I’ve noticed a disturbing trend recently, in both politics and law. The idea is what I call the “one-way ratchet fallacy” of power. It goes like this: when an institution or entity obtains power of some kind, that power will only ever be used to fulfill certain goals rather than others. That is, people might assume that power will always run in favour of the policy outcomes they like. This is, in a word, naïve—but at worst, it is a gross misunderstanding of the problems with power. The increasing tendency to think this way only reinforces the need for law and custom to limit, rather than unleash, power.
Two examples come to mind that illustrate this phenomenon. The first is an issue near and dear to my heart, and that issue is constitutional interpretation. In Canada, a major misunderstanding of the Persons Case holds that Canada’s Constitution is a “living tree”—in other words, the Constitution must “grow” to fit the emerging realities of today’s society. Under this theory, judges in a system of strong judicial review decide when and in what direction the Constitution should evolve.
Putting aside the fact that only some work has been done to actually provide rules to govern the “living tree” theory, and also putting aside the fact that the Supreme Court has never provided such guidance (and in fact does not consistently endorse this theory), there is a certain “ideological sex appeal” to living constitutionalism, as Chief Justice Rehnquist once said. That appeal is that the law and the Constitution can be used to achieve policy outcomes that one likes, ensuring that the Constitution protects certain outcomes that are consistent with “evolving standards of decency” (to borrow an American phrase). Unsurprisingly, progressives see the potential in living constitutionalism. It is a good way to ensure the Constitution keeps up with modern times and, potentially, modern progressive causes.
But, there is a major risk that should cause those who endorse living constitutionalism to pause. Living constitutionalism contains within it a dangerous assumption: that judges will always be on the side of angels. The risk was put eloquently by Justice David Stratas of the Federal Court of Appeal in a talk a few years ago. The general gist of it is this: imagine, some years from now (or maybe we do not even need to imagine) that there is some existential crisis affecting our society. Courts are asked to deal with a legal issue arising out of that crisis. Would we rather the court decide the matter according to settled doctrine, painstakingly developed over generations? Or on the personal say-so of judges? There is a risk that the personal say-so of a judge might run in a direction that progressives would not like. Basically, without rules governing the exercise of legal power by judges, it’s a coin flip in terms of result.
Lest anyone think that this is an inherent flaw of progressives, those on the right can also fall victim to the alluring sex appeal of power. A good example is the recent Trump administration move to “ban” government contracting and other relations with businesses and others that offer some critical race theory training. Now, it is more than fair to say there are major debates raging right now about critical race theory. That’s a somewhat separate issue. What is important here is that the power of the government is being used to root out certain ideas rather than others.
This is a different issue from living constitutionalism, since here it could be argued that governments have the power to implement their view of the “public good;” law, by its nature, is supposed to be governed by rules that are as close to “neutral” as possible. So those on the right might feel emboldened by Trump’s move because it implements their view of the good. But once the precedent is set that governments can police ideology by picking winners and losers in business, and ferret out views it doesn’t like from the inside, it is just as possible that a future administration could fall victim to the sex appeal of power in the opposite direction. Power can be used, in the future, to limit the spread of ideas that those on the right might find appealing: free market economics, personal liberty, whatever it is.
While the situation is admittedly slightly different than the living constitutionalism example, this situation calls for a political custom surrounding the exercise of power. As Dicey said, laws are not enough; there must be a “spirit of legality” that governs the exercise of power. This is understood as a reference to customary norms governing the exercise of power. Surely, one custom might be that governments shouldn’t pick winners and losers based on ideology (within reason).
The living constitution example and the critical race theory example illustrate the sex appeal of power. It can be exercised in a certain political direction, to be sure. And it might feel good for power to be exercised to the benefit of certain political factions. But the more power is granted to certain actors, and the more that laws and customs liberate that power, the more we might expect the one-way ratchet to keep ratcheting up. In politics, this might be one thing. But in law—especially when it comes to constitutional interpretation—the sex appeal of power is positively dangerous.
7 thoughts on “The Sex Appeal of Power”
Or, as Lord Acton put it more than a century ago, “power tends to corrupt, and absolute power corrupts absolutely.”. This pithy phrase doesn’t get cited as often as it should. Perhaps because it seems too obvious to warrant any further consideration. Or maybe because Lord Acton wasn’t a member of the legal establishment.
Worth noting at this time is a new and unfolding story about power allegedly being misused. I refer to the story of the University of Toronto Law Dean and the “sitting judge”. Many lessons may come out of this story.
“Living constitutionalism contains within it a dangerous assumption: that judges will always be on the side of angels.”
How so? On the most famous Canadian articulation of living constitutionalism, the relevant standard of ‘morality’ is found in norms of a political community and not to the critical morality of conviction that characterizes angelic behavior. But we might have different angels in mind.
As an originalist myself, I think you understate the extent to which any plausible version of originalism inevitably leaves a lot to judges to figure out – what Larry Solum calls the “construction zone”. Also, I don’t understand why you implicitly contrast the “living tree” with precedent. It is originalists who think precedent can go wrong. An anti- originalist might actually end up being more attached to precedent.
Hi Gareth. I certainly don’t mean to say that originalism is a perfect theory. I agree that there are legitimate differences of opinion, even among originalists. So I don’t mean to suggest that originalism renders all judicial discretion null. At most, it might limit it.
As for the other point, the relationship between originalism and precedent is indeed fraught. But you can be an originalist and still believe in stare decisis. I didn’t mean to enter this territory in this post.
I also note that I don’t specifically address originalism in this post. That would require another post, I think. This one is simply arguing that living constitutionalism–apparently the prevailing law in Canada–leaves much to be desired.
I agree that judicial authority can only be legitimate if there is some judicial responsibility to the text, precedent and – within the bounds the Constitution sets out – to democratic decision making. Some versions of “living tree” thought suggest that the law just is whatever the judges decide in some unconstrained way. But it is also easy to parody the ideas of people we disagree with (not that you usually do and not that anyone is free from this).
Strong discretion is usually attributed to legal realists, but I have not yet come across examples where the attribution of strong discretion has persuasively stuck to proponents of living tree jurisprudence. Do you have particular tree-theorists in mind?
FWIW, the first thing that came to my mind was Ronald Dworkin’s reading of HLA Hart, since both are living tree guys, and Dworkin felt that Hart was a proponent of strong discretion. But it seems pretty clear in retrospect that Dworkin misread Hart (and, as an aside, I think it should have been clear in prospect, too.)