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.

On the Origin of Rights

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

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

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


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

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

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

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

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

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

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

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


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

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

Nothing to Celebrate

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

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

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

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

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

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

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

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

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

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

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

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

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

Doing Right on Rights

Why the Supreme Court was right to find the disenfranchisement of Canadians abroad unconstitutional

In my last post, I summarized the majority, concurring, and dissenting opinions delivered in Frank v Canada (Attorney General), 2019 SCC 1, which held that the denial of the franchise to Canadians who have resided outside the country for more than five years is unconstitutional. As noted there, I believe that the majority, whose opinion was delivered by Chief Justice Wagner was correct so to hold. In this post, I explain why, and also make some observations about the strongly-worded dissent by Justices Côté and Brown. To make my biases clear once again, I remind readers that I am a Canadian abroad myself, and have been for six of the past eight years. While I vote rarely and reluctantly, I am emotionally invested in the issue of whether my right to do so can be taken away. Feel free to discount the following accordingly.


While I am the subject of emotions, let me say this. Justices Côté and Brown assert that the denial of the right to vote to Canadians abroad “is not a distinction based on moral worth”. [168] By my lights, that’s precisely what it is. On their own view, it is the product of “normative conceptions of what the Canadian political community is, and how it can best be protected and made to flourish”. [139] The conception embraced by Parliament in enacting the provisions invalidated in Frank sees the Canadian political community as excluding Canadians abroad, who are consequently less worthy of the franchise. Indeed, they are, according to the dissent, a threat from which the community must be protected, since it is “unfair to Canadian residents for their lawmakers to be elected by long-term non-residents who have no connection of any currency to their electoral district”. [153]

This is utterly wrong. As the Chief Justice rightly observes, many Canadians who live abroad maintain strong ties with Canada (and, I would add, often with the local community where they used to live and, in many cases, intend to return). As the Chief Justice also says, “[c]onversely, there may be citizens who have never left Canada but whose subjective commitment to the country is much weaker and who are less well versed in local issues”. [68] Indeed, though it would be impolitic for a judge to say so, “may be” in this sentence should read “obviously are”. As, for example, Ilya Somin and Bryan Caplan respectively have shown, voters are both ignorant and irrational ― rationally so, but ignorant and irrational all the same. Yet we would not generally accept disenfranchising voters on that basis; we do not inquire into the degree of connection a voter has with his or her local community, or the country, before issuing him or her a ballot paper. It is only, it seems, in the case of expatriates that these things actually matter. To me, this is strong evidence that what is at work here is not really a concern with the fairness or integrity of Canada’s electoral system, but a judgment, or rather prejudice, about the moral worth of those Canadians who are taken to have left the community, and must “rejoin[]” [153] before being allowed to take part in the community’s affairs.

Now, it is true that most Canadians abroad do not, in fact, go to the hassle and the expense of requesting a special ballot and returning it to Elections Canada. This means, of course, that the idea of non-resident voters swamping elections and deciding them at the expense of residents is far-fetched if not entirely implausible. But more importantly, as the Chief Justice points out, this means that those who do take the trouble value their involvement in Canada’s political life ― probably more so than a great many of their resident fellow-citizens. In the Chief Justice’s words, they “demonstrate[] a profound attachment to Canada”, [75] and it seems absurd to pretend otherwise on the basis of no evidence whatsoever.


This brings me to another issue: that of the correct approach to deciding whether legislation is unconstitutional because it unjustifiably contravenes the Canadian Charter of Rights and Freedoms. Justices Côté and Brown issue what they regard as a profound challenge to the way we not only discuss but also think about the relationship between Charter rights and policies that interfere with them. They note that it is commonplace to speak of such policies as “infringing” or even “violating” rights, only for these “infringements” or “violations” to be upheld, or “saved” by applying section 1 of the Charter. Yet, as they further point out, section 1 provides that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” ― limits, not infringements or violations. So we should stop talking about justified infringements, and talk about limits instead. The majority is not interested, observing that the words “limits” and “infringements” have long been used interchangeably. (The Chief Justice is probably too polite to note this, but I am not: Justices Côté and Brown themselves spoke in terms of “infringement” as recently as seven months ago, in their excellent dissent in Law Society of British Columbia v Trinity Western University, 2018 SCC 32.)

