Political Constitutionalism: The "Critical Morality" of Constitutional Politics

Abstract

This paper takes seriously the idea that political constitutionalism can be used as a model for public law analysis. With specific reference to the archetypal political constitution of New Zealand, it demonstrates how political constitutionalism explains and justifies key aspects of real-world constitutional practice. However, the analysis also indicates that in practice constitutional politics can be sensitive to legal processes and liberal norms in ways that are difficult to reconcile with political constitutionalism as conventionally understood. The paper therefore challenges the characterisation of political constitutionalism as being “prescriptive without prescribing much” and suggests the need for a richer account of what is constitutional about politics. Drawing on an analogy with constitutional convention, it suggests that the “critical morality” of constitutional politics may help to provide this richer account.