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  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.