Constitutionalism, Politics and Judicial Power

Budapest Talk, 27–28 September 2017

The gist of my talk is this: We have a problem in the democratic world with robed, ex-lawyer mandarins who remove issues from the political sphere by declaring them to be constitutional in nature and thereby put them beyond discussion and resolution by mere citizens like you and me. It is a big problem, at least it is if you are a partisan of democracy and democratic decision-making as I am. And of course here in Hungary you are well aware of this problem, at least as it manifests itself with the European Court of Justice, the ECJ, including very recently. In what follows I will restrict myself to what I know, namely to the common law Anglosphere legal world. This constitutionalising of politics – if I can put it that way – is certainly happening in the Anglosphere world, and the rest of my talk will first make that case that it is and then move to what I consider to be optimistic signs of a growing resistance or backlash to that sort of kritarchy or juristocracy. So I will proceed in three steps. Firstly, I will clear the way with a few preliminary points that focus the argument. Then, secondly, I will indicate how and possibly why judging has become more political. Then thirdly, and lastly, I will move to signs of a growing resistance or backlash, the optimistic part of my talk.

1. PRELIMINARY POINTS TO FOCUS THE ARGUMENT

As all of you will know it is perfectly possible to run a highly successful modern liberal democracy without a written constitution. Yes, it is rare. But it is wholly possible. And we know it is possible because we can see it today in New Zealand; and we saw it in the United Kingdom for centuries up to that country’s entry into what is now the European Union and will see it again when the UK leaves after the Brexit vote is implemented; and we can argue about whether we see it in Israel today, as that is a borderline or penumbral case.

With unwritten constitutions, as in “no written constitution”, it is about what is missing. And what is missing is some overarching single document – a written constitution – from which other laws obtain their legitimacy and which provides much (though not all) of a jurisdiction’s Rule of Recognition. In the democratic world this sort of written constitution might set out what the legislature will look like – so in the United States it will provide for real bicameralism, for an elected Upper House that has real power and through which bills must be negotiated before becoming laws. Australia’s written Constitution, in many ways a straight-out copy of the US model, also provides for real bicameralism. Canada’s does not. All the provinces are unicameral and at the national level the bicameralism is wholly bogus. The Senate there is unelected, as with the UK’s House of Lords, and does or blocks next to nothing. It is an expensive joke.

So a written constitution might specify bicameralism. Or, it might set up some version or other of federalism. A written constitution, in addition to giving a federalist division of powers and opting for bicameralism or unicameralism, might also decide to entrench a bill of rights. Now it does not have to do that, as can be seen from Australia where the drafters of their written constitution back in the late 1800s debated at length whether to put one in and opted not to. But there is one in the US. And, since 1982 there has been an entrenched Charter of Rights in Canada. Those bills of rights, entrenched as they are as part of the written constitution, give the regular unelected judges in a common law system the power to strike down or invalidate laws passed by the democratically elected Parliament. That is an awesome power. And the top judges in North America use it regularly – as when they rewrite the laws of marriage in both the US and Canada; as when they allow euthanasia in Canada; as when they strike down abortion restrictions in both places; as when they decide who can be a judge on the Supreme Court in Canada; as when they decide whether prisoners can vote or go some way to ordering an elected government to allow private health provision; and the list literally goes on and on.

It is worth noting that all this scope for judges to make all these core social policy decisions flows from what is in effect a short list of moral entitlements articulated in the language of rights; and these enumerated rights are vague and amorphous. So how they will be interpreted matters a lot. I come back to that crucial point in a moment.

For now, my point is simply that once one has an idea of the main shape of a written constitution then he or she also has a basic idea of a New Zealand-style unwritten constitution – which is the absence of any sort of single overarching document doing all that. Are there nevertheless limits on power in New Zealand? Of course there are. Can those limits largely or overwhelmingly be traced back to one overarching document, as in Canada, Australia and the US? No. Limits on power in NZ and soon-once-again in the UK flow from a bunch of statutes, all of which can be altered in the normal way by Parliament, even any statutory bills of rights. They flow too from conventions. And of course they flow from elections and the democratic process.

What an unwritten constitution gives you is an incredibly democratic set-up. Each generation is left to vote for Members of Parliament (“MPs”) who, through Parliament, can do what they think is best. There are no constitutionalised legal limits on the power of that Parliament. That is the main thing to remember about an unwritten constitution.