I take the dissent’s textual point. The word section 1 uses is “limits”, and it arguably makes more sense to say that the state can justifiably limit rights, not that it can violate them. But I fail to see what great change to the way we actually think about rights and scrutinize the state’s possible interference with them follows from this. Contrary to some, indeed quite a few, of the participants in this blog’s recent 12 Days of Christmas symposium, Justices Côté and Brown show no interest in reconsidering the test for verifying the permissibility of limitations on rights that was first set out in R v Oakes, [1986] 1 SCR 103. They apply the same proportionality analysis, warts, subjectivity, and all, under the label of assessing the “limit” on the right to vote as the majority does when considering “infringement” of this right. They have much to say about the fact that the right to vote is a “positive” one, requiring legislation to “breathe[] life into” it, [142] but that it is true of many of the rights the Charter protects (notably, but by no means only, the various rights of criminal suspects and accused) and, more importantly, it simply does not follow that the legislation that “breathes life into the right” may not fail to do so to a constitutionally required standard. (Similarly, Justices Côté and Brown point out that the legislation imposing a five-year expiry period on expatriates’ franchise replaced that which gave no expatriates the vote. So what? The test of constitutionality is not whether Parliament comes closer to respecting the Charter than it once did, but whether it respects the Charter now.)

The real methodological disagreement between the dissent and the majority (as well as Justice Rowe’s concurrence) has to do with the level of deference each accords Parliament. The majority insists, at the outset, that “[a]ny limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification”. [1] Although, as noted in yesterday’s post, it later wavers a little on this point, its approach is, indeed, one that refuses to take the government’s claims about the need for or usefulness of the legislation it examines on faith. By contrast, the dissent waxes deferential, “eschews rigid and technical application” [124] ― it’s not quite clear of what, but presumably of the justification requirements ―, and plays up “Parliament’s policy-making expertise”. [126]

Yet here the dissenters’ professed textualism fails them. To repeat, section 1 of the Charter says that “only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (emphasis mine) can be countenanced. The constitutional text, therefore, requires a demonstration ― not judicial acquiescence on the basis that Parliament knows best. And this requirement, in turn, suggests that contrary to what Justices Côté and Brown say Charter rights can only be limited in order to deal with an identifiable problem, to address some specified mischief, and not merely because a legislature thinks that in an ideal political community these rights would be limited in this way. The enactment of the Charter, as a law superior to ordinary legislation, has taken that moral judgment out of the Canadian legislatures’ hands. (To be clear, this is a separate question from that of the permissibility of what used to be called “morals legislation”, which proscribes what the legislature sees as immoral behaviour, such as taking drugs. There is no argument that expatriates act immorally by voting.)

In short, by all means, let’s be careful with our language, and speak of reasonable limits on rights instead justified violations. But let’s also insist that limitations on rights, to qualify as reasonable, must be ones whose justification is capable of being demonstrated, rather than merely asserted, and is in fact demonstrated, rather than taken for granted. Indeed, I think that this substantive concern is rather more important than the semantic one. In Frank, it is the majority, not the dissent, that follows an approach that is closer to that required by the constitution.


In my view, the majority decided Frank more or less as it should have. It correctly insisted that any exclusion from the franchise except the one based on citizenship must be justified. Contrary to the dissent’s strident warnings, it does not follow that no exclusions could ever treated as reasonable limits ― only that the justification process for upholding these limits cannot be elided by saying that some limits on the right to vote must obviously be admissible. This goes even for the denial of the right to vote minors (which, as Ilya Somin, for example, has argued, is not as self-evidently reasonable as the dissenters would like us to think). I think that it would be quite easy to sustain the disenfranchisement of three-year-olds, the dissent’s scaremongering example, should anyone challenge it; but as for the denial of the vote to teenagers, I for one wouldn’t mind seeing the governments put through their justificatory paces.

The majority is also right to be skeptical of the government’s arguments based on an ill-defined “social contract” of which expatriates are allegedly no part. I’m not too impressed with the Chief Justice’s definition of Parliament’s objective in terms of “fairness” ― fairness is too capacious a word for my liking, and the dissent’s suggestion that Parliament was pursuing a currency of relationship between the voter and his or her community seems closer to the mark. But one should also acknowledge that objectives that are largely symbolic (or, as Justices Côté and Brown see it, moral) do not lend themselves to easy definition, and so inevitably compromise the quality of the Charter analysis. The majority’s skepticism about the existence of a rational connection between the objective of fairness and disenfranchisement of Canadians abroad is also warranted. Indeed, I would have liked the Chief Justice to have been bold enough to say that, given both the possibility that expatriates maintain current links with Canada and their Canadian communities, and the lack of any assessment of whether any other voters do so, disenfranchising expatriates alone based on their deemed lack of connection to Canada is actually irrational. But the Chief Justice is not the first judge not to want to go there.

