An Online Bill of Rights?

Just a quick note to let my readers here ― those, that is, who avoid my shameless self-promotion on social media ― know about my new post for the CBA National Magazine’s blog. Taking up Yves Faguy’s invitation (at Slaw) to discuss whether “we need a global digital bill of rights.” Drawing on a paper I wrote last year and presented (to mostly perplexed and sceptical audiences) at a couple of conferences, I make a Hayekian argument against this idea. In my view, an attempt to codify the rights that we ought to have online is unlikely to succeed for the foreseeable future. Both the technology and the social, contractual, and legal norms that define the online world change too quickly for any attempt to impose on them a rigid constitutional framework not to produce perverse, innovation-stifling consequences.

Coyne on Lazy Revolutionaries

In his latest Postmedia column, Andrew Coyne has some harsh and cogent observations about the Tories’ failure to come to terms with the Canadian Charter of Rights and Freedoms, and (Canadian) constitutional law more broadly. Mr. Coyne’s column is well worth reading, and some of his observations are similar to my own.

Mr. Coyne points out that despite their purported embrace of the principle of limited government, the Tories “get surprisingly antsy, once in office, about having their own discretion circumscribed.” In the face of recent judicial decisions having gone against the federal government, they complain about judges making policy in Parliament’s place (one suggestion that if judges want to make policy, they ought to get themselves elected even coming― to Mr. Coyne’s justified mirth ― from a Conservative Senator) and frustrating the will of the majority.

These complaints, Mr. Coyne argues, rest on a profound misunderstanding of the role of law (and, let us add, in more technical terms, of the Rule of Law):

[a]ll laws, not just constitutions or charters of rights, constrain government discretion. That’s the point. We want governments to act in predictable, non-arbitrary ways, confined to the powers we explicitly grant them through our elected representatives.

Constitutional law, Mr. Coyne adds, is no different, except in that changing it requires not only a decision of Parliament, but also the agreement of the provinces. And constitutional law, supreme over laws enacted by Parliament, has always been with us in Canada, and courts ― first the Judicial Committee of the Privy Council, and later the Supreme Court of Canada ― have always been enforcing it. The Charter expanded the scope of judicial review but did not invent it; nor was it the beginning of “judicial activism.” Furthermore,

The point of judicial review is not, as it is sometimes said, to give judges the last word. It is to hold Parliament to its word. If the law is to serve its intended role of constraining government discretion, you can’t simply leave it to governments, or even Parliament, to interpret it for themselves.

Besides, although courts (as well as other branches of government) sometimes get it wrong, Parliament can often achieve its objectives in ways that comply with their interpretations of the constitution. And if that’s not possible?

Amend the constitution. Appoint better judges. Make the case for a more restrained theory of jurisprudence. Change how the law is taught. Conservatives used to pride themselves on taking the long view of things.

Parliament can also put much more effort into screening the laws it enacts for constitutionality, thus avoiding conflict with the courts in the first place. And if people are concerned about the erosion of Parliament’s powers, they should worry more about the executive’s taking over its role, than about the courts.

This is largely right. One can quibble with a couple of things Mr. Coyne says. For instance, he is not quite right that pre-Charter constitutional litigation “usually involved disputes between different levels of government, each vigilant that the other not intrude on its prerogatives.” There was some of that, but also plenty of cases where individuals or, perhaps more frequently, businesses challenged the ability of a government to regulate them, arguing that the regulation in question breached the federal division of powers. But of course this only reinforces Mr. Coyne’s broader point, which is that the imposition of limits on elected officials by courts at the behest of citizens is not an innovation brought forth by Pierre Trudeau. Indeed, Mr. Coyne should perhaps have noted that many of the recent Supreme Court decisions that are so angering the Conservative government ― notably the Senate reference and the invalidation of Justice Nadon’s appointment to the Court ― have nothing to do with the Charter. In any case, a few details aside, Mr. Coyne’s article is impressively thoughtful and very persuasive.