Now it is often the case that Americans, when you are talking about New Zealand’s set-up or about the pre-EU British set-up (and be clear, New Zealand’s set-up is a direct inheritance from the UK) – well, Americans have a hard time understanding why anyone would want to forgo a written constitution. More than a few wonder, “But where are the legal limits on what the elected Parliament can do?”And the answer is, the limits on Parliament are not legal. They are moral and political. New Zealanders vote for MPs who more or less share their moral worldview. You could line up New Zealand’s MPs from most left-wing to most right-wing and their differences (on the role of women, on how others ought to be treated, on the outlines of how acceptably to structure an economy, and so on) would pale into insignificance compared to the differences you would see if you stopped in the Middle East, or China, or North Korea, to say nothing of anywhere where ISIS dominates. And if shared morality is too ephemeral for your likings as a power-constraint, well the limits put on MPs by the desire to get reelected are powerful limits indeed. Democracy is a potent check on power, indeed it was for Jeremy Bentham the crucially important check on power.

Now most of my native Canadians when they hear this still think that having legal and constitutionalised limits on elected MPs, on what the legislature can do, is a good idea. But what those Canadians tend to overlook is that all those legal limits have to be overseen by real life people. So in Canada (and in the US, and in all democracies with written constitutions) those legal limits are overseen by the nine judges of a Supreme Court. And if you live in the US or Canada or South Africa, what sort of limits are there that control what those nine ex-lawyers on the top court can do? Well, there are moral limits, the attachment felt by such top judges to applying the law as written and so in accordance with their oaths of office – as opposed to just making things up at the point-of-application because some outcome or other seems morally superior to them, or preferable on political or other grounds. Oh, and there are political limits, as in the extent to which they can withstand criticism in the press when they go wayward.

But let us say – and this is hypothetically speaking you understand – but let us say that you think that in some recent case a majority of those top judges (say five out of nine – because all top courts happen to be brutally majoritarian institutions, five votes always beat four no matter the quality of the reasoning) so again let us say you think those judges, as a matter of fact, did just make something up. They pretended to be interpreting the Canadian or US Constitution when supposedly “discovering” some implied but nowhere enumerated fundamental new right that these top judges then used to invalidate some law that had been on the statute books for ages. In other words, let us suppose you think the judges lied or made it up when interpreting. Are there any legal or constitutional limits on those top judges, other than political and moral limits? Of course not.

Let us be clear. In any constitutional set-up you will end up having some group of real life human beings whose actions are constrained, or not constrained, solely by morality and politics. So pick your poison. In New Zealand it is the legislature that lacks legal limits. On balance I confess that I prefer that option. It makes for more flexibility. It is more democratic. The people with no constitutional or legal limits face very real political limits that make them accountable. By contrast, in a set-up where top judges interpret a written constitution, the limits on the top judges’ interpretive power – what keeps them honest as it were – is in no way a legal limit. Yes, yes, yes, they will “say” they are interpreting the written constitution. But if they are not, your recourse is not to the law. After all, they will be the ones to interpret any laws. No, your recourse is to politics of a much less accountable sort (which goes some way to explaining the phenomenal focus on, interest in and political nature of choosing top judges in the US, and more tangentially still the unwillingness of top US judges to retire or step down when the Presidency is not held by the political party that appointed them).

So that is preliminary point one, that you should keep separate in your mind democracies without a written constitution (which are few indeed) and countries with such overarching documents (which are the vast preponderance of democracies). Today, if I can be forgiven for putting it this way, we focus on the majority – as in the vast majority of democracies that do have written constitutions. The next preliminary point follows on from that because an obvious question to ask is what is the purpose or point of a written constitution? And the possible answers fall into two camps. One argues that the point of a written constitution is to lock things in, to trade a bit of flexibility for certainty and for much-harder-to-change-than-in-NZ constitutional anchors and signposts. The other camp sees the point of a written constitution in a vaguer, more abstract way in terms of expressing some of society’s fundamental values.

That difference of opinion matters because how you interpret a written constitution matters. And, should you happen to be a top judge on the top court deciding key constitutional questions, then what you believe the written constitution’s core point or purpose to be will affect your approach to interpreting it. We see the knock-on effects of that disagreement in Canada and in the US and to a lesser extent in Australia (lesser there because the Australians have deliberately chosen not to have a bill of rights of any sort at the national level – making them more or less unique in today’s democratic world, though it was only a handful of decades ago that only France and the US really had a bill of rights and the French one was not even justiciable until just under a decade ago or so). Take the US. Top judges there disagree about how to approach the job of constitutional interpretation. Ought you to be locked in by the original intentions of those with the legitimate power to make your Constitution – the Framers and Ratifiers – or relatedly by the original understanding of the words they opted to use? If so, you will be classed as an originalist. Think of Antonin Scalia or Clarence Thomas or latterly Neil Gorsuch. In Canada originalist interpretation basically does not exist on the Supreme Court for bills of rights issues, though it does for federalism disputes.

