Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness 1788971094, 9781788971096

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Constitutional Idolatry and Democracy

To Jasmine, Herbert and Ewan.

Constitutional Idolatry and Democracy Challenging the Infatuation with Writtenness

Brian Christopher Jones Lecturer in Law, School of Law, University of Sheffield, UK

Cheltenham, UK • Northampton, MA, USA

© Brian Christopher Jones 2020

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2020933658 This book is available electronically in the Law subject collection DOI 10.4337/9781788971102

ISBN 978 1 78897 109 6 (cased) ISBN 978 1 78897 110 2 (eBook)

Contents Acknowledgementsvi 1

What is constitutional idolatry?

1

2

Venerating a text: some positive aspects of constitutional idolatry30

3

Educating the citizenry?

36

4

The reality of ‘We the People’ constitutional claims

58

5

Invigorating democracies?

87

6

A ‘good’ constitution is essential to state survival

110

7

Constitutional paternalism: the rise and problematic use of constitutional guardian rhetoric

131

8

Idolatry and constitutional change

158

9

Constitutional idolatry and democracy: a preliminary conclusion181

Bibliography 192 Index201

v

Acknowledgements Many thanks to Luke Adams and the Edward Elgar team, including two anonymous reviewers, for believing in the project. A number of colleagues and friends around the world read over particular chapters (you know who you are). Your comments and suggestions have drastically improved this manuscript, and I sincerely appreciate you taking the time to provide invaluable feedback and insight into the many issues contained throughout this book. Special thanks to Colin Reid, who read over drafts of every single chapter of the book, and to Alan Page, who read over most of them. Feedback from presentations at Edinburgh University, Academia Sinica, Dundee University, Strathclyde University, University of Copenhagen and the World Congress on Constitutional Law (Seoul, 2018) helped shaped the project as it moved forward. I also benefitted from having two excellent research assistants at the University of Dundee during the writing period: Holly Morrison and Lewis Whitehead. A couple of chapters built on articles published in the following academic journals: Public Law, Legal Studies, and the NYU Journal of International Law & Politics. Chapter 5 largely comes from my Legal Studies piece, and Chapter 7 is based on my article in the NYU Journal of International Law & Politics. Fragments from my initial Public Law piece on the subject of constitutional idolatry are interspersed throughout this book. Finally, special thanks to my family for all the patience, encouragement, inspiration and love they provided during the writing period.

vi

1. What is constitutional idolatry?1 At the 2016 Democratic National Convention in Philadelphia, Khizr Kahn—an American Muslim and father of an American soldier killed in Iraq—rhetorically asked Donald Trump regarding his proposed Muslim ban whether he had ‘even read the United States Constitution?’2 Kahn then produced a small paperback edition of the document from his jacket pocket, saying, ‘I will gladly lend you my copy’.3 The crowd erupted. It was a powerful moment, and certainly one of the highlights of the four-day event, occurring in one of the most contentious US presidential elections in recent memory. After this, the US Constitution itself had a ‘moment’. Sales of the written document spiked to record levels, with the American Civil Liberties Union (ACLU), the Government Printing Office, and niche publishers offering discounted rates on their versions of the document. On Amazon the pocket version of the US Constitution blazed up to #2 on the best-sellers list (only behind the latest Harry Potter book),4 and for a spell demonstrators at Trump’s rallies could be seen waving the document at him in protest, taunting him and his supporters with the sacred text.5 The message was clear: Trump was not only a threat, but an unconstitutional threat that endangered America’s most sacred values and principles. Thus, when Donald Trump lost the national popular vote by close to three million ballots, and yet the Constitution via the Electoral College secured him the presidency anyway, momentum from the increased constitutional attention—not to mention the increased readership—could have brought forward a fortuitous constitutional moment. At a time of historic national polarisation and cultural division, some type of constitutional rejuvenation

1 Portions of this chapter are taken from: BC Jones, ‘Preliminary Warnings on “Constitutional” Idolatry’ (2016) Public Law 74; and BC Jones, ‘Constitutions and Bills of Rights: Invigorating or Placating Democracy’ (2018) 38(3) Legal Studies 339. 2 K Khan, ‘2016 DNC Speech’ YouTube, https://​youtu​.be/​Xzkkk​-oJ6bo​?t​=​200 (at 3:20). 3 Ibid. He further notes, ‘In this document, look for the words … “liberty” and “equal protection of law”’ (at 3:53). 4 M Rhodan, ‘Sales of Pocket Constitutions Spike After Khizr Khan’s DNC Speech’ Time (1 August 2016), http://​time​.com/​4433453/​khizr​-khan​-pocket​-constitution/​. 5 D Kurtzleben, ‘Protesters Wield Pocket Constitutions At Trump Rally’ NPR (4 August 2016), https://​www​.npr​.org/​2016/​08/​04/​488738033/​protesters​-wield​-pocket​ -constitutions​-at​-trump​-rally.

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(e.g., a proposed amendment or even just a national debate) could have provided a way forward. But it did not happen; perhaps because of increased disillusionment among the citizenry, nothing even came close. As it has for much of its existence (27 amendments over 230 years), America’s written Constitution remained untouchable. Of course, constitutional idolatry—here defined as drastically or persistently over-selling the importance and effects of written constitutions—has long been the American public’s forte. In 1937, Max Lerner, editor of The Nation, wrote that ‘[e]very tribe needs its totem and its fetish, and the Constitution is ours’.6 The 2016 Democratic Convention was merely one illustration of the American Constitution being used as ultimate saviour, pre-eminent rallying point, and all-encompassing truncheon. Regarding the latter, the US Constitution has so successfully become a symbol of national pride and is cherished so widely among citizens that it is now frequently used as a potent weapon. Even slightly questioning its provisions is sometimes akin to political heresy.7 There is little doubt that use of the Constitution elevates the status of legal or political arguments, and at times has an enormous impact when used. The unfortunate irony, however, is that the document, which supposedly transformed the modern organisation and governance of democratic states to be situated around ‘We the People’, is now conveniently wielded as a heavyweight political truncheon, designed to cut off all debate and advocate only one particular ‘constitutional’ way forward … a path that does not really exist. Using the Constitution as a truncheon, however, carries certain hazards. If employed too frequently among the citizenry, ‘there is a risk that the term “unconstitutional” comes to include everything we subjectively do not like’, thus degrading its impact.8 Seidman takes this argument further, noting that it is ‘deeply authoritarian to try to end an argument by insisting on the sanctity of a particular text’.9 There seems to be little doubt that such degradation has occurred in the US context. For all the talk of unconstitutionality regarding Trump’s proposals during the 2016 election, on 26 June 2018 the United States Supreme Court (SCOTUS) upheld the President’s Muslim ban by a 5–4

M Lerner, ‘Constitution and Court as Symbols’ (1937) 46(8) Yale Law Journal 1294. 7 B Palmer, ‘Founding Fathers Fetish’ Slate (4 October 2012), http://​ www​ .slate​.com/​articles/​news​_and​_politics/​explainer/​2012/​10/​mitt​_romney​_constitution​ _worship​_when​_did​_politicians​_stop​_questioning​_the​_constitution​_​.html. 8 J McLean, ‘The unwritten political constitution and its enemies’ (2016) 14(1) International Journal of Constitutional Law 119, 136. 9 LM Seidman, On Constitutional Disobedience (2012), p 28 (‘We would be much better off if we could agree to ban the claim from our political lexicon’). 6

What is constitutional idolatry?

3

ruling, thus proving that it was within the bounds of the US Constitution.10 The fact that the ban was upheld was not surprising. After all, Justice Gorsuch had recently replaced Justice Scalia, who had died while Obama was in office. Gorsuch’s appointment preserved a 5–4 conservative advantage on the court. Ultimately, the result was a civics lesson for many of those who had attempted to paint Trump’s campaign plans as ‘unconstitutional’. The reality is that, in America, it is usually not the people or the people’s representatives that get to determine what the Constitution means, or what is or is not constitutional. This, even under a Constitution that begins with ‘We the People’, is the job of the US Supreme Court. Khizr Kahn’s speech also portrayed America’s written Constitution as saviour, being able to rescue citizens from those that threaten the status quo. As Frankenberg notes, this type of expansive constitutional rhetoric ‘has not done constitutional projects much good’.11 The primary danger with the ‘constitution as saviour’ portrayal is that it presents the situation as the people themselves not having to do much of anything: as long as the Constitution is in place, citizens should feel safe and protected. This common trope provides a false and misleading narrative about how constitutional protections operate, as constitutions rely on a wide variety of actors—and especially citizens—to uphold political and cultural norms and ensure that those in power are being held to account. One governmental branch consisting of a small group of individuals, or one written document—however much it is praised—is not enough to ensure a properly functioning state. Another reason why Kahn’s speech offers an alluring example of constitutional idolatry is that it presents constitutions as the pre-eminent rallying point for citizens. Given that these documents are supposed to contain the state’s collective identity, including underlying foundational principles and citizen rights, some may consider this higher status essential, even tautological. Thus, it should be a relatively easy symbol for citizens of all political affiliations to rally round. But in reality constitutions are human creations—often the outputs of power struggles—and are not necessarily the endearing collective symbol that political and constitutional theorists believe them to be. This may especially be the case when constitutions are weaponised by political parties and others to try to get people to conform to certain behaviours or practices, or when legalised constitutions interpreted by the judiciary are perceived as favouring one constitutional position over another.

Trump v Hawaii, 585 U.S. ___ (2018). G Frankenberg, Comparative Constitutional Studies: Between Magic and Deceit (2018), p 15. 10 11

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This book discusses some difficult and perhaps even uncomfortable topics in relation to written constitutions and how they operate.12 At the heart of the matter is this: do written constitutions matter as much as we think they do? Can they possibly shape our lives to the extent that prominent historians or American Presidents say they do?13 And, perhaps more importantly, do written constitutions fulfil the lofty promises provided by many of their advocates, or are they more akin to being the false gods of the legal and political realms? The unfortunate reality for written constitutions is that these parchment barriers are not the keys to state success that many believe, and nor will they prevent states from falling prey to constitutional abuse or misuse.14 If they are part of the solution, they are only a small part. This book explores some of the limits of written constitutions, which have often been misrepresented by politicians, journalists, academics, and others. Although it is acknowledged that any critical scholarship about the limits or potential downsides of constitutions has ‘almost always been swimming against the tide’,15 it is hoped that this book provides at least a wider discussion regarding the place these texts currently have within our societies. Grappling with the virtues of written versus unwritten texts, and framed around whether the UK should codify its constitution into one single written document, this book analyses whether contemporary written constitutions 12 Of course, there is some discussion regarding terminology as to whether to use ‘written’ or ‘codified’ in relation to these constitutions, and going forward, I largely stick with ‘written/unwritten’. As Palmer notes, the ‘great advantage of the term “written” is that it inherently confronts you with the abstract nature of a constitution’ (MSR Palmer, ‘What is New Zealand’s constitution and who interprets it? Constitutional realism and the importance of public office-holders’ (2006) 17 Public Law Review 133, 136). 13 See, e.g., B Bailyn, The Ideological Origins of the American Revolution (1992), p 321 (‘The subject [the Constitution] matters too much—matters in the sense of shaping the way we live, what we may do, and how the government may act. We must get the two-hundred-year-old story straight, in some way, in order to make sense of our own world. The Constitution, in all its aspects and ramifications, is profoundly relevant’). Calvin Coolidge, ‘Remarks at the White House on 12 December 1924’, https://​www​ .coolidgefoundation​.org/​quote/​quotations​-c/​(‘To live under the American Constitution is the greatest political privilege that was ever accorded to the human race’). 14 S Levitsky and D Ziblatt, How Democracies Die: What History Reveals about Our Future (2018), p 99 (‘Even well-designed constitutions cannot, by themselves, guarantee democracy. For one, constitutions are always incomplete. Like any set of rules, they have countless gaps and ambiguities. No operating manual, no matter how detailed, can anticipate all possible contingencies or prescribe how to behave under all possible circumstances … Because of the gaps and ambiguities inherent in all legal systems, we cannot rely on constitutions alone to safeguard democracy against would-be authoritarians’). 15 S Levinson, Constitutional Faith (1988), p 14.

What is constitutional idolatry?

5

are essential to modern polities, or if the rise in written constitutionalism is providing eighteenth-century answers for twenty-first-century problems. As noted above, here I define constitutional idolatry as: drastically or persistently over-selling the importance and effects of written constitutions. Throughout, I introduce three main arguments critical of written constitutions and which complement the definition of constitutional idolatry: (1) constitutional idolatry devalues politics and the political process; (2) constitutional idolatry is overly paternalistic; and (3) constitutional idolatry stifles constitutional maintenance. These themes permeate the book. In order to understand them more deeply, we must examine the contextual justification in which this book is written, and therefore take into consideration the rise of world constitutionalism.

1.1

TO CODIFY OR NOT? THIS BOOK’S CONTEXTUAL JUSTIFICATION

1.1.1

The Rise of World Constitutionalism

If anything was ever in vogue in democratic and constitutional theory, constitutions would surely be it; at no point in history have the countries of the world had so many constitutions in place.16 Ever since the drafting of the US Constitution in 1787, democracies—and even non-democracies, for that matter—have increasingly felt the need to pen a written constitution, even if only in symbolic form.17 Many countries now even have public holidays or special commemoration days to celebrate the anniversaries of their constitutions.18 Much of this constitutional desire has come within the last half-century, or post-war era,19 as many held onto the belief that such documents are antecedent to government,20 and others argued that constitutions are essential to the rule of law and the protection of basic human rights.21 Some have gone so far

16 Comparative Constitutions Project, ‘Data Visualizations’, https://​ comparativecons​titutionsproject​.org/​. 17 See The Constitution of the People’s Republic of China (1982). 18 Comparative Constitutions Project, World Constitution Holidays, http://​ comparativecons​titutionsproject​.org/​world​-constitutional​-holidays/​. 19 DJ Galligan & M Versteeg, ‘Theoretical Perspectives on the Social and Political Foundations of Constitutions’ in DJ Galligan & M Versteeg, Social and Political Foundations of Constitutions (2013), p 3. 20 As Thomas Paine famously wrote (cited in M Loughlin, The Idea of Public Law (2004), p 46). 21 See, e.g., R Dworkin, Taking Rights Seriously (1977), p 133; TRS Allan, ‘The Rule of Law’, in D Dyzenhaus & M Thorburn, Philosophical Foundations of Constitutional Law (2016), p 216 (although Allan does not necessarily subscribe to this view; he merely acknowledges it is a common ‘assumption’).

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as to say that the idea of a contemporary founding or ‘fundamental [political] transformation’ not incorporating a written constitution would be unthinkable; and in the current climate, they are probably right.22 Although most states have implemented a large-C codified Constitution, there remain some states in which—for whatever reason—a written constitution has not come about (e.g., the United Kingdom, New Zealand, and Israel). This book focuses primarily on the United Kingdom, and the continuing debate over whether it should codify its constitution into a single written document. As essential as they may be in contemporary times, written constitutions often resemble elegant but convoluted cog machines (like the one on the cover of this book): citizens may recognise important features, but one will hardly understand state processes through consulting them. Frankenberg goes further, saying that constitutions ‘hardly render an accurate description of social reality’ and cannot be read as state instruction manuals. He notes that at best they ‘indicate how societies … envision coping with or camouflaging the business of establishing and exercising authority and bringing about social cohesion’.23 Nevertheless, they are widely considered the first port of call for comparative legal scholars and are said to contain the fundamental law essential to the establishment and operation of states. Constitutional theorists have laid out a number of potential functions that constitutions serve, including: setting forth constitutional values, entrenching constitutional rights, conferring and limiting powers of government, delineating the structure and operations of the state,24 educating and inspiring the citizenry, and even generating endless democratic debate.25 These functions have been extensively written about and indeed are endlessly debated. Ultimately, whatever underlying reasons states may provide for drafting a constitution, there remains little doubt that most states have now done it. Although debate over constitutional success or failure has been a long-running strand of academic investigation, only recently has constitutional performance become a more sophisticated sub-topic of constitutional theory. Recent texts have analysed why national constitutions endure,26 what

H Lerner, Making Constitutions in Deeply Divided Societies (2013), p 16. Frankenberg, n 11 above, pp 14–15. 24 See, e.g., A Barak, ‘On Constitutional Implications and Constitutional Structure’ in D Dyzenhaus & M Thorburn, Philosophical Foundations of Constitutional Law (2016), pp 62–64; BC Jones, ‘Preliminary Warnings on Constitutional Idolatry’ (2016) Public Law 74, 75. 25 S Levinson, ‘Do Constitutions Have a Point?’ in EF Paul, FD Miller & J Paul, What Should Constitutions Do? (2011), p 178. 26 Z Elkins, T Ginsburg & B Melton, The Endurance of National Constitutions (2009). 22 23

What is constitutional idolatry?

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constitutions should do,27 and how constitutions should be assessed.28 This important development has led not only to a more robust discussion regarding constitutional success, but also to a more widespread empirical analysis of constitutions more generally, including how long they last, which types of rights are included, and what specific factors we should take into consideration (e.g., levels of democracy, political stability, economic performance, or crisis propensity).29 Much recent scholarship has strayed beyond traditional doctrinal and philosophical approaches to explore the social and political elements of constitutions.30 After all, ‘one cannot understand constitutions simply from the perspective of settlement’ alone.31 These perspectives extend into the alluring field of constitutional possibility. Here scholars have gone beyond constitution as symbol,32 concluding that modern constitutional texts are performative, in the sense that ‘they perform an action, rather than only describe an event or make a statement’.33 Loughlin has highlighted this, emphasising ‘the manner in which constitutions can harness the power of narrative, symbol, ritual and myth to project an account of political existence in ways that shape—and re-shape—political reality’.34 Claims regarding constitutional possibilities can make such texts appear powerfully tempting. As Frankenberg notes, the documents are often ‘enshrouded by the aura of magic’.35 Blackburn has claimed that such a document may ‘bring government and the governed closer together’,36 and could ‘strengthen public confidence and trust in the political system’ by better educating citizens.37 A recent book on preambles notes that such devices may ‘strengthen citizenship’.38 A focus on including citizens in the drafting process has claimed Paul, Miller & Paul, n 25 above. T Ginsburg & AZ Huq, Assessing Constitutional Performance (2016). 29 Elkins, Ginsburg & Melton, n 26 above, pp 12–35. 30 Of course, some of these social and political elements have always been present in constitutional scholarship, and can be seen in work by Jeremy Bentham, Thomas Jefferson, and others. 31 Levinson, n 25 above, p 178. 32 See, e.g., Lerner, n 6 above; TC Grey, ‘The Constitution as Scripture’ (1984) 37(1) Stanford Law Review 1. 33 J Pryor, Constitutions: Writing Nations, Reading Difference (2008), p 5. 34 M Loughlin, ‘The Constitutional Imagination’ (2015) 78(1) Modern Law Review 1. 35 Frankenberg, n 11 above, p 11. 36 R Blackburn, ‘Britain’s unwritten constitution’, British Library, http://​www​.bl​ .uk/​magna​-carta/​articles/​britains​-unwritten​-constitution. 37 R Blackburn, ‘Enacting a Written Constitution for the United Kingdom’ (2015) 36(1) Statute Law Review 1, 5. 38 W Voermans, M Stremler & P Cliteur, Constitutional Preambles: A Comparative Analysis (2017), p 93. 27 28

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a number of benefits, such as decreased state violence,39 stronger citizen constitutional attachment,40 even a longer constitutional lifespan.41 Further, the narrative component, which may incorporate a nation’s history, can sometimes act as ‘a source of inspiration’ for citizens.42 Landemore notes that great constitutions include such inspirational features, adding that they are ‘beautifully written and likely to generate emotions such as love and admiration among its own people and beyond, among current and future generations’.43 Ultimately, the notion that there may be something ‘sacred or irrational’ in the very ‘nature of constitutions’44 is a long-held belief that much constitutional scholarship has perpetuated.45 A popular performative mechanism located within constitutions is preambles, which as an expressive component can ‘narrate the nation’s past and envision its future’.46 A recent work on constitutional preambles has identified purposes beyond the narrative component, such as: identifying function, evocative function, ‘bridge in time’ function and an educational function.47 King has noted that such devices can provide ‘normative guidance and the institutional declaration of key variables’,48 while Levinson states that they express ‘the ostensible “essence” of the people or nation’, and on occasion can be ‘inspiring’.49 Even though the justiciability of preambles within states remains relatively low,50 it is the expressive elements of these intriguing devices that

39 J Widner, ‘Constitution Writing in Post-Conflict Settings: An Overview’ (2008) 49 William and Mary Law Review 1513. 40 DC Moehler, Distrusting Democrats: Outcomes of Participatory Constitution-making (2008). 41 Elkins, Ginsburg & Melton, n 26 above. 42 Galligan & Versteeg, n 19 above, p 9. 43 H Landemore, ‘What is a good constitution? Assessing the constitutional proposal in the Icelandic experiment’, in Ginsburg & Huq, n 28 above, p 79. 44 Galligan and Versteeg, n 19 above, p 42. 45 M Versteeg, ‘“Perfection in Imperfection”: Joseph de Maistre and the Limitations of Constitutional Design’ in D Galligan, Constitutions and the Classics: Patterns of Constitutional Thought from Fortescue to Bentham (2014), pp 323–325. 46 M Versteeg, ‘Unpopular Constitutionalism’ (2014) 89 Indiana Law Journal 1133, 1140. 47 Voermans, Stremler & Cliteur, n 38 above, pp 92–94. 48 J King, ‘Constitutions as Mission Statements’ in Galligan & Versteeg, n 18 above, p 82. 49 Levinson, n 25 above, pp 177–178. 50 However, some preambles are indeed justiciable. See Voermans, Stremler & Cliteur, n 38 above, pp 19–21, 89–91.

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scholars—and indeed many countries—have found so empowering, and therefore so useful. As one book recently put it: Preambles try to frame political thought and to that end they sing, educate, seduce with poetic language, raise their voice, play at emotions like operas, novels and plays; they refer to deep emotions and beliefs by harping on common tradition and ancestry, connectedness and group identity (in its turn hinting at the deep rooted emotion of family and kinship), religion (even profane ones like the belief in the law), expressing and appealing narratives.51

By incorporating narrative, history, values and aspirations, preambles are the primary places by which constitutions can ‘offer alternative perceptions of reality’.52 Thus, if constitutions can—or have the potential to—inspire people, strengthen public confidence, capture the essence of a citizenry, and even be looked at as sacred, then their importance goes well beyond legal significance. Indeed, under certain conditions their political and cultural significance may rival or even supersede their legal significance. Some have even argued that constitutions can go beyond their performative status, and be ‘transformative’ on societies. The most prominent example here surrounds the 1996 South African Constitution, which has received a lot of praise, and began with such strong hopes to mend the country after apartheid. Klare defines transformative constitutionalism as: [A] long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law.53

This idea goes beyond the bounds of legal and political reform, as cultural reform would also be necessary. As Barber emphasises, ‘[c]onstitutional failure is thus the failure of a culture. And constitutional reform must therefore be nothing short of cultural reform’.54 Of course, this is more easily said than done. The idea of transforming a culture via constitutional text goes beyond merely the performative aspects of such documents, touching on the mystical and magical elements mentioned earlier that constitutions are sometimes said to possess. It also connects to the idea of constitutions being a ‘sacred cove Ibid, p 151. Loughlin, n 34 above, p 3. 53 KE Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14(1) South African Journal on Human Rights 146, 149. 54 S Barber, Constitutional Failure (2014), p xvii. 51 52

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nant’ that the people will abide by. The notion that constitutions are a sacred, almost religious document (i.e., a ‘covenant’) contains some linguistic foundations. Pryor writes that such a phenomenon may be inevitable because ‘[a] religious idiom therefore persists, despite the sometimes deliberately secular tone of modern constitutional texts’.55 Therefore, even though we may perceive some written constitutions as highly secular, the idea that they form a type of larger covenant may be inescapable. Additionally, and perhaps most importantly, contemporary ‘We the People’ democratic constitutions—at least in theory—provide sovereignty or ultimate power to the citizens through popular sovereignty.56 It is this focus on sovereignty, as opposed to democracy, that is ‘the language of constitutions’.57 Although the constitutional reality under such claims varies,58 the ‘We the People’ refrain often gives the impression that—even within representative democracies with strong judicial review—it is the people who are central to establishing government; it is the people who provide governmental legitimacy; and it is the people who ultimately hold state power. Indeed, the rise of ‘We the People’ phrasing in written constitutions throughout the years has been an international force, and such language now adorns a plethora of constitutions throughout the world. Bold claims regarding this ‘We the People’ factor have also been made, especially in relation to the foundational elements and the composition of the state’s narrative. Lerner recognises the foundational function as the second major role of constitutions, observing that they ‘provide the citizenry with a sense of ownership and authorship, a sense that “We the people” includes me’.59 These words echo those from Ackerman’s definitive work on the subject, where he noted that, ‘the narrative we tell ourselves about our Constitution’s roots is a deeply significant act of collective self-definition; its continual re-telling plays a critical role in the ongoing construction of national identity’.60 He further emphasises that, ‘[t]o discover the Constitution is to discover and important part of oneself’.61 As these authors acknowledge, separating the legal and political functions of constitutions from their cultural and personal connotations is also extremely

Pryor, n 33 above, p 5. B Ackerman, ‘The Rise of World Constitutionalism’ (1997) Virginia Law Review 771. 57 DJ Galligan, ‘The Sovereignty Deficit of Modern Constitutions’ (2013) 33(4) Oxford Journal of Legal Studies 703, 704. The author rightly points out that ‘democracy’ is rarely mentioned. 58 Ibid, pp 729–730. 59 Lerner, n 22 above, p 18. 60 B Ackerman, We the People, Volume I: Foundations (1991), p 36. 61 Ibid, p 37. 55 56

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difficult, if not impossible. Sometimes commentators talk as if the legal, political and personal meanings are one and the same, or inherently intertwined through a national text. I believe this overlap is dangerous, and can be especially so in regard to interpreting such texts. Yet the phenomenon of combining (or perhaps confusing) these multiple meanings is also not surprising, considering: Our national constitutions are perceived by us as doing more than simply structuring the respective powers of government and the relationships between public authority and individuals or between the state and other agents. Our constitutions are said to encapsulate fundamental values of the polity and this, in turn, is said to be a reflection of our collective identity as a people, as a nation, as a state, as a community or as a union.62

But in recognising the importance of constitutions we should also recognise their limits. When discussing the legal, political, societal or personal effects of constitutions, we should be careful not to concoct false narratives of what they can accomplish or exaggerate how indispensable they are for societies, as doing so turns them into the false gods of our legal, political and societal communities. Some fascinating scholarship from a number of critical constitutionalists has cautioned against the downsides of constitutions, such as the possibility that they may be democracy-hindering (as opposed to democracy-reinforcing) mechanisms,63 they could set too high expectations on courts,64 or they could mislead citizens into thinking that they are the definitive power-bearers in society.65 Other work has concentrated on the operation of sham constitutions,66 the decline of the once venerated American Constitution67 and Bill of Rights,68 and instances of ‘unpopular sovereignty’ in particular constitutions.69 The constitution-making process itself has been increasingly exposed in recent

62 J Weiler, ‘On the power of the Word: Europe’s constitutional iconography’ (2005) 3 International Journal of Constitutional Law 173, 184. 63 Versteeg, n 46 above, p 1133. 64 TG Daly, The Alchemists: Questioning Our Faith in Courts as Democracy-Builders (2017), p 294. 65 Galligan, n 57 above, p 711. 66 D Law & M Versteeg, ‘Sham Constitutions’ (2013) 101(4) California Law Review 863. 67 D Law & M Versteeg, ‘The Declining Influence of the United States Constitution’ (2012) 87 New York University Law Review 762. 68 J Allan & G Huscroft, ‘Constitutional Rights Coming Home to Roost? Rights Internationalism in American Courts’ (2006) 43 San Diego Law Review 1. 69 See, e.g., CY Huang, ‘Unpopular Sovereignty: Constitutional Identity Through the Lens of the Sunflower and Umbrella Movements’ in BC Jones (ed), Law and

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years. Hirschl identifies it as ‘politics by other means’;70 Versteeg has noted that constitution-making often does poorly at incorporating the specific values some polities hold, therefore forming not popular, but ‘unpopular’, constitutionalism;71 and Landau recognises that constitution-making moments are often traumatic events, and ‘should not be idealized’.72 And in a cautionary note for countries thinking of penning new constitutions—perhaps especially for those thinking of drafting ‘A New Magna Carta’—scholars have found that the average national constitution only lasts 19 years before being replaced.73 Nevertheless, while this small chorus of critical constitutionalism is growing stronger, it remains a trickle compared with the flood of constitutional scholarship championing the seemingly endless potential benefits of these written documents. 1.1.2

Out of Step: The UK Contextualised

Written constitutions have played a significant—if not a pre-eminent—role in the establishment of democracy and the continuation of democratic rights and principles … or so the story goes. When it comes to the United Kingdom and a few other jurisdictions, this is certainly not the case.74 The UK, with its unwritten constitution, historic monarchy and ‘untenable’ principle of parliamentary sovereignty,75 is perceived by some as the perfect example of a nation stuck in the past, unable to transform itself into the contemporary conception of a truly democratic nation-state, complete with the primary symbol (i.e., a written constitution) that virtually all such states now possess. Thus, while some countries have progressed to Constitutionalism 3.0,76 the UK may not ever have progressed to Constitutionalism 1.0. This is partly true. In the expansive field of world constitutionalism, the UK is an outlier: its unwritten constitution guarantees this. The growth of constitutional writing throughout the world, however, has changed perceptions of constitutionalism within the Politics of the Taiwan Sunflower and Hong Kong Umbrella Movements (2017), pp 117–126. 70 R Hirschl, ‘The Strategic Foundations of Constitutions’ in DJ Galligan & M Versteeg, Social and Political Foundations of Constitutions (2013), p 157. 71 Versteeg, n 46 above. 72 D Landau, ‘Constitution-Making Gone Wrong’ (2013) 64(5) Alabama Law Review 923. 73 Elkins, Ginsburg & Melton, n 26 above, p 129. 74 Although, it should be noted that the UK has been willing to pen numerous constitutions and charters for its former colonies. 75 House of Commons Political and Constitutional Reform Committee, ‘A New Magna Carta?’ (10 July 2014), HC 463, p 21. 76 A Somek, The Cosmopolitan Constitution (2014).

