cameronstactics-may-take-the-uk-out-of-the-eu-and-scotland-out-of-the-uk/>. 5 'Statement from the new Prime Minister Theresa May' (13 July 2016) . 6 'Brexit: PM is "willing to listen to options" on Scotland' BBC News (15 July 2016) .

in terms of distinct phases, but in terms of waves, which feed into and which lap back upon one another and so, in our closing section, we argue that the reflexive wave laps back into the first wave in interesting and productive ways that might allow us to set new agendas for thinking politically -and in radical and expansive ways -about constitutional law. II. The Normative Turn in Political Constitutionalism A. The functionalist wave of political constitutionalismThe first -what we call functionalist -wave of political constitutionalism was most famously articulated by Griffith in his 1978 Chorley Lecture, 'The Political Constitution'. Although he did not repeat, let alone define (at least not explicitly so), that titular phrase in the lecture, Griffith's approach, here and elsewhere, was to defend the political constitution against those who agitated for its reform. In 1978 this meant tackling head on a series of reform proposals that included, inter alia, a Bill of Rights, an elected second chamber, legal limits to Parliament's legislative competence, devolution to the nations of the UK and to the regions of England, a more sophisticated system of administrative law, the creation of a Supreme Court, and an entrenched written constitution. 3 Later, it was the advance of the common law, as advocated by Sir John Laws 4 and Sir Stephen Sedley, 5 and the enhanced judicial powers created by the Human Rights Act 1998 that drew his ire. 6 It was Griffith's view that, taken together, the object of this 'new constitution' would be to institutionalise a theory of government limited by law. 7 By way of contrast the function of the 'old' constitution -flexible, uncodified, with legislative power centralised at Westminster and executive power at Whitehall, and underpinned by the unlimited legislative supremacy of the Crown-in-Parliament -was, he said, precisely the opposite: to enable government. Indeed, for Griffith it was the 'very heart' of the political constitution -its definitive feature -that 'Governments of the United Kingdom may take any action necessary for the proper government of the United Kingdom', 8 subject only to two limitations: first, that the Government would require express legal authority -from statute or from prerogative -in

This paper posits a (very British!) call to arms, and does so in five steps. In part A, we address the need for constitutional fictions by which the many surrender political power to the few, in the name of stability, order and security. In part B, however, we will show that conflict is both a necessary and a core principle of political constitutionalism—that it is the latent possibility of conflict, the (re)awkening of the many where the few abuse that power, that acts as the final check on government. In part C, we trace the steps by which recent re-interpretations of the work of J.A.G. Griffith, with a focus on the work of Tomkins and Bellamy, have reduced politics to its parliamentary form, thereby closing—rather than “enlarging”—the “areas for argument and discussion”—a narrow view of the constitution to which, admittedly, Griffith himself might have subscribed. In part D, we will assess the limits of such a narrow reading of the political and argue that a more dynamic and reflexive approach is needed if we are to remain in—or recover to—rude constitutional health. Finally, in part E, we will use the political and constitutional background to the devolution of legislative and executive power to Scotland in order to demonstrate the power of political conflict, in extraordinary moments, to expose, break down and create new constitutional fictions.

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The revival of the political constitution has come about in parallel with two developments, one in constitutional practice and the other in political theory. With regard to the former, the political constitution has been seen as something of a bulwark against the rise of legal (or judicial, or common law) constitutionalism. The seeming hegemony of this latter model of constitutionalism among contemporary lawyers and political scientists has produced from (so-called) political constitutionalists a reaction against the delegation of important decisions to non-political institutions and an obsessively court-centered scholarship. Perceiving this shift in focus from political to legal institutions to be the very antithesis of the traditional Commonwealth (more particularly, of the United Kingdom's parliamentary) model of constitutionalism, and, more broadly, to be an affront to democratic sensibilities, the notion of the political constitution was retrieved and defended in a seminal article in the 1979 edition of the Modern Law Review, written (though first delivered in his Chorley Lecture the previous year) by the late John Griffith. More recently, in the work of Adam Tomkins, Richard Bellamy, and Grégoire Webber and Graham Gee, a normative interpretation has been lent to Griffith's thesis so as to provide a full-fledged constitutionaltheorycapable of standing as an alternative to the liberal-legal paradigm—a turn, one might say, from the political constitution to political constitutionalism.