The Tragedy of Lord Sumption

Thoughts on Lord Sumption’s views on the relationship between law and politics

In my last post, I summarized at length Lord Sumption’s Reith Lectures, delivered earlier this year. As I noted there, Lord Sumption’s views on politics, law, and the relationship between the two are challenging ― especially, but by no means only, to those of us who support judicial review of legislation. Here, I would like to explain why I think there is much truth in what Lord Sumption says, but also to point out the weaknesses and even contradictions in his claims.

By way of reminder, Lord Sumption begins by arguing that the domain of law has been expanding for the last two hundred years, as people have (once again) turned to the state as the provider of physical and economic security and moral certainty. But this expansion has brought with it concerns that the state’s power reaches too far. Representative politics can help mitigate these concerns by generating compromise and accommodation between majorities and minorities. Yet as politics loses its lustre, people turn to law to control the outcomes politics produces. Law promises (and sometimes delivers) principled decision-making, but it does so at the cost of compromise and accommodation and thus, ultimately, legitimacy. The courts end up creating and defining new constraints on politics, and there is little to choose between such constraints being undemocratically imposed in the name of liberalism or of some other ideology. Moreover, in the long run, politics, with its capacity to legitimate limitations on state power provides better security for rights than the law. Yet politics is ailing. Constitutional reform, and especially constitutional entrenchment, will not save it. If democracy is hollowed out, Lord Sumption grimly concludes, we will not notice, “and the fault will be ours”. (V/7; NB: I will use roman numerals to designate the lecture, and arabic ones for the page in the transcript; links to individual transcripts are in the previous post.)


Significant parts of Lord Sumption’s argument run along the lines drawn by Jeremy Waldron, notably in “The Core of the Case against Judicial Review”. The emphasis on the importance of disagreement and the preference for settling disagreement about rights through the political process, in part because it is more egalitarian than adjudication, sound Waldronian. The skepticism about the capacity of judges, or indeed of anyone else, to find out the truth of the matter about moral issues, is Waldronian too. Lord Sumption does not mention Professor Waldron, or indeed any thinker more contemporary that A.V. Dicey, so it’s not quite clear whether how direct Professor Waldron’s influence on him is. However, original or not, these points are important and bear repetition.

Lord Sumption’s critique of the undemocratic character of “dynamic treaties” ― or, I would add, any constitutional documents interpreted as “living instruments” ― builds on these arguments. He focuses on the judicial creation of rights on the basis that “a modern democracy ought to have” (III/3) them ― or, in other words, of what I have been calling “constitutionalism from the cave” ― as qualitatively different from mere application of fixed texts to new facts. Readers will not be surprised to learn that this strikes me as compelling. Lord Sumption’s argument tracks public meaning originalist views, a point to which I will return, but since he does not disclose his influences, I don’t know whether he is at all interested in originalist theory. It is worth noting that, in a later lecture on “Judicial Review and Judicial Supremacy“, Professor Waldron too has focused on living constitutionalism, and specifically the claim that a constitutional court is entitled “to develop new views about (what the court thinks) the constitution ought to have forbidden (though it did not) and to act on these views” (40) as especially problematic.

One additional point on which Lord Sumption echoes that lecture of Professor Waldron is the rejection of comprehensive systems of values as suitable objects for judicial enforcement. Professor Waldron does not want judges to “begin to think of themselves and present themselves as pursuing a coherent program or policy rather just responding to” (27) individual violations of the constitution that happen from time to time. Lord Sumption’s forceful rejection of values systems ― which he equates with one another for this purpose, so that entrenchment and judicial enforcement of a liberal dogma is, in a sense, no different from that of “Islamic political theology or the dictatorship of the proletariat” (IV/4) ― seems to reflect this concern. If asked to take judicial review of legislation as a given, as Professor Waldron does in the “Judicial Supremacy” lecture, Lord Sumption would also urge a piecemeal rather than a systematic approach as the more modest one.


But Lord Sumption’s argument is not simply a reprise of Professor Waldron’s. What makes him interesting, and challenging not just for supporters of judicial review of legislation but also for critics, is that his vision of politics is a gloomy one. Those who have misgivings about judicial review, including Professor Waldron or, to take a couple of Canadian examples, Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench in a lecture on “The Charter and Canada’s New Political Culture” and Joanna Baron and Geoffrey Sigalet in a Policy Options post earlier this year, tend to be fairly optimistic about democratic politics. Professor Waldron, especially in “The Core of the Case”, thinks that democratic majorities will protect rights about as well as courts, although in later work he has recognized that some minorities (such as criminal suspects) might end up being routinely shortchanged by the democratic process. He has also forcefully criticized the views of those who equate the Rule of Law with the protection of property and contract rights and, on this basis, are skeptical of social legislation and the welfare state. Chief Justice Joyal, for his part, has extolled “bold” and

“purposeful” governance … expected to include and achieve … the realization of big and bold federal and provincial objectives [and] to assist in the accommodation and brokering of … diverse and conflicting interests underlying the various societal ills and problems. 

Accommodation and compromise are the best outcomes that Lord Sumption sees democratic politics produce. “Bold” and “purposeful” governance? He seems pretty skeptical. It is not just that he sees and laments the decline in the authority of political institutions ― Chief Justice Joyal saw and lamented that too. More interestingly, I take Lord Sumption to raise the possibility that, even when it functions well, democratic politics is dangerous.

Much of Lord Sumption’s first lecture is devoted to establishing this proposition. Pointing out “rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity” (I/4), as well the voters’ tendency to be “afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with”, (I/6) he seems to echo Lord Acton’s prescient warning, in the Lectures on Modern History, about seeing the “[g]overnment [as] the intellectual guide of the nation, the promoter of wealth, the teacher of knowledge, the guardian of morality, the mainspring of the ascending movement of man”, (289) though again he does not refer to Acton or to any other source. Lord Sumption’s concern at the far-reaching and unrealistic expectations that people have of government and government’s tendency to restrict liberty to try to meet these expectations points to an ineradicable flaw of democracy.

What is more, at times, Lord Sumption seems to accept that certain rights are could appropriately be entrenched beyond the reach of democratic politics. He mentions, repeatedly, rights not to have one’s life, liberty, or property interfered with arbitrarily or without the ability to challenge the interference in court, as well as democratic rights. At other times, admittedly, Lord Sumption seems to say that, in the United Kingdom anyway, an entrenched constitution ― even, it might seem, one limited to protecting these rights, would be inappropriate. This contradiction is never fully resolved, although perhaps what Lord Sumption means is that a narrowly drawn constitution protecting these rights is theoretically desirable, but does not offer sufficient benefits to be worth the dislocation that would occur if it were to be enacted in the UK. Be that as it may, Lord Sumption’s nods in the direction of a limited entrenched constitution and his support for a fairly robust version of the principle of legality ― including in cases like R (Unison) v Lord Chancellor [2017] UKSC 51, which others have criticized as impinging on Parliamentary sovereignty ― suggest concern at what democratic institutions, if left unchecked, might do to important rights and constitutional principles.

This is what prompts me to see Lord Sumption’s vision of law and politics as tragic. He doesn’t have much hope for law, and says we must trust in politics, but his “praise of politics”, to borrow the title of his second lecture, is damningly faint. If all goes as well as it might, he says, we’ll keep muddling through, and not oppress too many people while lurching between overbearing optimism and fretful censoriousness. And perhaps, all will not go so well, although we will not even notice.


Is this the best we can do? I do not want to give quite so easily, and so I would like to try to rescue law, and perhaps, in a way, even politics, from Lord Sumption’s critique. This is almost a matter of necessity: after all, Lord Sumption himself thinks that some measure of entrenchment may well be justified, or at least excusable, and between that and his admonition to avoid dislocating established and functioning constitutional orders, those of us living in polities with entrenched constitutions should probably try to make them work before thinking about abolishing them. Moreover, even if we agree with Lord Sumption that entrenching rights is a bad idea, we still need to think about structural features of constitutions, to which Lord Sumption pays almost no attention. (This is another element of his thinking that he shares with Professor Waldron.) And besides, I am as worried as Lord Sumption by the overbearing, illiberal tendencies of contemporary democracy, and less willing to resign myself to them.

One question that needs to be asked is whether attempts to impose legal constraints on government are necessarily bound to degenerate into living constitutionalist creation of unwarranted constraints by the courts. Lord Sumption seems to think so. He implicitly accepts the living constitutionalist view that constitutional terms such as “due process of law” have no fixed meanings, and that adjudication based on such terms is inevitably going to answer the question not “whether the right exists but whether it ought to exist”. (IV/5) And, to be sure, there is no shortage of living constitutionalists who agree with him, from the hosts of the Stereo Decisis podcast to Supreme Court judges giving constitutional benediction to rights they invent. As I have suggested here,

if constitutional disputes can only be decided by reference to what are political rather than legal considerations, then it is not obvious, as a normative matter, why they should be decided by the courts rather than by political institutions. 