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13

UK. Indeed, eighteenth- and nineteenth-century Britons, as Sedley recognises, would probably not have given the same puzzled look when asked about their constitution, considering the ‘belief that a constitution is a document and that we do not have one is a comparatively recent phenomenon’.77 It is worth pointing out that written constitutions had been tried—even in Britain—before 1789. In the mid-seventeenth century, England had gone through a bloody civil war, and Oliver Cromwell put the UK’s first and only written constitution into existence, the ‘Instrument of Government’,78 implemented in 1653.79 In fact, between 1649 and 1660, several attempts were made to devise a written constitution, but none were called a ‘constitution’; the documents used ‘terms such as covenant, instrument, agreement, model, paramount or fundamental law’.80 None of these worked. Monarchy was restored in 1660 under Charles II, who reigned until 1685. The Restoration Settlement, however, put the Crown and Parliament on an equilibrium,81 something that changed after the Glorious Revolution. In its modern form, the term ‘constitution’ remains relatively young.82 Seventeenth- and sometimes eighteenth-century uses of the word do associate it with law and statutes, among other things, but it was often not used to refer to a single document.83 Even before this, the concept has focused on the form in which a state is organised, usually in reference to the location of sovereign power.84 Aristotle, often said to be the first constitutional comparativist, used the word politeia, which does not mean constitution, but ‘the way in which a polity is patterned’.85 The modern conception of a constitution has largely been attributed to the American Constitution of 1787,86 which included a Bill S Sedley, ‘No Ordinary Law’ (1998) 30(11) London Review of Books 20. M Loughlin, The British Constitution: A Very Short Introduction (2013), p 49. 79 There is dispute over this. Gordon notes that the UK has had two written constitutions, the second being the ‘Humble Petition and Advice’, written in 1857 to replace the Instrument of Government (R Gordon, Repairing British Politics (2010), p 15, n 34). A text that backs Gordon’s claim up is: C Hill, The Century of Revolution 1603–1714: A History of England (Vol 5) (1961), p 116. 80 G Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 56(4) American Political Science Review 853, 860; Skinner calls one such constitutional experiment under Cromwell 'disastrous', probably referring to the implementation of The Humble Petition and Advice (Q Skinner, Liberty Before Liberalism (1998), p 15). 81 GM Trevelyan, The English Revolution 1688–89 (1935), p 11. 82 Sartori, n 80 above, p 859. 83 DS Lutz, ‘From Covenant to Constitution in American Political Thought’ (1980) 10(4) Publius 101, 114. 84 Ibid, p 113. 85 Sartori, n 80 above, p 860. 86 Loughlin, n 34 above, p 2, 16. 77 78

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of Rights and began with the words ‘We the People’, and also the 1789 French Declaration of Rights.87 Both formed in the midst of violent revolutions, from this point forward the idea of a constitution radically changed how people thought about the word, its meanings, and the power of subsequent documents.88 Constitutions no longer merely encapsulated the ‘entire body of laws, institutions, and customs that comprised’ a state, but the idea of the people constituting a state.89 It then followed that some form of written document, in visible form, 90 would be produced and displayed. Without one codified document the British constitution remains a diverse combination of statutes, common law, customs, manuals, parliamentary rules, and other entities (some scholars refer to this as the small-c constitution). The flat nature of law in the UK contributes to a unique and dynamic legal system. As Norton writes, ‘[t]here is no clear or formal dividing line between what constitutes a core component of the constitution and what does not’.91 It also means that the UK constitution is comparatively easy to change, a fact that has been noted by several authors.92 A codified constitution would change this significantly, incorporating into the legal landscape a more hierarchical structure, and a more difficult amendment procedure. Furthermore, there is little question that such a document would threaten the notion of parliamentary sovereignty,93 and Britain’s distinctively structured and widely recognised political constitution.94 In contemporary discussion within Britain over a written constitution, many commentators appear to desire not a more defined politeia but something more akin to modern-day large-C Constitutions, which, as Pryor notes, are often ‘reified as much for their rhetoric, “original” appearance and supposed uniqueness as for their constitutive effects’.95 The lack of a codified or written document for the UK has left analysis of its constitution out of some major works on constitutional theory, as comparativists tend to focus on those jurisdictions with large-C documents. This makes

Sartori, n 80 above, p 860. Loughlin, n 20 above, pp 46, 120. 89 Ibid, pp 120–121. My emphasis. 90 Ibid, p 120, quoting Thomas Paine, Rights of Man, Common Sense and Other Political Writings, Mark Philp (ed) (1995), p 122. 91 P Norton, ‘Introduction: A Century of Change’ in P Norton (ed), A Century of Constitutional Reform (2011), p 2. 92 A Lijphart, Patterns of Democracy (2nd edn) (2012), p 206; A Lorenz, ‘How to Measure Constitutional Rigidity: Four Concepts and Two Alternatives’ (2005) 17 Journal of Theoretical Politics 339, 358–359. 93 V Bogdanor & S Vogenauer, ‘Enacting a British Constitution: Some Problems’ (2008) Public Law 38, 53–57. 94 JAG Griffith, ‘The Political Constitution’ (1979) 42 Modern Law Review 1. 95 Pryor, n 33 above, p 165. 87 88

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perfect sense on particular issues. A book about constitutional preambles, for instance, is not going to include the UK.96 Other times, however, there appears to be a reluctance to include the UK because of its unwritten constitution. For example, a prominent work on the endurance of national constitutions eliminates it entirely, calling it a ‘sui generis’ case.97 A major work on constitutional amendment also largely ignores UK constitutional change,98 disregarding the fact that the idea of ‘constitutional statutes’ is one of the major issues not just within the UK, but in constitutional scholarship more generally. Other works have given short shrift treatment to the UK, and seem to struggle with the history and evolution of the unwritten constitution.99 More widely, the lack of a written constitution may exclude these states with non-traditional constitutions from receiving attention in the literature. For example, in a recent search of the International Journal of Constitutional Law, the total number of journal articles tagging any one of the three unwritten constitutional democracies (UK, New Zealand and Israel) came to 576, which does not even surpass the number of articles devoted to one jurisdiction: the United States (720).100 Comparatively, at the individual level, the UK has received less attention than some other European states, such as France (358) and Germany (444).101 This analysis may not tell us much, but it does suggest that on the whole written constitutions are generating more analysis and discussion in the legal literature than unwritten constitutions. Although the UK and a few others are certainly outliers and do not fit neatly into a data set, discounting these constitutional democracies or not including them in relevant constitutional analysis is troubling. As regards the prospects of some type of written constitutional document developing in the UK, a perfect storm may be brewing.102 The year 2015 was the 800th anniversary of the Magna Carta, and the run-up to this produced calls for Britain to produce a written constitution. A Commons Committee inquiry on the prospect of the UK penning a written constitution was brazenly

Voermans, Stremler & Cliteur, n 38 above. Elkins, Ginsburg & Melton, n 26 above, pp 49–50. 98 R Albert, X Contiades & A Fotiadou, The Foundations and Traditions of Constitutional Amendment (2017). 99 For example, in a major text on the social and political foundations of constitutions, which an unwritten constitution would likely have quite a lot of significance, the UK only receives sparse mention (D Galligan & M Versteeg, Social and Political Foundations of Constitutions (2013)). 100 Search performed on 13 May 2019, and included the following figures: UK (325), Israel (136) and New Zealand (115). 101 Search performed on 13 May 2019. 102 A Blick, Beyond Magna Carta: A Constitution for the United Kingdom (2015). 96 97

16

Constitutional idolatry and democracy

entitled: ‘A New Magna Carta?’.103 Although the final inquiry report did not recommend for or against codification, the inquiry’s title was not as neutral, even with the question mark. On the heels of the Magna Carta anniversary, the 2016 Brexit referendum vote and its wayward and uncertain aftermath have brought forward renewed calls for a written UK constitution.104 Some boil this down to issues regarding how constitutional change happens in Britain and the lack of constitutional entrenchment, while others point to the dysfunction and uncertainty after the vote and the parliamentary paralysis on the negotiated agreement. In 2019 election manifestos, a number of parties mentioned drafting or debating a written UK Constitution (or devolved constitutions), in addition to holding constitutional Conventions or Commissions.105 Thus, for many parties, significant constitutional change is on the agenda. No doubt much of the disillusionment regarding the UK constitution has been home grown. After once being the envy of Europe and beyond, ‘the British constitution today can evoke bewilderment and sometimes even derision’.106 In an era where politics and politicians are unrelentingly disparaged, it comes as no surprise that Lord Hailsham’s characterisation of the UK constitutional system as an ‘elective dictatorship’ continues to resonate with the public.107 Contemporary authors have not been afraid to lambaste the current system as ‘in turmoil’,108 ‘unprotected’,109 and especially in reference to Brexit, as ‘in crisis’.110 Some writers also seem surprised that an unwritten flexible constitution produces constitutional change, as if the UK were in continuous constitutional tumult. After ‘unwritten’, the main adjective used to describe the UK constitution is ‘changing’.111 This can lead to a misperception that underlying UK constitutional principles have changed, as opposed to the mechanics of the constitution. While the constitutional mechanics of the UK

103 House of Commons Political and Constitutional Reform Committee, ‘A New Magna Carta?’ (10 July 2014), HC 463. 104 One of the most prominent accounts is: V Bogdanor, Beyond Brexit: Towards a British Constitution (2019). 105 S Mitchell, E Nicholson, H Shaylor & A Walker, ‘Constitutional plans and pledges in the 2019 election manifestos’ (5 December 2019) The Constitution Unit, https://​constitution​-unit​.com/​2019/​12/​05/​constitutional​-plans​-and​-pledges​-in​-the​-2019​ -election​-manifestos/​. 106 Loughlin, n 78 above, p 1. 107 Lord Hailsham, Dilemma of Democracy: Diagnosis and Prescription (1978), pp 9–11. 108 Blick, n 102 above, p 117. 109 V Bogdanor, Brexit and Our Unprotected Constitution (2018). 110 DJ Galligan (ed), Constitution in Crisis: The New Putney Debates (2017). 111 For example, J Jowell & C O’Cinneide, The Changing Constitution (9th edn) (2019).

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have seen significant transformations over the centuries (decreased powers of the Crown, an increase in methods of Parliamentary accountability, enhanced protection of rights via the courts, etc.), the constitutional fundamentals have remained pretty much the same. The UK’s constitutional settlement is further explored in Chapter 4. 1.1.3

Not Quite Immune from Idolatry

As the basis of the current constitutional settlement and for its obvious worldwide influence on subsequent constitutional documents—such as the US Bill of Rights—one could be forgiven for thinking that the Bill of Rights 1689 would be the UK document most worthy of veneration. After all, the statute still possesses much practical relevance today. But in reality a UK document that serves very little practical relevance is the one that receives perhaps just as much praise and veneration as the US Constitution: Magna Carta. Originally written in 1215, this agreement between King John and his rebel barons was annulled by the Pope within weeks and went through numerous iterations.112 Some have argued that it was essentially irrelevant or lay dormant for centuries after its passage. But even if it did fall into relative insignificance, it has enjoyed a lasting (if intermittent) renaissance since the seventeenth century, when Sir Edward Coke resurrected the document to use as a bulwark against the powers of the Stuart kings.113 However significant the document has become as a calling card for the rule of law, the continued idolisation of this document borders on the downright strange. Loughlin notes that, ‘Magna Carta was not some great work of the “nation” or the “people”’,114 and Wicks has pointed out that there is no sweeping preamble or overarching political theory present in the document for people to relate to.115 Some have even misinterpreted Magna Carta to require trial by jury and consent for taxation, which certainly goes ‘beyond the original purposes of the Charter’.116 The provisions that have endured focus on the need for government to function though judicial processes and through the counsel of those throughout the kingdom.117 Chapters 39 and 40 describe elements of due process and swift justice, and have come to symbolise the first attempt to

112 G Garnett, ‘Magna Carta through eight centuries’ (2015) Oxford Dictionary of National Biography, p 1. 113 Ibid, pp 8–10. 114 M Loughlin, n 78 above, p 44. 115 E Wicks, The Evolution of a Constitution: Eight Key Moments in British Constitutional History (2006), p 5. 116 Ibid, p 6. 117 Ibid, p 5.

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restrict sovereign authority, therefore championing the rule of law. Practically, however, the document serves very little—if any—function in contemporary times, beyond its use as a rhetorical tool. Nevertheless, even though its origins largely pertain to thirteenth-century Baronial interests, ‘the Magna Carta left a legacy for individuals of future ages to ensure that their governments acted according to the law and legal processes’.118 The year 2015 marked the 800th anniversary of Magna Carta, and veneration of the document was on full display. I mentioned above that a Commons Committee named their inquiry into drafting a codified constitution: ‘A New Magna Carta?’. Outside this, Constitution UK (Professor Conor Gearty’s organisation at the time) teamed up with the organisation Unlock Democracy, for numerous events entitled ‘Unlock Magna Carta’.119 Gearty’s organisation eventually produced a ‘People’s Constitution’ for the UK.120 The Magna Carta Trust also set up an international poll conducted in 23 separate countries to determine the extent to which the charter was known throughout the world. The poll compared recognition of Magna Carta to other well-known documents, such as the US Declaration of Independence and the Universal Declaration of Human Rights.121 Exactly what the exercise demonstrated is uncertain, but the Ipsos MORI poll definitely came back with some interesting findings. In some jurisdictions Magna Carta was virtually unheard of (France—6%), while in others, the document was known by almost two-thirds of the population (Italy—62%, United States—65%).122 Not bad for an 800-year-old charter with little practical significance. The idolisation of Magna Carta, both in contemporary times and in the past, connects to how constitution idolatry is defined and experienced in this book. Given that the Great Charter was not integral to the enduring 1688 constitutional settlement and has little practical value today beyond its rhetorical influence, continued reverence for the document displays that, even in the UK, constitutional idolatry could easily arise and take shape. As Bingham aptly remarks, ‘sometimes the myth is more important than the actuality’,123 and it seems that this is definitely the case with Magna Carta.

Ibid, p 6. This event took place in London on 25 March 2015. 120 ‘The People’s Constitution’ (15 June 2015) Constitution UK, https://​blogs​.lse​.ac​ .uk/​constitutionuk/​2015/​06/​15/​the​-peoples​-constitution/​. 121 Magna Carta Trust, ‘International Poll’, https://​magnacarta800th​.com/​projects/​ international​-poll/​. 122 Ibid. 123 T Bingham, The Rule of Law (2010), p 12. 118 119

What is constitutional idolatry?

1.2

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DEFINING CONSTITUTIONAL IDOLATRY: SOME CONCEPTUAL FORMS

States possess an abundance of prominent legal and political symbols: anthems, flags, buildings, leaders, institutions, crests, customs, treaties, statutes, and declarations. But nowadays, arguably the most emblematic state symbol is that of the written constitution.124 And yet, the idea of constitution as symbol has often strayed beyond the bounds of merely being symbolic, and into the realm of what may be considered veneration, worship or idolatry. While I prefer the latter description, all of these terms incorporate the distinct phenomenon of praising constitutional texts. A number of constitutional scholars have touched on aspects of idolatry and its potential effects, although we still have not seen sustained attention devoted to the subject in the legal literature.125 This is somewhat odd, given the vast amount of constitutional literature published every year. But to borrow (and modify) a phrase from Bernard Bailyn: constitutional idolatry, in all its aspects and ramifications, is profoundly relevant.126 As noted above, here I define constitutional idolatry as: drastically or persistently over-selling the importance and effects of written constitutions. While this is what I hope to highlight throughout the book, there are also various forms that constitutional idolatry can come in, and I have attempted to acknowledge a few of those below. Of course, this list is not exhaustive and some of the forms overlap, but this is only a starting point into future expositions on the topic. 1.2.1

Constitution as Scripture

Those who have addressed constitutional idolatry tend to group it into religious or quasi-religious contexts. Unsurprisingly, some prominent accounts have come from American legal and political scholars, such as Max Lerner, Thomas Grey, Sanford Levinson, Steven D Smith, Jack Balkin, Michael Klarman, and Sotirios Barber. Grey describes the typical American attitude as such: Just as Christians and Jews take the word of God as sovereign and the Bible as the word of God, so Americans take the will of the people as sovereign, at least in secular matters, and the Constitution as the most authoritative legal expression of

124 R Cotterrell, ‘The Symbolism of Constitutions’ in I Loveland (ed), A Special Relationship? American Influences on Public Law in the UK (1995). 125 Although in other disciplines, such as history, we have seen this within a single jurisdiction context: M Kammen, A Machine that Would Go of Itself: The Constitution in American Culture (2006). 126 Bailyn, n 13 above, p 321.

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that popular will … it has been, virtually from the moment of ratification, a sacred symbol, the most potent emblem (along with the flag) of the nation itself.127

This approach on the American side has its origins in the late-eighteenth-century founding, which connects with the American Revolution and the establishment of the United States. But even during the founding, differences of opinion were present over how deeply attached the American public should be to their founding settlement. While Thomas Jefferson advocated generational constitutional change roughly every 20 years, warning about the ossification of certain religions, James Madison advocated veneration of the constitution as key to its success.128 Madison won out. For many Americans the Constitution goes beyond merely state symbol, and is considered a form of religious scripture.129 The document has been described as ‘perfect’,130 a ‘miracle’,131 and ‘the greatest political privilege that was ever accorded to the human race’.132 While America may not have a national church, ‘the worship of the Constitution would serve the unifying function of a national civil religion’.133 Thus, for all intents and purposes a national secular faith was born in 1789 focused primarily—if not exclusively—on the Constitution. The potential benefits of this national faith will be explored in Chapter 2. Two contemporary authors who have addressed and furthered the study of constitutional idolatry are Sanford Levinson and Jack Balkin. Levinson’s famous account comes from his classic book, Constitutional Faith. Here, he uses religiosity to discuss aspects of constitutional authority, highlighting the pre-eminent role that scripture has within Protestantism, and the mix of scripture and oral tradition that was more accepted within Catholicism. Levinson did this to demonstrate that, ‘[a]cross all of the great Western religions … there occur significant disputes about the relationship between “written” and “unwritten” foundations of doctrine’.134 This important book demonstrates how a written constitution can serve as the primary source not of harmony and co-operation, but of ‘fragmentation and disintegration’. While Levinson

Grey, n 32 above, p 3. Levinson, n 15 above, p 10. 129 Grey, n 32 above. 130 HP Monaghan, ‘Our Perfect Constitution’ (1981) 56(2–3) New York University Law Review 353. 131 Levinson, n 15 above, p 13. Of course, Levinson does not believe that the Constitution is a miracle. He merely points out that the exhibition for the bicentennial celebration in Philadelphia was called, ‘Miracle in Philadelphia’. 132 Coolidge, n 13 above. 133 Grey, n 32 above, p 18. 134 Levinson, n 15 above, p 21. 127 128

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decides to add his name as a signatory to the original US Constitution at this stage, he repudiates doing so in a later text.135 Of course, articulating the idea of ‘Constitution as scripture’ would not be complete without mentioning the judiciary. Both Levinson and Grey expound on the idea of scripture in part because this is how some US judges appear to use the document. Prominent examples are the originalist and textualist theories, which have become highly significant in constitutional interpretation throughout America’s judiciary and legal scholarship.136 The philosophy is based around the idea that language and intent should be strictly construed, and ‘understood in the contexts of the society that adopted it’ (i.e., constitutional meaning is fixed to when it was adopted).137 During her confirmation hearings, Justice Kagan famously stated, ‘we are all originalists’.138 Although this approach can certainly be regarded as a form of constitutional fetishism, reasonable arguments exist for texts to be interpreted with these techniques in mind, as opposed to allowing judges to determine the meaning of words based on contemporary understandings. However, the second amendment’s ‘right to keep and bear arms’ provides a good example of how fetishism distorts this language.139 While there is some debate as to whether this applies merely to a ‘well regulated militia’ (or should be applicable at all in the twenty-first century), in District of Columbia v Heller140 the Supreme Court made clear that this phrase allows the citizenry to keep and bear arms, no matter if states, counties or cities had previously banned such weapons based on evolving standards of public safety regarding firearm regulation. Thus, the idea of constitution as scripture touches on many facets of idolatry in the legal, political and cultural realms. 1.2.2

Constitution as Heavyweight Truncheon

Above, we saw how the word ‘constitutional’ can be used as an all-encompassing legal and political truncheon, designed to end the argument and close off all future debate. This form of idolatry relies heavily on the power of The later text in which he resists doing so is: S Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (2006). 136 See, e.g., DL Drakeman, ‘What’s the Point of Originalism’ (2014) 37 Harvard Journal of Law & Public Policy 1123. 137 P Brest, ‘The Misconceived Quest for Original Understanding’ (1980) 60 Boston University Law Review 204, 208. 138 ‘Kagan: “We are all originalists”’, Blog of the Legal Times (29 June 2010), https://​legaltimes​.typepad​.com/​blt/​2010/​06/​kagan​-we​-are​-all​-originalists​.html. 139 US Constitution, amend II. 140 554 U.S. 570 (2008). 135

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language. After all, humanity has ‘always used symbols in the struggle for power, but only latterly have we grown aware generally of their importance’.141 Undoubtedly, the word ‘constitution’ carries a tremendous amount of force; from a legal and political perspective it is often difficult to speak in more consequential terms. Writing in 1960, Sartori noted the following: ‘In our minds, constitution is a “good word.” It has favorable emotive properties, like freedom, justice or democracy’. He goes on to explain that the most common response upon hearing the word is: ‘The constitution must be praised, for it protects my liberties’, even if this notion is entirely baseless.142 Indeed, given the worldwide expansion of written constitutionalism, the word’s significance and positive reverberations have only been heightened throughout the years. Although I used an example from the Democratic National Convention above, in America the recent phenomenon of using the Constitution as a heavyweight truncheon has largely been developed on the political right.143 Indeed, the US Constitution’s success as a symbol of national pride and worship has turned it into a potent political weapon. One of the most visceral examples of constitutional fetishism can be found in the now defunct United States Tea Party. This political faction prided themselves on being the bearers of ‘constitutional’ values, branding opposition to their political ideals as constitutional violations. They even went so far as to encourage members to carry the document with them at all times, and held numerous collective readings of the document.144 But the idea of constitution as a heavyweight truncheon is not limited to the political realm. As Chapter 7 discusses, the judiciary often use written constitutions to expand the scope of their powers, preventing or dissuading other constitutional actors from interpreting the document. Employing the use of the constitution in legal or political argument is perfectly valid to a certain extent, but when it is used as a heavyweight truncheon to cut off all debate of a particular topic, mask likes or dislikes, or prevent other constitutional actors from interpreting the document, then the constitution itself has been idealised beyond much constructive usefulness.

Lerner, n 6 above, p 1292. Sartori, n 80 above, p 855. 143 J Finn, ‘How the alt-right corrupts the Constitution’ The Conversation (15 April 2019), https://​theconversation​.com/​how​-the​-alt​-right​-corrupts​-the​-constitution​ -113650. 144 Economist, ‘The perils of constitution-worship’ (23 September 2010), http://​ www​.economist​.com/​node/​17103701. 141 142

What is constitutional idolatry?

1.2.3

23

Constitution as Saviour

Above, we saw Kahn discuss the American Constitution as if it alone would save the citizenry from Donald Trump and his policies. It would be extremely difficult to say it has done that, especially given the failure of the recent impeachment proceedings. Although those employing a constitution in this manner are likely attempting to appeal to general unifying principles, and usually do so in good faith, this rhetoric is also a double-edged sword: if the constitution does not protect or save societies from the supposed threats, this could lead to a downgrade in respect or admiration for the document. While Sanford Levinson focused predominantly on the dangers of constitution as scripture and the idea of a written text fomenting fragmentation, Jack Balkin’s Constitutional Redemption focuses on some of the wider aspects of constitutional faith and the potential dangers of idolatry. He describes idolatry as the ‘the belief in a false god, in a graven image, in a false representation that purports to be the image of God but is not’.145 In reference to the legal world, he suggests that this could be applied to the rule of law, to mathematical precision of legal argument, and to forms of patriotism and nationalism. Idolatry, as Balkin emphasises, is ‘faith in what one ought not to have faith in’.146 This corresponds with others that have written about idolatry in the legal context. Smith notes that, far from being akin to elaborate pagan rituals, idolatry is 'simply a practice in which humans take an object of human construction and, by an act of imagination, endow that object with superhuman wisdom, virtue, or power. 147Thus, Balkin’s analysis highlights a practical element of idolatry: perhaps the widespread faith citizens have put in written constitutions is misplaced. Complementing Balkin’s ideas about idolatry and graven images, this book suggests that even though in particular contexts constitutions have been influential in the delivery of rights and freedoms, these venerated documents are often the false gods of the legal and political realm. As the rise of written world constitutionalism has grown, an overreliance on constitutions for the establishment and maintenance of the constitutional order seems to be proliferating, as grand claims regarding various constitutional possibilities continues to emerge. For example, what some scholars have termed ‘transformative constitutionalism’ sets these written documents up as legal, political, and cultural saviours, thus providing a focus point for societal development, but in turn J Balkin, Constitutional Redemption: Political Faith in an Unjust World (2011), p 83. 146 Ibid, p 101. 147 SD Smith, 'Idolatry in Constitutional Interpretation' 79(3) Virginia Law Review 583, 610). 145

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makes it all too easy to identify them as false gods if they fail to deliver on their ambitious promises. Transformative constitutionalism uses aspirational rhetoric in an attempt to further certain constitutional commitments and fundamentally change the politics, culture and legal institutions of a particular country. It is often ‘designed to mobilize popular support and orchestrate institutional action for the materialization of the transformative agenda’.148 Thus, the constitution is not just a legal or political document setting out general principles or a state framework in which actors must abide, but the primary engine for public development. This type of constitutionalism, if it is to be successful, is contingent on a high engagement with and knowledge of the constitution. For, if this is not demonstrated, then it is not the constitution that is driving whatever change is taking place, but other social, economic or political factors. 1.2.4

Constitution as Pre-eminent Societal Rallying Point

Much of the constitutional literature has pointed to written constitutions as pre-eminent rallying points within the citizenry. Kahn’s speech also represents this form of idolatry, as the US Constitution was used as a prop for political party unity. This touches on some of the literature noted above in relation to the performative aspects of constitutions. Indeed, some have portrayed constitutions as ‘inspirational’ documents149 that may be able to promote some type of enhanced citizenship or national unity.150 If constitutions are indeed inspirational documents that bring citizens closer together, then perhaps some of these other elements, such as citizen understanding of government and increased voter engagement, may be additional benefits of codifying a written document for the UK. Whether constitutions can perform such tasks as educating or invigorating the citizenry is further investigated in Chapters 3 and 5. The ‘We the People’ elements of contemporary written constitutions have much to offer this form of idolatry, as constitutions are widely conceived of as the ultimate articulation of the power of the people. After all, most constitutions begin with a firm nod to constituent power, often as the source of the constitution itself. Chapter 4 examines the reality of how this plays out in contemporary constitutions. Other writers have stressed the more personal and psychological elements of constitutions. This is certainly present in some of Ackerman’s work, cited above, which says that to ‘discover the Constitution is to discover and important part of oneself’,151 as if a lack of self-awareness

150 151 148 149

Frankenberg, n 11 above, p 103. Landemore, n 43 above. Voermans, Stremler & Cliteur, n 38 above, p 93. Ackerman, n 60 above, p 37.