The alternatives to originalist approaches to interpretation include what is sometimes dubbed a “living Constitution” approach (in the US) or a “living tree” approach in the Westminster world of Canada, Australia and even Britain (the original phrase going back to a Privy Council case known as the “Persons Case” and the British judge Lord Sankey). Here the idea is that allowing an old constitutional document to lock us in decades or centuries after it was drafted and entrenched is a form of “ancestor worship” as the Australian now-retired judge Michael Kirby puts it, echoed by Israeli judge Ehud Barak. Europeans will be familiar with this “living tree” attitude to constitutional interpretation because it is de rigueur on the European Court of Human Rights.

Of course almost never do the judges who espouse this “living Constitution” approach go on to point out that the 99.999 per cent of us who are just regular citizens will be locked in either way – either to the original intentions or public meaning, on the one hand, or to the contemporary views of the current unelected top judges (the ones asserting that they have their fingers on the pulse of changing social values), on the other.

Obviously there are other non-originalist interpretive approaches to giving meaning to a written constitution. Some judges opt for what they see as the “moral reading”. Some, like Richard Posner in the US (and before him O. W. Holmes Jr) opt for a sort of “puke test” approach whereby they only strike down the legislature’s statutes when their substantive content makes them want, at least metaphorically, to puke. Some, indeed an ever increasing number, focus on proportionality analyses and to varying degrees make the carefully chosen wording of rights guarantees sometimes seem irrelevant. Some are Dworkinians and employ a Herculean “best fit” approach to finding the supposed “one right answer”. The list of non-originalist alternatives goes on.

So that is preliminary point two, that when you look at the top courts in the Anglosphere – and especially when you focus on their rights-related (as opposed to federalism) cases – you see that there are competing approaches to how best to interpret a written constitution. And which one you prefer involves in part an earlier substantive question of what you think the point of a written constitution is (or why you think the NZ unwritten road is an error). Concomitantly, these debates about how best to interpret in the written constitutional world are not unrelated to the debates and disagreements that we see in NZ-style parliamentary sovereignty jurisdictions. It is just that in a parliamentary sovereignty jurisdiction the debates take place in the legislature with no gainsaying by the courts while in Canada and the US and the rest the debates are redirected down less direct, less forthright paths and in part concerned with the appropriate approach to adopt in interpreting the constitution. As a generalisation, originalists urge an approach that will more often limit the discretion and moral input of the point-of-application interpreter, or so I think. That will have to suffice by way of preliminary points.

2. HOW AND POSSIBLY WHY JUDGING HAS BECOME MORE POLITICAL

I said near the start of this talk that we have a problem in the democratic world with robed, ex-lawyer mandarins who remove issues from the political sphere by declaring them to be constitutional in nature and thereby put them beyond discussion and resolution by mere citizens like you and me. It will surprise no-one that I was referring to judges and to the constitutionalisation of politics.

If we think back to 1961, the date of publication of H. L. A. Hart’s The Concept of Law, we see everywhere outside the US an Anglosphere legal world where judges defer to politicians on all of the big ticket social policy issues. Indeed, it was not uncommon for left-of-centre political parties to appoint right-of-centre judges to the top courts, and vice versa. Of course back then, only half a century ago, the Americans and the Americans alone had a justiciable bill of rights (and even there the judicial adventurism and striking down of Congress’s statutes really did not get going in any big way until later in the 1960s).

And without a bill of rights it is simply so much harder for judges to insert themselves into politics – we see that this is true today because we can look at Australia (where there is a written constitution that is the world’s biggest copy of the US Constitution save for the deliberate decision to forgo a bill of rights and the decision to opt for a Swiss-style amending procedure). When you look at Australia, with no bill of rights, the judges lack any plausible mechanism to insert themselves into politics. Sure, they still do it. But nowhere near as often and when they do it smacks of an illegitimacy that is apparent to all and sundry.