One particular point of Mr. Coyne’s which I want to emphasize because it echoes some observations I made here is that the Conservatives have failed to “take the long view of things” and undertake any serious effort to fundamentally change Canadian constitutional law. Beyond vague and, as Mr. Coyne shows, contradictory or meaningless if not actively pernicious claims that judges should let Parliament make policy, they have not articulated anything like a constitutional theory that might be compelling enough for courts to embrace. They have not even tried to do so. This government, as I put here, is one of “lazy revolutionaries” ― unwilling to accept the world as it is, lacking respect for established institutions, and at the same time unwilling to do the long-term work necessary to change them. It is reassuring that it is finally being called out on it.

Blind Spots

In a new and fascinating paper, Jeremy Waldron asks why it is that Sir Isaiah Berlin, in his work on the Enlightenment, paid no attention to “one of the most important achievements of the European enlightenment” ― what prof. Waldron calls “Enlightenment constitutionalism.” The paper is a reflection not only on Berlin and the constitutional ideas of the late-17th – 18th century which he failed to pay attention to, but also, inevitably if only implicitly, on constitutionalism more broadly. It is also an occasion for us reflect on prof. Waldron’s own work.

Prof. Waldron defines Enlightenment constitutionalism as

a body of thought that emerged in the 18th century, but originated in England in the later decades of the 17th century, about forms of government and the structuring of the institutions of government to promote the common good, secure liberty, restrain monarchs, uphold the rule of law, and to make the attempt to establish popular government— representative, if not direct democracy—safe and practicable for a large modern republic. (3)

The thinkers he associates with it range from John Locke in England, to Montesquieu, Rousseau, and Siyès in France, to Jefferson, Madison, and Hamilton, in the United States, as well as others, including Kant (4). Enlightenment constitutionalism’s signal achievements, prof. Waldron says, were the republican constitutions of the United States and of revolutionary France. Berlin, says prof. Waldron, took no notice of this body of thought, even though he did write ― very critically ― about the Enlightenment, including some of the work of these same thinkers. Yet the “theme,” on which they all dwelt,

of structural intricacy and design of a constitution … has a massive bearing on the plausibility of Berlin’s well-known and destructive claim that the Enlightenment aspiration to remake society has been a philosophically misbegotten source of totalitarian hubris and terror. (7)

Prof. Waldron argues that although Enlightenment constitutionalism saw constitutional design a scientific endeavour, requiring a

deliberate disaggregation — in thought first and then insistently in practice — of government into separate organizations understood functionally. (11)

Its theorists and practitioners were well aware, he points out, of the weakness of human nature, and of the conflicting values and interests that people bring to the political arena. Far from trying, as Berlin accused them of doing, to fit the “crooked timber of humanity” into some ready-made mould, they looked for ways in which these weaknesses and conflicts could be checked, balanced, and ideally even made to serve the public good. Although, as prof. Waldron notes, “all this is presented as a project of deliberate design” (17), this design was not ― in his view ― the arrogant sort that purports to submit everything to a single-minded overarching vision:

 for the Americans, constitutional design though deliberate was understood to be untidy and pluralistic, setting out to house rather than reconcile the pursuit of competing and incommensurable values (19),

and the French shared this humble conception.

Prof. Waldron also observes that, in addition to its concern with the structure of government and the empowerment of citizens (and their representatives), Enlightenment constitutionalism was preoccupied with individual liberty and limits on the power of government. Yet strangely, for all his concern with liberty, Berlin paid no attention to that either. He was apparently not interested in “the institutional mechanisms that might secure the modicum of liberty he thought was ethically required for each person” (22), nor did he have anything intelligent to say about the relationship between the protection of liberty and democracy.

As for the reasons for blind sport of Berlin’s, prof. Waldron suggests that the least unflattering one is, in addition to his general “lack of interest in law and legal structures” (27), that Berlin’s “conception of the theory of politics, of political philosophy … was far more ethical in its character than political” (28). Berlin, in other words, cared much more about an individual’s relationship to the community than about the ways in which the community organizes itself.