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is present if citizens remain unfamiliar with the Constitution. Additionally, constitutional language more generally has been described as deeply personal. A leading text on preambles explains, ‘As siren songs, preambles try to connect the imagined ideals and beliefs to the constitutional world with the individual’s world. They serve as a nexus between the abstract systemic world and the individual’s psyche’.152 Thus, constitutional language serves a dualist function, articulating general collective values and aspirations, but in a manner that touches on the extremely personal individual character of citizens. 1.2.5

Idolatry Outside of the Above Forms

Of course, not all examples of constitutional idolatry will fall into one of the forms above. A case could be made that our contemporary societies are currently engaged in worldwide constitutional idolatry. Despite their average of 19 years,153 both liberal and non-liberal democracies continue to rely on constitutions as documents that will determine whether their states succeed or fail. Indeed, it is often thought that a ‘good’ constitution provides a path for state success, while a poorly drafted constitution may lead to failure. Chapter 6 examines whether this claim holds up. Above, I defined constitutional idolatry as drastically or persistently over-selling the importance or effects of written constitutions. This deliberately keeps open the possibility that constitutional idolatry can be a one-off, short-term event, or a widespread sustained event. In the American context, constitutional worship has been a time-honoured tradition. But given the rise of written world constitutionalism, there is a danger that the American experience is now just a microcosm of a wider type of idolatry for written constitutional documents at the international level. Some may see them as bulwarks against the spread of nationalism and illiberalism, while others may see them as a natural extension of our increasingly complex societies. The fact that contemporary states have the option whether or not to codify such a document, and have continually chosen to do so, may demonstrate a very real need or desire for such documents. This may be true not only at the national level, but also internationally. For example, the recent ‘World Congress on Constitutional Law’ 2018, held in Seoul, featured a workshop entitled: ‘The Debate on Establishment of the World Constitution’. No doubt this may be premature, given what happened to the proposal for a European Constitution over a decade ago, but the fact that it is being discussed at the very least

Voerman, Stremler & Cliteur, n 38 above, p 151. Elkins, Ginsburg & Melton, n 26 above, p 129.

152 153

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demonstrates that the idea of a written world Constitution may be pushed more forcefully down the line. While it is often the widespread sustained veneration that is of most interest and is the most disconcerting, short-term versions of idolatry also have significant implications. This is especially true in the UK context. Without a written constitution in place, we do not encounter continuing idolisation of such a document, even if sporadic idolatry has occurred with Magna Carta. Thus, there is potential that the British public could be vulnerable to manipulation if they were presented with short-term incidents of idolatry, especially as regards what the potential benefits of a written constitution may bring about (e.g., an end to the political tumult of Brexit). There is some evidence that during the passage of the Human Rights Act 1998, political and legal actors were over-selling the potential effects it would have on society. This will be covered further in Chapter 3. Presently, UK constitutional values are not worshipped by the citizenry, not overtly used as political weapons, and rarely used as legal tactics against ministers or others.154 Political parties have platforms and may value certain issues above others, but the accusation of unconstitutional proposals, bills or laws is not lightly and casually brought about. Should the UK adopt a written constitution, such circumstances could easily change. Individuals or groups may start claiming to be guardians or protectors of such a document, and ‘constitutional’ could be used as an all-encompassing truncheon for ‘right or wrong’.

1.3

SOME GENERAL THEMES

1.3.1

Constitutional Idolatry Devalues Politics and the Political Process

The rise in written constitutionalism has come with costs, one being the devaluation of politics and the political process. As Jutta Limbach pointed out close to two decades ago, this strategy was deliberate, given that ‘the supremacy of the constitution means the lower ranking of statute; and that at the same time implies the lower ranking of the legislator’.155 In some ways this harkens back to Aristotle’s discussion of rule by law rather than rule by men. Constitutional idolatry takes this to another level, as it perpetuates a mind-set that the political realm is subservient to the constitutional realm, rather than acknowledging

154 Although regarding the latter, the recent Cherry/Miller II litigation intimates that this could be increasing (R (Miller) v The Prime Minister [2019] UKSC 41). 155 J Limbach, ‘The Concept of the Supremacy of the Constitution’ (2001) 64(1) Modern Law Review 1.

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that the political realm is a complement to—or even at times a master of—the constitutional realm. After all, it is through politics and the political process that constitutional norms and values take shape, and where written documents are formally amended, replaced, or renewed. Thus, lowering the standing of legislators and statutes appears to be a misconceived quest for constitutional superiority. Within the UK context, some may push firmly back against this lower ranking of statute and the lower ranking of legislators. One of the reasons that the UK constitution works is because the primary focus remains on politics. This has been demonstrated through its commitment to parliamentary sovereignty, as opposed to constitutional or judicial supremacy. The idea that politics is the most important part of the British constitution has influenced a long line of constitutional thinkers, from AV Dicey and Walter Bagehot to John Griffith and Martin Loughlin. This commitment to a more political constitution, in which legal primacy resides with a majoritarian decision-making institution,156 has been fundamental to the UK’s contemporary constitutional settlement. As Chapter 4 discusses, a written constitution advocating constitutional supremacy would seriously threaten this integral component. 1.3.2

Constitutional Idolatry is Overly Paternalistic

Former American Supreme Court Justice Hugo Black and contemporary American Tea Party members had something in common: they both advocated carrying copies of the American Constitution at all times. Both also had similar reasons for doing so: they believed that most political disputes could be solved by simply pointing to the text of the Constitution.157 The fact that Black encouraged this in the mid-twentieth century, while Tea Party members were advocating this in the early twenty-first century, demonstrates that the idea has been an enduring one among American citizens and those in the legal profession. And yet, the belief that any written constitution can provide all the answers to constitutional disputes is an attractive fairy tale. Chapter 3 discusses the idea that written constitutions can be a valuable educative tool for the citizenry. Constitutional idolatry also puts more weight on what the framers of a constitution, rather than the people currently living under the document, think of how things should operate. If the ‘We the People’ element of constitutions is more than simply hollow rhetoric, then citizens should have opportunities to shape such documents. Chapter 8 discusses this in more detail.

M Gordon, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (2017), p 44. 157 As regards Hugo Black, this came from Levinson, n 15 above, pp 31–32. 156

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Additionally, in many constitutional democracies around the world, judiciaries have been increasingly adamant that they, as opposed to other constitutional branches or actors, are the ultimate interpreters or true constitutional guardians of their given democratic order. Chapter 7 further explores such claims, arguing that this type of constitutional jostling is inherently paternalistic, and damages the idea of constitutional guardianship being a collective endeavour within the entire state. Thus, in many jurisdictions, what began as a wider project based around constitutional protection has increasingly turned into a job for a small cadre of lawyers and judges. Those engaged in such constitutional sparring should acknowledge what American jurist Oliver Wendell Holmes once said: ‘that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts’.158 1.3.3

Constitutional Idolatry Stifles Constitutional Maintenance

Especially in this day and age, when technology, society and culture are moving at such a rapid pace, constitutions must be adaptable enough to take account for such change. And yet, the presence of constitutional idolatry impedes such development, by discouraging citizens from amending the formal constitution. Discouraging formal amendment incentivises informal constitutional change via the courts, which essentially takes the constitution out of the people’s hands. Indeed, unremitting constitutional idolatry can lead to constitutional disillusionment, as citizens and others see little or no prospects for constitutional change. This disillusionment impacts the possibilities of other types of political change through statutory or other means, as citizens are increasingly put off of the constitutional project. The idea and prospects for constitutional moments have been a strong focus point within the constitutional scholarship.159 But this idea was also unique to the American constitutional tradition. By contrast, the idea of constitutional maintenance has been key to sustaining the UK constitution. That is not to say that constitutional moments do not happen in the UK. They do. But constitutional maintenance, which is not as dramatic and does not need to incorporate widespread notions of popular sovereignty, is also important. Chapter 8 explores the idea that maintenance, which relies on consistent constitutional change, is incompatible with notions of constitutional idolatry.

Missouri, Kansas and Texas Railway Company v May, 194 U.S. 267, 270 (1904). The most prominent original account is Ackerman’s We the People, n 60 above.

158 159

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29

RECALCULATING OUR EXPECTATIONS OF CONSTITUTIONAL POSSIBILITY

This book stresses the need for a recalculation of constitutional possibility, contending that various forms of constitutional idolatry have seriously contributed to distorting what these parchment barriers can accomplish. Raised expectations for founding written documents have also contributed to the lowering in importance of the more human political realm, especially as regards legislators and statutes. This is unfortunate, as now more than ever politics and the political realm require trust and confidence, rather than contempt. Acknowledging the wide limitations of written constitutions and reasserting faith in the political realm is essential to negating the effects of constitutional idolatry. As the UK considers whether to pen a founding written document, these issues have become increasingly important. While discussion and debate usually revolve around ‘flexibility v rigidity’ or ‘transparency v opacity’, a wider conversation must consider elements such as: the educative functions of constitutions; their ability to deliver on their ‘We the People’ rhetoric; whether they can invigorate societies; whether ‘good’ documents are essential to state survival; how constitutional guardian rhetoric impacts societies; and the implications of writtenness on constitutional maintenance.

2. Venerating a text: some positive aspects of constitutional idolatry In Stephen Lukes’ compelling novel, The Curious Enlightenment of Professor Caritat, the narrator at one point acknowledges the depths to which human beings can sink, wondering what could be done to counteract this. Sounding an optimistic tone, he suggests, ‘should we try to raise them up, individually and collectively, through upbringing, through public instruction, through building institutions, and making constitutions’.1 This certainly aligns with the way that many perceive constitutions: optimistic documents that citizens can look to for both information and inspiration. Indeed, the ornate emotional language in some founding settlements seems explicitly designed to foster a sense of collective identity. And why should it not? After all, much of the reasoning behind including a preamble, for instance, is to inspire citizens with an aspirational vision of the state, whether that be through ‘We the People’, a list of collective rights, or a reconciliation of past social or cultural divisions. While this book is largely critical of constitutional idolatry and its effects on democracy, this chapter attempts to explore the positive aspects of the phenomenon: that having societies engaged in some form of constitutional veneration is not only beneficial but also healthy for a constitutional state. Indeed, researchers have suggested looking at the positive aspects of veneration, noting that it ‘may entrench important ideals that can serve aspirational purposes or act as a rallying point whenever political practice departs from constitutional promise’.2 These potential benefits should be taken seriously. It may be that constitutional idolatry leads to more engaged citizens on the whole, and therefore a better understanding of government and a more sophisticated democracy. Indeed, some form of constitutional fetishism could be the only way to prevent the state from violating or forgetting its constitutional commitments. This may be especially true for states currently riddled with conflict, as prominent state symbols could provide a sense of unity.3 Additionally, there may be instances where strong forms of constitutional attachment prevent

S Lukes, The Curious Enlightenment of Professor Caritat (1995), p 30. JR Zink & CT Dawes, ‘The Dead Hand of the Past? Toward an Understanding of “Constitutional Veneration”’ (2016) 38 Political Behavior 535, 557. 3 S Levinson, Constitutional Faith (1998), p 15. 1 2

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unlawful uses of public power or where the wide celebration of a national text prevents the meddling or encroachment of a non-democratic state. These are all potentially positive effects that may develop from constitutional idolatry.

2.1

A MORE UNITED AND ENGAGED CITIZENRY

In the Federalist Papers, Madison argued that public veneration of the American Constitution was ‘necessary to political stability because post-revolutionary America couldn’t be trusted with the tasks of constitutional repair’.4 That this veneration—and indeed the Constitution itself—has lasted over two centuries could be an indication that Madison’s call for enduring veneration has led to a more united public. As Chapter 1 acknowledged, constitutional veneration is alive and well in the United States, and many citizens may consider this not only healthy but appropriate. Indeed, as Levinson recognises, ‘[f]or some the news that constitutional faith is alive and well is “good”, manifesting the continuing “veneration” called for by Madison that will help us maintain a free and wise republic’.5 Other states seem to have embraced this optimism regarding constitutional veneration, and in many cases this can be seen in constitutional preambles,6 or perhaps in other elements of the state architecture.7 A glance at the South African Constitution demonstrates the potential importance of the expressive components of written constitutions, and especially how these elements could help inform and unify a citizenry. The 1996 document contains a soaring preamble, designed to recognise and overcome past injustices: We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to – Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;

S Barber, Constitutional Failure (2014), p 6. Levinson, n 3 above, p 15. 6 See Chapter 3, section 3.2.1. 7 For example, Germany’s main domestic security agency is called the Federal Office for the Protection of the Constitution. 4 5

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Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations. May God protect our people. Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso. God seën Suid-Afrika. God bless South Africa. Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.8

These meaningful words undoubtedly set out to inspire. After the transition from apartheid, this bold aspirational declaration of where the country had been, and where it was going, was probably needed. No doubt apartheid left deep cultural and political scars that would take decades to overcome, and having the country’s Constitution recognise this and attempt to bring some form of settled compromise could bring the people closer together and help heal a divided nation. Thus, a preamble incorporating the language of reconciliation and the ability to inspire may be a positive and proactive way for countries to move forward. 2.1.1

Educating the Citizenry

The more citizens encounter a constitutional text, the more they are likely to know and recognise its contents. Thus, praising or venerating a text may lead to increased attention on the document, and a more widespread or deeper understanding of that particular text. This could be a net gain for any jurisdiction, as citizens would be more likely to recognise and discuss their constitutions, which could lead to more active citizenship and an increasingly knowledgeable and united public. As noted in Chapter 1, at various points the American Constitution has been on bestseller book lists, and the country has a history of individuals carrying pocket versions of the document around with them. Such developments could be a very positive thing for constitutional knowledge and understanding, and may further a sense of cultural and political unity. 2.1.2

Constitutional Anniversaries and Holidays

While new constitutions may receive significant attention and be read frequently, older constitutions could fall into disuse, with contemporary citizens forgetting or neglecting their important contents. In order to counteract such effects, many states now have national holidays for their constitutions,

8

South African Constitution, 1996, preamble.

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designed to celebrate the signing of the document or the founding of their state.9 For example, Mexico’s ‘Día de la Constitución’ is ‘welcomed with festivals, concerts, and street celebrations’, and is also a federal public holiday.10 These commemorative events may be important in fostering a sense of patriotism and community, and could even provide the opportunity for self-reflection and introspection as to how the constitution is operating: in Japan, the purpose of the Constitutional Memorial Day is to ‘reflect on the meaning of democracy and the Japanese government’.11 Some countries that have adopted new constitutions even have days to celebrate past constitutions, or their original constitutional settlements: Poland does this for its 1791 Constitution;12 Denmark does the same for its 1849 Constitution;13 Maldives honours its 1932 Constitution;14 and Uruguay does so for its 1830 Constitution.15 Thus, anniversaries can provide opportunities to engage and unite the citizenry around a particular constitutional text, and sometimes that text does not have to be a state’s current constitution.

2.2

AN ENHANCED FORM OF CONSTITUTIONALISM?

[I]f the constitution is authoritative, that is, if public officials and private citizens take its terms seriously and try to act according to its norms, constitutionalism could limit government.16

As ‘roadmaps’ or ‘guardrails’ for how things should operate within a given jurisdiction, written constitutions are often explicitly related to a form of constitutionalism in which actors operating inside a particular framework feel bound to abide by the written guidelines. Similar in many ways to how religions or other types of belief systems may structure our lives, the promise of constitutions and constitutionalism ‘supply a set of beliefs capable of channeling our conduct’.17 Should this be the case, idolising these written documents may provide an enhanced form of attachment to constitutional procedures, with less likelihood that actors within a given jurisdiction would

Comparative Constitutions Project, ‘World Constitution Holidays’, https://​ comparativecons​titutionsproject​.org/​world​-constitutional​-holidays/​. 10 Ibid. 11 Ibid. 12 Poland’s current Constitution was written in 1997. 13 Denmark’s current Constitution was written in 1953. 14 Maldives’ current Constitution was written in 2008. 15 Uruguay’s current Constitution was written in 1966. 16 WF Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (2007), p 15. 17 Levinson, n 3 above, p 36. 9

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deviate from the established norms. This may be especially true for those officials within any given jurisdiction that take oaths of office to uphold the constitution. A stronger attachment to the document by these officials may provide a bulwark against unlawful uses of state power. The origins of the American Constitution attempted to fulfil this promise of enhanced constitutionalism, as explicit authority regarding what powers Congress holds were laid out in Article 1, Section 8, and the rights of the individual citizens were enumerated in the Bill of Rights. And in some sense, this promise has been fulfilled. As West notes, ‘Our political history … is filled with examples of both individual patriots and large political movements employing the language and rhetoric of the Constitution’ in order to advance particular ends.18 Adhering to the document and championing its ideals may be why the American constitutional settlement endures, and has not succumbed to replacement like so many other written constitutions. Therefore, idolising the shared values and ideals within a constitution may be one way to enhance the protections offered by these documents, and ultimately boost the operation of constitutionalism.

2.3

UNDER THREAT FROM NON-DEMOCRATIC OR OVERBEARING REGIMES?

Praise and veneration of a constitution could be especially justified if jurisdictions come under immediate or continuous threat from non-democratic or overbearing regimes. This may have been related to Madison’s argument in terms of venerating the American Constitution: knowing that many of the American founders still had sympathy with the UK, perhaps the praise of a written document was the only way to keep alive the spirit of the nation. In such a context, continuous veneration of a written document appears acceptable. Contemporary examples of this can be justified in a few places across the globe. One example is Taiwan, whose democratic 1949 Constitution provides a bulwark against Taiwan’s mighty communist neighbour, the People’s Republic of China (PRC). Taiwan’s constitutional founding will be examined in more detail in Chapter 6, but to provide some context here, the 1949 Constitution was written during the Chinese Civil War as a Constitution for the whole of China.19 However, the republicans lost the war and fled to Taiwan, and now use a heavily amended version of the document as the basis for the Taiwanese government. Venerating the document’s democratic credentials

R West, ‘Ennobling Politics’ in HJ Powell & JB White, Law and Democracy in the Empire of Force (2009), p 65. 19 JR Yeh, The Constitution of Taiwan: A Contextual Analysis (2016). 18

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in the face of aggression from the People’s Republic of China and a possible takeover, is perhaps essential for the health of Taiwan, as its leaders are constantly battling for the hearts and minds of its people, not only in a difficult political context, but in a larger cultural and economic context. Consequently, idolising the principles codified in a democratic constitution could be a strong way of reinforcing the underlying principles of constitutional democracy. The same could be said for Hong Kong’s Basic Law, which acts as a mini-constitution for Hong Kong and provides structural basis to the one-country-two-systems (OCTS) framework between China and Hong Kong.20 Written and agreed before the 1997 handover, the Basic Law provides Hong Kong citizens more rights and liberties than are available on mainland China. And yet China has displayed signs of neglecting the OCTS framework; and, perhaps more importantly, there is a 50-year time-limit on the Basic Law and nobody knows what will happen to it once the time period elapses in 2047. Thus, with uncertainty looming as to whether China will allow Hong Kong to keep the document and stay in an OCTS framework, idolisation of the document would not be surprising. Indeed, veneration of the Basic Law may be necessary for Hong Kong citizens to ensure that their rights and freedoms remain the same—or stay substantially similar—once the Basic Law officially expires. In these circumstances, continuous praise and veneration of a particular democratic constitution may be helpful­, and perhaps essential, for countries currently under threat.

2.4 CONCLUSION As can be seen from the above, the idolatry of written constitutions may produce some general public goods: a more united and engaged citizenry; an enhanced form of constitutionalism; and perhaps even a bulwark for societies under threat from non-democratic or overbearing regimes. For those jurisdictions without written documents, such as the UK, these potential benefits could appear most promising. The remainder of this book goes some way to addressing these outcomes, critically analysing the relationship between constitutional idolatry and democracy.

D Gettings, Introduction to the Hong Kong Basic Law (2nd edn) (2017).

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3. Educating the citizenry? If arguments regarding the educative function of written constitutions and other positive outcomes from enacting such documents seem familiar, it is because many were presented over two decades ago, as the Human Rights Bill—the precursor to the Human Rights Act 1998 (HRA)—was travelling through the Westminster Parliament. Before the HRA was enacted, a number of bold claims were made about what the legislation would accomplish. Lord Irvine, the Lord Chancellor at the time, noted that a ‘culture of awareness of human rights would develop in the UK’, and that domestic implementation of the Convention would give ‘credibility to our foreign policy’ and increase the UK’s international standing.1 Mike O’Brien, then Under-Secretary for the Home Office, noted that ‘the effects will be profound. The Bill will benefit individuals, Government and the whole of society’.2 Jack Straw, then Home Secretary, argued that it would ‘strengthen representative and democratic government… The Bill will thus create a new and better relationship between the Government and the people’.3 Thus, beyond the legal effects of the legislation, these wider claims were also key to selling its passage. Even before the emergence of the HRA, however, it was argued that bills of rights make better, more informed citizens. In proposing a UK Constitution in 1991, the Institute of Public Policy Research noted that the inclusion of a Bill of Rights might indeed have such effects: Learning about these principles would become part of the school curriculum and adult education, encouraging pupils and students to debate the importance of protecting human rights and the difficulties which arise when they conflict. Such a development would encourage a more informed public, more sensitive to the implications of restricting civil liberties and of extending them.4

But such idealistic arguments now appear woefully naïve. The HRA—for all the good it has done—has been an extremely contentious statute since 1 J Cooper & A Marshall-Williams, Legislating for Human Rights: The Parliamentary Debates on the Human Rights Bill (2000), p 1. 2 Ibid, p 9. 3 Ibid, p 3. 4 Institute of Public Policy Research, A Written Constitution for the United Kingdom (1991), p 13.

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its enactment. After 20 years in force, it would be very difficult to say that it has brought the government and the people closer together, developed a culture of rights awareness, or even led to a more informed public. And even though replacing the HRA with a British Bill of Rights was in two successive Conservative election manifestos, the party still topped those elections in terms of total MPs elected (in 2010 and in 2015),5 suggesting that citizens may be open to repealing or heavily amending the legislation. A recent report by the Joint Committee on Human Rights (JCHR) says that although people may have an appreciation for the values underpinning human rights, support for the legal frameworks that articulate these (i.e., the HRA and the European Convention on Human Rights (ECHR)) is lacking.6 Further, a recent audit of citizen engagement has shown that opinions regarding the UK governmental system are at the lowest they have been since measurement began; and this includes the year just after the parliamentary expenses scandal broke.7 Thus, bringing the government and people closer together does not appear to have materialised; and in fact, the opposite could be said to have happened, as citizens are more disengaged and disenchanted with politics than ever. Most importantly to this chapter as regards knowledge of human rights more generally, the JCHR report notes that current awareness was ‘very low’, and that in some schools rights are taught ‘fleetingly’ or not at all.8 This is true, even though the Equality and Human Rights Commission has a duty to promote human rights under the Equality Act 2006.9 The JCHR recommended that the government mandate human rights education across the educational curriculum at key stages. Whether or not the government will implement this, however, remains to be seen. Thus, the grand statements about what the HRA would accomplish must be tempered by the reality of what has developed. This is important to keep in mind, given that many of the same arguments have arisen as regards what a written constitution would potentially accomplish. This chapter focuses on the potential educative effects of written constitutions, first considering civic knowledge more generally, and then examining some problematic aspects regarding the drafting of written constitutions.

In the 2017 election, the Conservative manifesto said that reform on the HRA would not proceed until Brexit was dealt with first, so I do not count that here as advocating to replace the legislation. 6 Joint Committee on Human Rights (JCHR), ‘Enforcing Human Rights Judgments’ (2018), HC 669, HL Paper 171, p 39. 7 The Hansard Society, ‘Audit of Political Engagement 16’ (2019), https://​www​ .hansardsociety​.org​.uk/​publications/​reports/​audit​-of​-political​-engagement​-16. 8 JCHR, n 6 above, p 44. 9 Equality Act 2006, s 9(1). 5

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3.1

PUBLIC KNOWLEDGE OF CONSTITUTIONAL STRUCTURES

Part of the allure as regards written constitutions is that these documents better inform the citizenry by providing clarity on constitutional structures and arrangements, and therefore perform an educative function, as was noted in Chapter 2. One way that these devices do so is from preambles, which may be able to provide some type of ‘educational summary’ that could highlight core constitutional values and also help explain the nation’s history.10 Bills of rights are also devices that are seen to be educative, in the sense that citizens can look to them to ascertain what rights they currently possess. Indeed, such documents are often used as ‘less a tool of legal litigation than [as] … a symbolic political declaration’ of citizen rights and freedoms.11 Scholars have even argued that the constitutional adoption process may teach citizens about constitutional democracy, thus educating them on how to confront such critical problems in the future.12 Indeed, outside of facilitating the public’s basic wants and needs, constitutional design itself is ‘meant to refine and educate’.13 But there is good reason to be sceptical about these arguments, and the power of what written constitutions—even those including alluring preambles and penetrating bills of rights—can achieve. Earlier I suggested that written constitutions resemble elegant but convoluted cog machines in terms of understanding state operation: citizens may identify some essential features, but one will hardly understand state processes through consulting them. Similarly, Frakenberg says that constitutions ‘can be commanding or at least aspirational texts’, but they are ‘definitely not blueprints’.14 The fact that written constitutions do not operate strictly according to their provisions is important, and is something that I take up in Chapter 6. What I am concerned with here are the potential educative effects that constitutions may have on the citizenry. Given the unwritten nature of the UK constitution, people often argue that citizens would benefit from a more visible and

W Voermans, M Stremler & P Cliteur, Constitutional Preambles: A Comparative Analysis (2017), p 94. 11 R Blackburn, Towards a Constitutional Bill of Rights for the United Kingdom (1999), p 40. 12 WF Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (2007), p 190. 13 G Thomas, ‘The Madisonian Constitution, Political Dysfunction, and Polarized Politics’ in Z Courser, E Helland & KP Miller, Parchment Barriers: Political Polarization and the Limits of Constitutional Order (2018), p 18. 14 G Frankenberg, Comparative Constitutional Studies: Between Magic and Deceit (2018), pp 14–15. 10

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readily understandable codified constitution. This has been accentuated across a range of contexts, both within and outside legal scholarship. As Gareth Pierce said while giving evidence before the JCHR, ‘We do not have a written constitution, so in our schools we do not grow up thinking, “I have rights”, with an understanding of why’.15 A recent cover story in The Economist describes the UK constitution as ‘opaque’, ‘poorly grasped’ and ‘messy’.16 Even the Queen at one point acknowledged that, ‘The British Constitution has always been puzzling and always will be’.17 Indeed, assertions surrounding the lack of constitutional understanding can often become extremely personal. Some authors in America have suggested that ignorance in relation to the American Constitution prevents one from understanding their country, from grasping some fundamental truths, and from truly enjoying and appreciating their citizenship.18 These assertions sound eerily similar to those who use the constitution as a truncheon, lambasting citizens who fail to ‘know’ or ‘see’ the document in the same light. Democracy, of course, relies on people to sustain it. This is done primarily through the public vote, which is what democracy is built around—the idea that each person has a say in the election of their governmental leaders. In some places this vote is compulsory (e.g., Australia), but in many places voting is voluntary, such as in the UK. One thing that is not mandatory before voting, however, is knowledge of public, political or constitutional affairs. As long as someone meets the statutory voting requirements, they are given the opportunity to cast their ballot. Therefore, democracies rely on a certain level of knowledge about how the government is run and what basic structures are in place to sustain it. In the American context, Levinson refers to these as the ‘hard wired’ aspects of the US Constitution.19 Beyond these, however, a basic commitment to and understanding of democracy and the rule of law—two

JCHR, n 6 above, p 44. The Economist, ‘Next to blow: Britain’s constitution’ (1 June 2019). 17 V Bogdanor, ‘The New British Constitution’ (16 June 2009), https://​ www​ .gresham​.ac​.uk/​lecture/​transcript/​print/​the​-new​-british​-constitution/​. 18 FG Cullop, The Constitution of the United States: An Introduction (Rev.) (1999), p vi (‘This “thing”—this Constitution—is the most important thing in the life of every person living in the United States. Your way of life is built around it, your government is based around it, and your rights and privileges as United States citizens are protected by it. To be ignorant of it is to be ignorant of all the things your country is, and of the truths its people have believed to be above all others in the relationships between human beings and government. In order to truly enjoy, appreciate, and protect what you have as citizens of the United States, you must be aware of what is found in your Constitution’). 19 S Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How the People Can Correct It) (2006), p 142. 15 16

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building blocks of modern constitutionalism—could be of even greater importance. Throughout history, writers have used a lack of citizen knowledge or understanding for a variety of justifications: arguments against democracy; arguments for alternatives to democracy; arguments for representative government; arguments for enhanced judicial review; arguments for a smaller government; and arguments for enhanced roles for lawyers or the legal establishment.20 In the UK context, we can add arguments for written constitutions to that list. Of course, as Runciman acknowledges, ‘Critics of democracy— starting with Plato—have almost always argued that it means rule by the ignorant. Or worse, rule by the charlatans that the ignorant people fall for’.21 It should be recognised that knowledge in relation to constitutional structures or operations is different from knowledge about news or international affairs. For example, a question about what the three main branches of government are or whether citizens vote directly for the president or premier is fundamentally different from whether a person knows if the economy grew last year or if they can name particular government ministers. The latter are relevant, but not essential, facts about one’s society. Thus, some citizens may have very good knowledge of public affairs and current events, but be shaky in terms of basic constitutional knowledge, or vice versa. A lack of constitutional knowledge may be more disconcerting, as being able to identify basic governmental structures and functions is often key to understanding the complex interplay between public affairs and current events. Nevertheless, the articulation of basic structures and governmental relationships forms the basis of most written constitutions, and it is here that citizens may turn to attain such knowledge. 3.1.1

Civic Knowledge Among the General Public

Much of the constitutional awareness and civic knowledge that citizens attain often comes through schooling at the primary and secondary levels, as political knowledge and attitudes during this time can impact long-term values and preferences.22 In many ways, constitutions are reliant on awareness and understanding of the provisions in order for them to have an effect. If written constitutions have educative benefits, then we should see better performance on tests of civic knowledge from citizens in states who possess written constitutions compared to citizens in states with unwritten constitutions. In short, citizens with written constitutions should generally be more knowledgeable citizens, as See, e.g., I Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter (2nd edn) (2016). 21 D Runciman, How Democracy Ends (2018), p 179. 22 Z Elkins, T Ginsburg & J Melton, ‘Time and constitutional efficacy’ in T Ginsburg and A Huq, Assessing Constitutional Performance (2016), p 241. 20

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they can look to the written constitution for clarity and guidance, while citizens living in jurisdictions with unwritten constitutions do not have this luxury, and therefore may not be as knowledgeable in terms of political structures and operations. And yet, the vast amount of data gathered in citizen knowledge studies demonstrates that those living under a written constitution are no more knowledgeable than those living without such a document in place. A comprehensive study of 90,000 14-year-old students in 28 countries demonstrated that when it comes to civic education, the majority of countries hover around the same level of knowledge, and there is little statistical significance among them.23 A focus on both the content of civic education and also the ability of students to interpret civic-related material was included. Students from England, which lacks a written constitution, and students from Australia, which does not possess a bill of rights, participated in the study. Both of these countries placed around the middle of the pack in terms of overall knowledge, with students being roughly equal in performance to those in Germany, Denmark, Sweden and Switzerland.24 In another comparative study that included a host of old democracies, new democracies and non-democracies, the UK performed well regarding overall levels of political knowledge. It had the highest mean of any country included in the sample, with 67% of questions answered correctly. The survey included three different educational groups: none to incomplete secondary, secondary to post-secondary, and university graduates.25 Additionally, a 2010 study involving 38 countries by the International Association for the Evaluation of Educational Achievement (IEA) found that secondary students in England and New Zealand placed in the upper half of countries surveyed in terms of civic knowledge.26 Although lacking entrenched written constitutions, the performance by English and New Zealand students beat out countries with long-standing constitutions, such as Norway, Belgium and Austria. These three studies challenge the idea that possessing a written constitution produces more informed citizens. Knowledge in relation to specific state structures, such as election systems and legislatures, has also highlighted the lack of any written constitutional

23 J Torney-Purta, R Lehmann, H Oswald & W Schulzrk, Citizenship and Education in Twenty-eight Countries: Civic Knowledge and Engagement at Age Fourteen (2001), pp 45–56. 24 Ibid, p 56. 25 K Grönlund & H Milner, ‘The Determinants of Political Knowledge in Comparative Perspective’ (2006) 29(4) Scandinavian Political Studies 386, 396. 26 W Schulz, J Ainley, J Fraillon, D Kerr & B Losito, ‘ICCS 2009 International Report: Civic knowledge, attitudes, and engagement among lower secondary school students in 38 countries’ (2010) International Association for the Evaluation of Educational Achievement (IEA), p 75.