But while Lord Sumption is right about this, I believe he errs in accepting that adjudication of rights issues must devolve into judicial benediction of rights or ― what is equally non-judicial ― dogmatic deference to legislative choices. In many ― I think in most ― cases, an originalist court that seeks to ascertain the public meaning of constitutional texts, and perhaps to engage in good-faith development of constitutional doctrine based on the texts’ original purposes can actually avoid adjudicating primarily on the basis of its normative priors. As William Baude has pointed out, this requires an effort at self-restraint on the court’s part: the court must accept that its first task is to ascertain the meaning of existing law, without rushing to conclude that this meaning is obscure so as to impose its own views on the parties. But I do not think that such an effort is impossible for courts to undertake. Indeed, even that ostensible champion of living constitutionalism, the Supreme Court Canada, already engages in originalist adjudication, admittedly of varying quality, in a non-negligible number of cases, as I have most recently discussed here.

Emphasizing the importance of constrained, originalist constitutional adjudication ― rather than throwing up our hands and conceding that the courts will do what they please with constitutional texts ― is all the more important because it can help resolve not only cases about fundamental rights but also those dealing with structural aspects of constitutions. Lord Sumption says almost nothing about federalism and separation of powers; to me, the way in which he breezes past them in his discussion of the United States is quite disappointing, a rare moment of incuriosity in an otherwise very thoughtful lecture series. Lord Sumption’s preferred understanding of democracy, as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” (III/7) seems to put structural issues front and centre. And given his sharp comments about the pernicious effects of bypassing the usual parliamentary mechanism in favour of a referendum on Brexit, I think he ought at least to give some thought to the question of whether, quite apart from entrenching rights, the decision-making processes of representative democracy may require robust constitutional safeguards against elected officials inclined to sacrifice them for momentary political advantage.

Ultimately, though, I think that Lord Sumption is too quick to reject the desirability of substantive limits on legislation, as well as to ignore the need for structural safeguards. He thinks that it is not a problem that, under the existing UK constitution, “the limits on what Parliament [or legislatures] can do depend on political conventions [that] derive their force from shared political sentiment which would make it politically costly to disregard them”. (V/2) (The situation is the same under the Canadian constitution except with respect to issues on which the Canadian Charter of Rights and Freedoms has something to say.) Yet Lord Sumption gives cogent reasons to think that democratic politics often do not make it costly for Parliament to overreach and overregulate; and, on the contrary, that voters will, in the long run, demand too much conformity and control. These concerns echo those already expressed F.A. Hayek’s, in The Road to Serfdom. They are not new. They should be addressed, if possible, with more than vague hopes of compromise.

Indeed, I also think that Lord Sumption oversells compromise. He is right that one cannot expect to always get what one wants in politics, and that unwillingness to give an inch to partisan opponents one believes to be unprincipled at best, if not outright evil, is a real problem. But surely compromise isn’t valuable on any terms. To say so is only to encourage extremist opening bids by people who will expect us to agree to slightly more moderate versions of their still unreasonable demands in the name of accommodation. (The Québec government’s defence of its anti-religious dress code as moderate is a good example of this.) Compromise is important, but it cannot always be justly expected. As Lord Sumption himself recognizes, there are laws that make civilized coexistence or full membership in a democratic community impossible.


Lord Sumption’s Reith lectures are well worth listening to or reading, and reflecting on. They challenge those of us who support judicial review of legislation with an accessible but powerful restatement of the Waldronian case against that constitutional device and affirmation of the importance of democracy. They challenge Waldronians and other supporters of democratic institutions with a frank and not at all optimistic assessment of these institutions’ output. They are not right about everything ― but, insofar as they are wrong, they are wrong in interesting ways. As I said in introducing my summary of the lectures, I think that incoming law students, in particular, would benefit from engaging with Lord Sumption’s ideas. But so would those with more experience of the law. I am sure I have.

The Fault Will Be Ours

Lord Sumption on politics, law, and the meaning and decline of democracy

A couple of months ago, Jonathan Sumption, former barrister extraordinaire, recently-retired UK Supreme Court judge, and well-regarded historian too, delivered the BBC’s Reith Lectures for this year, speaking on Law and the Decline of Politics. Despite my delay in getting to them, I think they are worth writing about. Lord Sumption’s arguments challenge most if not all of us in one way or another. I expect that those used to the North American way of thinking about constitutional law will find them more uncongenial than many lawyers in the United Kingdom or in New Zealand, but Lord Sumption’s views do not neatly fit into any pre-defined category, and will have something that will force just about anyone to reflect. (I particularly recommend the lectures to any students who are about to start studying law; they are quite accessible, but will give you an excellent preview of many of the debates you will confront in the coming years, and expose you to a way of thinking that is not exactly prevalent in North American law schools.)

In a nutshell, Lord Sumption’s argument is that, as he put it in the first lecture, “Law’s Expanding Empire“,

law does not occupy a world of its own. It is part of a larger system of public decision making. The rest is politics. The politics of ministers and legislators of political parties, of media and pressure groups, and of the wider electorate. (2-3)

The question is, how does law relate to this larger system? What is the place of law vis-à-vis politics? Should it, in particular, be used to control political outcomes and bring them into alignment with some set of substantive values? Lord Sumption wants to caution us against the dangers he says lying in wait if we go down this path. But it is not because he takes an especially optimistic view of politics. In this post, I summarize the five lectures. (It will, I am afraid, be quite long.) I will comment separately.


Lord Sumption’s misgivings appear especially strongly in his first lecture. Law, he says, is an alternative to chaos. But just how much law (and how many lawyers) do we need? Lord Sumption observes that

Until the 19th century, most human interactions were governed by custom and convention. The law dealt with a narrow range of human problems. It regulated title to property, it enforced contracts, it protected people’s lives, their persons, their liberty and their property against arbitrary injury, but that was about all. Today, law penetrates every corner of human life. (3)

It need not be that way. The Rule of Law requires limitation of government power and the protection against interference with life, liberty, and property, as well access to the courts to enforce these limits and protections, but it does not necessarily follow that law needs to be pervasive. Rather, this is something that the voters have chosen, in an ongoing fit of general optimism about the prospects of collective action. Democracy “has inevitably led to rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity”. (4)

Moreover, after a retreat over the course of the 19th and 20th centuries, “a growing moral and social absolutism … looks to law to produce conformity”. Even when there is no real consensus in the community about what how a particular moral issue ought to be treated,

we resort to law to impose uniform solutions in areas where we once contemplated a diversity of judgment and behaviour. We are afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with. (6)

It is as if moral judgment, which would have been individual in the past, has increasingly been collectivized. In a growing number of cases, moreover, this judgment has been delegated to the judiciary.

At the same time, there has been a push to take judgments about safety and security away from individuals and hand them over to public authorities, under judicial supervision. As more misfortunes appear preventable, the demands are made for them to be prevented; “we are no longer willing to accept the wheel of fortune as an ordinary incident of human existence”. (7) Yet this is achieved only by “restricting the liberty of the public at large in order to deprive them of the opportunity to harm themselves”. (7)

The result of it all, Lord Sumption says, is the comeback of the Hobbesian Leviathan: “[t]he 17th century may have abolished absolute monarchy but the 20th century created absolute democracy in its place”. (8) And unlike when government was an external, antagonistic force, democratic government “is us”. (8) We both fear and repose our fondest hopes in it.


In his second lecture, “In Praise of Politics“, Lord Sumption asks, “how do we control the potentially oppressive power of democratic majorities without undermining democracy itself?” (2) He focuses on the notion of legitimacy, which he defines as “a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don’t like what they are doing”. (2) Any government, but especially a democratic one, must preserve its legitimacy. Democracy does this by accommodating differences between majorities and minorities, and securing compromises that mean that minorities do not become “permanently disaffected groups [with] no common bonds to transcend their differences with the majority”. (2) This can be done through representative government or through law.

Representative institutions, in contrast to winner-take-all direct democracy, exist in part to accommodate the interests and demands of minorities. They make compromise possible. Building on the thought of James Madison and Edmund Burke, Lord Sumption argues that “political elites have their uses. Professional politicians can fairly be expected to bring to their work a more reflective approach, a broader outlook and a lot more information than their electors”. (3) They are also better placed to further national “collective interests which extend over a longer time scale and a wider geographical range than are ever likely to be reflected in the public opinion of the moment”. (3)

Bypassing the processes of representative government, as was done with the Brexit referendum is dangerous. Compromise becomes impossible, as

52 per cent of voters feel entitled to speak for the whole nation and 48 per cent don’t matter at all. … It is the mentality which has created an unwarranted sense of entitlement among the sort of people who denounce those who disagree with them as enemies, traitors, saboteurs, even Nazis. This is the authentic language of totalitarianism. It is the lowest point to which a political community can sink, short of actual violence.