This is, as I said in the beginning (unnecessarily so, since it is true of everything prof. Waldron writes) fascinating stuff. I do, however, have some misgivings about it. One question is whether it is quite fair to associate the theoretical project of Enlightenment constitutionalism as well as its practical incarnation in America, which were indeed concerned with checking, balancing, and dividing power, with the French revolutionary constitution-making, which spectacularly failed to do so, not least precisely because it failed to learn the lesson of Enlightenment constitutionalism. As Lord Acton put it in his brilliant Lectures on the French Revolution (available here for e-readers),

[t]he errors that ruined their enterprise may be reduced to one. Having put the nation in the place of the Crown, they invested it with the same unlicensed power, raising no security and no remedy against oppression from below, assuming, or believing, that a government truly representing the people could do no wrong. They acted as if authority, duly constituted, requires no check, and as if no barriers are needed against the nation. (199)

I also wonder whether the theorists and practitioners of Enlightenment constitutionalism were really as modest as prof. Waldron insists they were. (As an aside, I wonder whether this passage in prof. Waldron’s article is an attempt to rebut not only Berlin, but also Hayek, the great critic of design and immodesty.) Certainly the framers of the U.S. Constitution could be smug, as Alexander Hamilton was in The Federalist no. 68, where he wrote that “if the manner of [the election of the President] not be perfect, it is at least excellent.” Ironically, and perhaps revealingly, this “excellent” scheme of indirect rather than popular election was entirely undone by the development of a political morality more democratic than what the framers were comfortable with ― within just a few decades.

These are just quibbles. The broader point I would like to venture is that prof. Waldron’s take on Enlightenment constitutionalism might be vulnerable to a critique similar to the one he levels at Berlin: that his personal understanding of his subject leads him to miss something really important about. Arguably, the most important innovations of Enlightenment constitutionalism are federalism and judicial review of legislation. Separation of powers and bicameralism, after all, already existed, in 17th century England. Yet prof. Waldron’s tribute to Enlightenment constitutionalism says very little about either. He barely mentions “the complex relation of state to federal arrangements” (11) and

the question that exercised Madison and both his friends and opponents in the American ratification process—about what good “parchment barriers” could do, and whether the frontiers of freedom were better secured by the structural principles of a constitution than  by a dedicated bill of rights (22).

John Marshall, rightly or wrongly, gets no mention in his list of Enlightenment constitutionalists. To avoid extending this already long post too much, suffice it to say that these are important legacies of Enlightenment constitutionalism ― and, if Lord Acton is right, perhaps also the differences between the constitutional experiment which succeeded, that of the United States, and the one that failed, that of France ― and that a discussion of the subject which does not mention them seems incomplete. But, of course, prof. Waldron has always been more interested in how democratic power ought to be structured than in how it ought to be limited. This is his vision of constitutional theory ― and, much like Berlin’s vision of political theory, it results in a lack of interest in some of the crucial aspects of the phenomenon he studies.

Of course, to say that a scholar has a blind spot is a compliment more than a criticism. Most of us have “seeing spots” ― we only notice a few things here and there. Geniuses like Berlin and Waldron see almost everything, and it is against this impressive background that the blind spots are noticeable.

UPDATE: A made an idiotic typo in the post’s title, which I have now rectified.

Not So Super Majorities

We all want to live under good constitutions… whatever good really means. But how do we make sure that our constitution is, in fact, good? In a post at the Volokh Conspiracy (part of a series discussing their book on originalism), John McGinnis and Michael Rappaport argue that that “stringent supe[r]majority rules provide the best way to make a national constitution.” A constitution, they say, should be enacted by a super-majority and placed beyond the reach of amendment, except again by supermajority. I do not think that they succeed in demonstrating this claim.

First, it is important to distinguish two questions which professors McGinnis and Rappaport seem to run together. One concerns the best way to enact a new constitution; the other concerns the best way to amend an existing one. To be sure, this distinction is somewhat artificial and can be difficult to make; at some point an amendment might be so fundamental as to be equivalent to the making of a new constitution. Nevertheless, there seems nothing wrong with the idea that, say, the unanimous agreement of formerly independent states is required to create a new federal constitution uniting them, which will subsequently be amendable without their unanimous consent. The opposite move ― the creation of a constitution with lower support than would be required to amend it ― might seem sneaky, but I’m not sure that it is actually wrong in all circumstances. In Canada, the Constitution Act, 1982, was entrenched with the support of nine provinces, yet it requires the agreement of all ten for some types of constitutional amendment. I am not aware of anyone having criticized it for that reason.