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effects on citizen knowledge. A 2006 study examined Germany, which possesses an entrenched Basic Law, and New Zealand, famous for its political statutory constitution, to determine whether citizens understood their Mixed Member Proportional (MMP) voting systems. The authors found that there was a similar level of knowledge across the countries in terms of understanding, and in the New Zealand context they stressed that the New Zealand Electoral Commission had done a good job in promoting public awareness of the new system.27 Other studies as regards specific structures have even pointed to less knowledge for those with one coherent codified constitution. A 1994 comparison between Canadian, British and American citizens found that the British and Canadian citizens far outperformed US citizens on knowledge of their respective national legislatures.28 This may be somewhat surprising, given that the US Constitution begins with the legislature in Article I, and it is by far the longest and most detailed article included in the document. Admittedly, the studies cited above only form a sliver of the picture in terms of citizen knowledge, but they do challenge the notion that citizens living under written constitutions are any better informed than those who do not possess such a document. The fact that written versus unwritten constitutions was not a key factor in their investigations is also highly relevant, as it diminishes any ‘observer bias’ that may arise as regards this important element. The results also have implications for constitutionalism and constitutional idolatry. If written constitutions or some form of constitutional worship is supposed to provide clarity regarding political and constitutional norms and enhance citizen understanding, then these studies push back against that notion. 3.1.2

Constitutional Knowledge under Continuous Constitutional Idolatry

Chapter 1 began by describing Khizr Kahn’s speech at the Democratic National Convention in 2016, which led to a flurry of pocket-sized US Constitutional texts being sold, and renewed interest in America’s founding document. I also mentioned that some political parties had encouraged all their members to carry a copy of the Constitution with them at all times and

27 JA Karp, ‘Political knowledge about electoral rules: Comparing mixed member proportional systems in Germany and New Zealand’ (2006) 25 Electoral Studies 714, 727. 28 Cited in MX Delli Carpini, ‘An overview of the state of citizens’ knowledge about politics’ in MS McKinney, LL Kaid, DG Bystrom & DB Carlin (eds), Communicating Politics: Engaging the Public in Democratic Life (2005), p 32.

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even held collective readings of the document.29 This is all potentially very good news for the large-C Constitution and for the potential understanding among citizens of how government within the US operates. Given the US Constitution is one of shortest constitutions in the world, it should be easier for citizens to read through. And yet, numerous surveys of citizen knowledge demonstrate that for all their idolisation of the document, Americans know very little about their written Constitution. For example, a 2017 survey by the Annenberg Public Policy Center at the University of Pennsylvania found that Americans were poorly informed about the document: 37% could not name any rights provided by the First Amendment and 33% did not know any of the three branches of government.30 Such findings have been quite common. A 2018 national survey by the Woodrow Wilson Foundation found that only 13% of Americans could correctly identify when the US Constitution was ratified (most said 1776, but the document had not even been created then; it was written in 1787, ratified in 1788, and came into force in 1789), while over half did not know how many judges sit on the US Supreme Court.31 A 2016 survey by the American Council of Trustees and Alumni found that over one-third of citizens thought that impeachment trials were heard in the Supreme Court, as opposed to the Senate, and only 37% correctly identified the term lengths for members of Congress.32 Additionally, only 24% correctly identified the need for three-fourths of states to ratify a proposed amendment (most incorrectly thought that the President must approve constitutional amendments).33 Thus, while Americans may score high on constitutional veneration, they score low on actual constitutional knowledge. The dismal performance in these surveys has led many individuals and organisations within the US to label civic education as ‘in crisis’. The Hoover Institution, one of the top think tanks in America, proclaimed so in 2019.34 Before this, former US Supreme Court Justice Sandra Day O’Connor believed

29 ‘The perils of constitution-worship’, The Economist (23 September 2010), https://​ www​.economist​.com/​united​-states/​2010/​09/​23/​the​-perils​-of​-constitution​-worship. 30 Annenberg Public Policy Center, ‘Americans Are Poorly Informed About Basic Constitutional Provisions’, University of Pennsylvania (12 September 2017), https://​ www​.annenbergpublicpolicycenter​.org/​americans ​-are​-poorly​-informed​-about​-basic​ -constitutional​-provisions/​. 31 ‘National survey finds just 1 in 3 Americans would pass citizenship test’ (3 October 2018) Woodrow Wilson Foundation, https://​woodrow​.org/​news/​national​ -survey​-finds​-just​-1​-in​-3​-americans​-would​-pass​-citizenship​-test/​. 32 American Council of Trustees and Alumni, ‘A Crisis in Civic Education’ (2016), https://​www​.goacta​.org/​images/​download/​A​_Crisis​_in​_Civic​_Education​.pdf. 33 Ibid. 34 D Davenport, ‘The Civic Education Crisis’ (5 April 2019) Hoover Institution, https://​www​.hoover​.org/​research/​civic​-education​-crisis.

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that the lack of civic education throughout the US was such an acute problem that she decided to devote much of her retirement to it. This led her to open the Sandra Day O’Connor Institute, which focuses on civics education, civic engagement and civil discourse.35 Although this is one of the more prominent recent ventures, the US is in fact littered with civic education organisations, many of which have been around for decades or longer. Although the civic knowledge crisis now has many more sounding boards, the term ‘crisis’ presupposes that earlier generations of Americans had a much better knowledge of and understanding of their Constitution. Here, also, the evidence is murky, but most of it points to a continuous lack of knowledge throughout the US Constitution’s lifespan. For instance, in the late eighteenth and early nineteenth century, Charles Warren wrote that ‘there is much evidence of how scanty was the knowledge of the Constitution in certain parts of the country’.36 Additionally, he notes that it was not until 1840 that Americans received access in printed form to any information on the Federal Convention debates. Previously, this had come from debates in Congress, which may or may not have produced accurate information.37 Evidence from contemporary times has also demonstrated that American political knowledge has remained static for quite a while. A review of citizen knowledge in 2005 demonstrated that levels had been roughly the same for the past 50 years, which, given the expansion in public education, communication technologies and international integration, may be cause for concern.38 Thus, it appears that widespread constitutional idolatry does not lead to an enhanced understanding of politics or the appreciation of state structures. In fact, widespread veneration may even discourage examination of the constitution and its contents, something that should be investigated further. Now, however, we need to look at other jurisdictions in relation to constitutional knowledge and understanding. 3.1.3

Written Constitutional Knowledge More Generally

The American example demonstrates that idolisation does not equal knowledge. Of course, it is not just the American public that is uninformed or misinformed about constitutional texts. The phenomenon appears to be ubiquitous among jurisdictions worldwide. Research by Ipsos MORI in 2015 has found that only 65% of Australians had not heard of the 1901 Australian Sandra Day O’Connor Institute, http://​oconnorinstitute​.org/​. C Warren, ‘Sources of Knowledge of the Constitution’ (1927) Constitutional Review 174, 175. 37 Ibid, p 176. 38 Delli Carpini, n 28 above, pp 30–31. 35 36

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Constitution,39 and similar figures were found as regards to: Brazil’s 1988 Constitution (67%), South Africa’s 1996 Constitution (65%), Belgium’s 1831 Constitution (60%), India’s 1949 Constitution (61%), and South Korea’s 1948 Constitution (63%).40 But these were not the lowest of the figures: only 38% of Romanian citizens had heard of its 1991 Constitution.41 This demonstrates that both relatively recent and also long-standing constitutions have trouble in this regard. And bear in mind that these results are just in relation to knowledge of the constitution’s existence, rather than knowledge in relation to the particular provisions and how it operates. If close to one-third of citizens in these respective jurisdictions are unaware of the current large-C Constitution, then there are major questions as to how much of an educative effect written constitutions can have on citizens. South Africa is also the jurisdiction in which the idea of ‘transformative constitutionalism’ originated. No doubt the 1996 Constitution has been widely held as a model for contemporary constitutions, and been praised by a number of constitutional scholars, judges and politicians. And yet, in 2016, a constitutional knowledge test was devised in order to assess the performance of the Constitution after 20 years of implementation. It did not go well. Only six out of 18 questions were commonly answered correctly, suggesting a ‘general lack of knowledge about the Constitution and the structures it sets up’.42 Some of the questions that the participants struggled with were: ‘The Constitutional Court may strike down a law passed by parliament if the law goes against the Constitution’ (48% answered accurately); ‘In South Africa, I vote directly for the President’ (34% answered accurately); and ‘The Constitution allows me to vote for my own individual member of parliament’ (22% answered accurately).43 The survey also found that 55% of participants were aware of the Constitutional Court, but many only had a weak understanding of its role in the polity.44 Given the Court’s vastly important role within the state of South Africa, the fact that the citizenry is unaware of some of these constitutional structures and functions is, if not alarming, at least disappointing. It suggests that the label ‘transformative’ may be far off the reality, or at least premature, in terms of what the South African Constitution has been able to achieve.

Ipsos MORI, ‘Magna Carta International Public Opinion’ (January 2015), https://​magnacarta800th​.com/​projects/​international​-poll/​. 40 Ibid. In fact, even given the high degree of constitutional idolatry in America, close to one-fifth of citizens in this poll had never heard of the American Constitution. 41 Ibid. 42 D Bilchitz et al., ‘Assessing the Performance of the South African Constitution’ (2016) International IDEA, p 112. 43 Ibid, p 19. 44 Ibid, pp 112–113. 39

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There are also larger questions as regards the functions of courts, and in particular their ability to strike down acts of the legislature. This power, which usually amounts to who has the ‘final word’ within constitutional democracies, has become the central obsession of constitutional law scholarship;45 but major questions remain regarding whether citizens understand such constitutional dynamics. Even in the United States, which has a long history of Supreme Court nullification of both state and federal law—and in fact spearheaded this approach to judicial review in Marbury v Madison—there is evidence that citizens remain unaware of whether courts possess this power, and also how they use it. Given the spate of prominent headlines after any such occurrence,46 it would seem logical that citizens would have a basic understanding of the ultimate powers of apex courts. But that does not appear to be the case. In a 2001 survey of American high school students (year 12), the percentage who knew about the Supreme Court’s power to overturn unconstitutional laws was 34%.47 Another Annenberg survey in 2016 found that over one-quarter of citizens believed that 5–4 Supreme Court decisions were sent back to Congress for reconsideration or to the lower courts.48 The same may be true in other countries. In the South African survey noted above, not even half of the citizens who participated knew that the Constitutional Court could strike down a law passed by the Parliament.49 That is not to say that citizens would necessarily oppose the courts possessing such powers; but the lack of knowledge is disconcerting. As Larry Alexander has noted, ‘the real question is whether the people are actually aware of what is going on’ in terms of how judicial review operates.50 EC Dawson, ‘Adjusting the Presumption of Constitutionality Based on Margin of Statutory Passage’ (2013) 16. University of Pennsylvania Journal of Constitutional Law 97, 100. 46 For example L Wheeler, ‘Supreme Court strikes down law banning sports betting’ (14 May 2018) The Hill, https://​thehill​.com/​regulation/​387560​-supreme​-court​ -strikes​-down​-law​-banning​-sports​-betting; C Geidner, ‘Supreme Court Strikes Down Defense Of Marriage Act, Dismisses Prop 8 Appeal’ (26 June 2013) Buzzfeed News, https://​www​.buzzfeednews​.com/​article/​chrisgeidner/​supreme​-court​-rules​-doma​-is​ -unconstitutional. 47 S Soule, ‘“We the People... The Citizen and the Constitution”: Knowledge of and Support for Democratic Institutions and Processes by Participating Students’ (2001) Center for Civic Education, p 12. 48 Annenberg Public Policy Center, ‘Is there a constitutional right to own a home or a pet? Many Americans don’t know’ (16 September 2015), https://​cdn​ .annenbergpublicpolicycenter​.org/​wp​-content/​uploads/​Civic​-knowledge​-survey​-Sept​.​ -2015​.pdf. 49 Bilchitz et al., n 42 above. 50 L Alexander, ‘What are constitutions, and what should (and can) they do?’ in EF Paul, FD Miller & J Paul, What Should Constitutions Do? (2011), p 23 (‘Is their accept45

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How could citizenries be so unaware of one of the fundamental elements of contemporary constitutionalism? Perhaps one of the answers lies in written constitutions themselves, something which is explored in the next section.

3.2

ISSUES REGARDING CONSTITUTIONAL DRAFTING

The main issue in contemporary constitutional drafting is that constitutions are largely written as legal documents, but because of their pre-eminent status are nonetheless expected to have wide appeal to citizens. And yet legal language and wide public appeal are notoriously uncomfortable bedfellows. Given the statistics mentioned above, it seems clear that we must temper our expectations regarding how widely constitutions appeal to the citizenry, and therefore how much of an educative effect they could possess. Outside of preambles, the form and structure of most contemporary constitutions resembles what one would encounter in a basic piece of primary legislation.51 This introduces a particular duality to constitutions that can be confusing to citizens, as the preamble is often highly general—sometimes even floral—in language, whereas the subsequent text is highly legalised. Additionally, some preambles contain legal force and hold adjudicative value for courts, while in other jurisdictions they do not possess such legal significance. This presents difficulties in terms of what citizens may consider binding as opposed to merely ‘advisory’ or ‘aspirational’, as this is certainly not spelt out during the preamble. Such drafting presents obstacles for citizen engagement and any potential educative effects that may come about if citizens actually did read the written constitution. If citizens do consult constitutional texts for educative purposes, however, two major problems arise, both of which are detailed below. 3.2.1

Preambles: Invitations to Idolatry?

A recent book on constitutional preambles suggests that they have five separate functions: expressive, identifying, evocative, ‘bridge in time’, and educative. The educative function, the authors note, ‘could arise from the combination of the four other functions’.52 Generally, the expressive function articulates values and principles; the identifying function looks to recognise the jurisdiction’s distinct political culture; the evocative function attempts to ance itself dependent on their belief that the courts are not amending the constitution from the bench but are interpreting it?’). 51 Of course, some preambles are written in a more statutory form. See, e.g., the preamble to Uganda’s 1995 Constitution. 52 Voermans, Stremler & Cliteur, n 10 above, p 94.

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inspire citizens and promote a national unity; and the ‘bridge in time’ function ties together a nation’s past, present and future.53 These classifications all sound reasonable in terms of the function of preambles. Indeed, with all these in mind, it may come as no surprise that preambles are getting longer, as they are increasingly expected to accomplish more.54 But these important functions have also significantly altered the content of preambles, and it is perhaps because of these numerous functions that preambles may become instruments of idolatry, rather than educative instruments. As noted in Chapter 1, with its insertion of ‘We the People’, the US Constitution fundamentally changed the way that we think of these written documents, representing a change from government being founded on monarchy to government being founded on the people. This connects to the expression function noted above, as it attempts to clarify underlying values and principles. Nowadays, almost every written constitution in existence makes some mention of the constituent power, usually based around the people. But this explicit homage to the constituent power can be deceptive, as ‘We the People’ is often used to describe democracies, and may mislead citizens into thinking that they do indeed possess ultimate power within their states. Although such power may be questionable even in long-standing democracies, the phrase has been taken on by states that clearly are not democracies, such as Belarus,55 Cuba,56 Niger,57 and Zimbabwe.58 China’s 1982 Constitution even has the audacity to say that the citizens are ‘masters of the country’.59 Even for democracies, references to ‘the people’ can sometimes cause misperceptions. For example, the German Basic Law’s preamble states, ‘the German people, in the exercise of their constituent power, have adopted this Basic Law’. However, the Basic Law was only approved by representatives in the various states, rather than in a national referendum, and when it was approved in 1949 it only applied to West Germany, not the whole of the German people as now constituted. Another constitution implemented around that time, the Japanese Constitution 1946, reads more accurately, maintaining that, ‘We, the Japanese people, acting through our duly elected representatives in the National Diet’. Getting these subtleties correct is important, especially if constitutions are

Ibid, pp 92–93. Ibid, p 153. 55 Belarus Constitution 1994, preamble (‘We, the People of the Republic of Belarus…’). 56 Cuba Constitution 1976, preamble (‘WE, CUBAN CITIZENS…’). 57 Niger Constitution 2010, preamble (‘We, The Sovereign Nigerien People…’). 58 Zimbabwe Constitution 2013, preamble (‘We the people of Zimbabwe…’). 59 People’s Republic of China, preamble. 53 54

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supposed to provide an educative function. There will be more on the reality of this ‘We the People’ rhetoric in Chapter 4. Another aspect of preambles that has significantly increased in contemporary constitutions are references to history. Here the implications for idolatry towards the constitution, its founders, historical institutions and influence, and any battles or struggles for independence are especially relevant. In some of these the historical truth may even be mischaracterised or exaggerated, and could lead to preambles not being educative devices but a form of state propaganda. Although preambles possess the potential to inspire, some historical parables also have the capacity to fuel nationalist tendencies. For example, Croatia’s preamble describes its history back to the seventh century, recounting the establishment of the Croatian principalities, the Kingdom of Croats, the Habsburg Dynasty, and the Croatian Parliament.60 This is not uncommon. Vietnam’s preamble talks about its ‘millennia-old history’,61 Myanmar’s discusses its ‘anti-colonialist struggles’,62 China’s articulates its ‘wave upon wave of heroic struggles’,63 and Guyana’s acknowledges its ‘epic struggles waged by our forefathers’.64 One of the most striking examples of provocative historical rhetoric comes from Iraq’s 2005 preamble: We, the people of Mesopotamia, the homeland of the apostles and prophets, resting place of the virtuous imams, cradle of civilization, crafters of writing, and home of numeration. Upon our land the first law made by man was passed, and the oldest pact of just governance was inscribed, and upon our soil the saints and companions of the Prophet prayed, philosophers and scientists theorized, and writers and poets excelled.

Syria’s 2012 preamble also contains elements of sweeping language and explicitly nationalist rhetoric, noting that the state is: [T]he beating heart of Arabism, the forefront of confrontation with the Zionist enemy and the bedrock of resistance against colonial hegemony on the Arab world and its capabilities and wealth.

Of course, inserting language in relation to history does not necessarily present evidence of idolatry. Acknowledging or reconciling past injustices, such as ethnic or political violence, genocide or apartheid, could certainly be appropriate for a new constitution to mention. Fitting examples here come from

62 63 64 60 61

Croatia Constitution 1991, preamble. Vietnam Constitution 1992, preamble. Myanmar Constitution 2008, preamble People’s Republic of China Constitution 1982, preamble. Guyana Constitution 1980, preamble.

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Burundi, Tunisia and South Africa. However, when the historical language makes it appear that the written constitution itself is the culmination of that history, then it is difficult to separate between historical acknowledgement of such injustices and constitutional idolatry of what the new document can achieve. Other types of language point specifically to idolatry of written constitutions themselves, with some accentuating that there is some type of hand of God or particular genius in the set-up being delivered. A notable example comes from Egypt’s preamble: We are now drafting a Constitution that embodies the dream of generations of a prosperous united society and of a fair state that achieves the aspirations of today and tomorrow for individuals and society. We are now drafting a Constitution that completes building a modern democratic state with a civil government. We are drafting a Constitution that closes the door for any corruption or tyranny, heals the wounds of the past from the time of the old Eloquent Peasant to the victims of negligence and the martyrs of the revolution in our time, and relieves our people of the injustice they have suffered from for long. We are drafting a Constitution that affirms that the principles of Islamic Sharia are the principle source of legislation, and that the reference for interpretation thereof is the relevant texts in the collected rulings of the Supreme Constitutional Court. We are drafting a Constitution that paves the way to the future for us, and which is in line with the Universal Declaration of Human Rights, which we took part in the drafting of and approved. We are drafting a Constitution that maintains our freedom and protects the nation against every threat against it or against our national unity. We are drafting a Constitution that achieves equality between us in rights and duties with no discrimination. We are the citizens. We are the Egyptian people, sovereigns in a sovereign homeland. This is our will and this is the Constitution of our revolution. This is our Constitution.65

This example presents an open invitation to constitutional idolatry, as if the repetition of the phase ‘We are drafting a Constitution’ would make it some type of collective process, and the document itself exceptional and reverential. In fact, the drafters of the Egyptian Constitution were largely military members, and apart from a nationwide referendum of approval, there was not much involvement by ‘the people’. Other preambles speak of a particular constitutional genius. For example, Algeria’s Constitution states: ‘In approving this Constitution, the work of its own genius, reflection of its aspirations, fruit of its determination and product of profound social mutations, the people expresses and consecrates more Egypt Constitution 2014, preamble.

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solemnly than ever the primacy of law’.66 Congo’s preamble focuses on the genius of its citizens, noting, ‘Reaffirming our inalienable and imprescriptible right to organize ourselves freely and to develop our political, economic, social and cultural life, following our own genius’.67 North Korea’s preamble expounds the genius of its founder, stating ‘Comrade Kim II Sung was a genius ideological theoretician and a genius art leader, an ever-victorious, iron-willed brilliant commander, a great revolutionary and politician, and a great human being’.68 A number of preambles acknowledge God, but the way in which they do so differs. For example, some acknowledge a passive role for God, such as overseer of the constitution: WE, THE PEOPLE OF THE REPUBLIC OF THE MARSHALL ISLANDS, trusting in God, the Giver of our life, liberty, identity and our inherent rights, do hereby exercise these rights and establish for ourselves and generations to come this Constitution, setting forth the legitimate legal framework for the governance of the Republic.69

Others invoke the constitution in God’s name: In the name of Almighty God! The Swiss People and the Cantons … adopt the following Constitution.70

While others make it seem as if God herself actively helped write the document: We the people of Solomon Islands, proud of the wisdom and the worthy customs of our ancestors, mindful of our common and diverse heritage and conscious of our common destiny, do now, under the guiding hand of God, establish the sovereign democratic State of Solomon Islands.71 WE, THE PEOPLE, do now establish this sovereign nation and declare ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea.72 We the sovereign Filipino people, imploring the aid of Almighty God … do ordain and promulgate this Constitution.73

68 69 70 71 72 73 66 67

Algeria Constitution 1989, preamble. Democratic Republic of the Congo Constitution 2005, preamble. Democratic People’s Republic of Korea Constitution 1972, preamble. Marshall Islands Constitution 1979, preamble. Switzerland Constitution 1999, preamble. Solomon Islands Constitution 1978, preamble. Papa New Guinea Constitution 1975, preamble. Philippines Constitution 1987, preamble.

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We, in the name of the Tunisian people, with the help of God, draft this Constitution.74

Of course, these examples all connect to the idea of ordaining (mentioned by six state preambles),75 rather than merely establishing, a constitution. Ordaining contains a secular meaning, but the religious overtones in these constitutions seem especially prevalent. Post-World War II constitutional preambles also mention rights and freedoms and equality much more than pre-World War II constitutions.76 Almost two-thirds of preambles now mention some form of rights, whereas more than half refer to equality. Some even mention international instruments, such as the Charter of the United Nations or the Universal Declaration of Human Rights (UDHR). Even regional human rights instruments, such as the African Charter on Human and People’s Rights, are sometimes mentioned. To express commitment to or solidarity with these documents is perfectly acceptable, and may even temper the nationalist rhetoric in constitutions; but one thing that is virtually never expressed is how these documents are operationalised in their respective states. How will states adhere to them? Are they mere political declarations or are they strict legal ones? And who will enforce them: governments, the judiciary, or some type of constitutional or regional human rights court? These answers are rarely, if ever, found in constitutional preambles. But where they are found in the texts of written constitutions may also come as a surprise. 3.2.2

The Placement and Prominence of Judicial Power

If ‘We the People’ sovereignty is the centrepiece of many constitutions, judicial power is the crazy aunt or crackpot uncle of such documents; too taboo for the main event, and often left for the periphery. The American Constitution famously does not mention judicial review or the Supreme Court’s ability to strike down legislation. The most precise it gets in Article 3(1) is that, ‘The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish’. Article 3(2) notes that this applies to ‘all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made’. That does not make the powers of constitutional review explicit; and even if it did, it comes in Article III, which is over halfway into the document, Tunisia Constitution 2014, preamble. Argentina, Bhutan, Congo, Philippines, United States and Venezuela. 76 Voermans, Stremler & Cliteur, n 10 above, pp 42, 45. 74 75

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and a place where citizens are less likely to look for such a fundamental element of constitutionalism. Thus, it may be understandable that even those who tend to worship the document or hold collective readings on it, do not know about the Supreme Court’s ability to strike down state and federal laws. But as noted above, the lack of knowledge about this important constitutional function is not just a problem in America. One of the reasons that citizens may be unaware of these vastly important items, such as identifying ‘ultimate interpreters’ or the branches that have the so-called ‘final word’ on constitutionality, is because written constitutions themselves often do not make these significant elements easily accessible. Such items are certainly not covered in preambles, and are rarely mentioned at the beginning of constitutional texts. Again we can look to the highly esteemed South African Constitution in relation to this problem. Although Chapter 1(2) of the Constitution mentions the ‘Supremacy of the Constitution’, and that laws inconsistent with it are invalid, it does not say that it is the judiciary, or even the Constitutional Court, that determines constitutionality. Constitutional theorists, lawyers and judges may take this line as self-evident proof that the Constitution is being forthright with its citizens. But to say that the prospects and operation of constitutional review via the Constitutional Court is self-evident from such a general clause obfuscates the responsibility that constitutional drafters have to be forthright about how the Constitution operates. The powers of the judiciary are not articulated until Chapter 8, which is over 80 pages into the Constitution. The specific section of the Constitution, section 167(5), which notes the powers of the Constitutional Court to invalidate an Act of Parliament, does not come until page 83. Thus, even if a large number of citizens are reading the South African Constitution, they may not read far enough into the document to find these important answers. Section 167(5) is over halfway through the 123-page document.77 Based on the survey answers cited above, it is obvious that many South African citizens do not know about the wide powers of the judiciary. The same is true in a plethora of other jurisdictions with powerful apex courts. Even for constitutions that do mention the potential for laws to be struck down by the judiciary, many do not do so explicitly. The Indian Constitution, in Article 13, states that any law that takes away or abridges fundamental rights shall be void, but it does not say that the judiciary is the one to make this determination. The Supreme Court’s powers regarding determining constitutional validity are not mentioned until Article 131.78 Similarly, in the Afghanistan Constitution of 2004, Article 3 proclaims that ‘No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan’, but the

Excluding the schedules. Constitution of India, art 131.