Compare that to Canada with its 1982 Charter of Rights and Freedoms. In my view Canadian Supreme Court judges today surpass their American brethren in terms of their judicial activism – or if you dislike that phrase then their willingness to usurp political questions and decide them under the aegis of interpreting this entrenched bill of rights. But I was just beginning law school back when the Charter and the rest of the constitution was being repatriated from Britain in the early 1980s and I can well remember the many promises from politicians and judges that this Charter of Rights would not change much at all. After all, were Canada’s top judges not amongst the world’s most interpretively conservative and deferential on political issues? Yes, they were. But it only took a couple of years to put the lie to all those assurances. The same goes for the UK and its souped-up statutory bill of rights, the Human Rights Act of 1998 (or 1999 or 2000 depending upon how you count it). British judges today are almost as powerful and activist as US judges. That is not just me asserting that by the way. Professor Aileen Kavanagh at Oxford University says the top British judges are possibly “more powerful”, and she is a supporter of that trend. Again, this was in large part the Tony Blair imposed bill of rights, and in lesser part the EU. (As an aside, if anyone has done more to undermine and hollow out the UK Constitution than Tony Blair I do not know who it is.)

And of course it is not just Canada and the UK that have opted for a bill of rights that ends up significantly – arguably massively – empowering the unelected top judges. If you asked for a five word statement that sums up legal developments in the democratic world over the past 50 years then I doubt you could do better than “the triumph of American constitutionalism”. The telltale signs are the bill of rights; the expansive approach to interpreting it; the ratcheted-up judicial attitude to rights, or put differently their willingness to “discover” or “find” or in my terminology to “make up” new rights not anywhere enumerated in the actual document.

Here is the thing about bills of rights. They are sold up in the Olympian heights of moral abstractions. They list a set of vague, amorphous entitlements in the language of rights and they enumerate those rights at a level of indeterminacy that finesses disagreement. (Who is against free speech? Hands up.) But these instruments play out down in the quagmire of social policy-making detail where there is never consensus but always disagreement, and disagreement between people who look as smart and nice as you (though painting those who disagree with oneself as morally wicked or blind or in need of reeducation is a not unheard-of tactic amongst bill of rights proponents and others). So they finesse reasonable disagreement and shuffle disputes that fall into the rather large “open texture” or “penumbra of doubt” of such instruments off to the judges. You know that going in. If you buy a bill of rights then on a host of issues you are simply buying the views of the top judges – or rather the views of the majority of top judges, because as I said top courts are ruthlessly majoritarian institutions. And in different jurisdictions the judges will differ. Take the right to free speech and the disagreement over free speech’s proper reach and aegis when it comes to campaign finance rules, tobacco advertising, hate speech and defamation and notice that different jurisdictions draw different lines. On top of that, not one of the lines drawn by the differing sets of judges is self-evidently correct.

Put differently, we can see that the UK’s Human Rights Act, no less than the US Bill of Rights or the Canadian Charter of Rights, has created a situation in which the judges’ view of what the rights-respecting outcome is magically transmogrifies into the “correct view”. What they (the judges) say our rights are, in effect, gets equated to what our rights actually are, as though these are not highly contentious issues over which committees of ex-lawyers have no pipeline to God, no special expertise, and no obvious grounds for being deferred to. So in my view the biggest cause for why (and how) judging has become more political is the explosion in the adoption of bills of rights.

There are other causes too, of course. Here I have time only to list some of those other causes.

1) The ratcheted-up nature of rights themselves, how their scope of coverage tends to inflate over time;

2) The temptation, as a top judge, to succumb to what Professor John Gava has labelled “Hero Judging”;

3) The fact that lawyers (and I limit myself here to the common law worlds of Canada, the UK, the US, New Zealand and Australia which I know) as a class have moved a good deal to the left politically. So the median view of lawyers, relative to that of the population at large, is not only a good deal more left-wing than it was, it is also noticeably more left-wing than the median view of the general population. And by left-wing here I do not mean a sort of pro-union, redistribution of wealth, Dennis Healy-type left-wing outlook. I mean the “human rights barrister” left-wingism in thrall to international law, supranationalism and über-powerful judges. This is clearly related to the nature of legal education and the fact – as every study shows – that law schools in the above Anglo-American countries are very, very, very much dominated by left-of-centre law professors in love with what you might think of as “the Court Party”. This, in my view, is unarguable.