Be that as it may, professors McGinnis and Rappaport seem to think that both the initial creation of a good constitution and the making of good amendments thereto require supermajority agreement. They make four arguments in support of this view. First, [“s]upermajority rules … screen norms for substantial consensus and bipartisan support,” which, in turn, “creates legitimacy and allegiance as citizens come to regard the Constitution as part of their common bond.” Second, “supermajority rules … encourag[e] richer deliberation about the Constitution.” Third, supermajority requirements ensure that citizens know that they might not be able to change the constitutional rules when they apply to them, and hence are more likely to settle on rules that are fair to all and express the public interest rather than partisan advantage. And fourth, “[s]upermajority rules also generate constitutions that are more likely to protect minorities,” since minorities are able to block the enactment of rules that do not protect them.

I do not think that any of these arguments proves that supermajority rules are either necessary or sufficient to make good constitutions. To keep this post from being much too long, I will mostly focus on the first claim ― that supermajority agreement on the contents of a constitution makes it more legitimate. However, here some quick thoughts about the other ones. Supermajority rules can, indeed, encourage richer deliberation, but they can just as well encourage unprincipled compromise, such as the “trading of fish for rights” that preceded the enactment of the Constitution Act, 1982 ― or, say, the compromise that preserved slavery and even give slave-owning states disproportionate political power under the U.S. Constitution as originally enacted. For the same reason, supermajority rules do not guarantee that a constitution will respect the public interest ― they might simply encourage horse-trading between partisan factions instead. And while supermajority rules can protect minorities, they can also give them the power to extract disproportionate advantages or protections that are larger than necessary and unduly impede collective action.

To return now to the claim that the legitimacy of and citizens’ loyalty to a constitution depend on the breadth of the consensus on its contents, it seems to me that it leads to absurd consequences. Most obviously, it means no only that supermajority is better than simple majority, but also that unanimity is better than any other supermajority. Yet professors McGinnis and Rappaport are not arguing for unanimity. Perhaps that is merely because it would be impractical. Perhaps also there is, in fact, a diminishing return on additional support, at least past a certain threshold. Yet it is not clear where that threshold lies, and whether it does in fact lie in supermajority territory. For some purposes―including elections in the Canada as well as in the U.S. ―we accept a plurality, not even a simple majority as sufficient for the win. Indeed, it is possible for a party or a candidate to win such elections without even a plurality of the national popular vote. It is reasonable to demand that a constitution, expected to endure for decades and even centuries, enjoy higher support than a politician elected to hold office for four or five years, but it is by no means clear just how much higher.

However, there is an even more fundamental problem with the argument that constitutions are best enacted and amended by supermajorities because their legitimacy is a function of the consensus they generate. If a constitution (however enacted) can only be amended by a supermajority, then it is quite possible for a constitutional provision to remain in force even though a majority of the people come to think that it is a rotten one. The more stringent the supermajority requirement, the wider consensus the can be on the need for constitutional amendment without the amendment being realized. From the standpoint of a consensus on the substance of constitutional provisions, the constitution is in such circumstances quite illegitimate, and thus supermajority requirements make illegitimate constitutions more, rather than less, likely.

I am inclined to think that what makes a constitution ― or, for that matter, a government ― legitimate is not the breadth of substantive agreement with it, but agreement on the procedures that led to its creation. This is what explains the continuing legitimacy of constitutional provisions with which a majority of citizens ― but one not sufficient to overcome a supermajority requirement ― disagree with. The focus on the contents of constitutional rules imposes too high a threshold for their legitimacy.

What I have said so far means that supermajority rules are not sufficient to make a good constitution. They are also not necessary. It is, surely, possible to arrive at good rules (whether by this we mean rules that generate broad agreement, or are conducive to the public interest, or protect minorities) by other procedures too, whether simple majority, through the development of constitutional conventions, or through adjudication. (On this last point, professors McGinnis and Rappaport recognize, in a subsequent post, that in some cases, judicial “precedent now enjoys such strong support that it is comparable to that necessary to pass a constitutional amendment.”)