77 78

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provision says nothing about how this will be determined. It is not until Article 121 that the power of the Supreme Court to determine the constitutionality of laws is stated explicitly.79 Other constitutions also present problems in terms of judicial power. The German and Japanese constitutional courts have strike-down powers for parliamentary laws. Although the courts wield significant powers, these are not mentioned until deep into both written constitutions. The German Basic Law does not articulate the power of the judiciary until Article 92,80 and the Japanese Constitution does not do so until Article 76.81 These examples are typical in terms of where judicial power is often situated in constitutions. In the South Korean Constitution this is not mentioned until Article 111, and in Taiwan’s Constitution it is not mentioned until Article 171 (Chapter 14). The Paraguay and Bhutan Constitutions, which anoint the judiciary as the sole guardians of their respective Constitutions, do not do so until Article 24782 and Article 111 respectively.83 Leaving this language to the middle or end of a constitution, rather than acknowledging such vastly important constitutional powers up front, is a major defect of many written constitutions. As some authors have pointed out, it is not just strike-down powers for parliamentary laws that constitutional courts nowadays typically possess. Many apex courts also enjoy powers to strike down constitutional amendments if they believe that these do not adhere to the current constitutional framework,84 and some possess ancillary powers over a number of aspects of the constitutional system.85 These powers will be further discussed Chapter 4. Indeed, it appears that many constitutions articulate vastly important matters, such as the wide powers of constitutional courts or ultimate constitutional guardianship, in places that are difficult for citizens to locate.86 One reason for doing so may be that if constitutions acknowledged the extent of judicial powers up front, they would face decreased likelihood of enactment or continued support. After all, the language of preambles and much initial constitutional text largely revolves around citizen power, as will be empha79 Constitution of Afghanistan, art 121. Additionally, there are only 162 articles in the Afghan Constitution, making it not just over halfway, but near the end. 80 German Basic Law, art 92. 81 Japan Constitution, art 76. 82 Constitution of Paraguay, art 247. 83 Constitution of the Kingdom of Bhutan, art 111. 84 Y Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (2017); R Albert, Constitutional Amendment: Making, Breaking, and Changing Constitutions (2019). 85 T Ginsburg & Z Elkins, ‘Ancillary Powers of Constitutional Courts’ (2009) 87 Texas Law Review 1431. 86 Assuming, of course, that citizens read and consult constitutions.

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sised in Chapter 4. If contemporary drafters removed language relating to the citizenry, or heavily qualified such language with vast judicial powers, then this may cause some citizens to hesitate over the proposed text. But leaving the labelling of such constitutional fundamentals or the articulation of very strong judicial powers to relatively inconspicuous sections of a constitution is deeply problematic. Such items should feature prominently in the constitutional text, so citizens are fully informed of what they are voting on or how they are, in fact, being governed. This lack of citizen knowledge in relation to constitutional text and the powers located in such documents strongly challenges the importance and significance of such documents in contemporary times, and this is especially the case as regards their educative functions.

3.3

TEMPERING OUR EXPECTATIONS AND RHETORIC ON WRITTEN CONSTITUTIONAL EDUCATION

The idea that written constitutions serve as an essential and significant educational device among the citizenry needs reconsideration. In fact, this assertion often seems a bit like wishful thinking on the part of constitutional scholars and others, exaggerating the potential effects these documents may possess. In many jurisdictions large portions of the citizenry have not even heard of these supreme governing documents, let alone could articulate their distinct provisions or explain the complexities of their workings. This was true not only for long-established constitutions, but also for more recently adopted constitutions. Even in jurisdictions that have high levels of constitutional idolatry, such as the United States, knowledge and understanding of the written document and governmental operations present a wide variety of public knowledge gaps. This is true despite the fact that the written document has been a best-seller of late, in addition to various groups advocating that individuals carry a pocket edition of the document and also have collective readings of the text. Two major issues arose regarding the drafting aspects of written constitutions. First, some preambles contain elements that undeniably promote constitutional idolatry. This can happen through explications to a nation’s history, praise of the constitution’s genius, or even the claim that God’s guiding hand helped pen the document. While preambles possess the ability to inspire, they also possess the ability to mislead, and have the potential to foment nationalism. These devices, if included at all, should be tempered in future. Additionally, one of the most disconcerting findings from the literature cited above was the lack of knowledge regarding the judiciary’s power to invalidate a legislature’s laws, what some would refer to as the legal field’s ‘constitutional obsession’. Misunderstanding could arise because of the way in which written constitutions are drafted, leaving the vastly important powers

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of the judiciary in inconspicuous places. Of course, even if citizens knew about these powers, they would be less likely to know about the methods that judiciaries use in executing this function. As Robin West notes, this ‘arsenal’ includes: rule of law, intra vires, ultra vires, stare decisis, concrete review, abstract review, reasonableness, proportionality, strict scrutiny, substantive due process, procedural due process, individual rights, penumbral rights, neutral principles, fundamental interests, liberty interests, and so on.87 Thus, if any potential educative effects from written constitutions are to be realised, then the drafting of constitutions must be addressed. Inserting one line about constitutional supremacy, without explicitly addressing the formal methods of constitutional power—including the judicial powers—is simply not going to cut it. In the introduction to a widely available book on the American Constitution, Cullop notes that it ‘is the most important thing in the life of every person living in the United States … To be ignorant of it is to be ignorant of all the things your country is’.88 As we have seen above, under this classification many Americans would be considered ignorant of their country and not able to fully enjoy the benefits the state has to offer. But this hard-line version of constitutional knowledge does not mesh with how typical citizen knowledge of constitutions plays out. As unfortunate as it is to admit, citizens can lead educated, happy and fulfilling lives without knowing much about their written constitution. After all, ‘America’s constitutional democracy depends on a generally educated citizenry, but it does not depend on them to be constitutional and political experts’.89 Ultimately, we cannot rely on constitutions alone to educate the public. As Barber notes, ‘[I]n a regime that is both democratic and constitutional, the highest task of political leadership is to educate the public from its initial inclinations to what good faith and full deliberation indicate about the public’s true interests’.90 Indeed, educating the public is key to citizens taking the constitutional project forward.91 This may also be true in relation to human rights, as the beginning of this chapter points out. Therefore, while written constitutions—pre-eminent as they are—could be considered one reference point among many as regards citizen education, civic knowledge ultimately relies on a plethora of other means, most notably our political leaders. R West, ‘Ennobling Politics’ in HJ Powell & JB White, Law and Democracy in the Empire of Force (2009), p 63. I have added some terms from the British context to West’s original list, which was more US focused. 88 Cullop, n 18 above, p vi. 89 Thomas, n 13 above, p 30. 90 S Barber, Constitutional Failure (2014), p 59. 91 Thomas, n 13 above, p 29. 87

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Whatever the solution is to the contemporary lack of civic knowledge and engagement throughout many constitutional democracies, the answer does not lie in constitutional idolatry.

4. The reality of ‘We the People’ constitutional claims Nothing has perpetuated constitutional idolatry as much as the idea that written constitutions provide citizens with ‘We the People’ popular sovereignty, supposedly grounding the people into the constitutional settlement. Virtually every written constitution now identifies ‘the People’ as the ultimate source of sovereignty or constitutional power.1 While a number of these claims are highly dubious, such as those in authoritarian regimes or questionable democracies, the idea holds greater weight in long-standing democracies. That being said, the idea is also a fiction, akin to the truth that 2 + 2 = 5. The US Constitution remains famous for its ‘We the People’ rhetoric, but it is less well known that the primary architect of the Constitution, James Madison, boasted about the fact that in their collective capacity the people did not possess any share of the government. In fact, Madison considered this one of the ‘great virtues’ of the American framework,2 and ‘insisted on this point even while repeatedly insisting that the people were the font of all legitimate power—the root of political authority’.3 This lack of a formal governmental role, of course, is often justified on grounds covered in Chapter 3, in relation to arguments for representative democracy: that citizens may be too easily swayed by passion and political rhetoric, often possess a lack of political knowledge and sophistication, and that direct democracy is virtually impossible in large-scale democracies. Nevertheless, it remains widely accepted that ‘We the People’ popular sovereignty forms the basis of the US Constitution.4 Not only are there problems with this notion within the American context, but there are also

1 See, e.g., the Spanish Constitution, which exclaims, ‘National sovereignty belongs to the Spanish people, from whom all state powers emanate’ (Spanish Constitution, art 1.2). 2 G Thomas, ‘The Madisonian Constitution, Political Dysfunction, and Polarized Politics’ in Z Courser, E Helland & KP Miller, Parchment Barriers: Political Polarization and the Limits of Constitutional Order (2018), p 18. 3 Ibid, p 18. 4 DJ Bodenhamer, The U.S. Constitution: A Very Short Introduction (2018), p 4 (‘The revolutionaries embraced the radical idea that people retained ultimate authority and gave government limited power for defined purposes’).

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misconceptions about how written constitutions supposedly ushered in popular sovereignty. At the time of the US Constitution’s ratification, the idea of ‘We the People’ popular sovereignty was supposedly a radical notion, or ‘a new conception of sovereignty’.5 And yet, how radical or new it was is certainly up for debate. In Scotland, the 1320 Declaration of Arbroath asserted that if a monarch betrayed their obligations, ‘we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours’.6 While such an assertion may not be considered an established ‘tradition’ in Scotland, this bold declaration sounds similar to our modern conceptions of how popular sovereignty operates. Other sources have recognised that the idea of ‘We the People’ popular sovereignty had been established in other places: notably, in seventeenth-century England. The English Civil War largely revolved around this notion, as did the Glorious Revolution of 1688.7 During the Civil War period, ‘sovereignty of the Parliament led to the proclamation of the sovereignty of the people. The Levellers who proclaimed it were supressed; but the idea had come to stay’.8 For the events that transpired in the mid-seventeenth century, Loughlin notes that: During this period, parliamentarians first began to state clearly that the true source of government power lay not in God, nor in the king as God’s vicegerent on earth, but in the people. Under the English constitution that power was located in the Commons. Having come into existence as an act of royal will, Parliament— by invoking the principle of popular sovereignty—now assumed the power of self-creation.9

Additionally, Wicks notes that perhaps popular sovereignty ‘provided a degree of legitimacy to the change in succession and Revolution Settlement similar to that underlying many modern constitutions’.10 Thus, to suggest that popular sovereignty commenced with written constitutionalism after enactment of the US Constitution of 1789 is inaccurate and incomplete, given that its origins date back much further.

Ibid, p 4. A McHarg & T Mullen, Public Law in Scotland (2006), pp 27–28. 7 ES Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (1988), pp 118–121. 8 C Hill, The Century of Revolution (1603–1714): A History of England (Vol 5) (1961), p 176. My emphasis. 9 M Loughlin, The British Constitution: A Very Short Introduction (2013), p 48. 10 E Wicks, The Evolution of a Constitution: Eight Key Moments in British Constitutional History (2006), p 21. 5 6

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But the idea of popular sovereignty in England—and later within the UK—also left the collective capacity of the people out of government. Popular sovereignty in England would be exercised by Parliament, and more specifically within the House of Commons, which would speak for the people. If direct democracy remained off the table, at least a direct line could be drawn from the people to Parliament, even if that line was flawed at the time because of voting restrictions. These ideas behind popular sovereignty influenced the development of the UK constitution, and its ultimate focus on parliamentary sovereignty. Parliament was then, and remains, the closest branch of government to the people, and in the UK structure the Commons still holds the highest hand as regards constitutional powers.11 Nevertheless, in contemporary times the idea that parliamentary sovereignty functions as the epitome—or even a form—of popular sovereignty has become distorted. As the UK clings to a form of legislative sovereignty that has died in other places,12 many authors lament the lack of a role for ‘the People’ within the current constitutional setup. This problem has been exacerbated by the 2016 Brexit referendum, as many writers have focused on the tension between the referendum result and parliamentary preference on the issue. A recent book that included chapters from a number of prominent legal, political and social commentators repeatedly mentioned this observation, often with negative connotations about parliamentary sovereignty. Douglas-Scott writes that, ‘Even if we sometimes talk of “sovereignty of the electorate”, this only allows the people to choose a government, it does not ground the British Constitution in the authority of the people’.13 Dennis Galligan, the book’s editor, even uses the Turkish Constitution as an example of a constitution that is ‘clear and accurate’ on the matter of constituent power. He notes that the document says that, ‘the people are the source of sovereignty; sovereignty is vested in the nation; the exercise of sovereignty is entrusted to the institutions of government’.14 He goes on to note that the ‘concept of [parliamentary] sovereignty … has the further consequence of leaving no constitutional role for the real people’.15 Thus, Galligan suggests that the answer is a more direct role for ‘real people’ in governmental affairs.

This is especially the case given that the Parliament Acts 1911 and 1949 provide the Commons primacy over the Lords. 12 A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000), p 193. 13 S Douglas-Scott, ‘Popular Sovereignty vs Parliamentary Sovereignty’ in DJ Galligan (ed), Constitution in Crisis: The New Putney Debates (2017), pp 12–13. 14 DJ Galligan, ‘The Constitutional Future of the UK’ in DJ Galligan (ed), Constitution in Crisis: The New Putney Debates (2017), p 165. 15 Ibid. 11

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Without radically undermining the operation of representative government, it is difficult to know what Galligan and others mean by the UK people possessing a more direct role in contemporary government, if it is not some enhanced form of direct democracy,16 or the mere articulation of a ‘We the People’ constitutional fiction. The vast majority of world constitutions that ground constitutional authority in the people set up representative government, and also leave no collective or enhanced role for the people in the written constitution. To return to Galligan’s example, certainly Turkish citizens do not possess any more real constituent or constitutional power than do citizens of the UK. In fact, Freedom House gives Turkey an overall freedom score of 31/100, scoring just above Thailand and Myanmar,17 and the Economist’s Democracy Index categorises it as a ‘hybrid regime’, placing it 110th out of 167 countries throughout the world.18 These figures are hardly comparable with the UK,19 and call into question how much the articulation located in the Turkish Constitution that ‘the people are the source of sovereignty’ really matters in terms of democratic reality and state functionality. Additionally, the Turkish Constitution has long been propped up by extra-constitutional actors, such as the military,20 further calling into question the role of the Turkish people. Do such ‘We the People’ articulations really mean that these citizens possess ‘clear and accurate’ roles within the constitutional structure of their respective states, and does this supposed ‘constitutional grounding’ actually matter in any practical sense? I address these issues and discuss this contemporary fiction in more detail below. This chapter maintains that the British version of parliamentary sovereignty provides the people with at least as direct as—and indeed, even a stronger— role in government than those citizens who possess a written constitution with a ‘We the People’ articulation. It begins by examining the history of the UK constitution, and how parliamentary sovereignty within the UK came about. It then explores the evolution of parliamentary sovereignty and where it stands today. The chapter goes on to look at constitutional supremacy, and how it has devalued politics and the political process, which ultimately threatens In fact, the book was also highly critical of enhanced forms of direct democracy, such as referendums, as it considered the 2016 referendum one of the low points of British constitutional history. 17 Freedom House, Freedom in the World Report 2019, https://​freedomhouse​.org/​ report/​countries​-world​-freedom​-2019. 18 Economist Intelligence Unit, ‘Democracy Index 2019: A year of democratic setbacks and popular protest’ (2020). 19 The UK scores 93/100 on the 2019 Freedom House report, and 14/167 on the 2019 Democracy Index report. 20 AÜ Bâli, ‘The Perils of Judicial Independence: Constitutional Transition and the Turkish Example’ (2012) 52(2) Virginia Journal of International Law 235, 267. 16

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the UK’s political constitution. Finally, the chapter looks at the effects of the ‘litigated’ or ‘adjudicated’ constitution, and how this connects to—or perhaps disconnects from—the operation of ‘We the People’ under constitutional supremacy.

4.1

THE UK CONSTITUTIONAL SETTLEMENT

As noted in Chapter 1, confusion exists over the UK’s constitutional settlement and how it is portrayed in the literature. Some trace the UK constitution back to Magna Carta, while others prefer the Reform Act 1832 as the beginning of modern UK constitutionalism. Neither of these is correct. Going back to Magna Carta would suggest that the UK constitution is decidedly English, as opposed to British. The Great Charter, though a prominent symbol, has very little to do with the composition of the UK as it stands today. The same is not true for the Glorious Revolution 1688 and the subsequent Bill of Rights 1689, which paved the way for the Acts of Union in the early eighteenth century. Additionally, beginning at the Reform Act 1832 is also problematic, as the UK’s two main constitutional principles—parliamentary sovereignty and the rule of law—had been constitutionalised for over a century by this point. The Reform Act should certainly not be discounted, as it was a ‘great constitutional turning point’ that enhanced democratisation,21 but it was not a constitutional beginning. The most obvious starting point for any explication of the UK constitution must go back to the 1688 Revolution, as it is here that the contemporary constitution finds its strongest and most lasting roots. After a violent civil war in the mid-seventeenth century, in which a king was executed and a written constitution was imposed on England—the Instrument of Government—the monarchy was reinstated in 1660, under Charles II. And yet close to three decades later unhappiness with the monarchy fuelled a subsequent, but more peaceful and lasting, revolution: the Glorious Revolution of 1688. The 1688 Revolution occurred because of a number of factors, but mostly because Charles II and his successor James II attempted to put themselves above the law and above Parliament. Charles’s Declarations of Indulgence were a prelude to similar efforts by his brother, James. The latter attempted to turn a narrow dispensing power of the laws into an outright suspending power, which would have ‘rendered all law subservient to the mere will of the King’.22 James’s Declaration of Indulgence in 1687 suspending the Clarendon

Loughlin, n 9 above, p 55. GM Trevelyan, The English Revolution 1688–89 (1935), p 36.

21 22

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Code and the Test Act of 1673 thoroughly tested the limits of the Crown.23 This foolhardy Declaration was even reissued in 1688 and expanded upon. But James also did much more to ensure his downfall. He wantonly dismissed and replaced numerous judges who would not support his policies, attempting to pack the judiciary with loyalists. He then expelled the Fellows of Magdalen at the University of Oxford, which was perceived as an attack on universities and those within the Church. He also purged a good number of Town Corporation charters, which angered both political sides, and dismissed a large number of Justices of the Peace, who were integral to governing at the local level.24 The Trial of the Seven Bishops, however, was the straw that broke the camel’s back. It was this, which Trevelyan calls the ‘greatest historical drama that ever took place before an authorized English law court’, along with the birth of a new prince, that ultimately sealed James’s fate.25 The King fled to France in December 1688, and a convention parliament eventually offered the throne to William and Mary. The revolution brought about immediate changes and set in place other values that would turn into the UK’s contemporary constitution. The Declaration of Right, read to William and Mary in February 1689, was later included in the Bill of Rights 1689. As Bingham notes when discussing this most important post-revolution statute, ‘modern readers will here discern the lineaments of the state in which they live’.26 What the Crown offered to William and Mary was expressly (not impliedly) limited.27 Indeed, the revolution’s fundamental question hinged on whether the king was above the law, and the response was generally to ‘uphold the law’.28 Although this connects to Magna Carta and the ideas of constraining the monarch, the Great Charter did not feature prominently in the events leading to the revolution, and it is difficult to say that the contemporary constitutional settlement hinges on a deference to Magna Carta. While the Great Charter remains part of the UK’s constitutional culture, it plays little part in the actual constitution. Major changes also came about in relation to the judiciary. One of the first acts that William performed as king was to make judges irremovable, rather than have them serve at the pleasure of the Crown.29 Courts were thus freed from Crown interference, as the monarch could no longer remove judges who served merely during good behaviour. Although this feature as regards judicial 25 26 27 28 29 23 24

Ibid, p 46. Ibid, p 42. Ibid, pp 48–49. T Bingham, The Rule of Law (2010), p 24. Wicks, n 10 above, p 17. Ibid, p 16. Trevelyan, n 22 above, p 88.

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independence was formalised in the Act of Settlement 1701, William and Anne had acknowledged and practised the principle since very early in their reign. The 1701 Act formalised this, and also gave Parliament ultimate power of removal. Thus, ‘the great boon of the independence of the Bench was in practice secured at the Revolution’.30 Along with the rule of law, the Glorious Revolution also entrenched the current constitution’s other main value: parliamentary sovereignty. The Bill of Rights 1689, which articulated the post-revolution constitutional settlement, ‘led directly to the legal doctrine of Parliament’s absolute legislative authority’.31 The first two clauses of the Bill of Rights make clear that it is illegal for the monarch to dispense with or suspend the laws without parliamentary consent. After the revolution ‘the law could only be altered by the Statutes passed in parliament by the action of both Houses with the consent of the King’.32 One of the biggest constraints put on the monarchy by the Bill of Rights was financial: levying money without parliamentary consent was now illegal, and Parliament would only provide yearly Crown funds, as opposed to lifetime funds. This massive change in the balance of power between the Crown and Parliament put the latter firmly on top. Without tax revenues approved by Parliament the Crown was impotent, and therefore the monarch dared not break the law or quarrel too forcefully with the Commons. After the revolution, Parliament was also able to sit every year for several months at a time, something it was previously unable to do, and parliamentary elections were generally performed at three-year intervals.33 Ultimately, the revolution settlement’s main principles ‘still underlie the democratic and bureaucratic institutions that have since been reared on its foundation’.34 4.1.1

The Evolution of the UK Constitution

Other constitutional items fell into place shortly after the Glorious Revolution. In addition to securing changes regarding judicial independence, the Act of Settlement 1701 also contained the first statutory control on foreign policy, and thus William consulted Parliament ‘at every point’ going forward.35 Another item was the sovereign’s veto power over laws. William unsuccess-

32 33 34 35 30 31

Ibid, p 88. Loughlin, n 9 above, p 50. Trevelyan, n 22 above, p 71. L Colley, Britons: Forging the Nation 1707–1837 (2014), pp 49, 52. Trevelyan, n 22 above, p 70. Hill, n 8 above, p 278.

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fully tried to veto five bills before 1696, but these all ended up becoming law.36 Famously, Queen Anne’s veto in 1708 of the Scottish Militia Bill was the final legislative veto by a sovereign in UK history. The idea of having leading ministers take responsibility and be held to account for certain government departments also developed during this period, which eventually became the basis for Cabinet government.37 Additionally, although the union of crowns between Scotland and England occurred in 1603, the political union between Scotland and England—thus forming Great Britain—occurred in 1707. Scotland, of course, was well aware of the revolution settlement and even passed the Claim of Right 1689, which complemented the English Parliament’s Bill of Rights 1689. As can be seen from above, while written legal documents played a decisive role in the post-revolutionary constitutional framework, the idea of having one overarching fundamental document set out as more important or entrenched than other documents was not something that politicians preferred. It was not that such an idea had never occurred;38 after all, the Instrument of Government had been implemented not long before. However, given the pace of post-revolutionary constitutional change and the fact that the Glorious Revolution was not merely a political and legal revolution, but also a cultural and scientific revolution,39 having one entrenched document did not make practical sense. Thus, in the early eighteenth century, Bolingbroke described the UK constitution as such: [b]y Constitution, we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs, derived from certain fixed principles of reason … that compose the general system, according to which the community hath agreed to be governed.40

The effects of the 1688 Revolution deeply impacted the evolution of the UK constitution, and shaped the one in operation today. Perhaps because of this

Ibid, p 277. Ibid, p 287. But as Hill notes, neither joint Cabinet responsibility nor the idea of a Prime Minister was established at this point. 38 L Colley, ‘Empires of Writing: Britain, America and Constitutions, 1776–1848’ (2014) 32(2) Law and History Review 237, 245. 39 Hill, n 8 above, pp 4–5 (‘The transformation that took place in the seventeenth century is then far more than merely a constitutional or political revolution, or a revolution in economics, religion, or taste. It embraces the whole of life. Two conceptions of civilisation were in conflict’). 40 Viscount Bolingbroke, On Parties (1735), p 108, as quoted in DS Lutz, ‘From Covenant to Constitution in American Political Thought’ (1980) 10(4) Publius 101, 114. 36 37

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commitment to the revolution settlement, and the idea that popular sovereignty equates to the dominance of elected politicians via the Commons—the ‘fittest judge of the necessities and grievances of the people’41—the UK possesses one of the most political, as opposed to legal, constitutions in the world. The operation of political constitutionalism relies on a number of factors, such as: a privileging of legislative supremacy, a strong conception of responsible government, and mechanisms of political accountability that are capable of being used for the public good.42 But let me add to this definition. Political constitutionalism also means that political actors (widely construed) actively shape the constitution. As John Griffith said in his famous 1979 lecture, ‘the constitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also’.43 While this statement has been widely debated, it still serves as a source of inspiration and critical reflection on the UK constitution.44 Legislative supremacy means that Parliament is the highest legal authority, and that the courts cannot veto primary legislation. The notions of responsible government and political accountability manifest in a number of ways, such as through Prime Minister’s Questions (PMQs) and the doctrine of collective responsibility of Cabinet. Governments must maintain the confidence of the House of Commons to stay in power; if not, they fall. Modern ministerial responsibility equates to the idea that for every exercise of government power, a minister is answerable to Parliament. Thus, the exercise of ministerial scrutiny from the opposition or one’s elected peers is an essential feature of how the UK constitution operates. This inherently political method of governance has been described as ‘special’, even ‘beautiful’, by Tomkins, since the UK constitution does not turn its back on politics as other constitutions do, but uses it as the primary vehicle by which governmental authority is held in check.45 Not to be forgotten, the UK possesses a robust and independent judiciary that checks executive authority, but cannot strike down primary legislation. The evolution of the UK constitution sharply contrasts with other jurisdictions that align with legal constitutionalism, which focuses on governmental accountability mechanisms primarily based around legal controls, such as in courts of law. Other principles of legal constitutionalism that conflict with the

Hill, n 8 above, p 228. G Gee, ‘The Political Constitution and the Political Right’ (2019) 30(1) King’s Law Journal 148, 149; See also, G Gee & GCN Webber, ‘What is a political constitution?’ (2010) 30(2) Oxford Journal of Legal Studies 273, 278–279. 43 J Griffith, ‘The Political Constitution’ (1979) Modern Law Review 1, 19. 44 See, e.g., G Gee & C McCorkindale, ‘The Political Constitution at 40’ (2019) 30(2) King’s Law Journal 1. 45 A Tomkins, Our Republican Constitution (2005), p 3. 41 42

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UK constitution are that: law is distinctive from and also superior to politics; law primarily takes place in the courtroom; the extent and justification of governmental interference are questions for law and judges to decide; and that law, through principles of legality and human rights, should control government.46 Many advocates of a written constitution hope that the UK shifts its underlying constitution from a more political framework to a more legal framework based around common law constitutionalism, and some would argue that this has already taken place in the form of the Human Rights Act 1998 (HRA) and through the operation of judicial review. 4.1.2

Parliamentary Sovereignty and Popular Sovereignty

Because the UK lacks a written constitution and possesses a more political constitution, the highest form of law within the state is statutory law enacted by Parliament. It follows that because of this, the courts are not allowed to strike down primary legislation. The idea that the last or final word on constitutional matters should be held with those who are electorally accountable, rather than those who possess no accountability to the electorate, is a key feature of the UK’s constitutional architecture. This particular feature has been upheld throughout the years, even during times of rapid constitutional development. For instance, the establishment of the UK Supreme Court did not come with additional powers for the highest court, but merely the transfer of powers that the Law Lords already possessed. Additionally, enactment of the HRA 1998, while expanding the powers of the judiciary, did not allow judges to strike down primary legislation, but only to declare it ‘incompatible’ with the European Convention on Human Rights (ECHR). This means that any final decision on whether to amend legislation must be made by those with electoral accountability. The principle of Parliament being the highest state authority, as opposed to ‘the People’, can today evoke a wide range of mixed views, from it being the ‘constitutional equivalent of the Loch Ness monster’47 to a declaration that it has attained ‘zombie’ status.48 Although some of this negativity probably relates to the status of legislatures and politicians in our contemporary societies, the coupling between parliamentary sovereignty and popular sovereignty that was identifiable in the seventeenth century and beyond no longer appears Ibid, pp 10–25. A Marr, ‘Exploding the myth of Parliament’s power’ The Independent (4 September 1995), https://​www​.independent​.co​.uk/​voices/​exploding​-the​-myth​-of​ -parliaments​-power​-1599401​.html. 48 F Davis, ‘Brexit, the Statute of Westminster 1931 and Zombie Parliamentary Sovereignty’ (2016) 27(3) King’s Law Journal 344. 46 47

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so readily apparent. As a recent Commons Committee report observed, ‘In a democracy the people, not Parliament, are sovereign … Parliamentary sovereignty is an anachronism in the democratic era, and needs replacing by a written constitution that expresses the sovereignty of the people and circumscribes the powers and duties of members of Parliament in both Houses’.49 Some contemporary commentators appear to believe that parliamentary sovereignty is incompatible with ‘We the People’ popular sovereignty.50 These calls have become more apparent after the Brexit referendum, where MPs’ views were not aligned with the results of the referendum. But it is unclear how replacing parliamentary sovereignty with a written constitution resolves the problem. The argument seems to be: enacting a constitution with a ‘We the People’ articulation somehow increases popular sovereignty—a fiction that is challenged in this text and elsewhere.51 Given the prominence of parliamentary sovereignty within the UK setup, how does the idea of popular sovereignty play out in the UK constitution? As noted above, most important is the constitution’s focus on the Commons, and correspondingly the Commons’ decisive role in the operation of the constitution. A primary underlying principle of the UK constitution is that the government can only continue in power so long as it has the majority support of the House of Commons. If the government is unable to fulfil this obligation, then the government must resign, and either a new government is formed or a general election is held. Ultimately, as Tomkins notes, it means that ‘the government is constitutionally responsible to Parliament’.52 But reliance on this governmental support has other implications as well. It means that the decisions made in the Commons, either by government or others, often possess a high level of significance. This differs from other parliaments, such as the US Congress, which ‘cannot turn out the executive, and the executive can veto all that it decides’.53 In fact, as will be seen below, the US judiciary can also veto many things that Congress decides. Finally, because of the Parliament Acts 1911 and 1949, the Commons can force legislation through Parliament without approval by the Lords, which only possesses delaying powers. This also connects with the elected Commons being able to have the final word on passage. Although parliamentary sovereignty has been integral to the UK constitution since the Glorious Revolution, it has not remained static. Some prominent constitutional scholars no longer believe that orthodox views of sovereignty 49 House of Commons Political and Constitutional Reform Committee, ‘A New Magna Carta?’ (10 July 2014), HC 463. 50 R Gordon, Repairing British Politics (2010). 51 See, e.g., Morgan, n 7 above. 52 Tomkins, n 45 above, p 1. Emphasis in original. 53 W Bagehot, The English Constitution (2001), p 124.