Lord Sumption warns, however, that disengagement from politics calls into question the ability of the political process to generate compromise and legitimacy. Political parties play an important role in securing the accommodation of various interests in policy-making, but as their membership has declined greatly, they are no longer representative of the broader citizenry, and the candidates whom they put forward are increasingly out of touch with the voters. All this “is, in the long
run, likely to lead to a far more partisan and authoritarian style of political leadership”. (5)

Law, the other barrier to oppressive majorities, has become more important as politics has lost its lustre. The politicians’ authority is waning, but the judges’ is undiminished; indeed it is growing:

Judges are intelligent, reflective and articulate people. They are intellectually honest, by and large. They are used to thinking seriously about problems which have no easy answer and contrary to familiar clichés, they know a great deal about the world. The whole judicial process is animated by a combination of abstract reasoning, social observation and ethical value judgment that seems, to many people, to introduce a higher morality into public decision-making. (5)

The judiciary is now more active than it used to be in policing the actions of other public authorities. It does so, in particular, by enforcing the principle of legality, which Lord Sumption suggests should rather be called “the principle of legitimacy”. The principle is appropriately applied to ensure that Parliament faces the consequences of measures that would amount to, notably, “retrospective legislation, oppression of individuals, obstructing access to a [c]ourt, [or] acts contrary to international law”. However, it can be taken further, and made into a barrier to Parliament acting, even advisedly, in ways the courts simply disagree with.

However much we may agree with the outcomes in particular cases, we should be wary of this empowerment of politically unaccountable institutions. It is not the courts’ function to generate compromise, and therefore legitimacy. The law’s strengths are also its weaknesses:

Law is rational. Law is coherent. Law is analytically consistent and rigorous. But in public affairs these are not always virtues. Opacity, inconsistency and fudge maybe intellectually impure, which is why lawyers don’t like them, but they are often inseparable from the kind of compromises that we have to make as a society if we are going to live together in peace. (7)


Lord Sumption’s third lecture, “Human Rights and Wrongs” focuses on what he describes as “an unfriendly meeting” (1) between law and politics. The idea of fundamental rights is not new; in earlier times it was expressed through the concept of natural rights. The trouble with it, however, is that

[t]o say that rights are inherent in our humanity without law is really no more than rhetoric. It doesn’t get us anywhere unless there is some way of identifying which rights are inherent in our humanity and why, and that is essentially a matter of opinion. (2)

Indeed, “[r]ights … are the creation of law which is a product of social organisation and is therefore, necessarily, a matter of political choice”. (2) How is the choice to be made, how are the differences of opinion to be settled? Appealing to democracy is a problem since the point of rights is to protect people from what democratic majorities might do to them. But what else is there? Neither religion nor ideology work in a democratic society.

Still, there is wide agreement that there are some truly fundamental rights: those having to do with due process of law (though Lord Sumption does not use this label), and democratic rights, such as “freedom of thought and expression, assembly and association, and the right to participate in fair and regular elections”. (3)

Legislators can create further rights, including by subscribing to rights-creating treaties. But what Lord Sumption describes as “dynamic treaties”, such as the European Convention Human Rights (ECHR), as it has been interpreted by the European Court of Human Rights (the Strasbourg Court), whose content keeps being developed by supranational institutions after their implementation in law “escape[] parliamentary control”. (3) As Lord Sumption describes the Strasbourg Court’s jurisprudence, it “develops [the ECHR] by a process of extrapolation or analogy so as to reflect its own view of what additional rights a modern democracy ought to have”. (3) This goes beyond “applying an abstract statement of principle to concrete facts” that weren’t originally anticipated, or giving effect to “concepts … such as the notion of inhuman or degrading treatment [that] plainly do evolve over the time with changes in our collective values”. (4) Such developments are “a form of non-consensual legislation”. (4)

Good or bad, this judicial legislation is controversial; in any case, law should not be made judges, disempowering citizens. In particular, questions about the limitation of rights, the purposes for which it can be undertaken, and the degree to which it is necessary, “are all intensely political … . Yet, the [ECHR] reclassifies them as questions of law”, (6) to be settled by the courts rather than the political process.

We can think of democracy, Lord Sumption says, either as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” or as “a system of values”, (7) of substantive requirements that a political system must fulfill. A political system that is democratic in one sense is not necessarily democratic in the other. Lord Sumption worries that “[d]emocracy, in its traditional sense” (that is, the first one) “is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter”. (7) And he worries that many lawyers are tempted to attribute such urgency to liberal values. For his part, he rejects this view, which he finds

conceptually no different from the claim of communism, fascism, monarchism, Catholicism, Islamism and all the other great isms that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right. (7)


Lord Sumption’s fourth lecture, “Rights and the Ideal Constitution” takes on a constitutional system that has implemented a number of substantive, values-based constraints on democratic decision-making: that of the United States. Lord Sumption is skeptical of what he calls the “legal model” of the state, since “in the long run, political constraints on the part of majorities are likely to be a great deal more effective than legal ones”. (2) To be sure, the “legal model” promises constraint “based on a body of principle applied by judges” (3) immune from the sort of pressures and incentives to which politicians are subject. This model is based on mistrust of “elective institutions” and their ability “to form opinions about [rights] with the necessary restraint, intelligence or moral sensibility”. (3)

Against that, Lord Sumption argues, we need to count the value of legitimacy: “‘We, the people,’ is the emotional foundation of democracy in Britain as well as in the United States”. Democratic decision-making is also egalitarian. A constitution that enforces a set of substantive values, be they those of “liberalism, human rights, Islamic political theology or the
dictatorship of the proletariat” (4) is neither egalitarian nor legitimate in the eyes of those who do not share these values. It is, therefore, not the right kind of constitution: “the proper function of a constitution is to determine how we participate in the decision-making processes of the state and not to determine what the outcome should be”. (4) Instead of looking for “the right answers to … moral dilemmas”, a polity should content itself with “a political process in which every citizen can engage whose results, however imperfect, are likely to be acceptable to the widest possible range of interests and opinions”. (4)

Echoing the arguments made in the previous lecture in the context of the ECHR, Lord Sumption reiterates that in deciding rights claims based on vague constitutional language judges are deciding not so much “whether the right exists but whether it ought to exist. Yet, that is surely a question for lawmakers and not judges.” (5) Anyway, “on politically controversial issues, the decisions of judges almost always involve a large element of political value judgment”, and “are not necessarily wiser or morally superior to the judgments of the legislature”. (5) Lord Sumption also reiterates his earlier point that judicial resolution of essentially political disputes does not leave room for compromise and accommodation. By contrast, political compromise may succeed at resolving differences in the community, as it did over abortion in Britain (in contrast to the United States).

All that said, Lord Sumption cautions that it does not follow “that there are no rights which should be constitutionally protected in a democracy”. (6) Rather, “one must be very careful about which rights one regards as
so fundamental as to be beyond democratic choice”. (6) Again, life, liberty, property, due process, and democratic rights fit the bill. But they will not be enough to protect against the tyranny of the majority. Ultimately, “the Courts cannot parry the broader threat that legislative majorities may act oppressively unless they assume legislative powers for themselves”. (7) If any barrier can do that, it must be found in the political culture, not in the law.


Lord Sumption’s fifth and last lecture, “Shifting the Foundations“, addresses the proposals for introducing the “legal model” of the state to the United Kingdom. Lord Sumption suggests that, although presented as a solution to the ongoing crisis of political institutions, this idea, like all calls for institutional reform in response to crises real or supposed, has little to do with the problems it purports to address. There is something, Lord Sumption says, to the criticisms of the UK’s existing constitutional arrangements, said to be “obscure, old-fashioned, out of step with international practice and giv[ing] far too much power to Parliament”. (3) But there is also something to be said in defense of these arrangements.

