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.

What Do You Want?

A proposal for an expanded (and entrenched) statutory bill of rights is confused and misguided

In an op-ed in the Globe and Mail, Patrick Visintini and Mark Dance make the case for a new legislative bill of rights, to supplement the guarantees of the Canadian Charter of Rights and Freedoms. They argue that “a dusted-off” and much-expanded version of the Canadian Bill of Rights would produce a variety of benefits, at once empowering legislators and securing the neglected rights of the citizens. Yet these ambitious objectives are contradictory, and the argument rests on a confused, if all too common, vision of the constitution.

Messrs. Visintini and Dance lament the popular conception of members of Parliament as “nobodies”. If I understand them correctly, they are also none too pleased with the fact that, unlike in the process that led to the enactment of the Charter, “[c]ritical debates about rights in Canada have been largely left to lawyers and judges, expanding rights through constitutional interpretation rather than amendment”. A legislative update to the Bill of Rights “could reverse both these trends”, ensuring that legislators once again contribute to the protection of rights, overcome the pressures of ” electoral interests and ironclad party control” and “hold[] themselves and the federal government to account for future law-making and administrative action”.

This Bill of Rights 2.0 (my cliché; don’t blame Messrs. Visintini and Dance) would have further benefits too. It “would enhance the public’s ability to understand, track and organize to defend their rights”. It could be the vehicle for enshrining in law “now-pertinent rights [that] never made it into the Charter: environmental rights, victims [sic] rights, housing rights and the rights of Indigenous peoples to self-determination and self-government”. And it could

serve as a shield against judicial reactionaries. While we enjoy a relatively state-of-the-art constitution and a Supreme Court that understands those laws as a “living tree,” we may not always be so lucky. We cannot assume that we will always be immune to the American affliction of constitutional originalism, petrifying our living Constitution where it stands or even shrinking it to fit in the “ordinary meaning” that it would have had in 1982.

Messrs. Visintini and Dance also propose “[r]equiring a two-thirds majority in both Houses of Parliament to add to or amend the new Bill of Rights”. In their view, this “would practically guarantee that cross-party consensus and collaboration would be needed” to effect such changes. They are not quite clear on whether they envision their proposed bill of rights being enacted by such a majority in the first place, although they refer appreciatively to the cross-party collaboration in the run-up to the enactment of the Charter.

More democracy! Less partisanship! More rights! Less Parliamentary abdication! More living constitutionalism! Less non-consensual tinkering with rights! If it all sounds too good to be true… that’s because it is. You can’t have all these things at once. What Messrs. Visintini and Dance are proposing is to empower Parliament, but just this once, for a grand act of abdication that will put a new plethora of rights beyond the reach of ordinary legislation, and empower the courts whose takeover by “reactionaries” they seem to fear. This makes no sense.

The point of a quasi-constitutional, or a fortiori constitutional, legislation protecting rights is to take them off the political agenda to some non-negligible extent and involve the courts in their enforcement. (Given their preference for immunizing their bill of rights from amendment by ordinary law, it is arguably a constitutional rather than a quasi-constitutional instrument that Messrs. Visintini and Dance are proposing.) Normally, one advocates enacting such laws because one thinks that the political process is not especially trustworthy, if not generally then at least with respect to the particular issues covered by one’s proposal. Of course, it may be that the political process will function well enough for the specific purpose of enacting rights-protecting legislation. Perhaps this was the case with the Charter, though looking beyond the Special Joint Committee on the Constitution one might argue that politicians did a lot of damage too, removing property rights protections and introducing the “notwithstanding clause”. Be that as it may, it is odd to expect any lasting empowerment of legislators to result from the enactment of a law whose raison d’être is to curtail their power.