The question of what procedure, if any, is the best for making a good constitution is clearly a difficult one. I have not attempted to answer it in this post. I do think, however, that professors McGinnis and Rappaport have not succeeded in demonstrating that supermajority enactment and amendment is that procedure. Supermajority requirements have some benefits, but also considerable flaws.

A Little Knowledge

Twitter and the blogosphere (ok, the parts of Twitter and the blogosphere that I frequent) are pretty excited about the Constitute Project, which sets out to “offer[] access to the world’s constitutions that users can systematically compare them across a broad set of topics.” Google, which has provided money and support for the project, proclaims that its “aim is to arm drafters with a better tool for constitution design and writing. We also hope citizens will use Constitute to learn more about their own constitutions, and those of countries around the world.” Marvelous, isn’t it? Well, please allow me to rain on the parade.

What the Constitute Project provides is not “access to the world’s constitutions.” It is access to (many of) the world’s constitutional texts. (Not all of them, mind you ― Canada isn’t there for instance, which is an interesting omission to make for people who claim to want to help constitution-drafters, given the influence which the Canadian Charter of Rights and Freedoms has had on recent constitution-making.) But a constitutional text is not the constitution. It is, at best, an incomplete statement of the constitution, and at worst a deliberate lie.

Some countries (admittedly, not many ― so far as I know, only the U.K., New Zealand, and Israel) lack an entrenched constitutional text at all.  That doesn’t mean, of course, that they lack constitutions in a substantive sense, that is to say rules that set up the institutions of state, define and limit their powers, and regulate their relationships with one another. Only there is no need, as I have argued here, for such rules to be entrenched.

Needless to say, this applies also to constitutions which are partly entrenched, and partly not, such as Canada’s and Australia’s. By looking at our constitutional texts, one could not know that Canada and Australia are parliamentary democracies, because rules which subordinate the exercise of (almost all) royal powers to the “advice” of a Prime Minister and Cabinet responsible to Parliament are not in there. They are “conventions of the constitution,” to which courts and orthodox legal doctrine deny the status of legal rules at all. Yet one could not understand the constitutions of countries such as Canada and Australia without reference to these rules.

But the point about not all constitutional rules being in entrenched constitutional texts of the sort the Constitute Project collects is broader still. Conventions can exist everywhere, including countries which consider their constitutions to be essentially written and entrenched, such as the United States. (It is convention, for instance, that requires states to set up popular elections for the presidency.) But no less important than conventions are rules found in ordinary legislation and in judicial decisions. It is ordinary legislation, for instance, that defines the composition and the jurisdiction of the U.S. Supreme Court, or the numbers of members of the U.S. House of Representatives and the Canadian House of Commons. Judicial decisions can create new constitutional rights, or extend the protections of existing ones to news groups ― or reduce rights or structural protections apparently guaranteed by a constitutional text into insignificance.

That a constitutional text does not tell the whole story of a constitution is normal even when it is taken seriously by the political actors and the judiciary. As Chief Justice Marshall pointed out in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 159 at 200,

[a] constitution [meaning, of course, a constitutional text], to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.

But then there is also the case of polities that do not take their constitutional texts seriously at all. They have such texts because it is somehow de rigueur to have them, and also because they allow the governments that produce them lie, to their own people first and foremost, and also to some useful idiots abroad, about the wonderful rights their people have. Unless one aspires to be among the useful idiots, these constitutional texts do not deserve to be taken seriously at all. Does anyone in his or her right mind think that “[c]itizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration,” as art. 35 of its “constitution” (as translated by the Constitute Project) claims?

A little knowledge, it is said, is a dangerous thing ― because “a little knowledge” means incomplete knowledge, and incomplete knowledge is often misleading. The little knowledge the Constitute Project offers about the world’s constitutions is a case in point.

In the Trenches

Here’s the second part of my comment on C.J. Peters’ claim, in a recent and very interesting blog post, that constitutional law consists of “rules that are both entrenched and secondary.” I argued yesterday that constitutional rules often are primary rules (in H.L.A. Hart’s sense) or at least have a “double aspect” and are both secondary and primary rules. I turn today to the question of the entrenchment of constitutional law.

