There is a wonderful symposium on Aileen Kavanagh's new book, The Collaborative Constitution, at Balkinization. My contribution is entitled The Preconditions for Collaborative Constitutionalism, you can read it by following the link. Here are the first two paragraphs:
Aileen Kavanagh’s important book, The Collaborative Constitution, offers a deep, insightful, and optimistic analysis of constitutional theory that aims to displace the conventional narrative that pits judicial supremacy and the institution of judicial review against a form of legislative supremacy that would take constitutions away from the courts. Kavanagh’s alternative is a collaborative constitution—in which the constitutional order is structured via interactions between judicial, legislative, and executive institutions and actors. Kavanagh mostly explores these themes in the context of the United Kingdom with less extensive discussion of Canada and other commonwealth systems. Although the theoretical chapters in the beginning of the book are framed generally, Kavanagh chose not to engage in in-depth exploration of the implications of her theoretical framework for other constitutional orders, including that of the United States. A wise choice, given the effort required to apply a rich constitutional theory to even a single constitutional system.
Nonetheless, Kavanagh’s book will prompt many readers to ask, “How could Kavanagh’s framework be applied to the American context?” There are, of course, many obvious differences between the UK and the US. Some of those differences are legal. The US has an integrated text that constitutes its written Constitution, but the UK’s constitutional order is an amalgam of written documents and unwritten norms and conventions. In the US, federalism is understood as a fundamental restraint that Congress cannot override, but in the UK the devolution or centralization of power is (at least in theory) subject to ordinary legislation enacted by Parliament. In the US, divided government (different parties control the presidency and Congress) is common, but in the UK, Prime Ministers and their cabinets must have the support of Parliament and usually the PM is the leader of a party with a parliamentary majority. Other differences are jurisprudential. Constitutional theory in the US is dominated by the debate between originalism and living constitutionalism, but that debate is peripheral or irrelevant in the UK.
Lots more on Balkinization!
