Legislatures as Hostages of Obstructionism: Political Constitutionalism and the Due Process of Lawmaking

The normative accounts of political constitutionalism maintain that legislatures are to be preferred to courts for the enforcement of the Constitution and claim that disagreement is at the core of democratic decision-making. Although disagreement in legislatures is vital for the fulfi llment of their representative function, if such disagreement is able to turn itself into unconstrained obstructionism as a routine practice, then parliamentary institutions may become hostages of their own internal opposition. Indeed, the deadlock created by parliamentary obstructionism aff ects the decision-making capacity of legislatures vis-à-vis the other branches of government. By relying on a comparative analysis, the article highlights the downside eff ect of obstructionism on the constitutional role and legitimation of legislatures. It also makes a case for a careful limitation of this practice by protecting the “due process” of lawmaking through a strict enforcement of constitutional provisions and standing orders by legislatures or, should they fail, and as an extrema ratio, by courts.