Brian Christopher Jones (University of Liverpool – School of Law & Social Justice) has posted Constitutionalism's Wrong Turn: Legal Rather than Political Supremacy ((Forthcoming) 38(2) Constitutional Commentary (2023)) on SSRN. Here is the abstract:
Reviewing James Allan's 'The Age of Foolishness: A Doubter's Guide to Constitutionalism in a Modern Democracy'. Imagine a world where whatever you say goes. Where you could invent your own powers, and where you were not limited by anything, even the fundamental law governing the society in which you live. Indeed, if you so wanted, you could declare the fundamental law invalid. But not only that. You could also negate changes to the fundamental law you disagreed with, halt and decide elections, dissolve political parties, and stop other people from doing things that they had been democratically elected to do. And when you did these things, criticism of you or your office was frowned upon, and skeptics of your work would be said to be compromising fundamental constitutional principles. To top things off, imagine you were doing all of this without having to answer for any of it: not having to go before any official body and explain yourself; not having to worry about losing your position; not having to submit yourself to the judgment of the people; not having to speak with the media; and not even having to give very good reasons for your decisions. To many that would sound like something terribly sinister: despotic or autocratic behavior run rampant, or perhaps something even worse. But it’s not. This is how many contemporary constitutional democracies operate. More specifically, it is how apex courts operate within numerous constitutional setups throughout the world.