Home / The English constitution / The political constitution
Key concept
This is one half of the distinction at the centre of the Starkey Thesis. The other half is the legal constitution. Understand these two and the whole argument falls into place.
The political constitution is the idea that contested political questions should be settled through elected and accountable institutions, chiefly Parliament and ministers who answer to voters, rather than by judges applying entrenched legal rights. On this view the constitution is not a code sitting above politics. It is the set of arrangements through which a self-governing people argues, decides, and throws out the people who decide badly.
The modern statement of the idea belongs to the law professor John Griffith. In his 1978 Chorley Lecture, published the next year, he wrote that the constitution "is no more and no less than what happens". He meant it as a warning against pretending that hard political choices can be turned into neutral questions of law. His fundamental objection to an entrenched bill of rights was that law cannot be a substitute for politics, and that asking a supreme court to make political decisions does not make those decisions any less political.
Griffith drew a sharp practical line. A government may do what it judges necessary to govern, held back by two things only: it cannot take away a person's legal rights without the express authority of a statute, and it cannot change the law without the assent of Parliament. Everything else is argued out in public and answered for at an election. Power sits with people you can remove. That, for Griffith, was the whole point.
Griffith gave a name and a theory to something Britain had done for centuries. The old constitution rested on the sovereignty of the Crown-in-Parliament: Parliament could make or unmake any law, and no court could strike a statute down. Dicey turned this into doctrine in the 1880s, but the practice ran back to the 1689 Bill of Rights, the settlement after 1688, and the medieval origins of Parliament itself.
The machinery was political all the way down. Ministers answered to the House of Commons. The Commons answered to the electorate. A policy that failed could be reversed by the next government, because nothing had been placed beyond politics. The binding force was consent. People obeyed the law, in Starkey's phrase, because they had taken part in making it.
David Starkey gives this tradition its fullest historical voice. He calls Britain's old order a crowned republic, a monarchy tempered by the consent of the governed, built up slowly from Magna Carta through 1688 rather than designed from abstract principle. The fuller history is on the English constitution. For Starkey the sovereignty of Parliament is not a dry rule. He describes it as "the living expression of the sovereignty of the British people", the mechanism through which everyone is represented and through which the country governed itself successfully for centuries.
This is why the political constitution matters so much to his argument. In his account Britain did not decline because of weak leaders or bad luck. It declined because the political constitution, the thing that let elected government actually govern, was dismantled and replaced. His remedy is modelled on 1660: a great repeal of the changes, then a restoration of the older tradition, with politics back on top. The fuller version is on the plan, and the man himself is on David Starkey.
Sources: David Starkey, Popular Conservatism, Law & Liberty on the crowned republic
The political constitution is a serious and living theory, not a nostalgia. Griffith himself came from the Marxist left and distrusted judges because he thought they leaned conservative. In the decades since, scholars including Richard Bellamy, Adam Tomkins, Jeremy Waldron and Graham Gee have built his insight into a full theory of political constitutionalism, set squarely against the rival legal model. Their case is that reasonable people disagree about rights, that disagreement should be resolved by counting votes rather than by judicial fiat, and that democracies are better at correcting their own mistakes than courts are. This is the same diagnosis Starkey reaches from the right, which is why the argument crosses party lines. See the others who agree.
A fair page has to put the other side. Defenders of the legal constitution argue that "what happens" is a description, not a justification, and that a constitution which places nothing beyond politics leaves minorities at the mercy of whatever majority holds power. They point out that British politics fuses the executive and the legislature, so that "the sovereignty of Parliament" can in practice mean the dominance of a government with a disciplined majority, not the free deliberation the theory imagines. And they argue that some rights, fair trials, freedom from torture, equal treatment, should not be up for a vote at all. Those replies are set out in full on the case against, and weighed on cause and effect.
The idea that contested questions should be decided by elected politicians you can vote out, not by judges applying entrenched rights.
The political constitution puts the final say with Parliament and the ballot box. The legal constitution puts it with courts and entrenched law. The Starkey Thesis is the claim that Britain swapped the first for the second.
No. The phrase is J.A.G. Griffith's, from 1979, and the theory is defended today by scholars across the political spectrum. Starkey gives it a historical voice and a remedy. See not just Starkey.