Conversely, if one has sufficient confidence in the ability of legislators to deal with rights issues on an ongoing basis, or even if one simply has faith (a naïve faith, as I have argued here) that keeping legislators in control of constitutional issues will force them to take these issues seriously, the enactment of (quasi-)constitutional laws empowering the courts to set aside legislative decisions is counterproductive. One could still advocate for a legislated bill of rights in the New Zealand style, one that does not allow the courts to refuse to apply inconsistent statutes at serves, at most, to alert Parliament to the possible existence of a rights issue. One might, just, support the Canadian Bill of Rights, which allows a Parliamentary majority to override a judicial decision declaring a statute inoperative due to inconsistency with rights. But one would not demand that this law be protected from amendment by the ordinary legislative process.

Besides, if one professes confidence in the legislators’ ability to come up with a good bill of rights, as Messrs. Visintini and Dance do, one should not in the same breath demand that courts re-write those legislators’ work product. If the Special Joint Committee did good work, then what’s wrong with a constitution that has the meaning its members chose to give it? If they really want reverse the trend of judicial interpretations displacing the good work done by Members of Parliament in 1981-82, then Messrs. Visintini and Dance should be demanding originalist judges, not denouncing these (mostly hypothetical) creatures as suffering from an “American affliction”.

It’s not that I am opposed to expanding constitutional protections for rights, though my preferences would be quite different from those of Messrs. Visintini and Dance. Property rights, freedom of contract, and due process in the administration of civil and administrative justice would be my wish-list. I would also want any such expansion to follow proper procedures for constitutional amendment; it is far from clear that the entrenched bill of rights proposed by Messrs. Visintini and Dance can be enacted consistently with Part V of the Constitution Act, 1982. But one should be clear about what the point of such a change to our present constitutional arrangements would be. It would serve the cause not of legislative empowerment, or even accountability, but that of counter-majoritarian individual liberty.

And if one would rather serve those other causes, which have something to be said for them, there is plenty that one can campaign for. Improved legislative procedures are one area for reform: fewer omnibus bills, less delegation of broad law-making authority to the executive, more free votes perhaps. Many governments are elected promising to do some of these things at least. Few, if any, follow through. As an election is coming up, there is plenty of room for worthy, if perhaps quixotic, advocacy here. One could also demand more effective control over the administrative state. Again, less delegation of power to bureaucrats, but also more effective parliamentary scrutiny of the exercise of that power which has been delegated, as well as reform of the law of judicial review of administrative action. In particular, Parliament could, and should, repeal privative clauses, and clarify that administrative determinations of law are subject to full review on a correctness standard. One could also try to persuade the Supreme Court to finally abandon its deference to bureaucrats on constitutional issues. There is no point in creating new rights if administrators, rather than independent courts, are given the ability to determine their scope and effect.

In short, would-be promoters of democracy and accountability in Canada have plenty to do. A new bill of rights will not advance their purposes; other, less sexy but more realistic, measures might. Democracy, accountability, individual liberty, or glamour: they need to figure out what it is that they are after.

Where Is the Grass Greener?

In a recent article in Constitutional Forum, Peter Russell argues that Canada needs to imitate New Zealand by creating a Cabinet Manual that would, notably, contain an authoritative although not legally binding statement of the principal constitutional conventions, especially those that regulate the formation of governments. While this would, in prof. Russell’s view, have a number of benefits ― “[a] Cabinet Manual”, he writes, “can be a quietly evolving instrument for reforming the ‘unwritten’ part of our constitution” and increase political accountability ―  “the biggest benefit a Cabinet Manual would yield for our society is to increase the knowledge of citizens about how
they are governed” (98).

Meanwhile, in New Zealand itself, a former Prime Minister and inveterate constitutional reformer, Sir Geoffrey Palmer, is campaigning, together with one of the country’s leading lawyers, Andrew Butler, for the enactment of a codified constitution that would eliminate conventions altogether. A major reason they cite for their effort is New Zealanders’ ignorance of their constitution ― which the Cabinet Manual lauded by prof. Russell has apparently done nothing at all to dispel. (Note, however, that their proposed constitution would require the publication of updated versions of the ― presumably slimmed down ― Cabinet Manual every six years (s 25).) A codified constitution, by contrast, will do wonders to rectify this sorry state of affairs

Prof. Russell does not really explain how the existence of a Cabinet Manual will bring about the “increase [in] the knowledge of citizens about how they are governed” that he anticipates. He provides no evidence of its having done so in New Zealand, although he does confidently assert that “[m]aking the Cabinet Manual available on the internet was a giant step in increasing the constitutional literacy of New Zealanders” ― mostly, it seems, thanks to the wonders of hypertext. If Sir Geoffrey and Dr. Butler (as well as many of my colleagues here in New Zealand) are to be believed, prof. Russell is simply wrong.

