investigates inter-institutional interactions. It explains how these interactions can occur in legal systems with a strong constitutional protection of rights and those with a predominantly political protection of rights, in addition to interactions occurring in commonwealth models of rights protections. These can occur through the way in which each institution exercises its constitutional powers. It also recognizes that commonwealth models of rights protections need not facilitate dialogue. Whether dialogue is facilitated depends upon how each institution exercises its powers under a commonwealth model. Nevertheless, dialogue may be better facilitated under the commonwealth model. The commonwealth model is designed to provide legal or formal mechanisms of constitutional counter-balancing. This means that these models are more likely to facilitate constitutional collaboration than legal systems with a strong constitutional or a predominantly political protection of rights.

The chapter explains how democratic dialogue is a constitutional model, which rests on general and specific assumptions. The general assumptions are similar to those found in Waldron’s argument against a constitutional protection of rights. The specific assumption requires that no one institution is able to always prevail when interacting with the other institution. The chapter assesses the extent to which these assumptions are met in the UK constitution. In particular, it focuses on the argument that, given parliamentary sovereignty, dialogue cannot apply in the UK constitution. The chapter argues in favour of a specific form of bipolar sovereignty, arguing that this is a feasible interpretation of the UK constitution. It also dismisses claims that dialogue cannot apply in the UK constitution because of the nature of parliamentary privilege and executive dominance.

The Conclusion provides a summary of the main argument of the book. It then examines this argument in the light of two recent constitutional developments—the proposed British Bill of Rights and the Referendum vote in favour of the United Kingdom leaving the European Union. It explains how a better understanding of dialogue questions the assumptions on which some of the arguments for a British Bill of Rights and Brexit were based, particularly those based upon the perceived loss of sovereignty of the United Kingdom in the face of directly effective EU law and the ‘living instrument’ approach to judgments adopted by the European Court of Human Rights. It also explains how both of these developments may harm the ability of the UK constitution to facilitate democratic dialogue.