I’ll live with that, because the Chief Justice ends up making the right arguments at the “minimal impairment” stage of the analysis. Like I had in criticizing the decision of the Court of Appeal for Ontario in this case, he points out that Canadians abroad can and do maintain close links with Canada; that they are affected by Canadian laws and government policies; that, moreover, “Parliament can change laws on its own initiative and thus alter the extent to which Canadian legislation applies to non-resident citizens”, [72] so that one cannot invoke the limited scope of current extra-territorial legislation to deny expatriates the vote ― I had called this “let[ting] the statutory tail wag the constitutional dog”; and that in any event “attempting to tailor Charter rights to the extent to which citizens are burdened, or not burdened, by Canadian laws would be an impossible exercise”. [71] If all this is not enough to qualify the disenfranchisement of expatriates as irrational, than it certainly suffices, as the Chief Justice says, to show that it is grossly overbroad, and not “minimally impairing” of the right to vote.

The Chief Justice’s reasons are not perfect. He does, as the dissent points out, get somewhat carried away in patriotic praise for the Canadian democracy, and there are shades of what I’ve been calling “constitutionalism from the cave” in his claim that “a broad interpretation of” the Charter‘s guarantee of the right to vote “enhances the quality of our democracy and strengthens the values on which our free and democratic state is premised”. [27] Constitutional interpretation must aim at ascertaining the text’s meaning, not at strengthening values or anything of the sort. Still, what the Chief Justice’s opinion for the majority does is substantially in line with the constitutional text, despite its rhetorical imperfections. (And still on the subject of rhetoric, or style: can someone please ask the Chief Justice and his colleagues to stop using the initialism “AGC”? It is a recent innovation ― the Court hadn’t done it at all before 2010 ― and not a good one. It is ugly and has a jargon-y feel that is quite at odds with the Chief Justice’s stated desire to make the Court’s work more accessible, including to laypersons.) But as majority opinions of Supreme Court have gone in the last few years, the one in Frank is up there with the best.


The Supreme Court has held that Canadians who live abroad cannot be disenfranchised based on, in effect, stereotypes about their lack of relationship with their home country. This is a relief. In doing so, it has insisted on carefully and critically examining the government’s claimed reasons for limiting Charter rights, and this is a good thing too, one that doesn’t happen often enough. There is something to learn from the dissenting opinion, too, about our constitutional vocabulary, and I hope that this lesson is not lost just because the substance of that opinion is bitterly disappointing. But the constitution was upheld in Frank, and so right was done. May 2019 bring more of that.

The Bowels of Administrative Law

Administrative guidelines that make it difficult to challenge the administrative state.

In the United States, the Administrative Procedure Act governs federal administrative decision-making. Among other things, the APA prescribes a number of minimum standards for what I call the “bowels” of administrative law—the ugly business of rules, regulations, and guidelines adopted under statutory authority that touch the everyday person.  For example, when an agency promulgates rules made pursuant to congressionally delegated authority, the agency must provide the public with adequate “notice and comment” procedures, calibrated to the importance of the rule. On the other hand, rules that are merely policy or interpretive guidelines are generally not subject to notice and comment procedure. When an agency, however, exercises its delegated powers, it must provide adequate notice and comment.

In my view, the APA provides some acknowledgement that internal agency guidelines, even procedural ones, could impact substantive rights. It presents a supralegislative standard that certain procedural guidelines must meet if there is a chance that the rights and interests of citizens could be impacted. This, to my mind, is the primary function of the notice and comment procedure. It gives citizens the right to have a say on the sorts of rules that may adversely impact their ability to challenge administrative action. It is an attempt to reconcile the deep constitutional challenge of the administrative state with the rights and freedoms of individuals.

In Canada, on the other hand, little academic work focuses on the sort of internal agency guideline I’m concerned with—putatively procedural guidelines, adopted under statutory authority, that could have a significant impact on the ability of claimants to challenge administrative action. This could leave administrative decisions insulated from challenge. Putting aside the historical work of John Willis, a notable recent exception is the work of Lorne Sossin, who in a series of articles fleshes out a framework for classifying the wide gamut of agency guidelines and directives that could structure the broad statutory discretion of an administrative decision-maker. Professor Sossin has done a service in this regard, and I can do no better than a piece by Professor Sossin and France Houle. But I merely wish to underline a point made by Professor Sossin and Houle. In Canada, we have not grappled with the role that procedural guidelines could play in impacting the ability of citizens to challenge the state.  Relatedly, we have not addressed what role citizens should and do play in the formulation and adoption of these guidelines.