For their part, Sir Geoffrey and Dr. Butler do not really explain how the codification of constitutional rules will change anything to the citizens’ ignorance of and lack of interest in these rules. They hope that a codified constitution that dispenses with conventions “will educate people and public decision-makers on their rights and responsibilities … and provide a better framework for learning about civics” (25). But they provide neither evidence that this can happen, nor examples that it has. Canada and Australia, with their partly codified and partly conventional constitutions, would seem to offer perfect natural experiments that can test their assertions: if Canadians and Australians are more knowledgeable or better educated about federalism, which is codified in their respective constitutions, than they are about responsible government, which is not, then Sir Geoffrey and Dr. Butler are right. Otherwise ― and although I have no empirical evidence, it seems to me that it is indeed otherwise in Canada ― they too are simply wrong.

In fact, the idea that an authoritative text ― whether legally binding or merely informative ― telling people “how they are governed” is going to achieve much of anything to educate citizens on this admittedly crucial issue is naïve. Consider the situation in the United States, with its revered Constitution (and, let us note, a very short constitution in contrast to the 40-page one that Sir Geoffrey and Dr. Butler are proposing, never mind the length of a Cabinet Manual). As Ilya Somin reminds us, “[p]ublic ignorance” there

also extends to the basic structure of government. A 2006 poll found that only 42 percent can even name the three branches of the federal government: the executive, the legislative, and the judicial. There is also much ignorance and confusion about the crucial question of which government officials are responsible for which programs and issues. (164-65)

Neither prof. Russell nor Sir Geoffrey and Dr. Butler explain how their proposals will ensure that their respective countries will avoid the fate of the United States. Prof. Somin, by contrast, does have an explanation for the phenomenon that he observes, which is that

[f]or most people, political ignorance is actually rational behavior. If your only incentive to follow politics is to be a better voter, that turns out not to be much of an incentive at all, because there is so little chance that your vote will actually make a difference to the outcome of an election. … For most people, it is rational to devote little time to learning about politics, and instead to focus on other activities that are more interesting or more useful. (166)

No Cabinet Manual, and codified constitution, can change that. But unless they recognize this fact, well-meaning reformers are bound to think, with no particular justification, that whatever system they have must be responsible for the public’s ignorance of the constitutional basics, and that whatever system some other country has must be the solution to the problems they see in theirs. So Canadians will propose imitating New Zealand, while New Zealanders will want to imitate, and indeed go further than, Canada. Yet while the grass may always be greener on the other side of the Pacific Ocean, the putrid flowers of political ignorance bloom on both.

Why Do the Write Thing?

Sir Geoffrey Palmer and Andrew Butler, both of them former legal academics and current barristers, Sir Geoffrey having also served as Attorney-General and Prime Minister in between, are about to publish a book advocating that New Zealand enact a “written” constitution. They have also set up a Twitter account and a website to both promote the book and seek out comments, which they say in the book’s description “will be reflected in a second edition to be published in 2017.” The Twitter account has published the following infographic listing reasons for adopting a written constitution:

These reasons apply not just in New Zealand but pretty much everywhere ― if they are indeed good reasons, that is. So the experience of countries that have adopted “written” constitutions ― including Canada and the United States ― should be relevant to assessing whether they are. If these reasons support the adoption of a “written” constitution, their effects should be observable in Canada (to the extent that our constitution is “written”), the U.S., and elsewhere. The countries with written constitutions should be doing better than those without (and notably New Zealand) on all these counts. With respect, it seems to be me that for the most part they are not. In this post I explain why.