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remain intact—such that Parliament cannot bind its successors—and advocate ‘manner and form’ theories.54 These emphasise that parliamentary sovereignty is indeed the underlying principle of the UK constitution, but that in certain ways Parliament has constrained itself as regards future law-making. Goldsworthy notes that these restrictions are acceptable and consistent with parliamentary sovereignty, ‘provided that they do not control or restrict the substantive content of legislation, or make it so difficult for Parliament to legislate that its power to do so is diminished’.55 Thus, these theorists are pushing back against scholars such as AV Dicey and William Wade, who advocated more orthodox positions of sovereignty. And through constitutional developments like devolution and EU membership, the perspective of these theorists provides a dose of reality to how the UK constitution operates. As Mike Gordon eloquently states, ‘Both popular and parliamentary sovereignty are manifestations of the idea of democracy’ and operate to ensure that the UK constitution contains a ‘common democratic basis’.56

4.2

CONSTITUTIONAL SUPREMACY’S ‘WE THE PEOPLE’ MYTH

The idea of constitutional supremacy sounds pleasing and intuitive, as it connects to a notion of rule by law as opposed to rule by a particular person or persons (especially persons located in one particular branch of government).57 Since constitutions contain the fundamental principles and state architecture that jurisdictions have purportedly agreed upon, to say that this document should be supreme above everything else within a given society makes a particular amount of logical sense. And if constitutional supremacy sounds attractive, then constitutional supremacy coupled with ‘We the People’ sounds downright charming. After all, if the people are inscribed as the basis of sovereignty, then it is ultimately the people from whom constitutions derive their authority. And yet there are significant problems with this argument, and how it plays out in reality. Constitutions are not holy works of scripture that fall from the sky or flow from the mouths of prophets. Constitutions are human creations that contain human constructs. More bluntly, constitutions are

54 M Gordon, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (2017); J Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (2010). 55 Goldsworthy, ibid, p 174. 56 Gordon, n 54 above, p 49. 57 J Waldron, The Dignity of Legislation (1999), p 24 (‘a large part of the authority, the legitimacy—if you like, the simple appeal—of a legal system is that we may regard ourselves as subject to government by laws, not by men’).

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power struggles, thrashed out (usually) by political parties until one version of the document can be agreed upon. Further, when written constitutions are adjudicated—as they inevitably are—decisions about what is constitutionally acceptable are ultimately made by humans, not by the constitution itself. So, when ‘We the People’ constitutional supremacy is implemented in any particular jurisdiction, what in fact does this mean? Does it mean that the people play a proportionally larger role in government, or that they are consulted more frequently on constitutional matters, or that governmental branches are making decisions with the people’s best interests in mind? In fact, none of the above occurs. The elevation of the constitution as the state’s most important governing document does not mean that this elevates the people into the most important position of authority. In fact, elevation of the constitution means that some state actors acquire increased powers, while others see decreased powers. Such power dynamics are explored further below. The next few sections will address how constitutional supremacy’s devaluing of politics and the political process, and its infatuation with law, judges and legal institutions, does not provide for an enhanced form of ‘We the People’ sovereignty. In fact, in some situations it provides much the reverse. 4.2.1

Constitutional Supremacy Devalues Politics and the Political Process

As Jutta Limbach eloquently said close to a couple decades ago, ‘the supremacy of the constitution means the lower ranking of statute; and that at the same time implies the lower ranking of the legislator’.58 Indeed, many legal constitutionalists believe that politics needs something ‘superior’ to guide it away from ‘passion, emotion, hysteria, public fears, [and] short-term desires’,59 and that only law can fill this void.60 Contemporary constitutions have ‘transformed the nature of parliamentary governance, by judicializing it’.61 This has primarily been done by empowering judiciaries, who ‘routinely intervene in legislative processes, establishing limits on law-making behaviour, reconfiguring policy-making environments, even drafting the precise terms of legislation’.62 This result is entirely purposeful, and for some it is to be celebrated. But others have cast warnings on the downsides to these developments. As Waldron J Limbach, ‘The Concept of the Supremacy of the Constitution’ (2001) 64(1) Modern Law Review 1. Emphasis in original. 59 R West, ‘Ennobling Politics’ in HJ Powell & JB White (eds), Law and Democracy in the Empire of Force (2009), p 78. 60 Tomkins, n 45 above, pp 11–14. 61 Stone Sweet, n 12 above, p 88. 62 Ibid, p 1. 58

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laments, ‘[p]eople have become convinced that there is something disreputable about a system in which an elected legislature, dominated by political parties and making its decisions on the basis of majority-rule, has the final word on matters of right and principle’.63 Indeed, many contemporary constitutions throughout the world ‘turn their backs on politics’, regarding it ‘as part of the problem—as something that requires to be checked—rather than as part of the solution’.64 These developments, which will be discussed further below, have occurred largely because of the rise of constitutional supremacy, which has encouraged praise and veneration of written constitutions. Constitutional supremacy is the idea that a written constitution contains a state’s fundamental law, which is on a higher level than other types of law, and usually includes elements such as: state organisation, over-arching principles, and descriptions of rights, among other things. But the label ‘constitutional supremacy’ conceals the fact that its outcome equates to a strong form of judicial supremacy. It is labelled ‘constitutional’ only because the written constitution rises in stature, which can seem fairly abstract until the practical effects of such a change are realised. The constitution is a written document, whose elevation must be supported by a change in the functioning of other constitutional actors. In essence, the lower ranking of statute and legislator means a higher ranking of judges and the judiciary, which also means a lower ranking or value of those in positions of accountability. As a recent Commons Committee review on codifying the UK constitution noted, most of those proposing codified constitutions ‘appear to envisage constitutional supremacy as supplanting Parliament; with judges able to rule acts of Parliament incompatible with the constitution and strike them down’.65 Indeed, this type of new constitutionalism ‘subordinates the exercise of all governmental authority, even that which is made according to the general will, to the law of the constitution’.66 These are the immediate consequences of the change from legislative supremacy to constitutional supremacy. The lower ranking of legislators and statutes within the state has other knock-on effects. Although constitutional supremacy often inscribes citizens as the foundation of all sovereign power, in reality the people do not gain any real or practical powers under such proclamations, and governmental branches are not mandated to ensure the best outcomes for ‘the people’. Thus, the democratic vote (those for local and national elections, at referendums, Waldron, n 57 above, p 4. Emphasis in original. Tomkins, n 45 above, p 3. 65 A Blick, ‘Codifying—or not codifying—the UK constitution: A Literature Review’ (2011) House of Commons Political and Constitutional Reform Committee, p 4. 66 Stone Sweet, n 12 above, p 50. 63 64

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etc.) remains the strongest and most lasting power the people possess: voting for candidates, laws or initiatives that will either preserve the status quo or bring about desired change. Therefore, when constitutions proclaim ‘We the People’, in most instances they mean, ‘we the democratic voters’. A lower ranking of statute and legislator thus means that the most prominent feature of ‘We the People’—the democratic vote—also falls in value. This is how constitutional supremacy distorts how valuable the people are under a written constitution: it promotes not just a constitutional fiction, but one that is directly at odds with popular sovereignty. But this decrease in actual citizen influence often gets manipulated and re-packaged as being better for the people. For example, Douglas-Scott argues that the ‘sovereignty of the electorate’ is not good enough, and that the people must be grounded in the authority of the constitution.67 But discounting the sovereignty of the democratic vote as lesser than the articulation of a ‘We the People’ fiction is a common example of constitutional confusion. As Stone Sweet says, the new constitutionalism ‘assigns ultimate power to the people by way of elections’.68 Contemporary constitutions operating under constitutional supremacy admit that the democratic vote is the highest power possessed by the people. For example, France’s 1958 Constitution says, ‘National sovereignty shall vest in the people, who shall exercise it through their representatives and by means of referendum’.69 And Germany’s Basic Law says, ‘All state authority is derived from the people. It shall be exercised by the people through elections and other votes’.70 Therefore, under constitutional supremacy, there is no formal enhancement regarding the role or powers of the people; but there is the decreasing of statute and legislator. In a democracy the ‘sovereignty of the electorate’, or the democratic vote, remains the highest and most compelling power that the people possess; that is indeed, how democracy works. To suggest that this is not enough, and that the people’s sovereignty somehow increases under constitutional supremacy, distorts the truth. And yet the parliament—in virtually every system of government, and especially in longstanding democracies—remains the largest, most diverse and most accountable institution of government. If there is any type of governmental forum in which all voices are heard, the legislature is the place where this happens. As Waldron notes, it is ‘the primary forum where our thinking and disagreement about justice takes place’,71 and which ‘openly acknowledges and respects (rather than conceals) the inevitable difference of opinion and princi 69 70 71 67 68

Douglas-Scott, n 13 above, pp 12–13. Stone Sweet, n 12 above, p 37. French Constitution, art 3. German Basic Law, art 20(2). Waldron, n 57 above, p 90.

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ple’.72 Try as they may, judges cannot hope to match the democratic legitimacy of elected politicians,73 even if they are performing more law-making roles than ever. But the reality is that in many parliaments nowadays, a ‘spectre of constitutional censure hovers over the legislative process’.74 Thus, under the conception of constitutional supremacy, the idea that ordinary legislation (i.e., statutory law) plays a lesser role in the state is not just central, but fundamental, to its operation. 4.2.2

American Constitutional Supremacy

The US Constitution first inscribed the idea of ‘We the People’ sovereignty, but in fact the initial plans for its written Constitution may not have been that different from the UK model. Similar to how popular sovereignty was viewed in Britain, originally it was Congress, ‘as the embodiment of popular sovereignty … [that] was to be the great engine of government’.75 But ratification of the Constitution ‘established the supremacy of constitutional law, which alone reflected the abiding will of the people’.76 Given that the American experience has attempted to develop ‘We the People’ sovereignty coupled with constitutional supremacy, we should briefly look into how these have played out within the country. Indeed, this grounding of the people within the written Constitution as the source of all political and constitutional power, and the written Constitution’s focus on the legislature, should have provided for relatively strong notions of popular sovereignty. And yet, it is difficult to see how America’s version of ‘We the People’ popular sovereignty provides an enhanced focus on the people. Beyond the first three words of the preamble, the US Constitution provides a number of checks to frustrate the will of the people.77 First, as noted in Chapter 1, is the Electoral College, which was established because the founders did not want the people to have the final say on who chooses the President. As Gouverneur Morris noted at the time of enactment, many were anxious (i.e., fearful) ‘for an immediate choice by the people’.78 Next, the President was given a right to veto laws passed by Congress. Thus, a President not directly elected by the people—and who may not have won a majority of the popular vote throughout the US—can veto laws passed by members of 74 75 76 77 78 72 73

Ibid, p 2. Tomkins, n 45 above, p 3. Stone Sweet, n 12 above, p 196. Bodenhamer, n 4 above, p 10. Ibid, p 4. See, e.g., RA Dahl, How Democratic is the American Constitution? (2002). Ibid, p 77.

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Congress that were elected by the majority of citizens within their particular districts. Of course, Congress can override a presidential veto with a 2/3 majority, but historically this has been extremely rare and difficult to achieve: only 4% of Presidential vetoes have been overridden throughout the nation’s history.79 Additionally, the Senate’s arrangement of two senators for each state means that ‘We the People’ can look vastly different between the two legislative chambers, and that states with smaller populations can sometimes easily frustrate the general will.80 Given that the written Constitution itself does not buttress ‘We the People’, we must look outside it. Although its initial focus was Congress as the embodiment of ‘We the People’, the US Constitution has evolved in a highly legal constitutionalist manner. Famously, Marbury v Madison (1803) eventually put the written Constitution on a higher plane than ordinary statutory law, considering it a fundamental legal document that can be adjudicated in the courts.81 This decision also incorporated the ability of the judiciary to strike down state and federal statutes, a power that all federal courts now possess. Thus, legislation passed by Congress is subject to not one but two veto points: one via the President before bills officially become law, and the second via the judiciary after any law has come into effect. Marbury provided the basis for wide judicial powers in the US constitutional structure, and these have grown significantly throughout the years.82 The decision’s significance within the American structure has been reiterated in a number of cases, but perhaps most forcefully in Cooper v Aaron (1958), where the Court insisted that it was the ultimate interpreter of the revered document: This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.83

Of the 2579 presidential vetoes to date, only 111 have been overridden. That amounts to a little over 4% (United States House of Representatives, ‘Presidential Vetoes’ (29 July 2019), https://​history​.house​.gov/​Institution/​Presidential​-Vetoes/​ Presidential​-Vetoes/​). 80 Dahl, n 77 above, pp 13–15, 17–18. 81 5 U.S. 137 (1803). 82 See, e.g., K Whittington, Political Foundations of Judicial Supremacy (2007), p 232. But, as Whittington notes, this judicial power has fluctuated over time. 83 Cooper v Aaron, 358 U.S. 1, 18 (1958). 79

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In this decision and others,84 the Court declared themselves, rather than more accountable constitutional actors or even the American people, as the ultimate decision-makers regarding what is constitutionally permissible. Outside of some pushback from a number of prominent works, US constitutional scholarship has generally embraced and furthered this view. Perhaps the most definitive and influential work on the US Constitution, Bruce Ackerman’s We the People, challenges this view, but also reinforces it. He argues that there have been various periods of higher law-making, known as ‘constitutional moments’, where the people have been the ultimate constitutional authority. However, ‘[d]uring normal politics, nobody represents the People in an unproblematic way—not the Court nor the President nor the Congress nor the Gallup polls … the People simply do not exist; they can only be represented by “stand-ins”’.85 And during these normal times, when citizens’ attention is elsewhere, the Court ‘has been doing a credible (not perfect) job interpreting the constitutional principles hammered out by We the People’.86 Thus, Ackerman’s thesis reinforces the people as the ultimate constitutional authority, but also reinforces the Court as the definitive constitutional authority in normal politics, which is most of the time. A couple of recent examples of American judicial power during normal politics demonstrate that the idea of ‘We the People’ sovereignty has become increasingly difficult to ascertain within the American context. This is especially true when looking at things such as the democratic vote, the integrity of which has been undermined by some recent Supreme Court decisions. 4.2.2.1 Money in politics—Citizens United v Federal Election Commission (2010) In 2002, the Bipartisan Campaign Reform Act (BCRA) was enacted,87 which attempted to protect the integrity of the electoral system by doing two major things: regulating the use of soft money in politics, and restricting corporate or union funds regarding communications that attempt to influence federal election outcomes. At the time these were viewed as inherently problematic

84 See McCulloch v Maryland, 17 U.S. 316 (1819) (‘The Constitution of our country, in its most interesting and vital parts, is to be considered, the conflicting powers of the Government of the Union and of its members, as marked in that Constitution, are to be discussed, and an opinion given which may essentially influence the great operations of the Government … On the Supreme Court of the United States has the Constitution of our country devolved this important duty’). 85 B Ackerman, We the People, Volume 1: Foundations (1993), p 263. 86 Ibid, p 262. 87 Pub. L. 107-155, 116 Stat. 81. Often referred to by its authors, as ‘McCain-Feingold’.

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and difficult areas to resolve, and even regarded as ‘pernicious’ by some. Shortly after enactment these two major planks of the BCRA were challenged, but found by the US Supreme Court in 2003 to be constitutional.88 However, by 2010 the composition of the Court had changed, and litigants took notice. Upon a later challenge concerning the second plank (restriction of ‘issue ads’ by corporations and unions), the US Supreme Court decided (5–4) that the provision barring organisations from certain communications within a period of days before an election was due to take place violated the US Constitution’s first amendment right to free speech.89 In part, the Court reasoned that this must be the case because corporations, under the US Constitution, were to be treated as persons, and therefore had the right to similar first-amendment protections as ordinary citizens. After the decision, then-President Obama criticised the Court on numerous occasions, most notably at his 2010 State of the Union speech in front of Congress. A number of legislators have drafted constitutional amendments to overturn this decision, but to no avail; not one has gained any decent traction. 4.2.2.2 Voting rights—Shelby County v Holder (2013) In 1965, Congress passed the Voting Rights Act,90 a monumentally important civil rights statute. One major provision in the law attempted to uphold the integrity of the electoral system by preventing particular Southern states from passing discriminatory or onerous legislation that may have an adverse effect on minorities in terms of their voting rights. Section 4(b) provided that a preclearance requirement had to be fulfilled for any state affected by the legislation that was going to enact a potential voting barrier. The 1965 Act was re-authorised on numerous occasions (in 1970, 1975, 1982, and 2006), usually by wide margins in the legislature because of bipartisan support. The 2006 re-authorisation passed the House of Representatives on a vote of 390–33, and the Senate passed it 98–0, with no Senator voting against it. If there was ever a piece of legislation that had strong democratic backing, this was it. The new authorisation was scheduled to last until 2031, further protecting minorities in Southern states for another 25 years. Yet after the re-authorisation in 2006, a legal challenge arose that section 4(b) was no longer needed and that the statutory provision was unconstitutional. In Shelby County v Holder a 5–4 US Supreme Court agreed.91 In fact, while discussing the re-authorisations of the Act during the case’s oral argument, Justice Scalia stated the following: ‘[I]t’s

90 91 88 89

McConnell v Federal Election Commission, 540 U.S. 93 (2003). Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). Pub. L 89-100, 79 Stat. 437. 133 S. Ct. 2612 (2013).

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a concern that this is not the kind of a question you can leave to Congress … [T]hey are going to lose votes if they do not reenact the Voting Rights Act’.92 Thus, despite Congress’s re-authorisation of the Act, the Court decided to strike down section 4(b), based on its view that it was no longer needed. The Supreme Court took something that democratic legislators had recognised a democratic need for (indeed, until 2031), and nullified it, portraying the democratic accountability of the legislature as not only irrelevant but inherently negative to democratic decision-making. 4.2.2.3 Results of the US constitutional supremacy experiment The decisions cited above, which directly impact the electoral process, were decided by a 5–4 Supreme Court majority, during normal political times. The Court’s method of decision was by majority vote—the same through which a legislature votes—but carried out in a much smaller, less transparent, and less accountable fashion. And both decisions nullified legislative provisions that were passed by accountable legislatures to protect fundamental democratic characteristics based around the democratic vote. And all this, despite the American Constitution’s commitment to ‘We the People’. However, as has become apparent, a majority of the time America’s Constitution does not belong to the people, but to the Supreme Court. 4.2.3

The Squeezing Out of ‘We the People’ More Generally

It is no longer shocking to say that many states actively govern with judges or can be characterised as juristocracies. As Hirschl rightly states, ‘the ever-accelerating judicialization train has left the rights jurisprudence station’.93 But as judicialisation has increased, so too have claims of ‘We the People’ popular sovereignty: most countries now have constitutional articulations that acknowledge that ultimate constitutional authority or constituent power resides in the people,94 and an increasing number of countries now begin their constitutions with a recital of these evocative words.95 The notion that

92 Transcript of Oral Argument at 47–48, Shelby Cnty., 133 S. Ct. 2612 (No. 12-96), http://​www​.supremecourt​.gov/​oral​_arguments/​argument​_transcripts/​12​-96​ .pdf. 93 R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2007), p 222. 94 W Voermans, M Stremler & P Cliteur, Constitutional Preambles: A Comparative Analysis (2017), p 69. 95 For example, a sample of jurisdictions from almost every continent use the phase to begin their constitutions: Albania, Bangladesh, Cambodia, Fiji, Guyana, India, Kenya, Mongolia, Nigeria, Rwanda, Slovakia, Sudan, Zimbabwe.

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such an articulation provides some type of grounding to popular sovereignty, even given the scope of modern judicial powers, still possesses a strong allure. Looking beyond the allusion to ‘We the People’ sovereignty, however, some things as regards constituent power are indeed changing. The idea that citizens have the ultimate final word on constitutional matters, and especially as regards potential constitutional replacement or significant amendment, encounters particular difficulty in today’s climate. The strongest articulation of this lies in the US Declaration of Independence, which states, ‘whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government’.96 But citizens nowadays have less control over constitutional matters than ever before, not least because aspects of many constitutions are now explicitly unamendable.97 The German Basic Law, for instance, contains a number of ‘eternity’ clauses, which cannot be amended by formal procedures.98 And not just that, but rulings by the German Constitutional Court interpreting rights provisions cannot be overturned, so citizens do not in theory or in practice have the ‘final word’ within this jurisdiction.99 Even for those written constitutions that do not specify unamendable provisions, courts often declare their existence, thus allowing them to nullify actions, laws or constitutional amendments that may go against these norms.100 But even routine constitutional amendment not involving eternity clauses (i.e., those made through normal constitutional processes) are subject to apex or supra-national court nullification. One of the zeitgeist areas of study in constitutional theory is unconstitutional constitutional amendments, which presents unique problems when considering the constituent power and the expansive rhetoric of ‘We the People’.101 Such nullifications have been seen in a number of jurisdictions over the past few decades.102 If the electorate disagrees with these apex court nullifications, or

US Declaration of Independence, 4 July 1776. M Tushnet, Advanced Introduction to Comparative Constitutional Law (2nd edn) (2018), pp 36–41. 98 For example, art. 79(3) states, ‘Amendments to this Basic Law affecting the division of the Federation into Länder, their participation in principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible’. 99 Stone Sweet, n 12 above, p 59. 100 R Albert & BE Oder, An Unamendable Constitution? Unamendability in Constitutional Democracies (2018), p 4. 101 Y Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (2017); R Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (2019). 102 For example, the decision of the Indian Supreme Court to hold the amendment regarding constitutional court appointment unconstitutional, was highly controversial (M Tushnet, n 97 above, p 39). 96 97

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indeed with any other major constitutional decisions, they are essentially out of luck. Although the theoretical prospects of citizens or legislators being able to make such a change is often mentioned as an alternative,103 in reality finding enough political mobilisation to be able to amend a constitution, even if a majority of people desire to make the change, is unlikely given the high thresholds usually needed. Thus, some contemporary constitutions are intricately designed to constrain ‘We the People’ from providing the final word on constitutional matters, and in other settings constitutional courts have willingly nullified the fruits of popular sovereignty. The establishment of supra-national organisations such as the European Union (EU) and international organisations such as the North Atlantic Treaty Organization (NATO) and the United Nations (UN) have also led to some major decisions being taken out of the hands of accountable actors. Even if sometimes overstated, the perception regarding the power these organisations hold and the potential effects on democracy is strong. Some critics of organisations such as the EU have noted that such organisations empower mostly national executives, rather than national legislatures,104 and that their internal composition and operation hardly resembles democracy in action at the state level.105 The EU also has significant control on monetary policy-making, something that national governments around the world are losing to central banks. Further, international or regional trade deals such as NAFTA or ASEAN significantly impact how goods or services are exchanged between countries, and carry major domestic ramifications. The enactment or enhancement of particular trade deals has caused democratic backlash in some states.106 Even if a globalised world requires some of these mechanisms for peace or further economic integration, the implications for ‘We the People’ sovereignty are apparent: states must relinquish some of their national sovereignty for inclusion in these organisations, or risk being left out, even left behind.

This is contrary to legislation enacted to overturn statutory interpretation decisions by the courts. Within the US this was quite common up to the turn of the millennia, but had fallen off sharply after 1998 (MR Christiansen & WN Eskridge, ‘Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011’ (2014) Texas Law Review 1317, 1332, 1340–1341). 104 See, e.g., A Cygan, ‘Legal Implications of Economic Governance for National Parliaments’ (2017) 70(4) Parliamentary Affairs 710. 105 J Allan, Democracy in Decline: Steps in the Wrong Direction (2014), pp 109–113. 106 In Taiwan, the Sunflower Movement largely arose because a proposed trade in services agreement between China and Taiwan was passed by the Taiwan legislature within a matter of seconds (see BC Jones (ed), Law and Politics of the Taiwan Sunflower and Hong Kong Umbrella Movements (2017)). 103

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The proliferation of supra-national and regional human rights courts are other means by which governments and parliaments are losing their influence, leading to a further squeeze on ‘We the People’ sovereignty. After all, the ‘craze for constitutionalization and judicial review’107 is not just a national phenomenon, but is international in scope. The European Court of Justice (CJEU) in Luxembourg is now recognised as ‘the most powerful and influential supranational court in world history’,108 and the European Court of Human Rights (ECtHR) in Strasbourg has become Europe’s final appellate court for human rights issues, and routinely gets involved in matters of national policy-making.109 Other regional human rights courts have been established, such as the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights. Although some of these courts arose after World War II to provide stability and to mediate major human rights abuses or trade disputes among countries, the dockets of these courts are now cluttered with an extremely wide range of cases that have significant national, regional and international implications.110 And their jurisdictions are only enlarging. As Stone Sweet has argued in relation to the CJEU, ‘potentially any national legal controversy can be transformed into a Community dispute, under the rubric of a conflict between Community rights and national rights’.111 Further, abiding by the decisions of these courts is not voluntary, but mandatory, and there is often little wiggle room in terms of compliance. As the squeezing out of ‘We the People’ popular sovereignty continues, it is no surprise that referendums have become popular political tools within many democracies. Given the diminishing returns of their votes for law-makers, these exercises provide the electorate a direct role in future state action. Referendums have become more prevalent than ever, and a few states now consistently use such devices as a matter of national governance (e.g., Ireland, Switzerland and Taiwan).112 Of course, they are also imperfect devices that carry a troubling amount of pitfalls, given that even the wording of a question Hirschl, n 93 above, p 214. Stone Sweet, n 12 above, p 153. 109 As Madsen notes, after the passing of Protocol 11, which eliminated the Human Rights Commission, the ‘supranational protection of human rights in Europe was fully judicialized’ (MR Madsen, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’ (2016) 79 Law and Contemporary Problems 141, 161). 110 From 1959 to 1998 the ECtHR produced a total of 837 judgments. By contrast, in 2001 alone it produced 888 judgments. In 2018, over 43,000 applications were allocated to judicial formation (down from over 63,000 in 2017). 111 Stone Sweet, n 12 above, p 183. 112 In Ireland, for instance, constitutional amendment is only possible through referendum. 107 108

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can significantly impact the result, not to mention that political parties and outsider candidates are now using the promise of referendums to boost their electoral prospects. Thus, as the squeezing-out of popular sovereignty has occurred throughout many jurisdictions around the world, so have calls for more direct methods of governance, such as referendums. The same may be said for other things, such as citizen assemblies. But attempting to side-line politics by going directly to the people has yet to prove a viable alternative to representative government.