Lord Sumption points out that “[t]he godparents of written constitutions have been revolution, invasion, civil war and decolonisation”. (3) Nothing of the sort has happened in the UK in centuries. As a result, there is no blank slate on which to write a new constitution. If this were nevertheless done, the result, even if

an artefact of perfect rationality, a thing of great intellectual beauty … would have no basis in our historical experience, and experience counts for a great deal in human affairs; more than rationality, more even than beauty. Ultimately, the habits, traditions and attitudes of human communities are more powerful than law. (3)

Besides, the flexible political constitution has been able “to adapt to major changes in our national life which would have overwhelmed much more formal arrangements”. (3)

The problem, and not just in the UK but elsewhere, Lord Sumption argues, is not with institutions but a political culture struggling with

long term decline in the membership … of all the major national political parties, falling turnout at elections, widespread contempt for professional politicians, the rise of powerful regional nationalisms offering a more immediate source of legitimacy. (4)

The reason for this malaise, Lord Sumption suggests, is that democracy cannot meet the unrealistic expectations for it that result “from the eternal optimism of mankind, … a misunderstanding of the role of politicians, and … an exaggerated view of their power to effect major change”, as well as “the auction of promises at every general election”. (5) This produces “a sense of impotent frustration [that] undermines public confidence in the whole political process”. (5) Those who are disappointed with the representative institutions (Lord Sumption specifically mentions environmentalists frustrated by inaction on climate change) are prepared to look to a strongman who will “get things done”. A further problem is that “[p]eople expect their representatives, not just to act for them, but to be like them”, yet “all political systems are aristocracies of knowledge. Democracy is only different in that the aristocracies are installed and removable by popular vote”. (5) This exacerbates “[r]esentment of political elites”, (6) which plays a large role in current politics.

For Lord Sumption, constitutional change is not the answer to these difficulties, although he is interested in electoral reform “if it boosted public engagement with politics and enabled them, once more, to accommodate differences of interest and opinion across our population”. (7) An entrenched constitution subject to judicial interpretation, by contrast, “will simply produce a partial shift of power from an elective and removable aristocracy of knowledge to a core of professional judges which is just as remote, less representative and neither elective nor removable”. (6)

Lord Sumption ends on a dark note:

we will not recognise the end of democracy when it comes, if it does. Advanced democracies are not overthrown, there are no tanks on the street, no sudden catastrophes, no brash dictators or braying mobs, instead, their institutions are imperceptibly drained of everything that once made them democratic. The labels will still be there, but they will no longer describe the contents, the facade will still stand, but there will be nothing behind it, the rhetoric of democracy will be unchanged, but it will be meaningless – and the fault will be ours. (7)


As noted above, there is much to reflect on here. I am not suggesting that everything Lord Sumption says is right; indeed, it cannot be, because his arguments are not altogether consistent with one another. I will set out some reflections on Lord Sumption’s views in my next post. For now, suffice it to say that, if we are to avoid the dark future whose possibility Lord Sumption asks us to confront, we need to think seriously about the issues he cogently outlines.

Offspring of Depravity

The origins of the administrative state, and why they matter

To a degree that is, I think, unusual among other areas of the law, administrative law in the United States and, to a lesser extent, in Canada is riven by a conflict about its underlying institution. To be sure there, there are some constitutional lawyers who speak of getting rid of judicial review of legislation and so transferring the constitution to the realm of politics, rather than law, but that’s very much a minority view. Labour unions have their critics, but not so much among labour lawyers. But the administrative state is under attack from within the field of administrative law. It has, of course, its resolute defenders too, some of them going so far as to argue that the administrative state has somehow become a constitutional requirement.

In an interesting article on “The Depravity of the 1930s and the Modern Administrative State” recently published in the Notre Dame Law Review, Steven G. Calabresi and Gary Lawson challenge the defenders of the administrative state by pointing out its intellectual origins in what they persuasively argue was

a time, worldwide and in the United States, of truly awful ideas about government, about humanity, and about the fundamental unit of moral worth—ideas which, even in relatively benign forms, have institutional consequences that … should be fiercely resisted. (828)

That time was the 1930s.


Professors Calabresi and Lawson point out that the creation of the administrative state was spearheaded by thinkers ― first the original “progressives” and then New Dealers ― who “fundamentally did not believe that all men are created equal and should democratically govern themselves through representative institutions”. (829) At an extreme, this rejection of the belief in equality led them to embrace eugenics, whose popularity in the United States peaked in the 1930s. But the faith in expertise and “the modern descendants of Platonic philosopher kings, distinguished by their academic pedigrees rather than the metals in their souls” (829) is a less radical manifestation of the same tendency.

The experts, real or supposed ― some of whom “might well be bona fide experts [while] [o]thers might be partisan hacks, incompetent, entirely lacking in judgment beyond their narrow sphere of learning, or some combination thereof” (830n) ― would not “serve as wise counselors to autonomous individuals and elected representatives [but] as guardians for servile wards”. (830) According to the “advanced” thinkers of the 1930s, “[o]rdinary people simply could not handle the complexities of modern life, so they needed to be managed by their betters. All for the greater good, of course.” (834) Individual agency was, in any case, discounted: “the basic unit of value was a collective: the nation, the race, or the tribe. Individuals were simply cells in an organic whole rather than ends in themselves.” (834)

Professors Calabresi and Lawson are careful to stress that the point of their argument is not condemn the administrative state by association with the worst excesses of the times in which it originated. Rather, they want to push back against the trend, exemplified in articles such as Gillian Metzger’s “1930s Redux: The Administrative State Under Siege“, of treating the foundation of the administrative state as deserving of particular deference or respect. They explain that

[b]ecause there is no authoritative constitutional text emanating from the 1930s, any reasons for treating that decade as interpretatively sacrosanct must focus on the moral goodness of the ideas that grounded that period. Many of the intellectual currents that dominated the 1930s were, frankly, very bad. As a starting point for thinking about human affairs, one’s first instinct should be to run as far away from that decade as quickly as one can. More fundamentally, the bad ideas of the 1930s that specifically drove the construction of certain parts of the modern administrative state—belief in omnipotent government by socially superior experts under broad subdelegations of legislative power, with a formal (or rote) separation of powers seen as an anachronistic hindrance to modern scientific management of people, who are not ends in themselves but simply means to the accomplishment of collective nationalist or tribalist ends—are at the intellectual core of just about everything bad that occurred during that decade. (839)

Professors Calabresi and Lawson conclude that, instead of looking to the 1930s as a source of public law we should ― even on purely moral grounds, in addition to fidelity to law ― we should look to the 1780s and the 1860s. The former decade was marked by “libertarian and egalitarian commitments to replace European feudalism with something new and better”, (842) as well as to separation of powers; the latter, by important progress in the implementation of those libertarian and egalitarian commitments, initially admittedly honoured in the breach in many ways. Professors Calabresi and Lawson also appeal to another historical point: the signing of the Magna Carta at Runnymede in 1215, to which they trace what they call “the principle of legality, which says that executive and judicial actors can only act in accordance with preexisting law”. (863)


While I think it is a little, and perhaps more than a little, optimistic to connect this principle ― this formulation of the Rule of Law ― to the Magna Carta, it is supposed to be central to Canadian, and not only American, administrative law. As the Supreme Court said in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, “[b]y virtue of the rule of law principle, all exercises of public authority must find their source in law.  All decision-making powers have legal limits”. [28] But the belief in the superiority of administrative power wielded by alleged experts for what is deemed, by them, to be the public good is very much a part of our administrative law too, and it goes back to the same roots as that of the American champions of the administrative state. As co-blogger Mark Mancini has argued here,

the reasons marshalled for why we defer to administrative agencies are the same today as they were in the 1940s. … For the most part, Canadian administrative law continues to be stuck in the thrall of American Progressivism—by which I mean [the] school of thought[] dominant in the New Deal era.

As Mark notes, “in Canada, we had our own band of administrative law Progressives” ― though of course they looked to the United States for inspiration. (There’s anything wrong with looking to the United States, of course; that’s what I’m doing here!) But then again, we had also had our own band of eugenicist progressives too, some of whom have statues on Parliament Hill. And we had our more peculiar rotten ideas about government too. The 1930s were a bad time ― arguably an especially bad time― in Canada, as well as in the United States and, for this reason, the argument made by Professors Calabresi and Lawson is relevant to Canadians.

Of course, the Canadian constitution is not the same is the American one. In particular, it does not incorporate as strong a conception of the separation of powers. Arguments to the effect that the administrative state in its current form is unconstitutional are much less straightforward in Canada; perhaps they are wrong. Certainly the case against the delegation of legislative power is more difficult to make under the Constitution Act, 1867, than under the U.S. Constitution. But all this means is that the moral case made by Professors Calabresi and Lawson is that much more significant. If the modern administrative state is the misbegotten offspring of an especially depraved epoch, then it should be dismantled, even if it is not unconstitutional. (The case for it being constitutionally required, however, is that much weaker ― not that it had much strength to begin with.)

And the advice to look to the 1780s or the 1860s is applicable to Canada too. Admittedly, the 1780s do not hold the same significance for our constitutional history as they do for our neighbours. But the ideas of what Jeremy Waldron calls “enlightenment constitutionalism”, which Professors Calabresi and Lawson associate with the 1780s, are relevant to Canada. Indeed, our own constitutional arrangements implement some of what, as I suggested in my critique of Professor Waldron’s arguments here, were the Enlightenment’s signal contributions to constitutional thought ― federalism and judicial review of legislation. As for the 1860s, sapienti sat.