But just before I do that, a brief comment is in order on the phrase “written constitution,” which as you may have noticed I only use in scare quotes. The reason for this is that “unwritten” constitutions tend in fact to be written down somewhere, so that they are not really unwritten at all. This is especially true of New Zealand’s “unwritten” constitution, which is written down both in legal sources such as the Constitution Act 1986, the Letters Patent Constituting the Office of Governor-General of New Zealand, or judicial decisions, and in extra-legal ones, such as the Cabinet Manual 2008, which re-states most if not all of the constitutional conventions and other important rules governing the executive branch, in authoritative although not legally binding format. When people speak of a “written” constitution, they tend to speak of a codified or an entrenched constitution, and usually, but not always, both. This is how Sir Geoffrey and Mr. Butler use the term: on their website, they say that “[p]eople have rights and they should be provided in a constitution that is supreme law and binds the Parliament.”

* * *

The above “reasons to adopt a written constitution” can be grouped in a few categories. Some of them have to do with the democratic process; others with the limitation of state power; others still with transparency and accountability. Let me consider these in turn. (I will not say anything about the enhancement of national identity, partly because I am not qualified to speak to the subject in New Zealand, and partly because I am, as a general matter, profoundly skeptical of any action, and especially any legal change, that pursues this objective.)

I do not think that anything about the strength of a polity’s democracy (to which I also take the “easier to participate” and, in part, “government is more accountable” claims to refer) turns on whether that polity’s constitution is codified, entrenched, both, or neither. Polities with unentrenched and uncodified constitutions, including of course New Zealand but also, to a lesser extent, Canadian provinces (whose constitutions are partly entrenched) can be well-functioning democracies. They can, and already do, have free and fair elections which produce regular changes of government. Is democracy stronger ― whatever that means ― in Canada or in the United States than it is in New Zealand? Quite a few Canadian election reformers passionately believe the opposite, because Canada has a first-past-the-post electoral system (as does the U.S., mostly), while New Zealand has moved to a version of proportional representation. Whether or not we agree with them ― I do not, as I’ve explained here ― it is to say the least not obvious where the democratic gains from moving to a codified or entrenched constitution are.

Codification and entrenchment will have some effect on the limitation of state power (including to protect human rights and the Rule of Law, and to prevent abuses). A codified constitution might be clearer and thus easier to understand than an uncodified one. An entrenched constitution is ― ostensibly anyway ― less malleable than one that can amended by ordinary legislation, and can in principle better protect individual and minority rights. But the gains on these various counts are actually rather smaller than they might at first appear.

So far as clarity is concerned, I’m not sure that the current sources of New Zealand’s constitution are especially unclear, as these things go ― they do not strike me as any more obscure than Canadian or American ones. One should also keep in mind Chief Justice Marshall’s warning, in McCulloch v Maryland, that

[a] constitution, 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. (200)

As for stability, an entrenched constitution is only as stable as the judiciary lets it be. As Grégoire Weber, among others (including yours truly), has pointed out, the Supreme Court of Canada has lately been re-writing the Canadian constitution a couple of times a year at least. The Supreme Court of the United States is regularly accused of similar mischief. Admittedly, if there could be guarantees of the courts strictly adhering to some version of originalist constitutional interpretation, this danger would be minimized. But there can be no such guarantees anywhere, and in New Zealand in particular, originalism is not the preferred interpretive approach to the New Zealand Bill of Rights Act 1990, so there seems to be little reason to think that judges could be persuaded to approach an entrenched constitution in this spirit.

The same goes, of course, for protecting rights. The protections provided by an entrenched constitution can be no stronger than the judiciary’s inclination to enforce them. Admittedly, the attitude of Canadian judges changed when the partly entrenched Canadian Bill of Rights was supplemented by the mostly entrenched Canadian Charter of Rights and Freedoms, I’m not sure if the same sort of change would occur in New Zealand ― which, after all, already largely respects individual rights. Would, for example, the adoption of an entrenched constitution, change anything to what seems to be a consensus that it is perfectly fine to disenfranchise prisoners serving long terms? I doubt it.

