Constitutionalism and Crisis Narratives in Post-Brexit Politics
| Author | Eoin Daly |
| Published date | 01 November 2020 |
| Date | 01 November 2020 |
| DOI | http://doi.org/10.1177/0032321720904936 |
| Subject Matter | Articles |
https://doi.org/10.1177/0032321720904936
Political Studies
2020, Vol. 68(4) 895 –915
© The Author(s) 2020
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DOI: 10.1177/0032321720904936
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Constitutionalism and Crisis
Narratives in Post-Brexit
Politics
Eoin Daly
Abstract
The Brexit vote has sparked renewed criticism of the United Kingdom’s ad hoc constitutional
arrangements, particularly in relation to the status of popular sovereignty. While the people is
politically recognised as ‘sovereign’ through the apparent unassailability of its referendum verdict,
this sovereignty has no legal foundation or form – thus giving it an elusive, indefinite character.
In turn, legal commentators have argued that the lack of a clear conceptual framework for
constitutional referendums aggravated the political crisis that followed the vote and that the
uncertain nature and authority of referendums represents a distinct source of constitutional
crisis in its own right. In this article, I consider how this ‘constitutionalist critique’ of the Brexit
referendum, and its ad hoc constitutional framework, reflects a particular conception of liberal
constitutionalism as a bulwark against the hazards and vicissitudes of unstructured popular
sovereignty. I will argue that this perspective overestimates the capacity of constitutional law to
regulate expressions of popular sovereignty via referendums, that it misconceives the character
and claim of popular sovereignty more generally, and that it reflects certain characteristics of
liberal legalism in its stance towards politics and political contingency.
Keywords
Brexit, referendums, constitutionalism, liberalism
Accepted: 17 January 2020
Introduction
The United Kingdom’s famously uncodified and flexible constitution has been the subject
of renewed criticism in the wake of the Brexit referendum. The referendum aftermath is,
in one account, ‘forcing a reckoning with the obfuscations, weaknesses, and uncertainties
in British constitutionalism’ (Delaney, 2018: 211). In particular, legal academics have
criticised a constitutional lacuna or ‘silence’ regarding the role of popular sovereignty,
and more specifically, the absence of a conceptual and regulatory framework for
School of Law, National University of Ireland, Galway, Ireland
Corresponding author:
Eoin Daly, School of Law, National University of Ireland, University Road, Galway H91 TK33, Ireland.
Email: eoin.daly@nuigalway.ie
904936PSX0010.1177/0032321720904936Political StudiesDaly
research-article2020
Article
896 Political Studies 68(4)
constitutional referendums. It has widely been argued that this uncertain authority of
referendums, along with their highly discretionary use, has either caused or aggravated a
‘constitutional crisis’. According to this narrative, it was this uncertain constitutional
framework that allowed for an open-ended advisory referendum, with unclear conse-
quences and initiated opportunistically, to provoke political chaos and instability. I will
loosely term this the ‘constitutionalist’ critique of the United Kingdom’s constitutional
adhocracy and of its (alleged) ill effects in the Brexit context. And the main gist of this
constitutionalist argument is that while popular sovereignty might in some sense be rec-
ognised, it must be appropriately structured and regulated by constitutional norms.
In this article, I make a number of related arguments about this post-Brexit constitution-
alist critique. First, I argue that it misconceives the nature and scope of popular sover-
eignty, as a principle or demand that can never be fully captured or exhausted by
constitutional recognition, and that always retains a potentially disruptive and destabilising
residue that is indissoluble in any constitutional structure. Second, accordingly, I argue that
this position overestimates the capacity of constitutional law in general to regulate and
tame the expression of popular sovereignty via referendums, and particularly its capacity
to insulate referendum politics from political discretion and subject it to the constraints of
constitutional ‘principle’. Third, I argue that while this constitutionalist critique is not sim-
ply a crude expression of fear or contempt for popular sovereignty and the democratic
masses, it nonetheless reflects a misplaced faith in the capacity of constitutional law to
safeguard against political contingency and crisis and to stabilise the political world.
Fourth, then, while this perspective is not necessarily demophobic or ochlophobic as such,
it reflects many of the characteristics of what can loosely be termed as ‘liberal legalism’,
particularly in its attitude towards politics and political contingency.
The Limits of ‘Muddling Through’? Constitutionalist
Discourses Post-Brexit
A committed ‘constitutionalist’ will likely find much to criticise in the United Kingdom’s
constitutional arrangements. A largely customary constitution defined (primarily) by a
procedural principle – of parliamentary sovereignty – is not contrary to constitutionalism
in its most minimal sense as requiring a set of constraints on arbitrary government (see
Murkens, 2009). However, if we take constitutionalism in a thicker sense – as a project of
subjecting public power to norms that are themselves entrenched against ordinary legisla-
tive politics – then the British constitution, if not quite anti-constitutionalist, certainly
falls short of the more demanding ideals of liberal constitutionalism, at least. Most obvi-
ously, it lacks any entrenched substantive principles – perhaps other than the procedural
principle of parliamentary sovereignty itself – because the ‘sovereign’ parliament has the
power to make and unmake any law (King, 2007), a power which itself has been described
as ‘arbitrary’ (Jennings, 1943: 64). By contrast, as Scott puts it, ‘the emergence of sub-
stantive limits on power – the point at which it is accepted that the sovereign (body) does
not enjoy the absolute power of a Divine Monarch or a Hobbesian Leviathan – is the
modern triumph of constitutionalism’ (Scott, 2013: 2165).
Relatedly, there are problems of form: the parliament’s (legally) unfettered capacity to
alter even constitutional laws confounds Paine’s understanding of a constitution as ‘ante-
cedent to government’ (Paine, 1915 [1791]: Ch. 4), or indeed the dominant modern
understanding of the constitution as ‘a set of legal norms’ or as ‘higher law’ (Grimm,
2016: 363). The British constitution recognises no distinction between ordinary
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