As I noted at the outset, the moral worth of the administrative state is not just a matter for political philosophers to debate. It is an issue that is tied up with the ongoing fights about the details of administrative law doctrine. Perhaps this worth is unconnected to its sinister origins. But I think that it is for pro-administrativists to make this case. And I am quite skeptical that they can succeed. As have noted a number of times, most recently here, “[t]he administrative state is the state of prisons, of border control, of professional regulators determined to silence their members if not to impose official ideology on them”. It has come rather less far from its smug, authoritarian beginnings than its defenders would have us believe.

On the Origin of Rights

Are religious justifications for rights and equality inadmissible in Canadian politics?

Why have we got the fundamental rights we think we have? This is a somewhat embarrassing question for secular liberals, such as yours truly. We don’t have a very satisfactory answer to it. Our religious fellow-citizens, by contrast, have one, which is that rights come from God, in whose image (at least the Judeo-Christian tradition) human beings have been created. As it turns out, however, not everyone is okay with this answer being publicly aired, at least by a politician. This is puzzling to me, and worth a response.

The minor Twitter dustup of the week so far was triggered by the Conservative Party’s leader, Andrew Scheer, who wanted us all to know that he “believe[s] that we are all children of God and there is equal and infinite value in all of us”, from which it follows that no one is superior or inferior to anyone else on the basis of “race, religion, gender, or sexual orientation”. Pretty anodyne stuff, I should have thought. But not according to, well, a number of people ― one can never tell how many with these Twitter dustups. Emmett Macfarlane demanded that Mr. Scheer “[k]eep his imaginary shit out of [his] public policy”, eventually adding that”[i]t’s actually highly disagreeable to imply … that the equality of people is rooted in our status as ‘children of God'”. And I’ve seen other comments along these lines too. Perhaps, as Jonathan Kay suggested, “Canada has run out of real things to fight about”. But I take it that to Professor Macfarlane, and to others who think like him, this is a serious thing.


So here are some hopefully serious thoughts on this, from the perspective of one who does not share Mr. Scheer’s belief that human beings are children of God. To begin with, it’s necessary to recall that something like Mr. Scheer’s view was, historically, the foundation of the argument for the normative equality of human beings and the existence of fundamental rights inviolable by a political community. It was John Locke’s argument and Thomas Jefferson’s, for instance. The Declaration of Independence proclaimed, as “self-evident” “truths”, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Lord Acton would later write that “the equal claim of every man to be unhindered by man in the fulfillment of duty to God … is the secret essence of the Rights of Man”.

A Twitter interlocutor told me that this was of no import in Canada. Stuff and nonsense. Canada is very much an heir to the liberal tradition of which both Locke and Jefferson were among the founders, and Acton one of the great exponents. (The Canadian Charter of Rights and Freedoms, in particular, embodies this tradition ― and, in permitting individual rights to be set up as limits on public power, does so in a manner that is more Jeffersonian than the defenders of Canadian exceptionalism care to acknowledge.) Others have pointed out that Locke’s egalitarianism did not extend to the Aboriginal peoples of the New World. They might have added that Jefferson was, notoriously, a slave-owner who fathered children with an enslaved woman. Acton almost as notoriously, supported the slave-owners in the American Civil War, in a shockingly misguided and embarrassing defence of federalism. But I don’t think this matters here. Locke, Jefferson, and Acton fell short of their principles ― as human beings often do ― and this is to their individual discredit, but not to that of the principles which, had they followed these principles fully, would have prevented them from discrediting themselves.

More modern, secular statements about the origin of rights, meanwhile, are full of elisions and circumlocution. Article 1 of the Universal Declaration of Human Rights provides that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” This is, up to a point, an echo of Jefferson’s words, but notice what’s missing here: any indication of why human beings are born free and equal, or how we know this, or who endowed them with reason and conscience. Section 1 of the Canadian Bill of Rights “recognized and declared that in Canada there have existed and shall continue to exist … [certain] human rights and fundamental freedoms”. This (like similar, if more laconic, language in section 2 of the New Zealand Bill of Rights Act 1990) is a recognition of the pre-political nature of rights, which are not created by whatever positive law implements them. But again, it is not clear how these pre-political rights came into being. The preamble to the Canadian Bill of Rights declares that “the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions”. The preamble to the Canadian Charter of Rights and Freedoms also refers to “principles that recognize the supremacy of God and the rule of law”. But the connection between these principles and the rights these instruments protect is left studiously undefined.

I am not saying that this is a bad thing. It’s probably more important to agree on our having rights than on the causes of our having rights. I share A.V. Dicey’s belief that it is more important to provide legal remedies for the violations of rights than to declare grand principles of rights-protection. Jefferson could consider the divine origin of rights self-evident, but in contemporary society neither his view nor any alternative can make such claims, and it is fortunate that we have gotten on with the practical business of providing legal remedies against the breaches of at least some important rights instead of debating the precise metaphysical reasons why we should do so.

It would be a long debate. We secularists cannot claim to know, collectively, where rights or equality come from. Some of us, individually, have hypotheses of course. There is Kant’s work on human dignity of course (arguably as mysterious as many a religious dogma). Jeremy Waldron (although he is no secularist, actually, as will soon be apparent), sets out a (multifaceted) justification for equality in his book One Another’s Equals. Another line of thought that I personally find appealing is based (non-religious) natural law, developed along the lines Randy Barnett sketches out. In a nutshell, this argument holds that, given certain facts about human nature ― perhaps especially our general tendency, all too well attested by history, to disregard the interests of those whom we do not consider to be (at least) our equals ― if we want to live peacefully and prosperously with one another, we really ought to consider each other as equals and as holders of certain rights. Intriguingly, the preamble of the Universal Declaration actually makes an argument of more or less this sort: “[w]hereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”. In other words, if we don’t commit to ideas like equality and some other fundamental rights, we can be pretty sure that things will turn out badly.

But none of that is, to use Jefferson’s words, self-evident. One can plausibly be a Kantian, a secular Waldronian, a latter-day natural lawyer, but one cannot plausibly insist that these explanations, or any one of them, are the only admissible ones. Nor can one specifically exclude religious explanations for equality or fundamental rights from the realm of admissibility. (That’s not to say one has to find them persuasive.) Professor Waldron himself writes that it “seem[s] obvious to [him]” that

an adequate conception of human dignity and of the equality that is predicated on that dignity is rooted in an understanding of the relation of the human person to God or in aspects of human nature that matter to God or matter for our relation to God[;] that human worth and human dignity are going to have to be rooted in something like a theological anthropology, a religiously loaded account of human nature. (177)

Professor Waldron acknowledges that these things are not obvious ― to put it mildly ― to many others; that “[m]any philosophers” ― or political scientists, like Professor Macfarlane, or others ― “are inclined to dismiss religious accounts of human equality as superstitious nonsense”. (178) He specifically addresses the concerns of those who would rather that religious arguments on such issues not be offered to the public. As read him, Professor Waldron speaks mostly to the position of the philosopher (not necessarily a professional one, but perhaps simply a philosophically-minded citizen), not that of the aspiring office-holder. But I think that his conclusion that “everybody calling it as they see it and giving the fullest and most honest account they can is superior to … embarrassed self-censorship about a matter this important” (213) is applicable to people in Mr. Scheer’s position, as well as in Professor Waldron’s. This is partly a matter of honesty both personal and intellectual, and partly also a consequence of the fact that, as noted above, for politics and law, our agreement on the existence of rights and the value of equality matters rather more than the reasons we might have for subscribing to this agreement. If some people want to sign on for religious reasons, we should welcome them and be glad of their company even if we do not find their reasons convincing.


So, despite not being religious, I would not purge the religious accounts of equality and fundamental rights from the realm of intellectually respectable ideas or from the public square. Indeed, I will end on a on wistful and worried note. Professor Waldron suggests that “perhaps some of the foundations” of our morality “have [a] nonnegotiable character;” (188) they must be obeyed and are not subject to revision in light of our other commitments. These foundations “may include the basic equality of all human beings, and I wonder whether a religious grounding might not be a good way of characterizing this particularly strenuous form of objective resilience”. (188) Perhaps the same might be said about liberty, or its more specific instantiations, such as the freedom of conscience and the freedom of speech.