Turning to transparency and accountability, it seems to me that the great problem here is not the form of the constitution, but political ignorance. Ignorance of basic facts about the constitution is prevalent in the United States, where merely a third of the respondents to a recent poll could name the three branches of government ― despite a constitution whose very structure begins with these three branches. Pointing out that Donald Trump has never read the U.S. Constitution is a great rhetorical move (and I say this unironically), but while the charge is doubtless accurate so far as it goes, many of Mr. Trump’s fellow citizens (and not only among his voters) are every bit as guilty of it as he is. Ironically, Sir Geoffrey and Mr. Butler might just succeed in improving the public’s understanding of New Zealand’s constitution simply by encouraging conversations about it, without any changes being made. I wouldn’t be too optimistic though. As Ilya Somin and others explain, people have no incentive to become informed about the workings of  government, and the existence of an entrenched constitution changes nothing to this reality.

That said, New Zealand already has a number of accountability mechanisms, some of which seem to be functioning better than those in place in Canada. Though I’m far from an expert in the field, New Zealand’s access-to-information legislation might be stronger than its Canadian (federal) counterpart, for instance. And New Zealand’s government is much better than that of Canada at proactively making a lot of information (such as the advice it receives on the compliance of its laws with the Bill of Rights Act available to the public. (I might write about this in the future ―not too distant, I hope.) Perhaps entrenching these accountability mechanisms would give them greater symbolic weight. But it would also freeze them in place, which may not be a good thing ― not to mention that it would yield a constitution suffering from the “prolixity of a legal code.”

* * *

In a polity like New Zealand ― which already has a well-functioning, if in some people’s view imperfect democratic system, and which largely, if again imperfectly, respects human rights ― the gains from constitutional entrenchment are likely to be marginal in the short or even medium term. There will be some costs, too, though I have not discussed them here. Of course, the case of federal states may well be different ― it is usually said that a federal state needs an entrenched constitution to protect the division of powers (though note that Switzerland’s constitution is effectively not entrenched as against the Federal Assembly, its parliament, and that many on the American left would like the division of powers under the U.S. Constitution to be unenforceable against Congress). But this reason for constitutional entrenchment does not apply to New Zealand.

Other than the speculative prospect of a long-term crumbling of the polity’s commitment to human rights and the Rule of Law that would somehow not affect the judiciary, is there a good reason to entrench New Zealand’s constitution? Well, maybe, but it’s not one that Sir Geoffrey and Mr. Butler name. Entrenching the constitution makes sense if one’s goal is to shift power from Parliament and the executive to the courts. The courts’ incentives are different than those of the “political branches.” They might be more solicitous of minorities at the margins, but as or more importantly, they may also be less solicitous of special interests, because these special interests can do little for them. (Tough this is far from certain ― some special interests may find keen listeners on the bench, if for example they can provide the plaudits and recognition that judges, not unlike politicians, may come to crave.) It may be that in a unitary, Westminster-type system, democracy becomes too potent a force, and judicial review of legislation is the only countermeasure available, so it must be used faute de mieux, even in the knowledge that judicial power too will be abused and can degrade the constitution and the Rule of Law as much as the legislative and the executive.

These are serious reasons in my view. But whether they are conclusive or not, one thing is certain. Shifting power from elected officials to judges does not strengthen democracy ― it weakens it, deliberately. It does not make law clear. And it certainly does not make those who wield power more accountable. It might be worth doing regardless. But not for the reasons that Sir Geoffrey and Mr. Butler give us.

Entrenching and Expanding Rights

In an interesting post over at Concurring Opinions, Renee Lerner discusses the history of the constitutional protection for trial by jury, including in civil cases, in the United States, and suggests that this history holds a cautionary lesson. Prof. Lerner highlights the importance which the common law heritage and the purported “immemorial” “rights of Englishmen” associated with it had for the Americans of the Revolutionary period. These rights were thought to have been codified in the Magna Carta ― and “[t]he right Americans most often invoked in connection with the Great Charter was the right to trial by jury.” This, as prof. Lerner explains, was in no small part a myth: “The barons at Runnymede,” when they forced the Magna Carta on King John,

certainly did not intend to enshrine common-law trial by jury, which did not exist for criminal cases in 1215 and hardly for civil cases. In the language of Chapter 39 concerning “judgment of his peers,” the barons were trying to ensure that they would be tried by other barons, not by royal judges or ordinary juries.

