Constitutionalism Reborn: Popular Sovereignty and Constitutional Conventions in the U.S. and U.K.

RIVKA WEILL* 

As conservatives have come to dominate the U.S. Supreme Court, originalist interpretation methods will determine constitutional disputes. While the Court rejects the use of comparative constitutional law to interpret the Constitution, even its conservative members accept the legitimacy of resorting to British sources, if the language of the Constitution was derived from the U.K. This practice of reliance on British precedents seems natural yet perplexing. It is natural because the U.S. seceded from the U.K. It is perplexing because the U.S. constitutional revolution stands for rejection of the British model of parliamentary sovereignty.

This Article intends to redefine the relationship between the U.S. and U.K. constitutional models. While the literature perceives the two as polar-opposites, I suggest that there is, in fact, a common Anglo-American constitutional model, which has been informing the United States’ character since its founding. It is not that we misunderstood the American model of popular sovereignty and constitutional supremacy. Rather, we did not realize that parallel developments were taking place in the U.K. The political actors on both sides of the pond were aware of this reality, but the jurisprudence missed it. Shifting the paradigm and accepting the existence of this common model will enable us to grapple with the most burning current dilemmas of our time on both sides of the Atlantic. It lends new legitimacy to examining British sources to better understand American constitutional law, even if the textual provision per se is not attributable to the U.K.

We may now study how the common model intended the dynamics between the different constitutional actors to play out. While the U.S. felt powerless to deal with a President who has treated constitutional norms with little to no respect, the Article reveals how the model designated enforcement mechanisms for constitutional norms and conventions, including court packing and judicial review. British debates on reforming an obstructionist second chamber resonate with current American discourse on reforming the U.S. Supreme Court and the Senate. Both American institutions were modeled after the House of Lords. The Article develops the two types of court packing justified in the U.S. under the common model to remedy breach of constitutional norms. It further discusses the inevitability of filibuster reform. Similarly, while Brexit is incomprehensible in a parliamentary sovereignty system, Parliament’s reluctant adherence to the 2016 “consultative” referendum’s results is a natural outgrowth of the common Anglo-American rule of the people.

* Professor, Harry Radzyner Law School, Reichman University (formerly known as IDC). The first draft of this Article was written during my visit at Yale Law School in between 2018 and 2019. This Article benefited from comments of participants at Hebrew University Comparative Constitutional Law Colloquium in 2019; Loyola Annual Constitutional Law Colloquium in 2019; Texas Law School Colloquium on Comparative Constitutional Law and Politics in 2019; Texas Law School Constitutional Change Conference in 2020; Columbia University European History & Politics Workshop in 2020; Maryland Carey Law Annual Constitutional Law Schmooze in 2021; Princeton University Annual Comparative Law Work-in-Progress Workshop in 2021; Reichman University Lauder School of Government, Diplo-macy and Strategy Faculty Seminar in 2021; and ICON-S Mundo in 2021. I thank my daughter, Elisheva Feintuch, for her outstanding research assistance. Many thanks are due to the editorial team of the Columbia Journal of Transnational Law, and especially Kan Ni, for their very helpful editing process. An early version of this Article is titled From Earl Grey to Boris Johnson: Brexit and the Anglo-American Constitutional Model, available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3483682 [https://perma.cc/7CMN-HF4Y] (posted on Nov. 12, 2019). I have published two blogs on this Article: We the British People Rule: From 1832 to the Present, U.K. CONST. L. BLOG (Jan. 21, 2021), https://ukcon-stitutionallaw.org/2021/01/21/rivka-weill-we-the-british-people-rule-from-1832-to-the-pre-sent [https://perma.cc/K7H9-EPR7]; and The British Popular Sovereignty Model: A Play in Three Acts, BREXIT INSTITUTE BLOG (Jan. 26, 2020), http://dcubrexitinstitute.eu/2020/01/the-british-popular-sovereignty-model-a-play-in-three-acts [https://perma.cc/65MP-YSGX].