And so, like Professor Waldron, I wonder whether a world, call it Jefferson’s world if you like, in which there was certainty about the origin of rights ― and about their divine origin, and hence transcendant importance, too ― was not one in which rights could be more secure than in our world of pluralist doubt. Against that, we must count the reality of, on the whole, much greater respect for rights today than in Jefferson’s own time and in his own life. Still, it is difficult not to worry that our lack of confidence about the origin of rights leaves them vulnerable to the rhetoric of those who see rights (and other legal and constitutional limitations) as dispensable luxuries or outright obstacles in their pursuit of plans for remodelling human beings, society, and the world in the name of this or that ideal.

Why Governments Are Not Angels

The SNC-Lavalin affair reveals serious challenges to the functioning of all three branches of the Canadian government

This post is co-written with Mark Mancini

Law Matters has approached us suggesting that we write a short piece on the lessons of the SNC-Lavalin affair ― and kindly accepted to let us post it here without waiting for their publishing process to take its course. So, with our gratitude to their Editor-in-Chief Joshua Sealy-Harrington, here it is.

Attorney General Jody Wilson-Raybould was shuffled out of her office, and then resigned from cabinet; fellow minister Jane Philpott resigned too, and so have Gerald Butts, the principal secretary to Prime Minister, and Michael Wernick, the Clerk of the Privy Council. Ms. Wilson-Raybound and Dr. Philpott have now been expelled from the Liberal caucus. Indeed, the Trudeau government’s future is seemingly imperiled by the SNC-Lavalin scandal. In the unflattering light of these events, Canadians may rightly wonder about the way our government works.

It appears that many of the key decisions in the affair were made by the Prime Minister’s surrogates, who had no regard for the legality of the situation, but were only too happy to advance a political agenda. While the situation is still unfolding, one can already say that it has revealed significant challenges faced by all three branches of our government, and the defects in the ways in which they relate to one another.

Most fundamentally, the SNC-Lavalin affair requires us to take a grittier view of the way government works in Canada. As one of us wrote previously, government in the 20th century was widely perceived as a means to achieve certain substantive ends associated with the social welfare state.  The basic mythology held that, to break the “individualistic” mould of a judicially-developed law focused on upholding property rights and private contractual arrangements, Parliament and legislatures enacted complex legislation, to be administered by expert and efficient tribunals and agencies nested within the executive branch but more or less independent from the supervision of its political masters. This delegation was meant to remove from courts issues of collective justice deemed ill-suited for judicial resolution. The courts, meanwhile, were given a different but even more prestigious role: that of upholding a confined but elastic range of (mostly) non-economic individual rights and liberties.  

This rather Pollyannaish view of government persists today. The executive and agencies are seen as trustworthy technocrats, entitled to judicial deference (regardless of the absence of any real empirical evidence to support this view). Parliament, as the high-minded centre of political representation (at least so long as it is controlled by parties sympathetic to the redistributive project) and accountability. The courts, as the protectors of the rights of minorities. The SNC-Lavalin affair provides strong evidence that this picture is naïve.


The executive branch of government, it turns out, is not only populated by neutral, technocratic arbiters of policy. Rather, politically-minded actors, people like the Prime Minister’s former Principal Secretary, lurk in the shadows―and consider themselves entitled to really call the shots. These are the people who, in the face of an Attorney General’s refusal to cede to the Prime Minister’s pressure, said that they did not want to talk about legalities. They were ready to line up op-eds in newspapers to provide cover fire for their dismissive attitude toward law and discredited legislation adopted by a previous Parliament in which their party did not control the seats.

Instead of being guided by the law, or even (their own conception of) justice, these unelected, unaccountable apparatchiks are only motivated by the prospects of electoral success. Their empowerment means that even those decisions of the executive branch that are ostensibly protected by constitutional principles and conventions mandating their independence (like the prosecutorial function), are perceived as always up for grabs, according to the demands of political expediency.

Meanwhile, some civil servants are a quite prepared to act as the political hacks’ supporting cast, instead of standing up for rules and procedures. Mr. Wernick, the former head of the civil service, certainly was, having apparently had no compunctions about relaying the Prime Minister’s unconstitutional threats to the former Attorney-General and persisting when she warned him of the inappropriateness of his behavior.

But what of Parliament’s role in fostering accountability? Here again, one should not be too optimistic. A government that has the support of a majority of members in the House of Commons will also command a majority on, and thus control the work of, Select Committees, which are key to ensuring that the government is held to account beyond the limited opportunities afforded by the spectacle of question time. Admittedly, the committee supposedly looking into the SNC-Lavalin affair has let the former Attorney General present her version of the events, and it has made public the further documents she supplied, including the damning recording of one of her conversations with Mr. Wernick. Yet the committee is still resisting the calls to allow Ms. Wilson-Raybould to appear again to respond to Messrs. Butts and Wernick’s subsequent attempts to discredit her.

Parliament’s role as a locus of accountability is further compromised by the restrictions on what Ms. Wilson-Raybould is able―as a matter of ethics, at least―to say, even under cover of Parliamentary privilege. The problem is twofold. First, there is some debate about whether Parliamentary procedure would provide the former Attorney General an opportunity to speak despite the opposition of her former party colleagues. Second, even if such an opportunity is available, there is the matter of cabinet privilege, which in principle binds former (as well as current) ministers, even when they speak in Parliament. The Prime Minister could waive privilege in this case, to allow Ms. Wilson-Raybould to speak freely, but he is refusing to do so. 

Finally, the judiciary is unlikely to come out well of the SNC-Lavalin affair―even though it is not directly involved. For one thing, someone―and it is not unreasonable to suppose that that someone is not very far removed from the Prime Minister’s entourage or office―has seen it fit to drag a respected sitting judge, Chief Justice Joyal of the Manitoba Court of Queen’s Bench, through the mud in an attempt to cast aspersions on the former Attorney General. (One of us, we should perhaps note, has been more critical than the other of that judge’s views. In any case, the insinuations that Chief Justice Joyal would not follow the constitution are based on, at best, a fundamental misreading of his extra-judicial statements.)

But beyond that deplorable incident of which a sitting judge has been an innocent victim, it is the former members of the judiciary whose standing has been called into question. In particular, it is worth noting that Mr. Wernick, in his conversations with Ms. Wilson-Raybould, seemed to have no doubt that the former Chief Justice would be able to provide support for the Prime Minister’s position―despite his repeated acknowledgements that he was no lawyer. There is no question that the former Chief Justice, and other former judges involved in or mentioned in connection with the SNC-Lavalin affair, were independent while they were on the bench. Yet their willingness to become hired guns once retired, and perhaps to take aim in accordance with the government’s commands, is still disturbing.


One view of the matter is that―despite the gory appearances it projects and creaky sounds it makes― “the system works”. As Philippe Lagassé wrote in Maclean’s, referring to James Madison’s well-known remark in Federalist No. 51 that “[i]f men were angels, no government would be necessary”, the test of a government is not whether its non-angelic members turn out to be fallible, and sometimes unethical, human beings, but whether “our constitutional constructs include checks and balances to deal with their naturally occurring slip-ups”.

And perhaps the SNC-Lavalin affair ought to give new life to the idea that responsible government—and its attendant norms of political accountability and control of the executive by Parliament—provide adequate checks and balances for government in the 21st century. Despite the limitations on Parliament’s ability to hold the government to account, the opposition party has been able to whip up sufficient public scrutiny to force the hand of the incumbent ministry. Notably, the exposure of the roles played by Messrs. Butts and Wernick is a consequence of the opposition’s pressure―as well as, arguably, of the ability of the media, old and new, to involve experts capable of explaining complex constitutional issues in the discussion of political events. Perhaps, if public attention to aspects of our system that we typically do not consider can be sustained once the interest in the scandal at hand subsides, the system will even come out of it stronger than it was, especially if Parliament can, henceforth, put its mind to holding the executive accountable for its exercise of the powers Parliament has delegated to it.

But this view may well be too optimistic. Just a couple of sentences before his “if men were angels” quip, Madison issued a no less famous exhortation: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” The worry is that our constitutional set-up fails to adequately establish this connection; that it does not guarantee that ambition will counteract instead of abetting ambition; and it relies too much on human character being, if not angelic, then unusually virtuous.

As Dr. Philpott observed in a statement following her expulsion from the Liberal caucus, “[i]t is frankly absurd to suggest that I would leave one of the most senior portfolios in government for personal advancement”. Similarly, it seems most unlikely that Ms. Wilson-Raybould would have taken the principled stand she took, rather than doing the bidding of Messrs. Butts and Wernick and the Prime Minister himself, had she been the ordinarily self-interested politician. The ambitious thing to do for someone in her position would have been to take a hint, and to do as she was told.