From one perspective, agencies empowered by legislatures can be seen as operating in a deeply democratic space to which courts should defer. By that, I mean that agencies particularize democratic mandates adopted by the legislature in a way that the legislature simply cannot.  Agency guidelines can develop the legal order or fill gaps in it. Much like a principal-agent relationship, the agency stands at the “hard end” of administrative law, achieving the legislature’s goals while efficiently and expertly managing disputes. As Metzger and Stack argue, we must view this business of administrative law as “administrative government” in an “administrative world”—these tribunals are fundamental parts of the law-making state in the modern world. It follows that overbearing “legal” norms should not be used to disincentivize the development of agency and policy guidelines.

But we know in Canada that, even when acting pursuant to statutory authority, administrative decision-makers do not have free rein. According to Roncarelli, there is no such thing as untrammelled discretion that can operate without regard to some intelligible statutory delegative principle. At the same time, beyond this general proposition, there is no general doctrinal guide for when courts should be skeptical of internal, procedural guidelines that could impact on the ability of litigants to challenge administrative action–with or without adherence to a statutory delegation.

A statute, for example, that delegates an agency the full power to develop rules of evidence leaves a great deal of discretion to the agency to decide on the sort of disclosure it must grant a claimant. Short of a constitutional challenge based on the case to meet principle and principles of fundamental justice, an agency could limit the disclosure of evidence to a claimant. This might seem benign. But it could make more difficult challenges to administrative action because a claimant may not have the best evidence to challenge the administrative decision. The effect? Less investigation of administrative action.

Standing rules are a better example. The legislature could delegate broad power to an agency to determine who has standing to challenge decisions. Any procedural rule adopted under this broad authority could be legal, but that same rule could pose problems for other rights and interests.   On one hand, if the agency adopts a liberal standing rule, more claimants will be let through the door and have the ability to hold agency decisions to account. Such a rule would exact a cost in the coin of agency resources, and that alone may impact the ability of the agency to efficiently respond to other complaints. On the other hand, a restrictive standing rule exacts a cost in a very different currency: the rule of law. If, under broad statutory authority, an agency adopts a standing rule that permits the denial of standing to many claimants, an administrative decision could be practically immunized from review. The concern is that the administrative state could  use the statutory authority it has been given to entrench its own power or the power of stakeholders. In such a situation, an agency could insulate itself from meaningful review while still acting within the four corners of a statute.

This is not a hypothetical situation. In Delta Air Lines v Lukacs, the Supreme Court recently dealt with the Canadian Transportation Agency’s interpretation of its own rules for standing, governed by a broad statutory authority. In that case, it did not appear that the Agency adopted a written rule for the situations in which it would grant standing. But it did adopt a particular version of the common law test for standing that made it more difficult for claimants to challenge the Agency’s action. While the Supreme Court held that this version of the common law test was inconsistent with the Agency’s enabling statute, what about a case where there is a restrictive standing guideline that is consistent with the enabling statute? In such a case, many claimants could be excluded. And the worry is that an agency could be insulated from review based on an arbitrary guideline.

The difficulty of addressing this problem should not be understated. In fact, this may not even be a “problem” that can be addressed through the courts. As noted above, the use of so-called “soft law” can be placed on a spectrum. As KC Davis noted in his important work, Discretionary Justice, we could have mere policy directives moving along into quasi-legislative rules. On the former end of the spectrum, such guidelines may not have the force of law. Even quasi-legislative rules that as Sossin and Houle note could develop or interpret the legal order may not themselves be justiciable. If these guidelines are adopted within the bounds of statutory authority, what warrant does a court have to intervene?

I’m not opposed to this line of thinking, because legislative intent defines the scope of agency authority. At the same time, there is something unsatisfying about the conclusion that agencies can themselves lower the probability of their decisions being scrutinized by litigants and ultimately courts. For that reason, as the Americans determined, the legislature is probably the best place to reckon with the difficult balance required between the delegation of power to administrative decision-makers and the ability of claimants to challenge agency action. A legislature could prescribe standards that allow claimants to have a say in the sorts of guidelines adopted by an agency. I do not expect such legislative guidance to come any time soon. But one could hope for the regulation of administrative law’s bowels.