Back into the political? Rethinking judicial, legal, and transnational constitutionalism

Abstract

This article provides a critical reflection on constitutional developments around the world since 1989, and finds that the world of global constitutionalism has primarily embodied judicial, legal and transnational constitutionalism with court-centric, legal-texted, and elitefocused features. An overemphasis of constitutions as legal texts and courts as exclusive constitutional guardians has led to the domination of legal and judicial elites in constitutional and political spheres, and such an unequal playing field between legal and political actors has inevitably triggered the recent rise and resurgence of populism and neo-authoritarianism. This article argues that rather than purely legal or political, the nature of constitutions and constitutionalism presents an intricate set of intersecting law and politics, and that it is time now for constitutional law scholars to pay attention to political foundations of constitutionalism with further democratic revivals and better civic engagements.