And what would have happened then? Sure, her decision to overrule the Public Prosecution Service and to make a deal with SNC-Lavalin would have had to be published, and would have generated some negative publicity. But friendly journalists marshaled by Mr. Butts, and perhaps the former Chief Justice too, would have provided cover. It seems reasonable to suppose that the SNC-Lavalin affair, if we would even have been calling it that, would have been over already, and almost a certainty that it not have become the major political event that Ms. Wilson-Raybould has made it.

In other words, it is at least arguable that whether fundamental constitutional principles are upheld by our government turns rather too much on individuals doing the right thing under great political pressure, and despite their self-interest. It is to Ms. Wilson-Raybould credit that she has acted in this way. But it seems unwise, to say the least, to rely on her successors always following her example, or to suppose that her predecessors always have set a similar one.

A more realistic view of government, and of its more or less visible denizens, may thus lead us to conclude that all is not well with our constitutional system. In one respect, Madison (in Federalist No. 48) turned out to be wrong. It is not the legislative branch but the executive that “is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex”. Law enforcement, Parliament, and perhaps even the judiciary, are endangered by its obstruction, threats, and promises of favours. We must recognize the difficulty to have the slightest chance of doing anything about it.

Nothing to Celebrate

Québec’s irreligious dress code proposal isn’t an opportunity to extol democracy, or to do away with judicial review of legislation

In a recent post at Policy Options, Joanna Baron and Geoffrey Sigalet argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, to insulate Bill 21, Québec’s proposed legislation making irreligion the province’s official creed from judicial scrutiny “is an opportunity for democratic renewal” in discussions about matters constitutional. In doing so, they come another step closer to overtly taking a position that has always been implicit in the arguments of many of section 33’s fans: that the enactment of the Charter was a mistake. Indeed, they go further and, intentionally or otherwise, make the same suggestion regarding the courts’ ability to enforce the federal division of powers under the Constitution Act, 1867. It is brave of Ms. Baron and Dr. Sigalet to make this argument with Bill 21 as a hook. Yet courageous though it is, the argument is not compelling.

Ms. Baron and Dr. Sigalet dismiss claims to the effect that, while section 33 prevents the scrutiny of Bill 21 for compliance with the Charter’s guarantees of religious freedom and equality, other constitutional arguments remain available. (I have presented one such argument, building on Maxime St-Hilaire’s work, here.) To them, they are no more than a “legalistic … distraction”. Opponents of Bill 21 should, rather, be “making the democratic case for protecting religious freedom”. Indeed, we should be celebrating “the legislative process … with its tradition of active debate”, which allows Québec to take a “collaborative approach to fleshing out important rights”. We should also be celebrating street protests, open letters, and even threats of disobedience issued by some of the organizations that will be responsible for applying Bill 21 when it becomes law. After all, letting the courts apply the Charter “can wind up overriding rights in ways similar to Bill 21”, while causing “an atrophying of the democratic process as a forum where rights are debated, articulated and enacted”. In short, “rights should not be taken for granted, nor left to judges. They require the thoughtful participation of the people themselves.”

I agree with this last point. Rights are unlikely to enjoy much protection in a political culture in which they are seen as something of concern to the courts alone. In one way or another ― whether through judicial acquiescence or through legislative override ― whatever constitutional protections for rights might exist in such a society will be cast aside. Québec is an excellent example of this. And, for my part, I have made a political, as well as a legal, case against Bill 21 here. The two can, and should, coexist.

And this is where Ms. Baron and Dr. Sigalet go badly wrong. In their headlong rush to praise politics, they denigrate the law. Without seriously addressing their merits, their dismiss plausible (albeit, to be fair, not unassailable) legal arguments as mere legalism. This applies not only to an argument based on the Charter, but also to one based on federalism. Presumably, we should count on the political process to sort out which of two different but equally democratic majorities should have the ability to impose its religious views on Canadians ― or any other issues about which order of government has the ability to legislate with respect to a particular subject. Similarly, Ms. Baron and Dr. Sigalet appear to see no harm in state institutions, such as school boards, threatening to act lawlessly, the Rule of Law be damned.

Ms. Baron and Dr. Sigalet also take a remarkably optimistic view of the political process. They say not a word of the fact that the “active debate” for which the praise Québec’s legislature may well be curtailed by the government. They call for democratic persuasion in the face of a law that is designed to impose few, if any, burdens, at least in the way in which it is likely to be enforced, on Québec’s lapsed-Catholic majority, and great burdens on a few minority groups that have long been subjects of suspicion if not outright vilification. A thoughtful advocate of democratic control over rights issues, Jeremy Waldron, at least worried in his “The Core of the Case against Judicial Review” about the possibility that political majorities will put their interests above the rights of minority groups. “Injustice”, he writes, “is what happens when the rights or interests of the minority are wrongly subordinated to those of the majority”, (1396) and we may legitimately worry about the tyranny of the majority when political majorities dispose of the rights of minority groups without heeding their concerns. Ms. Baron and Dr. Sigalet show no sign of being so worried, or of entertaining the possibility that the Québec society’s commitment to religious liberty is fundamentally deficient.

To be sure, Professor Waldron (rightly) reminds us that minorities “may be wrong about the rights they have; the majority may be right”. (1397) He also insists that, in societies genuinely committed to rights, it will rarely be the case that questions of rights will provoke neat splits between majority and minority groups. Still, we should be mindful of his acknowledgement that it is in cases like Bill 21, where majorities focus on their own preoccupations and are willing to simply impose their views on minorities, that the arguments in favour of judicial enforcement of constitutional rights are at their strongest. There is also a very strong argument ― and a democratic argument, too ― to be made in support of judicial enforcement of the federal division of powers, which serves to preserve the prerogative of democratic majorities to decide, or not to decide, certain issues.

Ms. Baron and Dr. Sigalet do not recognize these arguments, which leads me to the conclusion that they see no room for (strong-form) judicial review of legislation, under any circumstances. I believe that this position, at least so far as the Charter is concerned, is implicit in most if not all of the recent attempts to rehabilitate section 33. If one argues that we should trust legislatures to sometimes come to views about rights that deserve to prevail over those of the courts, indeed perhaps to correct judicial mistakes, then why trust them in some cases only, and not in all? The application of this logic to federalism isn’t as familiar in the Canadian context, but in for a penny, in for a pound, I suppose.

Yet in my view, this is a mistake. As the circumstances surrounding Bill 21 show, politics is often little more than the imposition of the preferences of one group on another by brute force. This is as true in a democracy as it is under any other political regime. Democracy makes it more likely (although it does not guarantee) that the triumphant group will be a majority of the citizenry, which may or may not be a good thing. Democracy means that governmental decrees are, in principle (although not always in practice) reversible, and this is most definitely a good thing, and the reason why democracy is the least bad form of government. But I see no basis for pretending that democratic politics is somehow wise, or that it fosters meaningful debate about rights or other constitutional issues. Yes, there are some examples of that, on which opponents of judicial review of legislation like to seize. But these examples are few and far between and, more importantly, nothing about the nature of democratic politics makes their regular occurrence likely.

And of course it is true that strong-form judicial review of legislation, or judicial enforcement of rights (and of federalism) more broadly, sometimes fails to protect rights as fully as it should. I’m not sure that Dr. Sigalet and Ms. Baron’s chosen example, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, is especially compelling ― I think the case was wrongly decided, but the majority’s position at least rested on the sort of concern that can in principle justify limitations on rights. The more recent decisions in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case are much worse in this regard, and provide compelling examples of an abject judicial failure to enforce the rights of a (rightly) maligned minority against an overbearing majority. Judicial review provides only a chance that what the political or administrative process got wrong will be set right, not a guarantee. But there is no compelling reason to think that the (usual) availability of judicial review causes the political debate about rights or other constitutional issues to atrophy. After all, as I have argued here, politicians are just as wont to ignore the constitution when they know or think that their decisions are not judicially reviewable as when they know that they are.  

In short, I am all for making the case for rights, and even federalism, outside the courtroom, and in ways that do not only speak to those carrying the privilege, or the burden, of legal training. I am all for making submissions to legislatures to try to prevent them from committing an injustice ― I’ve done it myself. And I’m all for protest, and even for civil disobedience by ordinary citizens when the politicians won’t listen ― though I have serious misgivings about officials declining to follow the law, partly for the reasons co-blogger Mark Mancini outlined here, and partly due to concerns of my own. But if the legally-minded among us should not neglect the political realm, then the politically-inclined should not disparage the law. The would-be prophets of popular sovereignty ought to remember Edward Coke’s words in his report of Prohibitions del Roy :

the law [is] the golden met-wand and measure to try the causes of the subjects; and which protect[s] His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege.

This is no less true of today’s democratic sovereign, though it be no less apt to stand on its own dignity as James I.