4.3

THE REALITY OF THE ‘ADJUDICATED’ OR ‘LITIGATED’ CONSTITUTION

It is relatively easy nowadays to demean and belittle politics, and the political realm more generally (government, legislatures, political parties, etc.), especially considering the downgrade that constitutional supremacy has brought about for statutes and legislators. Politics, without a doubt, receives the vast bulk of complaints regarding contemporary discontent with democracy. And yet, our underlying reasons for blaming politics receives comparatively little discussion. It comes as no surprise that, under a system that devalues the elements most closely connected to ‘We the People’, nowadays legislatures are often the most unpopular branch of government throughout many jurisdictions. For citizens who want to see that their votes actually matter—and especially for those who have voted in the majority—examining the functions and outputs of legislatures can be an extremely frustrating endeavour. No doubt some frustration may be due to the internal complexity of these law-making bodies,113 and the fact that some internal rules can require super-majorities in order for legislation to proceed.114 Some frustration may even come from the whipping system or from elected politicians straying from manifesto commitments. But there is more to the story than frustration with the legislative process.115 This section will describe how constitutional supremacy and its progeny—the adjudicated constitution—often tend to infantilise politics and the political process, overly-judicialise the legislative process, and have broken down the long-standing doctrine of separation of powers.

See, e.g., B Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress (2018). 114 The US Senate’s filibuster provision is one such example. 115 Indeed, the prospect of ‘career’ politicians and the capture of the political class by sectoral interests are two significant areas of frustration in contemporary democracies. 113

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4.3.1

Displacing Politics in Favour of Law

[W]hat is left for politics once the law that asserts itself as politics’ antithesis has cornered the market on moral profundity or simply moral seriousness … what is left of politics when law monopolizes reason and idealism…what is left is a politics that it utterly devoid of moral ambition … The infantilization of politics is the rhetorical cost of guarding the chicken coop through the adjudicated constitution … Our dominant constitutional discourse—the philosophical, reflective backdrop of the adjudicated constitution—characterizes the lawmaking political realm as, essentially, infantile.116

For a political constitution such as the UK’s, which relies on politics to perform its most important functions, the displacing and degradation of politics is an extremely significant and troubling development. A number of authors have attempted to explain that our current infatuation with law and legal process has come at the expense of politics and the political realm. As noted above, Waldron has done this on a number of occasions, but perhaps most eloquently in The Dignity of Legislation and Law and Disagreement.117 Similarly, Loughlin’s Sword & Scales also highlights this, noting that politics has been ‘displaced from its traditional role of giving expression to the character of social existence’.118 And Tomkins addressed this in Our Republican Constitution, arguing that many legal constitutionalists have attempted to demonstrate that ‘it is only the political branches that are capable of acting arbitrarily; the courts of law, apparently, never can’.119 Although throughout human history, law and politics have attempted to differentiate themselves as distinct exercises, the notion that law is superior to politics is relatively new, and manifests itself most forcefully through the adjudicated constitution. The language and rhetoric of the adjudicated constitution, and its relationship with new constitutionalism more generally, is that of belittling—rather than ennobling—the political realm. As Robin West highlights in the quotation above, this has come at a cost. Not only does contemporary legal rhetoric assert superiority over politics, but it also attempts to ‘stop the political animal dead in his tracks’.120 Indeed, the very point of constitutional law at times ‘is to counter the political impulse with a legal one and at times negate the fruit of politics with the power of legal

West, n 59 above, pp 78–79. Waldron, n 57 above; J Waldron, Law and Disagreement (1999). 118 M Loughlin, Sword & Scales: An Examination of the Relationship Between Law & Politics (2000), p 230. 119 Tomkins, n 45 above, p 13. 120 West, n 59 above, p 59. 116 117

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pronouncement’.121 The idea that if citizens lose at the ballot box, they can always try to achieve policy victories in the courts, is ingrained into the operation of the litigated constitution. This is true even though, as Tomkins points, out, ‘the entirety of British social justice—of the welfare state—is a creation of progressive governments enacting law in Parliament’.122 But rather than attempting to ennoble politics through a focus on further legislation and social justice, the adjudicated constitution invites electoral losers to make a legal case tailored to ‘fundamental’ law, designed to trump political decisions. This is the reality of the litigated constitution: it encourages citizens to solve problems not through the political domain by engaging with other citizens and then participating in a public vote, but individually via the courts through judicial review. But degrading politics through constitutional rhetoric and attempting to halt political outcomes through constitutional law are not the only changes resulting from the adjudicated constitution. In some jurisdictions legislative processes have been taken over and repackaged into quasi-judicial methods. Indeed, there is an ‘increasing judicial capacity to construct and reconstruct the very meaning of legislative authority, and to impinge directly on how that law-making authority will be exercised’.123 These developments have led to a decrease in democratic debate, focusing instead on how apex courts will interpret or assess the issue. In particular, it makes legislators focus on legal standards (e.g., strict scrutiny versus rational basis), as opposed to discussing the fairness or justice of the policy on offer. But legislatures in many jurisdictions have been shown to be more than adequate debaters and interpreters of constitutional values, and do not need over-judicialised legislative processes to tell them how to scrutinise constitutional issues. In fact, Tushnet floats the possibility that the ‘imperfect congressional capacity to interpret the Constitution is nonetheless better than the perhaps more imperfect judicial capacity to do so’.124 The allure of the adjudicated constitution, and constitutional supremacy more generally, is its predilection for the fundamental. It supposedly looks beyond the practicality of daily politics and into a more reasoned and sophisticated version of the state. Under this, it becomes possible that we are not having to appeal to human thought and human constructs, but to something more lasting, and essential. But these fundamental documents that are human creations and incorporate human constructs are also adjudicated by human beings—ironically, through a form of majority-rule. When the constitution Ibid, p 60. Tomkins, n 45 above, p 14. 123 Stone Sweet, n 12 above, p 126. 124 M Tushnet, ‘Is Congress Capable of Conscientious, Responsible Constitutional Interpretation?’ (2009) 89 Boston University Law Review 499, 500. 121 122

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is adjudicated, it is not the constitution itself that controls these outcomes, as the issues are so complex and multifaceted that they are far too difficult to be easily dealt with by the constitution. But the only reasoning that we see judges engage in is through their written judgments, and at times in oral argument. We do not get to see those discussions in judicial conferences, when speeches and overtures are made to their fellow justices, and ultimately decisions are made on various cases.125 If we did, we would probably see that when judges reason, they act similarly to politicians. In some cases they may show passion or emotion. After all, by its very nature case law displays a human element that is often missing in the abstract policy-based political realm. We would also likely see judges act because of fear—perhaps it is institutional fear (e.g., the public standing of their particular court, or the judiciary more generally), or the fear that particular decisions could have negative political or international repercussions. We would probably even see judges attempting to satisfy short-term desires, such as actively horse-trading their votes (i.e., agreeing to vote one way on a particular case, if another justice promises to align their vote on a future case). That is not to say that judges are not independent; they are to a very high degree. But they are also human, and their decisions are subject to the same types of pressures, fears and short-term thinking as those of politicians.126 4.3.2

Undermining the Separation of Powers

The rise of the new constitutionalism has fractured traditional ideas regarding the separation of powers doctrine. Because judges and apex courts do so much law-making, many jurisdictions can no longer boast that they hold a principled separation of powers. The idea that constitutional courts remain passive state actors and simply wait for litigation to meander their way does not mix with the reality of the new constitutionalism, and certainly does not mesh with the hyper-speed digital world we currently live in. First off, many constitutional courts possess abstract review of legislation currently travelling through their respective parliaments, and if the opposition refers bills to these

125 As the US Supreme Court websites notes, ‘According to Supreme Court protocol, only the Justices are allowed in the Conference room at this time—no police, law clerks, secretaries, etc.’ (US Supreme Court website, Supreme Court Procedures, https://​www​ .uscourts​.gov/​about​-federal​-courts/​educational​-resources/​about​-educational​-outreach/​ activity​-resources/​supreme​-1). 126 For a classic account, see: J Frank, ‘Are Judges Human? Part I: The Effect on Legal Thinking of the Assumption that Judges Behave like Human Beings’ (1931) 80(1) University of Pennsylvania Law Review 17.

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apex courts, they can stop bills dead in the water.127 Apex courts nowadays not only perform negative powers of striking down legislation or its particular provisions, but also actively re-write legislation, thus performing positive law-making powers. Additionally, compared to decades ago, litigation now happens at breakneck speed, and most courts have ‘urgent’ petition procedures by which major issues can be heard within a matter of weeks or even days.128 Finally, the idea of a ‘political question doctrine’, where some decisions are so heavily laden with policy and political judgments that courts tend to stay away from adjudicating them, has been eroded in many places. As Tushnet points out, some jurisdictions ‘say that the very idea that the constitution is the nation’s highest law requires that courts have the power to evaluate the constitutionality of every government action’.129 4.3.3

Perpetuating Juristocracy

Finally, the adjudicated constitution only perpetuates itself and the power structures that it ingrains. Stone Sweet remarks: As the constitutional law expands to more and more policy areas, and as it becomes ‘thicker’ in each domain (more dense, technical, and differentiated), so do the grounds for judicialized debate. The process powerfully tends to reproduce itself, and in so doing, judicialization is provoked and reinforced.130

Thus, litigation leads to more litigation, which ultimately means more judicialisation. In fact, in many jurisdictions throughout Europe, ‘virtually all of the constitutional law that matters is case law’,131 and in the US, ‘[c]onstitutional lawyers typically see the Constitution as … judge-made (or adjudicative) law, and they typically see it as nothing but that’.132 This is another symptom of the adjudicated constitution: that law and lawyers—and, indeed, citizens—get tunnel vision, thinking that pronouncements from apex courts are the supreme

127 As Stone Sweet notes in France, ‘After 1974, all budget bills and nearly every important piece of legislation has been the subject of referral by the parliamentary opposition’ (Stone Sweet, n 12 above, p 63). 128 For example, under the Rules of Procedure for the Inter-American Convention of Human Rights, Article 27(1) states the following: ‘At any stage of the proceedings involving cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court may, on its own motion, order such provisional measures as it deems pertinent, pursuant to Article 63(2) of the Convention’. 129 Tushnet, n 97 above, p 64. 130 Stone Sweet, n 12 above, p 55. 131 Ibid, p 146. 132 West, n 59 above, p 66.

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and final word on constitutional matters. And yet, if societies are unable to see that the constitutions have meanings beyond their textual forms, and certainly beyond what the courts can offer in terms of adjudicating them, then our constitutional polities will undoubtedly become blinkered versions of political aspiration.

4.4

CONSTITUTIONAL SUPREMACY ≠ WE THE PEOPLE

The perpetuation of constitutional idolatry largely revolves around fictions, and no fiction is greater than the idea that written constitutions provide ‘We the People’ the ultimate authority on constitutional matters. Constitutional supremacy is often sold to citizens as grounding popular sovereignty into the heart of a country’s written constitution. And yet, in reality, the lower ranking of both statute and legislator means the lower ranking of the democratic vote, which remains the only significant power that the people hold. This, ultimately, means a lower ranking of ‘the People’ within the jurisdiction. While there may be other reasons for establishing a written constitution, the fiction that it will supposedly ‘ground’ the people into the fabric of the country is simply inaccurate. In fact, it appears that spurious ‘We the People’ claims are often co-opted by legal constitutionalists as a way of selling constitutional supremacy, rather than being genuine concerns for establishing popular sovereignty. As numerous jurisdictions have demonstrated throughout the years, a ‘We the People’ articulation does not lead to greater powers for the citizenry or even better democratic outcomes for the country as a whole. Further, the notion that parliamentary sovereignty rivals popular sovereignty, and excludes the people from the system of government, is simply a fallacy. If anything, and for all its faults and idiosyncrasies, parliamentary sovereignty complements and strengthens popular sovereignty. Those arguing the opposite are often advocating constitutional supremacy, which reinforces and perpetuates constitutional idolatry.

5. Invigorating democracies?1 A focus on constitutional performance has on many occasions touched on or insinuated a relationship between constitutions and voter turnout. Dixon and Landau state that a competitive democracy requires a ‘minimum core of a democratic constitution’ to endure if a constitution is to be successful, emphasising the democratic vote.2 Hardin also argues that constitutions can (or should) provide for the successful coordination of society and politics.3 Ginsburg and Huq take these arguments further, stressing that ‘in democratic contexts, [constitutions] can also help facilitate participatory politics’, and that ‘[f]idelity to the constitution provides a normative justification for democratic participation’.4 Thus, some constitutional scholarship explicitly connects these written documents with the enhancement of civic duty. More practically, the opening pages of this book describe how written constitutions have been used as prominent symbols during general election campaigns, which connects to their wider use as pre-eminent societal rallying points—a form of idolatry identified in Chapter 1. But can written constitutions encourage citizens to get more involved in the political process? Addressing arguments for and against a single written constitution for the UK, a 2014 House of Commons Report said this: The present ‘unwritten constitution’ is an anachronism riddled with references to our ancient past, unsuited to the social and political democracy of the 21st century and future aspirations of its people. It fails to give primacy to the sovereignty of the people and discourages popular participation in the political process’.5

1 This chapter is adopted from BC Jones, ‘Constitutions and Bills of Rights: Invigorating or Placating Democracy?’ (2018) 38(3) Legal Studies 339. 2 R Dixon & D Landau, ‘Competitive Democracy and the Constitutional Minimum Core’ in T Ginsburg & AZ Huq, Assessing Constitutional Performance (2016), p 268. 3 R Hardin, ‘Why a Constitution’ in DJ Galligan & M Versteeg, Social and Political Foundations of Constitutions (2013), p 51. 4 T Ginsburg & AZ Huq, ‘Assessing Constitutional Performance’ in Ginsburg & Huq, n 2 above, p 16. 5 House of Commons Political and Constitutional Reform Committee, ‘A New Magna Carta’ (10 July 2014), HC Paper No 463, p 19). My emphasis.

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Before a more detailed assessment can take place regarding constitutions and political participation, however, the above statement needs to be further scrutinised. It notes that the current constitution is ‘riddled with references to our ancient past’, which is portrayed as negative. But, it is unclear why these references should be viewed in such a manner. Would a written Constitution not explicitly mention Magna Carta, the Bill of Rights 1689 or the Acts of Union 1707? The 1958 French Constitution, for instance, explicitly mentions the Declaration of the Rights of Man 1789.6 Additionally, an argument can be made that such historical contextual acknowledgement is the most important— and, indeed, the most celebrated—part of the US’s antiquated Constitution.7 Thus, a criticism such as this seems unwarranted, or entirely misplaced. Further, the clause ‘unsuited to the … future aspirations of its people’ also connects to the discouragement of ‘popular participation in the political process’. As discussed below and elsewhere in this book, declarations of aspirations and ambitions—which are often present in preambles and bills of rights—have often been associated with ‘invigorating’ or ‘inspiring’ the populace. A further invigoration method is constitutional acknowledgement that ‘We the People’ are sovereign. The current UK constitution does not guarantee this, and such a sovereignty ‘failing’ appears to be an especially significant factor in discouraging political participation. Taken altogether, the complementary statements imply that if the UK possessed a ‘modern’ constitution that included state aspirations and provided ultimate sovereignty to the people, then popular participation in the democratic process would be encouraged. This is a bold, and unsubstantiated, claim. Much of the rhetoric on bills of rights speaks of legal empowerment, especially the power to take rights claims before the courts. And yet, further claims have been made in terms of citizen empowerment, sovereignty and potential democratic effects. Aspirations have long been explicitly connected to rights; after all, the codification of human rights is ‘a movement which answers the aspirations of peoples and takes its origins from the aspirations of peoples’.8 Levinson asserts that when it comes to constitutional concerns about political structure, people ‘[t]oo often … tend to yawn at discussions of such issues’, and often ‘become animated only when discussion turns’ to rights, such as speech, religion or private property.9 Some have asserted an explicit connec-

French Constitution, preamble, para 1. See, e.g., Ginsburg & Huq, n 2 above, pp 23–26. 8 J Cooper & A Marshall-Williams, Legislating for Human Rights: The Parliamentary Debates on the Human Rights Bill (2000), p 11. 9 S Levinson, ‘Do Constitutions have a Point?’ in EF Paul, FD Miller & J Paul, What Should Constitutions Do? (2011), p 152. 6 7

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tion between sovereignty and rights. Ackerman, for instance, notes that in America it ‘is the People who are the source of rights’.10 This chapter questions whether constitutions and bills of rights are indeed the invigorating mechanisms they are frequently portrayed as, including whether they can ‘invigorate’ polities in the manner that constitutional theorists and others have suggested. It is primarily concerned with one main issue regarding such revered texts: whether new constitutions and bills of rights (including major constitutional amendments) serve to invigorate democracies, thus leading to higher democratic participation (i.e., higher voting levels). After all, if the claims that constitutions and bills of rights are inspiring, value-laden and aspirational documents capable of empowering citizens with ultimate sovereignty, then it is fitting to connect such claims with democratic performance. It is certainly acknowledged, however, that democratic participation—especially today—goes beyond voting, and can manifest in social movements, public consultations or digital engagement (e.g., e-petitions), among other things. Arguments could be put forward that some of these developments may be more important than voting, and could have more of an impact on a state’s constitutional politics. Nevertheless, the connection between constitutions, bills of rights, and voting is important, and requires further investigation. Above, this chapter briefly discussed the connection between constitutions, bills of rights and democracy, and evidence was presented that scholars have connected such documents not only to a healthy political system and increased democratic participation, but also to ‘inspiring’ or invigorating the populous. The following section discusses the practical aspects surrounding constitutions and voter turnout, stressing that measuring this relationship is an inherently difficult process. It also further justifies why the relationship is important, and should be studied within the UK and elsewhere. The methods section provides the hypotheses and explains how the empirical analysis was conducted. The following three sections primarily use case studies, in addition to supporting empirical evidence, to demonstrate the effects of implementing constitutions, bills of rights and constitutional amendments on voter turnout. The final section discusses some of the implications of this provisional study, and calls for more research into this area of constitutional assessment. It concludes by noting that although constitutions and bills of rights often appear to be democracy-reinforcing mechanisms, ultimately—and surprisingly in some cases—they could also contain democracy-hindering downsides.

B Ackerman, We the People, Volume I: Foundations (1991), p 15.

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5.1

CONSTITUTIONS AND VOTER TURNOUT: A PROVISIONAL INQUIRY

As seen above and in other chapters, many claims have been made about the value of constitutions and their effects on democracy, and it is not uncommon for constitutions to be suggestively connected with political participation in the manner that the Commons Report does: that a written, modern constitution would encourage participation in the political process.11 However, the relationship between constitutions, bills of rights and voting (which remains citizens’ most significant from of participation) deserves further investigation. After all, as Hardin says, ‘constitutionalism without social science is an arid intellectual pastime’.12 Powell’s pioneering work on democracies and voter turnout labelled electoral participation as one of the three indications regarding the performance of democratic states.13 And yet analysing voter turnout—and especially the reasons for electoral participation—has always been a complex endeavour. One article on the subject of voter turnout in democracies correctly noted that ‘few other areas of political science research have been as riddled with puzzles and paradoxes as the study of electoral participation’.14 Research on voter turnout has long taken into consideration demographic factors (e.g., level of education, socio-economic status, gender, race), but that is only part of the story. Powell and Jackman largely moved the discipline towards focusing on institutional variables when assessing electoral participation.15 These institutional elements, such as compulsory voting, electoral systems, unicameralism, voting age and voting laws, were long considered the dominant factors when assessing voter participation.16 However, recently scholars have noted that such institutional variables may be over-stated in the literature, arguing that

‘A New Magna Carta?’, n 5 above. Hardin, n 3 above, p 52. 13 GB Powell, Contemporary Democracies: Participation, Stability and Violence (1984). 14 M Gray & M Cual, ‘Declining Voter Turnout in Advanced Industrial Democracies, 1950 to 1997: The Effects of Declining Group Mobilization’ (2000) 33(9) Comparative Political Studies 1091. 15 GB Powell, ‘American Voter Turnout in Comparative Perspective’ (1986) 80(1) American Political Science Review 17; RW Jackman, ‘Political Institutions and Voter Turnout in Industrial Democracies’ (1987) 81 American Political Science Review 405. 16 A Blais, ‘What Affects Voter Turnout’ (2006) Annual Review of Political Science 111. 11 12

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‘[i]nstitutions matter less than we are prone to believe’,17 and that ‘the impact of institutions on turnout is shaky’.18 Voter turnout fluctuation is the primary aspect I will be examining below, and is further explained in the methods section. To put it mildly, this phenomenon is difficult to explain. Here, researchers have found that voting has generally declined in industrialised democracies in the post-war period, and that younger generations are not as interested and do not attach as much importance to politics as older generations.19 That may explain long-term voting decline, and even some decline in the case studies below, but it does not explain significant voting fluctuations. One of the most prominent studies explaining voter fluctuation discusses the ‘swing voter’s curse’, in which Fedderson and Pesendorfer found that poorly informed voters sometimes rationally delegate their vote—through abstaining—to more informed voters.20 Such a delegation can at times produce a significant drop in voting turnout. However, even if such a phenomenon as the ‘swing voter’s curse’ was impacting the data below in relation to newly enacted constitutions and bills of rights, this would be valuable information. It is not the purpose of this chapter to make a moral argument for voting within democracies; that argument has been forcibly made elsewhere.21 But the question remains: why study the connection between constitutions, bills of rights and voting? Although there may be connections between the performative and symbolic aspects of constitutions and democratic participation, traditionally such documents do not appear to have been analysed in terms of their impact on voter turnout (except in cases of expanding the franchise or opening/tightening voting rules or rights). Perhaps there may be good reason for the lack of enquiry: the creation of constitutions, bills of rights and major constitutional amendments is a highly politicised endeavour that may put citizens off politics and the political process.22 As Hannah Pitkin once stated, ‘constitutions are made, not found’, and are almost always the result of ‘a political struggle’.23 This much is acknowledged. One only has to look at Ibid, p 121. Ibid, p 116. 19 A Blais, E Gidengil, N Nevitte & R Nadeau, ‘Where Does Turnout Decline Come From?’ (2004) 43 European Journal of Political Research 221, 229. 20 TJ Fedderson & W Pesendorfer, ‘The Swing Voter’s Curse’ (1996) 86(3) The American Economic Review 408. 21 A Downs, An Economic Theory of Democracy (1957); A Blais, To Vote or Not to Vote: The Merits and Limits of Rational Choice Theory (2000), pp 92–114. 22 M Versteeg, ‘Unpopular Constitutionalism’ (2014) 89 Indiana Law Journal 1133, 1140. 23 H Pitkin, ‘The Idea of a Constitution’ (1987) 37 Journal of Legal Education 167, 168. Emphasis in original. 17 18

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the contention that continues to revolve around the UK’s Human Rights Act 1998 (HRA), which the Conservative Party has repeatedly stated it would like to repeal or amend,24 or the 2008 constitutional amendments in France, where merely one vote in the National Assembly pushed major reforms through,25 to see that constitutional change is a delicate and at times volatile undertaking. And yet there remain good reasons for studying this complex relationship. Chapter 1 points out that the prospects of the UK penning some form of written constitution, from a large-C Constitution to potentially a smaller statutory measure, remains an active concern for many. As the Commons Report cited above states, perhaps the UK’s historic unwritten constitution is putting people off the political process. Although the Commons Committee did not make any formal recommendations, the recent interest in penning a written constitution largely coincided with the 800th anniversary of the Magna Carta,26 and the prospect of a written constitution under any future government could easily be just around the corner.27 During the run-up to the 2014 independence referendum, the Scottish Government published the Scottish Independence Bill, which—should Scotland have voted to leave the UK—contained an interim constitution and provisions for a permanent one.28 But perhaps more significantly, a plethora of complaints regarding the lack of a UK constitution have been made by citizens,29 the judiciary,30 the political establishment,31 academia32 and certainly by outsiders hoping to gain some operational knowledge of the UK constitution.33 Talk of constitutional crises, malaise, uncertainty and

See, e.g., the 2010 and 2015 Conservative Manifestos. ‘France backs constitution reform’, BBC News (21 July 2008), http://​news​.bbc​ .co​.uk/​2/​hi/​europe/​7517505​.stm. 26 Besides the Commons Report, n 5 above, see A Blick, Beyond Magna Carta: A Constitution for the United Kingdom (2015). 27 University College London (UCL)’s Constitution Unit has recently provided the blueprint for a constitutional convention. Although they did not advocate that the body consider a written constitution, they do acknowledge that it may be an outcome of such events (A Renwick and R Hazell, Blueprint for a UK Constitutional Convention (June 2017), https://​www​.ucl​.ac​.uk/​constitution​-unit/​images/​news/​ccblueprint​-2). 28 Scottish Government, The Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (June 2014). 29 L Colley, ‘Why Britain needs a written constitution’ Guardian (4 November 2011), https://​www​.theguardian​.com/​books/​2011/​nov/​04/​why​-britain​-needs​-written​ -constitution. 30 S Sedley, ‘No Ordinary Law’ (1998) 30(11) London Review of Books 20. 31 See MP Graham Allen’s quest for a written constitution here: http://​ www​ .grahamallenmp​.co​.uk/​campaigns/​written​_constitution. 32 LSE Constitution UK, http://​blogs​.lse​.ac​.uk/​constitutionuk/​. 33 G Witte, ‘After 800 years, Britain finally asks: Do we need a written constitution?’ Washington Post (7 June 2015), http://​wpo​.st/​5oEq1. 24 25

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anomie within the UK has also arisen in recent years,34 especially as regards Brexit.35 Some of these complaints take the form of the UK not being an ‘evolved democracy’, or ‘living in the past’ because of the lack of a codified document. Nowadays, constitutions are undeniably associated with modernity and innovation, while the lack of a written constitution is associated with staleness or antiquity. Perhaps this allure of novelty and freshness is a significant reason that many citizens, politicians, and others within the UK would prefer a codified constitution, as opposed to the status quo. If citizens do serve as the ultimate source of power under a democratic constitution, then political participation by the citizenry is essential to keep a watchful and critical eye on government, and to ensure that the citizenry—as opposed to other state entities—remains sovereign. The act of voting protects not only the establishment of democratic constitutions and the operation of sovereignty, but also the fundamental rights inherent in such documents. This is also true for states that protect rights through constitutional statutes (e.g., a vote for Labour in 2015 could have been an attempt to protect the HRA, given that the Conservative manifesto pledged to repeal it). More importantly, constitutional democracies rely on voting to preserve any meaningful democratic system. Voting is ‘strategic to the operation of the system as a whole’, and can be characterised as ‘the paradigmatic form of universal citizenship participation’.36 If voting does not occur or dips to unsustainable levels, then alas, democracy has died.37 Thus, connecting voter turnout to constitutional contentment is a valuable—if underexplored—area of constitutional theory. The traditional or ‘intuitive’ argument regarding new (written) constitutions and voter turnout—which the Commons Report undoubtedly used, and which some constitutional scholars have insinuated—goes as follows: New Constitution → Citizen engagement/contentment → Increase in electoral participation The same argument also holds for new bills of rights; and given the post-war celebration of human (and other) rights throughout many democracies,38 this phenomenon may even perhaps be stronger. Such an argument would progress as follows: EF Delaney, ‘Stability in Flexibility: A British Lens on Constitutional Success’ in Ginsburg & Huq, n 2 above, p 394. 35 DJ Galligan (ed), Constitution in Crisis: The New Putney Debates (2017). 36 Ackerman, n 10 above, pp 238–39. Emphasis in original. 37 Ibid, p 236. 38 See, generally, L Henkin, The International Bill of Rights: The Covenant on Civil and Political Rights (1981), pp 1–30. 34

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New Bill of Rights → Citizen engagement/contentment → Increase in electoral participation Surprisingly little research or discussion focuses on the idea of new constitutions and bills of rights and their potential effects on democratic participation. And yet, the connection between such fundamental documents and democratic participation seems tautological: a newly enacted democratic constitution or bill of rights should invigorate a democracy, thus leading to higher voting levels. In particular, for those states recently enacting such documents, a constitution should serve as a major catalyst for democratic engagement and participation. This chapter questions such logic, critiquing whether constitutions and bills of rights are always the democracy-reinforcing mechanisms many have made them out to be. My argument here is primary empirical, but contains implications for the normative arguments put forward earlier regarding written constitutions’ (potential) democratic effects. Many of the case studies presented below fail to support the claim that new constitutions and bills of rights increase citizen participation in the political process.