4) It probably also is affected by the fact that all these top judges go off to conferences together, regularly, in wonderful places. If one group of them has succumbed to the temptation to “do right” as they see it, and somehow “discovered” a right to same-sex marriage that has lain dormant for a century or two (or to euthanasia, or to new protections for those claiming to be refugees, and the list goes on), then the ones from other countries they meet at these judicial shindigs will be mightily tempted to follow suit. And the ability to cite overseas law helps this along.

5) The nature of the common law systems may also make this easier than in civil law systems. This is speculation on my part. But I think it is at least plausible. And having no separate (and more obviously political) Constitutional Court but just the regular top court deciding these issues facilitates Hero Judging too.

6) The shunning of originalist interpretive approaches to giving meaning to the written constitution also plays a role – be it a causal or merely correlative one I do not know. It is just so much easier to indulge in what a disinterested observer would describe as “judicial activism” or “judicial usurpation” when you adopt a “living tree” or “moral reading” or “it is all just proportionality analysis” approach to constitutional interpretation.

3. SIGNS OF A GROWING RESISTANCE OR BACKLASH?

The last five or six minutes are for optimism, meaning optimism for those who are majoritarian democrats like me. But let me be clear. The signs of a growing resistance to, or backlash against, this constitutionalising of politics and this puffed-up role for judges in our body politic, well those signs are far from conclusive of any counter-reformation. They are just early indicia of what might be in store for us.

So with that caveat clearly announced, here are a few reasons for optimism and for thinking a backlash (or at least a more souped-up resistance) is in our futures.

1) Let me start with my native Australia. The usual suspects there first tried for a constitutional amendment to bring in a constitutionalised bill of rights and that failed – only because in Australia constitutional amendments require proponents to get the approval of over 50 per cent of the voters. And they could not. Then the same pro-bill of rights crowd tried to go down the NZ and UK path of a steroid-enhanced statutory bill of rights. But they could not even get that through. Why not? Because opponents were able to point to Canada, to the UK, even to NZ and say “here’s what you’re buying if you buy a bill of rights. You’re buying nothing other than the views of the unelected, ex-lawyer judges”. And that was persuasive and convincing because that is what the evidence so clearly shows.

2) Brexit. Like it or hate it there is no doubt in my mind that the main driving force of the pro-Brexit vote was people wanting self-government and democratic decision-making – the EU itself being like a club for democracies but itself run in a democratically deficient and enervated way, to put it mildly. And this point ties in to the above discussion on bills of rights. If you look at how the Tony Blair government effectively lied to British voters about the Charter of Fundamental Rights, and the effectiveness of the supposed “Opt-Out” – this Charter clearly being a vehicle which will significantly empower the ECJ – well, the democratic and self-government reasons for voting “Leave” were compounded. This multiplied the already very good reasons British voters had to fear that under Project EU even more democratic self-government would leak away from their own control.

3) The question of judicial appointments is clearly relevant and hence what is needed in a world where top judges have become puffed-up and too big for their unelected boots. And here I point to President Trump’s election victory. The likely future appointments to the Supreme Court of the United States drove the votes of many, many Americans. And Trump managed to get Neil Gorsuch nominated and through the Senate and on to SCOTUS. Gorsuch is in my view likely to be an interpretively conservative judge, possibly a great judge, and we can all be certain that he will not indulge in anything like the level of judicial activism that any conceivable Hillary Clinton nominee to the Supreme Court would have. And if Trump continues to appoint from the list he made public and said would guide his judicial appointments, then the Supreme Court might be a much different institution than it has been in the recent past. Its guiding principles will not be delivering any more made-up Obergefell-type outcomes that rewrite the US Bill of Rights from the bench. Compare that political way of picking top judges to Britain’s ridiculous Tony Blair-inspired judicial appointments process in the UK whereby judges and lawyers come close to appointing their own replacements. I cannot imagine a worse system, which is my usual response to pretty much all Tony Blair initiatives.

4) Staying with the UK, under their statutory bill of rights the top judges have proclaimed what I consider to be a bizarre, unwarranted and power-grabbing approach to its interpretation in the Ghaidan case in the then House of Lords. That is the bad news. The good news is that the UK judges’ view in Ghaidan has been explicitly and vigorously rejected by the top judges in NZ and Australia.

I will stop there. There are grounds for optimism if you are a majoritarian democrat like me in the Anglosphere world. Much of that optimism starts with the Brexit and Trump victories, imperfect as they are. From my reading of the newspapers it would seem that Hungary has not too dissimilar issues with the ECJ, and indirectly with the EU.