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.

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.