Constitutionalism and Crisis Narratives in Post-Brexit Politics

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.