Prof. Peters defines “‘entrenched’ rules” as those “that are especially difficult to eliminate or change,” “typical[ly]” because they cannot be amended by “the ordinary legislative process.” He also says that such rules need not compiled in “canonical written texts,” such as the U.S. Constitution (or Canada’s Constitution Act, 1867 and Constitution Act, 1982). The important thing is that the rules that define democratic law-making processes not be subject to easy modification by these same processes:

We cannot have a functioning system of democracy if we are continually debating the details of how laws get made, who has the authority to interpret and enforce them, and so on.

Even countries without what is usually (and sloppily) called a “written constitution,” such as the United Kingdom, have “constitutional law” (emphasis prof. Peters’), the rules of which

take the form of entrenched statutes, traditional institutions, and established procedures rather than provisions of a single canonical document.

Constitutional law can sometimes be incomplete or uncertain in the details, but it must exist and do at least a tolerable job of defining law-making processes.

That much I have no quarrel with, at least if we understand “constitutional law” broadly, as prof. Peters does, and in particular if we understand it to include what in Westminster-type constitutional systems are called constitutional conventions. I should note, however, that this is not the orthodox self-understanding in such constitutional systems. Most notably, the Supreme Court of Canada has explicitly held, in Re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (a.k.a. the Patriation Reference)  that constitutional conventions are not law and are not judicially enforceable. As I explain at length in my paper on the subject, “Towards a Jurisprudence of Constitutional Conventions”, 11 O.U.C.L.J. 29, I think this was and is a mistake, but until further notice, it remains the law.

I also have no quarrel with saying that constitutional law, so understood, must be “settled,” to borrow a word prof. Peters uses in passing. But there is quite a difference between “settled”―which I take to mean relatively stable, not often challenged and still less often changed―and “entrenched.” Constitutional law, especially rules specifying who may make what laws and how they must go about it, must be settled for ordinary political process to happen without constant challenges to the legitimacy of its output. As prof. Peters puts it,

continual fights about the meaning of democracy would make the actual operation of democracy impossible.  It would be like trying to play baseball with the teams constantly debating the definition of a strike.

But I don’t think entrenchment is necessary (arguably, it is not even sufficient) to prevent this sort of instability.

That is certainly the case for formal entrenchment―legal mechanisms preventing the amendment of constitutional rules through the ordinary legislative process. The British constitution is the most obvious counterexample, since none of its rules is protected from amendment by an ordinary act of Parliament. That includes statutes (those, for example, defining the membership and powers of the House of Lords), rules of the common law (such as those defining the royal prerogative, which is always subject to redefinition by Parliament) and even constitutional conventions (so the Statute of Westminster, 1931, superseded the conventions that had been developed to govern the relationship between the imperial Parliament and the dominions). But even in a system which to a great extent relies on formal entrenchment, such as the U.S. Constitution, some rules that are constitutional, in the sense of defining the procedures for making and interpreting law, are not formally entrenched. One example of such a rule is that which provides that there are to be 435 members of the House of Representatives: this is a statutory rule, which Congress could change tomorrow it felt like it, and which it had changed in the past, though not (with a minor exception) for the past century. Another notable example is the rule providing that there to be nine Justices on the U.S. Supreme Court.

This rule illustrates, however, an important qualification. Although it is not protected from amendment by ordinary legislation by any formal legal rule, it is quite unamendable by virtue of a constitutional convention, as Franklin Roosevelt discovered to his cost when he tried to “pack” the court with friendly Justices by increasing its size, in order to have it overturn decisions hostile to New Deal legislation. So it is possible that some, perhaps many, rules which appear not to be entrenched at first sight really are entrenched by convention which, prof. Peters believes is, and I argue ought to be treated as, just another sort of legal rule.

