E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Mini-Review – N.W. Barber, The United Kingdom Constitution: An Introduction
Mark Tushnet
Hardly surprising, given its author, that this is a truly
excellent introduction to the UK Constitution (which Barber correctly insists
isn’t the British Constitution or, horror of horrors, the English
Constitution). It nicely blends what I’ve come to think of as foundational
constitutional theory, which addresses questions like, What is a nation?, What
is the rule of law,? and What are the functions of the three branches?, with a
careful examination of many details of what Barber calls the New Constitution
(as contrasted with the Old Constitution in which the dominant principle was
parliamentary sovereignty [a shorthand for a more complex account that Barber sketches]).
I think the book’s primary intended audience is “within the
UK,” particularly for students and interested lay people looking for the
promised introduction. I have a few minor criticisms, at least from outside the
UK. I personally would have liked a bit more on statutory instruments (how they
are produced), Henry VIII clauses (as I understand them, provisions relevant to
some aspects of crafting statutory instruments), and ouster clauses (the rough equivalent
of jurisdiction-stripping in the United States).
Two general observations. (1) More than one would find in an
introduction to the US Constitution, Barber spends time on the foundational theoretical
question of how state sovereignty is constructed. My comparative perspective on
this can be put as they might be from each side of the Atlantic: As I’ve written with
respect to Martin Loughlin’s elaborate discussion of that (and related issues),
it seems to me that writers from the UK in some sense have to deal with that
question because they don’t have a canonical written constitution to deal with;
in the United States the written constitution provides scholars with a
seemingly simple answer to the question, “How is state sovereignty constructed?”
(“By the Constitution, dummy.”) And from the other side of the Atlantic, as Loughlin
responded to my observation, it seems that US writers overlook the question
because they mistakenly think that the existence of a canonical written
constitution solves the problem (which, he argues and as Barber implicitly restates,
it doesn’t).
(2) Barber’s excellent discussion of conventions and (weaker?)
norms of constitutional behavior concludes with this important observation/“worry”:
“if political parties do play a central role [in leading politicians to comply
with conventions], a weakening of party structures … may lead to a weakening of
the effectiveness of some conventions.” This points, correctly in my view,
towards what I’ve described as a “developmental” perspective on
norm-erosion/change in my current draft handbook contribution on constitutional hardball. I plan to
incorporate Barber’s observation in a revision of the draft.