But no matter. In the 17th century, Lord Coke and others fabricated the “myth” of an ancient right to trial by jury, and their ideas were immensely influential in America. Partly for this reason, and because “Americans of the colonial and revolutionary era also exalted the jury, as a means of furthering self-governance and nullifying despised British laws,” they entrenched it in many State constitutions and, eventually, in the Federal one.

For prof. Lerner, this was a very unfortunate mistake, for “the self-governing and law-nullifying functions of the jury came to seem unnecessary at best and often harmful.” Trial by jury, she writes, “chang[ed] from a prized right of the people to a nuisance.” And in her view, this history demonstrates the superiority of the flexible British constitution, which lacks entrenched rights. When a right becomes a nuisance, it can simply be got rid of.

Now to me this seems, to be sure, to point to a cost of rights-entrenchment ― but this cost is very much a feature, not a bug. Indeed, it might be the most important feature of them all. A major part of why Americans and, increasingly, other nations (including, of course, Canada) chose to entrench rights is precisely so that they cannot be discarded whenever a majority thinks that they have become a nuisance. (I don’t know whether most Americans actually think that jury trials are a nuisance. But let’s assume that they are.) It’s not just trial by jury ― the same goes for every right entrenched in every constitution in the world. We should be aware of the perils of inflexibility, but I don’t think that they are enough to make the case against entrenching rights. And it is worth noting that they can be addressed by somewhat more flexible constitutional amendment procedures than that of Article V of the U.S. Constitution or Part V of the Constitution Act, 1982 (though its inflexibility is as much a product of politics as of the rules it contains), without abandoning entrenchment altogether.

What I think is a more interesting aspect in prof. Lerner’s story is one that she does not dwell on ― the expansion of the right to a trial by one’s peers from the nobility to the entire citizenry. In a way, this story is unremarkable. As Jeremy Waldron persuasively argues, it is the story of the idea of dignity ― an exalted status once reserved to kings and noblemen, but now attributed to all human beings. It is also the story of the right to religious liberty, which was at first only afforded to Protestants in England, and then expanded to embrace other familiar religious groups (such as Catholics and Jews), and later still the less familiar ones (such as Jehovah’s Witnesses) and the unbelievers. It is the story of the franchise, first the preserve of propertied men, and then expanded to the middle and working classes, to women and, in Canada at least, to prisoners and other groups that it traditionally excluded. We usually see these and other expansions of rights as unequivocally good. They have obvious upsides for the people who benefit from them and arguably for society as a whole, and ― so our conventional thinking goes ― no obvious downsides. Some people would beg to differ, but we tend to regard them as retrograde and bigoted. It is here that the story of the right to a jury trial might serve as an interesting cautionary tale.

If jury trials involved, both as parties and as jurors, only a narrow class of wealthy and, for the most part, not very busy people, they would not be the “nuisance” prof. Lerner describes. For one thing, the barons who demanded and obtained the right to be tried by their peers knew enough about each other’s affairs (if not specifically, then at least about the sort of life people of their social class led) to serve as reasonably effective triers of facts. They did not have, over the course of a trial, to understand the complexities of a line of business (or even, for that matter, of the functioning of a criminal gang,) For another, underpaying them for their work, or indeed not paying them at all, wasn’t the problem it is for jurors today (not only in the United States, of course). As much as the advent of the “representative republics” and the “commercial society,”  the expansion of the right to a jury trial, and the concomitant right and duty to serve on juries, to all citizens is the reason this right might be problematic today. (Incidentally, I should make clear that I do not express a definitive opinion on whether it is; at least in criminal matters, I’m tentatively inclined to think it is a useful safeguard.)

The story of the right to a jury trial might thus show that expanding a right from some citizens to all can cause significant problems in at least some cases. Of course, even if we agree with this interpretation of the story prof. Lerner tells, we need not come to the same conclusion regarding any other right. Each case must be assessed on its own merits. But we probably should at least acknowledge the possibility.