But the same is not true of every constitutional rule. I don’t know whether a convention could be said to have frozen the membership of the U.S. House of Representatives at 435, but there certainly exists no such convention with respect to the membership of the Canadian House of Commons, which is being increased every now and then to reflect population growth. In Canada again, legislation has also restricted royal prerogative, giving Parliament (some, limited and arguably insufficient) control over decision- and rule-making formerly entirely reserved to the Crown (and by convention to the cabinet). In the U.K., an ordinary Act of Parliament threw hereditary peers out of the House of Lords. In some Canadian provinces, ordinary laws created fixed-date elections. And so on.

It is certainly true that the rules of the democratic game ought to be reasonably clear at any given point in time. It is almost certainly true that it is best that these rules not change too frequently or without some very good reasons. But it is not the case that formal, or even informal, entrenchment is necessary in order to ensure such clarity and stability.

The Faint of Heart

Justice Scalia of the Supreme Court of the United States famously admits to being a “fainthearted” originalist, who would hold that the punishment of flogging is “cruel and unusual” and thus prohibited by the Eighth Amendment to the U.S. Constitution, even though, at the time of its ratification, the Amendment was not generally understood to prohibit this punishment. But it occurred to me, when I re-watched Justice Scalia’s impassioned and entertaining defence of originalism in a debate with then-Justice Binnie at a conference a few years ago, that he, and originalists generally, are fainthearted in another, much broader way.

Justice Scalia’s argument for originalism goes something like this. Even if there are right and wrong answers to questions about morality of the sort that arise in judicial review of legislation, questions about the permissibility of abortion or the death penalty, for example, or the extent of the freedom of speech, or of the right to privacy (and he thinks that there are indeed right and wrong answers to such questions, dictated by natural law), we have no satisfactory way of demonstrating that any given answer to such a question is right. Therefore, we cannot pretend that the answers that we give to such questions aren’t political, so that impartial experts can figure them out. There are no “moral experts” who can do that job. In particular, we have no reason to believe that judges are endowed with moral expertise greater than that of “the fabled Joe Sixpack.” They disguise their moral reasoning behind legal forms, but the law doesn’t really give answers to these fraught questions. The only way we have to resolve them is by figuring out what the people think about them, through the political process. So when the people have, through the political process of ratifying a constitution, resolved the question of what rights should be protected against legislative abridgement, judges, entrusted with the enforcement of that protection, should stick to what the people have resolved and go always so far but never further. Because they are not moral experts, judges cannot revise―either upwards or downwards―the protections that the people have granted, which are the people’s own answers to moral questions facing the community.

The first part of this argument is very familiar indeed―from the work of Jeremy Waldron. In “The Core of the Case against Judicial Review,” prof. Waldron too argues that we have no agreed way to determine which answers to difficult questions of political morality are right and which are wrong; that judges, in particular, possess no expertise in these matters; that they do more harm than good in trying or pretending to deal with these questions as if they were legal rather than political; and that rather than trust the judges with moral reasoning, we should let the people, or better their elected representatives, decide.

Prof. Waldron and Justice Scalia part ways in the conclusions they draw from this. Whereas Justice Scalia accepts judicial review of legislation as a given and argues that the consequences of the judges’ lack of moral expertise lie in the realm of interpretive methodology, prof. Waldron takes the position that judicial review itself is the problem and should be abandoned. Since judges know no better than the people what “the truth about rights” is, they have no business second-guessing the people’s conclusions about this matter―not just the conclusions the people reached once upon a time, when they ratified a constitution, but at any given time, whenever they enact a piece of legislation.

I think that, as between these two views, prof. Waldron’s is the more persuasive one. If there is no way to demonstrate that one has “the truth about rights” in one’s possession, then what justifies the people in deciding that they are in fact possessed of that truth and making it impossible for later generations to revise it by majority vote? If we can only answer moral questions through the political process, how is it just to then remove the answers we give to these questions from that process?

And so, I have the impression that Justice Scalia and his fellow originalists are guilty of failing to follow the logical implications of their own views about the nature of the questions that arise in judicial review. They are, I suspect, fainthearted in that way―fainthearted Waldronians.

All this is not to say that the originalist/Waldronian view of the nature of judicial review―the view that it requires answering distinctly moral questions on which the law doesn’t have special insight―is correct. But it is at least plausible, and should not be dismissed lightly. All the more important, then, to be clear about its implications.