Ce qui compte

Que le projet de loi anti-religieux du Québec soit ou non raciste ou islamophobe est sans importance. Ce qui compte, c’est son illibéralisme

Dans le débat autour du Projet de loi 21, la législation mise de l’avant pour faire de la laïcité la doctrine religieuse officielle du Québec et pour imposer une tenue vestimentaire fondée sur ce dogme aux enseignants, juristes et policiers de la province, on consacre beaucoup d’attention à la question de savoir si ce projet est un reflet du racisme, de l’islamophobie ou d’une autre forme de discrimination. Ceux qui critiquent le projet de loi le disent souvent. Ceux qui le défendent, et même certaines personnes qui ne le font pas, s’en déclarent offusqués et insistent pour dire que la forme agressive de laïcité que le Québec cherche à imposer découle d’une vision politique fondée sur des principes. Or, il me semble que tout cela est sans importance. Que le Projet de loi 21 soit le produit de la discrimination ou de principes fondamentaux importe peu. Il est tout aussi abominable dans un cas comme dans l’autre.

Je dois dire que, personnellement, je me doute bien de ce que la xénophobie contribue, de façon plus que négligeable, au soutien politique dont bénéficie le Projet de loi 21. Sans une peur irrationnelle d’un « envahissement », des étrangers (réels ou supposées tels) qui « imposent leurs façons de faire » aux populations existantes (30, 50, voire 100 fois plus nombreuses), l’ambition des tenants de la laïcité dogmatique d’imposer leur croyance au Québec serait selon toute vraisemblance restée parfaitement théorique. Elle l’a été, après tout, des décennies durant, avant que cette peur ne fût gonflée suite à la décision de la Cour suprême dans Multani c Commission scolaire Marguerite-Bourgeoys, 2006 CSC 6, [2006] 1 RCS 256, alias l’affaire du kirpan. On nous demande certes de nous rappeler la relation unique et troublante qu’a entretenue le Québec avec la religion (catholique), mais l’appui à la laïcité virulente était sans commune mesure avec son niveau actuel à une époque où, pourtant, la mémoire de cette relation était bien plus vive qu’elle ne l’est à présent. Cependant, quoi qu’il en soit en général, on devrait probablement être réticent à l’idée de lancer des accusations de xénophobie à des individus ― à moins, bien sûr, d’avoir des raisons spécifiques de le faire dans leur cas particulier.

Concentrons-nous donc sur les principes qu’on prétend justifier le Projet de loi 21. Présumons, pour les fins de l’argument, que ceux qui l’appuient croient réellement que, pour citer Christian Rioux dans Le Devoir, “the diversity of modern societies makes state secularism an increasingly unavoidable requirement. The pluralist societies are, more citizens demand that the state’s religious neutrality be beyond reproach” (translation mine here and below). Let us ignore the delightful irony of a man named Christian preaching secularism. Let us even avert our eyes from the sleight-of-hand involved in the equation of “state neutrality”, which as the Supreme Court explained in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, “is required of institutions and the state, not individuals”, [74] with the “neutrality” of men and women who work for the state. Let us concede, or imagine, that the supporters of Bill 21 believe in good faith that their vision of secularism is morally justified.

Pourquoi ont-il néanmoins tort? Tout simplement, parce que cette forme de laïcité requiert de grossières violations de la liberté individuelle. Elle veut dire que l’État peut imposer aux individus une façon particulière de pratiquer ou de ne pas pratiquer leur foi ― leur dire, donc, s’ils pourront ou non vivre selon leurs valeurs fondamentales. M. Rioux soutient que le Projet de loi 21 ne fait rien de tel, puisqu’il n’affecterait pas le droit de vivre sa foi, mais seulement le « droit de l’afficher pendant les heures de travail » ― comme si on pouvait avoir une foi à temps partiel. L’idée est risible. Si on demandait à M. Rioux de porter une kippah, mais seulement pendant les heures de travail, ça lui irait? (C’est pour cette raison que les tentatives, fréquentes, de dresser une analogie entre le Projet de loi 21 et les interdictions sur l’auto-identification politique ne fonctionnent pas : l’engagement politique, lui, est toujours à temps partiel, même pour un partisan endurci, et peut être mis de côté, puis renouvelé, alors que la foi religieuse ne le peut pas.)

Il va sans dire, l’État peut limiter, voire nier, la liberté d’une personne pour l’empêcher de s’en servir pour porter atteinte à la vie, à la liberté ou aux biens d’autrui ; et, peut-être, pour l’empêcher de nier l’appartenance égale d’une autre personne à la communauté. Or, les détenteurs de charges publiques ou les employés de l’État qui refusent de se convertir à une religion à temps partiel ou de faire acte d’apostasie ne font rien de tel. Ils ne volent personne, ils n’empêchent personne de faire quoi que ce soit, ils n’imposent leurs croyances à personne. Ils sont, bien sûr, manifestement identifiables comme appartenant à une confession religieuse ou une autre, mais la plupart de nous sommes manifestement identifiable comme apparentant à un genre ou à un groupe racial plutôt qu’un autre. Une enseignante musulmane qui porte le hijab ne fait pas plus de ses élèves des Musulmans qu’un enseignant blanc n’en fait des hommes blancs. (Il est bien sûr possible qu’une enseignante ou un fonctionnaire croyants fasse du prosélytisme ou accorde un traitement de faveur à un co-religionnaire. C’est cela qu’il faut réprimer, le cas échéant, tout comme il faut réprimer la propagande ou le favoritisme fondés sur d’autres aspects d’une identité personnelle.)

Sauf que, pour leur part, les obsédés de la laïcité qui soutiennent le Projet de loi 21 acceptent que l’État dénie la liberté individuelle pour bien d’autres raisons encore. M. Rioux écrit que, « [f]ace au multiculturalisme qui tente d’imposer partout sa pensée unique, le premier ministre a eu raison d’affirmer dimanche dernier que “c’est comme ça qu’on vit ici” », parce que « les Québécois ont beaucoup plus qu’une langue en partage ». Passons outre, encore une fois, l’ironie d’une dénonciation de la pensée unique conjuguée à l’insistance que l’État peut priver les citoyens de leur liberté au nom de la façon dont on « vivrait ici » et de ce qu’on aurait, supposément, « en partage ». Si M. Rioux n’était pas un hypocrite, l’idée qu’une façon de vivre officiellement reconnue ― réputée largement partagée malgré et, en fait, précisément en raison de l’évidence frappante du fait qu’elle ne l’est pas ― peut être imposée par la force par l’État à ceux qui n’y souscrivent pas ne serait ni moins fausse ni moins pernicieuse. Cette idée, c’est la prétention que ceux qui détiennent le pouvoir sont autorisés à dicter leurs croyances et leur façon de vivre à tous, pour la seule et unique raison qu’ils détiennent le pouvoir. Elle est incompatible avec toute liberté digne de ce nom.

Bien entendu, cette opinion illibérale est largement répandue. Elle n’est le propre d’aucun groupe racial ou religieux, d’aucune nation. M. Rioux en appelle, à l’encontre des accusations d’islamophobie, au fait qu’une large majorité de Musulmans français seraient favorables à des restrictions similaires à celles qu’imposerait le Projet de loi 21. Ils ne peuvent pas être islamophobes, eux, n’est-ce pas? C’est très juste, et sans pertinence aucune. Un Musulman français peut être tout aussi illibéral qu’un Canadien français catho-laïque. D’ailleurs, les chouchous judiciaires des intellectuels canadiens bien-pensants se sont montrés tout à fait capables de verser dans l’illibéralisme de cette sorte quand ils ont invoqué de mythiques « valeurs communes » pour permettre à un organe de l’État de nier une accréditation à une institution religieuse dissidente.

Le dire maintenant peut sembler étonnant, mais le débat autour du Projet de loi 21 démontre aussi bien que n’importe quel autre ne pourrait le faire que l’égalité, et les -phobies et les -ismes qui l’accompagnent, prennent beaucoup trop de place dans notre pensée et notre discours. Il ne s’agit pas de dire que ces choses sont sans importance. Cependant, ce qu’il y a de mauvais dans notre vie publique n’est pas toujours mauvais parce que cela contrevient à la valeur d’égalité. Par ailleurs, ce qui n’y contrevient pas n’est pas forcément permis pour autant, et ce qui contribue à la réaliser n’est pas, dès lors, requis. Il est temps qu’on se rappelle que la liberté est tout aussi importante ― mieux encore, qu’on réalise qu’elle est plus importante, mais je n’en demande pas autant tout de suite. Il est temps qu’on se rappelle que les individus en chair et en os, et non des abstractions rêvées ou des communautés imaginées, sont ce qui compte. Il est temps qu’on cesse de craindre l’usage que feraient les autres de leur liberté si on ne les menottait pas par prévention. Il est temps qu’on soit libre.