Is It in the Constitution?

How much does an entrenched constitutional text have to do with, you know, the actual constitution? I have argued (here and here for example) that a text is, at best, a partial and incomplete statement if what a constitution really is. It is quite possible to have a constitution without an entrenched text. But even if a polity does in fact have an entrenched constitutional text, much of its constitution will be found elsewhere ― in ordinary legislation, in constitutional conventions, in judicial decisions. A recent debate (in the U.S. context of course) between Eric Posner and Will Baude provides further support for my claim.

Prof. Posner argues that

the [U.S.] constitution in practice is just what the various branches of government agree are the rules of the game at any given time. In their hands, the founding-era document is little more than a rhetorical flourish, used strategically.

Now this, I suspect, is an exaggeration. If nothing else, the constitutional text is surely relevant to what “the various branches of government agree” on. And it would be difficult for them to agree on something that flatly contradicts the text, at least when it is clear enough.

But for my purposes, it is prof. Baude’s reply that is most interesting. Prof. Baude

see[s] our government strictly following the founding-era document a huge amount of the time, even when its answers are a little wacky. (How do we know that those 500-some folks who keep telling us what to do are “Congress”? How many Representatives and Senators are there, and how many votes do they get? When do we hold elections? How is the President selected? How do we know that federal law trumps state law? Etc.)

The remarkable thing about prof. Baude’s list of examples demonstrating the continued relevance of the “founding-era document” is that most of them are not actually in that document. That the “folks who keep telling us what to do are ‘Congress'” is indeed the indubitable consequence of Art. I, s. 1 of the U.S. Constitution, which provides that “All legislative powers herein granted shall be vested in a Congress of the United States.” The constitutional text also specifies that “[t]he Senate of the United States shall be composed of two Senators from each state” (Art. I., s. 3, § 1) and that “each Senator shall have one vote” (a clause that appears both in the original text of Art. I., s. 3, § 1 and in the 17th Amendment). But then, things get complicated.

The founding-era document does not say, for instance “how many Representatives … there are,” nor “how many votes they get.” All that it says is that “[t]he number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative” (Art. I, s. 2, § 3). It also specifies the initial distribution of representatives between the states ― but the current number of representatives is fixed by ordinary legislation. And nothing in the founding-era document speaks to how many votes each representative has. The one-man-one-vote principle seems to be simply assumed. 

Similarly, the U.S. Constitution does not have much to say on the subject of election dates. With respect to congressional elections, it provides that

[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

As for presidential elections, the constitutional text provides that

[t]he Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

Election dates, as well the number of representatives, are regulated by ordinary law.

The founding-era document provides much more detail about the manner in which “the President is selected.” Yet reading it will not make one understand the crucial fact about presidential elections in the United States ― that these are popular, democratic elections in effect if not in form. The U.S. Constitution provides that “[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors,” (Art. II, s. 1, § 2), who then vote for the President and Vice-President. It is a constitutional convention, not the text, that requires states to hold presidential elections at which all citizens can vote, and to make “electors,” originally expected to be the people choosing the President, mere mouthpieces of the voters.

Finally, while the constitutional text does provide that

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding (art. VI, § 2)

exactly what it means for federal law to be “supreme” over state law is not so clear. Federal law trumps state in the event of a conflict ― but when is there a conflict? Is there, for instance, a conflict between a permissive federal and a restrictive state law? This is not an obvious question, and the answer to it must be found in judicial decisions rather than the constitutional text.

In his response to prof. Baude, prof. Posner insists that

[T]he modern system of governance in this country is vastly different from what existed in the eighteenth and nineteenth centuries. If it is consistent with the text, that can only be because the text is so vague and full of holes, undefined terms, and so on.

That is not entirely so. The text is specific on some points at least. But, like any constitutional text, it must be supplement by legislation, conventions, and judicial decisions in order to make for a viable system of government. What is in a constitutional text matters. So does what isn’t.