5.2 METHODS To begin, we should at least follow the inclination flowing from much of the constitutional scholarship: that newly enacted constitutions or bills of rights are democracy-reinforcing, and indeed can be invigorating or inspiring. If this logic is followed, two hypotheses can be put forward: Hypothesis No 1: Newly enacted constitutions → higher voter turnout (especially in the short term) Hypothesis No 2: Newly enacted bills of rights → higher voter turnout (especially in the short term) Sometimes, however, major constitutional amendments come into force that significantly alter a state’s constitution. Some of these may even incorporate a bill of rights or new powers for a supreme or constitutional court to strike down unconstitutional laws. The analysis below takes three examples into consideration: Canada’s Constitution Act 1982, the EU’s 2007 Treaty of Lisbon, and France’s 2008 constitutional amendments. All of these examples either contained a bill of rights or strengthened citizen rights against the state. Given the high level of consensus that successful constitutional amendments usually require, a third hypothesis can be put forward:

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Hypothesis No 3: Major constitutional amendments → higher voter turnout (especially in the short term) The voting turnout data used below comes from the International Institute for Democracy and Electoral Assistance (IDEA).39 This organisation contains a ‘voter turnout’ database that goes back to 1945 for virtually all countries that provide such data.40 I primarily used the Constitute Project website41 for analysing when constitutions were implemented or when major constitutional revisions occurred. I have attempted to provide illustrative case study examples from countries that operate, or at least used to operate, on the ‘Westminster’ style of governance. However, this was not always possible, and some examples outside Westminster-style democracies provided valuable insight. In the major case studies I also wanted to present evidence from generally healthy or well-functioning democracies, rather than ones that have undertaken a fundamental political transition, as the former reflects what the situation would be if the UK were to pen a written constitution.42 The case studies are supplemented by a thorough search regarding post-World War II constitutional implementation. This is especially true for Section 5.3 below, which focuses on constitutions. The results of this search complement the case studies, and provide more information as regards each section. In determining the parameters of this search, countries with compulsory voting (e.g., Australia, Bolivia, Brazil), or those that implemented compulsory voting into their new constitutions (e.g., Turkey), were eliminated from the analysis. Further, countries that implemented their constitutions before the IDEA data becomes available, such as Germany, India, Ireland, Italy and Japan, were also eliminated from the analysis. Countries not in the IDEA database were excluded from examination. Therefore, in total, 72 countries were included in the analysis.43 Unfortunately, the below analysis is unable to study the implementation of written constitutions, as opposed to just new constitutions. Although this may be an important distinction, as the UK could be moving from an unwritten to International Institute for Democracy and Electoral Assistance (IDEA). IDEA Voter Turnout database, http://​www​.idea​.int/​data​-tools/​data/​voter​-turnout. 41 Constitute Project, https://​www​.constituteproject​.org/​. 42 Although it is acknowledged that some of the examples outside of the main case studies below have come from countries making a fundamental political transition. Landau has rightly pointed out that, in some cases, new constitutions can be ‘traumatic’ events (D Landau, ‘Constitution-Making Gone Wrong’ (2013) 64(5) Alabama Law Review 923). 43 There were two cases (Montenegro and Venezuela) where after constitutional implementation, voting in the same election produced offsetting results, by increasing in parliamentary turnout but decreasing in presidential turnout, or vice versa. These countries were also excluded from the analysis, as the data cancels each other out. 39 40

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a written constitution—not merely from one written constitution to the next— the availability of the data does not support such a project going forward. Also, there are good reasons to think that the distinction between the two are marginal or even insignificant; newly implemented constitutions, even in states that already had a written constitution, often require a high level of political support (either by an elite group of drafters or framers, or even at times by the citizens), in order to move forward. If this support is not present, then any constitution in question is unlikely to be adopted. In the data presented below, general election voting results were analysed before and directly after a constitution or bill of rights was passed in a given jurisdiction. This allowed me to analyse whether a new constitution or bill of rights may have had any immediate effect on the voting outcomes of the accompanying jurisdictions.44 The length of time between constitutional implementation and the next general election was also taken into consideration, as the shorter amount of time between these events, the better for my analysis. It is important to note that the claims made about constitutions from the Commons Committee—and more widely, the suggestive claims noted above by other scholars as regards ‘inspirational’ effects—do not supply any empirical evidence for their backing. Although such positive claims about constitutions may sound logical and reasonable, as scholars we cannot rely on logic alone. After all, it was once believed that the world was flat, that the body was made of four humours, and that lobotomies were a viable method to treat mental illness and criminality. Perhaps in the near future scholars will be able to assemble a statistical model that can isolate the impact of constitutions, bills of rights, or major constitutional amendments that may further expand on this study. I fully support, and even encourage, such a project. But the reality—as any scholar that has undertaken such research or has taken the time to learn or study statistics—is that in any such model there will be deficiencies and unknown variables that the model will be unable to capture, and we will be left arguing about what was in the models and how those variables were weighted, rather than the discussing the importance of the claims themselves. Voter turnout, after all, is a complex and multifaceted phenomenon that political scientists are still attempting to understand.45 Nevertheless, the sections below provide provisional evidence that more research is needed in this important area of constitutional theory.

There may be a strong argument that one should look at the long-term effects of new constitutions and their effects on voting participation. While I do hope to eventually take this into consideration, a project of such magnitude is outside the scope of this book. 45 Gray & Cual, n 14 above. 44

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NEW CONSTITUTIONS AND DEMOCRATIC PARTICIPATION

A prominent example of how a new constitution could potentially affect voting is France’s 1958 Constitution. Figure 5.1 displays French voter turnout from 1945 to 1981, with the vertical line marking the implementation of the constitution.

Figure 5.1

French Voter Turnout 1945–1981.*

*IDEA Voter Turnout Database, n 40 above, France (Parliamentary Elections).

The timeline for France’s 1958 Constitution was ideal for this study. The 1958 general elections were held on 23 and 30 November 1958, just six weeks after the adoption of the 1958 Constitution on 4 October 1958. Thus, the elections were at least an indirect referendum on the 1958 Constitution. Given these circumstances, the results prima facie demonstrate that the populace was not on the whole more willing to participate in their democracy than they were in 1956, just two years before the Fifth Republic came into existence. Analysing statutory constitutional documents can also prove fruitful, as the UK has considered not necessarily enacting a large-‘C’ Constitution per se,

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but a constitutional statute.46 New Zealand represents an interesting test case as regards both a constitutional statute and, as we will see below, a statutory bill of rights. New Zealand’s Constitution Act 198647 is similar to what some have proposed for the UK: a small-‘c’ statutory constitutional statute48 that can be amended by another statute. But the Act, which came into force in 1987, did not appear to invigorate citizens or at least persuade them to go to the polls later that year, as voter turnout declined from 93.71% in 1984 to 89.06% in 1987. Although this is not a terribly significant decrease in voter turnout, it is nevertheless a decrease.

Figure 5.2

New Zealand voter turnout 1978–1999*

*IDEA Voter Turnout Database, n 40 above, New Zealand.

Of course, the above are merely two examples. Other states that have introduced new constitutions have had similar, and at times dramatic, experiences as regards voting turnout. Colombia held parliamentary elections in 1990 that A New Magna Carta, n 5 above. Constitution Act 1986, Public Act No 114 (13 December 1986). Crucially, this Act does not contain a ‘We the People’ clause, as many contemporary constitutions do. However, it does articulate the structure of the state and potentially furthers citizen understanding of government. 48 Some refer to these documents as ‘super-statutes’. 46 47

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garnered a 55.33% turnout.49 A year later a new Colombian Constitution came into existence on 4 July 1991. Merely three months later, on 27 October 1991, parliamentary elections were held. Although it is acknowledged that citizens had just voted a year earlier and may have been ‘turned off’ politics, the 1991 turnout garnered Colombia’s lowest recorded voter turnout ever: 33%.50 This was a dramatic, 22 percentage point drop from the previous year. A similar event occurred in Spain. After Francisco Franco died in 1975, Spain held a general election in 1977 that garnered a turnout of 76.96%.51 In 1978 a draft constitution was written, a constitutional referendum was held on 6 December 1978, and the formal Spanish Constitution was adopted on 27 December 1978 by King Juan Carlos I. However, just over two months after constitutional ratification, a general election was held on 1 March 1979, which produced a 68.13% turnout. This was an almost nine percentage point decrease from the 1977 election, and has remained the lowest voter turnout since Spain’s post-Franco transition to democracy (the closest percentage to this came in the 2000 general election, which produced a 68.71% turnout).52 These two prominent examples demonstrate provisional evidence that the implementation of new constitutions and their impact on voting must be further explored. In a thorough search of states that enacted new constitutions post-World War II, it was found that voting decreased after constitutional implementation in 44 countries.53 Voter turnout was found to decline after implementation of constitutions in Albania (1998), Belize (1981), Croatia (1991), Hungary (2011), Malta (1964) and Poland (1997), among others. Further, the lowest post-World War II recorded vote phenomenon after constitutional implementation was found in 12 of those 44 countries, including: after Denmark’s 1953 Constitution (80.8%);54 Tunisia’s 2014 Constitution (60.35%),55 and the Central African Republic’s 2016 Constitution (44.28%).56 These examples provide tentative evidence that Hypothesis No 1 can be refuted. Of course, this pattern does not always hold for newly implemented constitutions, and there are many instances in which voter turnout increased. In the same search noted above, post-World War II new constitutions were found to

IDEA Voter Turnout Database, n 40 above, Colombia. Ibid. 51 IDEA Voter Turnout Database, n 40 above, Spain. 52 Ibid. 53 Data available upon request. This number includes New Zealand, which passed a statutory constitutional document (Constitution Act 1986), but does not include the UK, which passed only a statutory bill of rights (Human Rights Act 1998). 54 IDEA Voter Turnout Database, n 40 above, Denmark. 55 IDEA Voter Turnout Database, n 40 above, Tunisia. 56 IDEA Voter Turnout Database, n 40 above, Central African Republic. 49 50

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produce an increase in voter turnout in 28 countries, including in Barbados (1966), Jamaica (1962), Honduras (1982), Morocco (2011), Nigeria (1999), Paraguay (1992), Sweden (1974) and Switzerland (1999), among others. Findings regarding the opposite of the ‘lowest recorded vote’ phenomenon noted above—the ‘highest recorded vote phenomenon’—occurred in 10 of the 28 states. Senegal is a prominent example of such an effect, as its voter turnout jumped from 39.28% to 67.26% after passage of its 2001 Constitution.57 However, my argument is not that voter turnout always falls, and it is not within this chapter’s scope to analyse cases of voter increase; my job here is merely to demonstrate that constitutions do not always invigorate democracies.

5.4

BILLS OF RIGHTS AND DEMOCRATIC PARTICIPATION

This section will analyse Hypothesis No 2, that newly enacted bills of rights are likely to increase voter turnout. Although bills of rights are common in newly enacted constitutions, enactments on their own do not occur as frequently. Thus, there were fewer data to analyse as regards these documents. The section begins with a case study on the HRA, and then moves to other examples. 5.4.1

Case Study: Human Rights Act 1998

Both when it was proposed58 and following its enactment, the HRA has predominantly been viewed as a ‘bill of rights’ for the UK, and to a large extent—both by the legal and political establishment—it has been treated as such.59 Although passed in 1998, the measure did not fully come into force until 2000. Given that there was a general election in 1997 and another in 2001, this supplies ideal evidence in terms of examining the potential effects on UK voter turnout both before the HRA and after its implementation. But such an analysis must be put into context. The general election in 1997 was a sweeping victory that brought into power Tony Blair and New Labour. The election was characterised as a case of low voter turnout, given that up to that point turnout was the lowest in the post-war period, at 71.46%.60

IDEA Voter Turnout Database, n 40 above, Senegal. UK Parliament, ‘Rights Brought Home: The Human Rights Bill’ (October 1997), CM3782. 59 See, e.g., A Kavanagh, Constitutional Review under the UK Human Rights Act (2009). 60 D Denver & G Hands, ‘Turnout’ (1997) Parliamentary Affairs 720; C Pattie & R Johnston, ‘A Low Turnout Landslide: Abstention at the British General Election of 1997’ (2001) 49 Political Studies 286. 57 58

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However, given the 1983 general election turnout (72.81%), it could not have been too shocking. Even though no structural changes to the voting mechanisms in Britain had taken place (as there was in 1970, when the voting age was changed from 21 to 18),61 Labour was ‘widely anticipated’ to win the election.62 Thus, the 1997 voting turnout figures, after almost two decades of Conservative leadership, were hardly surprising.

Figure 5.3

UK voter turnout 1979–2015*

*IDEA Voter Turnout Database, n 40 above, United Kingdom.

The results of the 2001 election, just after the HRA came fully into force, were stunning: voter turnout dropped over 12 percentage points, from 71.46% to 59.38%. The 2001 election was also marked by what was described as ‘voter apathy’ across the board (one academic termed it an ‘apathetic landslide’).63 But the election also made history: the turnout ‘was the lowest in a general election since universal adult franchise was established in Britain

Ibid, p 720. Pattie & Johnston, ‘A Low Turnout Landslide: Abstention at the British General Election of 1997’ (2001) 49 Political Studies 286. 63 P Norris, ‘Apathetic Landslide’ (2001) Parliamentary Affairs 565. 61 62

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in the 1920s’.64 Indeed, the result remains the lowest turnout in UK post-war history. Purely socio-economic or demographic changes cannot explain the difference in turnout, as the 2001 vote was only four years after the previous one; and, indeed, no significant voting mechanisms had changed. Thus, other factors must have influenced the figures. A significant finding from the British Election Study (BES) data was that the campaign failed to motivate potential voters and that many citizens were bored throughout.65 The 2001 Labour victory was not a foregone conclusion, however. Usually after major landslide elections, such as occurred in 1997, normality (i.e., more competition) returns to the political sphere; in fact, this had happened with every major Labour peak going back to 1929 (including those in 1945 and 1966).66 Yet the 2001 general election broke the trend back to competition, thus maintaining Labour’s distinctive advantage over the Conservatives. Again, even though causal inferences cannot be directly connected to the HRA lowering voter turnout, the results still call into question what effect, if any, the prominent statute had on citizens’ motivation to vote. 5.4.2

Other Recent Bills of Rights

To provide an example from a Westminster-style government that also enacted a statutory bill of rights relatively recently, we return to New Zealand, where, shortly after the 1986 constitutional statute, the New Zealand Bill of Rights Act 1990 was enacted.67 Recall that after the 1986 Act was passed, turnout dropped over four percentage points. The Act was passed in August 1990 and came into force in September of that year. The general election of 1990 was held on 27 October 1990, and again there was a 4% decrease in the voter turnout (from 89.06% in 1987 to 85.24% in 1990). The intriguing element regarding both the 1987 vote (after the Constitution Act) and the 1990 vote is that the general elections were held relatively soon after each major statute was passed; yet after the passing of each super-statute, voting turnout dropped— again, not significantly, but a drop nevertheless. Thus, over a span of six years and two very significant constitutional statutes, New Zealand voter turnout dropped from the low-90s to the mid-80s, as can be seen in Figure 5.4.

P Whiteley, H Clarke, D Sanders & M Stewart, ‘Turnout’ (2001) Parliamentary Affairs 775. 65 Ibid, p 776. 66 Norris, n 63 above, p 565. 67 New Zealand Bill of Rights Act 1990, Public Act No 109 (28 August 1990). 64

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Figure 5.4

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New Zealand voter turnout 1978–1999

Outside of Westminster-style democracies, another recent example of a bill of rights coming into effect is the Charter of Fundamental Rights and Basic Freedoms,68 which was enacted in 1991 by what was known at the time as the Czech and Slovak Federal Republic, preceded by Czechoslovakia, and which has subsequently become the Czech Republic and Slovak Republic, respectively. The Charter continued to remain in force in both countries after their split in 1992. The Charter was modelled after the US Bill of Rights, but was more expansive in some respects. The data demonstrates that there was a significant drop in voter turnout after the Charter was implemented, from 96.33% in 1990 to 84.68% in 1992.69 While the 1990 figure was extremely high, and could be the result of the excitement regarding a new-found democracy, the 1992 figure of 84.68%—just two years later—represents almost a 12 percentage point decrease in voter turnout—another tentative sign that bills of This is found in the Czech Republic Constitution at art 3 (‘The Charter of Fundamental Rights and Basic Freedoms forms part of the constitutional order of the Czech Republic’). Conversely, the Charter is also found in the Slovak Republic Constitution, but was directly implemented into the document between arts 5 through 54. 69 IDEA Voter Turnout Database, n 40 above, Czech Republic/Slovakia. The 1990 and 1992 voting turnout figures are the same for both the Czech and Slovak Republic, as they were still joined as a Federal Republic at the time. Before 1990 there is no voting turnout data for either country. 68

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rights may not invigorate polities. Altogether, the case studies above provide provisional evidence that Hypothesis No 2 can be refuted.

5.5

MAJOR CONSTITUTIONAL AMENDMENTS

France’s 1958 Constitution was subject to its most significant amendments in 2008, which have been described as saving or continuing the existence of the Fifth Republic.70 Details of the constitutional amendments included various changes regarding major French institutions. Boyron notes that the 2008 reforms achieved three major aims: increasing the powers of Parliament, strengthening judicial independence and bolstering the rights and status of citizens.71 Although these appear to be positive democratic changes, voters did not reply with enthusiasm after they were made.

Figure 5.5

French voter turnout 1993–2017*

*IDEA Voter Turnout database, n 40 above. In the 2017 election, French voter turnout in relation to Parliament dipped to 42.64%.

See, e.g., S Boyron, ‘France’, in D Oliver & C Fusaro (eds), How Constitutions Change: A Comparative Study (2013), pp 140–142. 71 Ibid, p 141. 70

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Voter turnout slipped over four percentage points, from 59.98% to 55.40%, which at the time was France’s lowest voter turnout in the post-war era; it has since dipped even further, to 42.64% in the 2017 parliamentary election. Breaking away from country-based analysis, a significant example of major constitutional amendments can be provided by examining a supra-national entity: the European Union (EU). Although some may object to a body such as the EU being included in this analysis, there is little doubt that it incentivises a form of European citizenship, and in some ways, such as through its rights operations and political structure, resembles a nation-state. Indeed, a wide variety of scholars have critically analysed the EU as nation-state—even before the Lisbon Treaty came into effect.72

Figure 5.6

Total EU voter turnout (1994–2014)*

*Eurostat voting data, https://​europarl​.europa​.eu/​election​-results​-2019/​en/​turnout/​. Figures on voter registration and voter turnout are not available.

72 See, e.g., JA Caproraso, ‘The European Union and Forms of State: Westphalian, Regulatory or Post-Modern?’ (1996) 34(1) Journal of Common Market Studies 29; S Bartolini, Restructuring Europe: Centre Formation, System Building, and Political Structuring between the Nation State and the European Union (2005).

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Here, there are two major aspects to examine in terms of ‘constitutional’ amendments: the Charter of Fundamental Rights of the European Union and the Treaty of Lisbon. The former—in essence a bill of rights for the EU—preceded the Lisbon Treaty, being created in October 2000 and ratified in December of that same year by the European Parliament, the Council of Ministers and the European Commission. The Lisbon Treaty—in essence a ‘constitution’ for the EU—was introduced after the failure of the Treaty Establishing a Constitution for Europe. EU parliamentary elections are held every five years. When the EU held parliamentary elections in 1999, before ratification of the Charter, voting turnout was 49.5%.73 The next elections took place in 2004, and the result was lower voter turnout: 45.5%. However, at the time the Charter’s legal status was in question, as it had not yet been ratified by the EU member states. The time for ratification came in 2007, as the Charter was included as a significant part of the Treaty of Lisbon (ratified 13 December 2007, but did not come into force until 1 December 2009). With the Treaty already passed and due to come into force, European parliamentary elections were held in June 2009. It was no secret that the Treaty was a significant issue throughout Europe. And yet voting turnout dropped again in 2009 to 43%, from 45.5% in 2004. Some may dispute the inferences to be drawn from using the 2009 elections to measure the significance of the Lisbon Treaty, as technically it had not yet come into force. If so, we can use the 2014 elections to measure potential success. Again, electoral numbers dropped here, but only marginally, to 42.5%, a 0.5% decrease from 2009. Altogether, it appears that the Charter, and more widely, the Lisbon Treaty, did not invigorate citizens and thus improve voter participation. These case studies provide tentative evidence that Hypothesis No 3 can be refuted. 5.5.1

A Positive Impact on Voter Turnout?

But of course all constitutional amendments do not result in lower voter turnout. An example of a significant constitutional amendment—which included a bill of rights—that prima facie significantly aided voter turnout comes from Canada: the Constitution Act 1982. This is classified as a constitutional amendment because Canada’s constitution is a mix of written (31 statutes and orders) and unwritten principles, and there is no one controlling fundamental statute on which the Canadian constitution operates.74 Nevertheless, the 1982

Ibid. T Kahana, ‘Canada’ in Oliver D & Fusaro C (eds), How Constitutions Change: A Comparative Study (2013), p 11. 73 74

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Act, which included the Canadian Charter of Rights and Freedoms,75 may have played a role in energising voters for at least a couple of election cycles. In particular, the 1980 vote, which occurred before the Charter was put in place, had a voter turnout of 69.32%. Yet, as Figure 5.7 illustrates, in the 1984 and 1988 elections, turnout increased to 75.34% and 75.29%, respectively.

Figure 5.7

Canadian voter turnout 1965–1997*

*IDEA Voter Turnout Database, n 40 above, Canada.

The Canadian numbers require more explanation, however, as the situation is not as straightforward as the passage of a constitutional statute and bill of rights. The 1979 election, which brought the Progressive Conservatives back into power with a minority government, was held less than nine months before the 1980 election. After the minority government was defeated in the Commons, a snap election was held in 1980, with the Liberal Party ascending to power. In 1982 the Canadian government received a form of ‘patriation’ from Britain through the Canada Act 1982,76 which was part of a half-century-long process of negotiations between the two nations.77 Although Canada already had autonomous political independence from Britain, the 1982 Act thus completed the patriation of independence to Canadian citizens. The Act also entrenched civil Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982. Canada Act 1982 c. 11. 77 Kahana, n 74 above, p 26. 75 76

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rights within Canada’s supreme law, and gave the judiciary the power to strike down laws inconsistent with the Charter.78 The passage of two significant constitutional statutes, which provided full patriation and the entrenchment of newly established rights, could have propelled Canadian citizens to turn out in higher numbers. In reality, however, the spike in voter turnout could be a distortion, as the low 1980 voter turnout was probably due to the previous election being held just nine months before. Scholars have also noted that higher rates of women were running for election to Parliament during the 1984 election,79 and that there was an ‘unprecedented’ change to media coverage of opinion polls that year,80 two factors that may have positively influenced voter turnout. However, regardless of whether we consider these factors, it is difficult to claim that the Charter ‘invigorated’ Canada’s democracy, as the 1984 election merely brought election turnout close to where it was for the 1979 election.

5.6

PLACATING, NOT INVIGORATING, DEMOCRACY

The ‘traditional’ or ‘intuitive’ argument that constitutions and bills of rights invigorate democracy through enhanced political participation has been challenged. Raw empirical voting data from a number of prominent case studies, in addition to a thorough search of post-World War II constitutional implementation, has provided provisional evidence that the connection between written constitutions and citizen involvement in the political process is loose, and potentially more fanciful than anything. In many cases voter participation decreased after implementation of a new constitution, thus perhaps placating— rather than invigorating—democracies. Therefore, tendentious positive claims that constitutions and bills of rights can be inspiring, hold sacred value for citizens, and especially that they can ‘increase participation in the political process’ may need to be significantly re-evaluated and balanced with the recognition that such devices are not as powerful as previously thought. Using written constitutions as pre-eminent societal rallying points—a form of idolatry identified in Chapter 1—can carry risks and potential downsides, and these should be acknowledged by those advocating such documents.

Ibid, p 20. DT Studlar & RE Matland, ‘The Growth of Women’s Representation in the Canadian House of Commons and the Election of 1984: A Reappraisal’ (1994) 27(1) Canadian Journal of Political Science 53. 80 RH Wagenberg, WC Soderlund, WI Romanow & ED Briggs, ‘Campaigns, Images and Polls: Mass Media Coverage of the 1984 Canadian Election’ (1988) 21(1) Canadian Journal of Political Science 117, 126. 78 79

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The reason that some jurisdictions have seen a drop in electoral turnout after implementation is unclear, and it would be irresponsible to attribute the decreases solely to the implementation of constitutions, bills of rights or constitutional amendments. Voting turnout is a multifaceted phenomenon impacted by a number of complicated factors (e.g., interest in politics, perceived value of voting, political disenchantment). Nevertheless, the decreases found in many of the cases above cannot be ignored. Perhaps one explanation for such drops could be a reflection of what Pitkin and others have identified: that constitution making is a highly political process that involves intense power struggles.81 Such high-level political tussles could ultimately discourage democratic participation, rather than enhancing it. Additionally, a decrease in participation in some instances may be due to citizen placation or complacency: for whatever reason, after implementation of these documents, citizens may feel less need to go to the polls. Whatever the implications of the above empirical data, there remains little doubt that more research is necessary into the connection between constitutions and democratic performance, such as voting. The consequences of such constitutional placation, however, are important for democracy. The more that citizens feel a sense of placation or complacency about their constitutional settlements, two significant results may occur: (1) citizens will be less likely to be the watchful eye or critical voice that democratic states require; and (2) when citizens are less engaged with their democratic functions (i.e., through voting), unelected actors within a state—such as the judiciary—become much more powerful,82 thus diminishing citizen control. As citizens, we must concede both the positives and negatives that constitutions and bills of rights offer. In many situations democracy may be placated, not invigorated, through the enactment of such texts.

Pitkin, n 23 above. For a classic account of the judiciary as an anti-majoritarian difficulty within democracies, see A Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1986); for a more contemporary account, see J Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346. 81 82

6. A ‘good’ constitution is essential to state survival Although ‘[f]or many centuries the world and its states were successfully governed without formal constitutions’,1 today the idea of a contemporary founding or political transition not incorporating a written constitution would be almost unthinkable.2 One long-standing criticism of the British system is that it is archaic and refuses to change with the times, as most states now possess a written constitution incorporating entrenched constitutional law. Connected to this is an idea that perpetuates constitutional idolatry: that a ‘good’ constitution is essential to state survival. Get that right and this may produce a healthier or better equipped constitutional state. Such ideas have been propagated in the constitutional scholarship. Dixon and Landau state that a ‘central function of a written constitution is to enhance the stability of the political system’;3 Blackburn claims that such documents can ‘bring government and the governed closer together’;4 and Hardin notes that a degree of ‘constitutional cleverness’ can both facilitate state operation and block harmful behaviour.5 But in reality many states with unorthodox—perhaps even flawed or poor—constitutional arrangements have not just survived, but flourished. This chapter focuses on a number of these jurisdictions.6

1 R Hardin, ‘Why a Constitution’ in D Galligan & M Versteeg (eds), Social and Political Foundations of Constitutions (2013), p 51. 2 H Lerner, Making Constitutions in Deeply Divided Societies (2013), p 16. 3 R Dixon & D Landau, ‘Competitive Democracy and the Constitutional Minimum Core’ in T Ginsburg & A Huq (eds), Assessing Constitutional Performance (2016), p 268. 4 R Blackburn, ‘Britain’s Unwritten Constitution’, British Library, http://​www​.bl​ .uk/​magna​-carta/​articles/​britains​-unwritten​-constitution. 5 Hardin, n 1 above, p 69. 6 When discussing some states below I have relied heavily on two metrics regarding state performance: 2019 Freedom House ‘Freedom in the World’ reports (https://​ freedomhouse​.org/​report/​countries​-world​-freedom​-2019), and the 2019 ‘Democracy Index’ report from The Economist Intelligence Unit. Neither of these devices is without problems, and it is acknowledged that measuring elements such as ‘freedom’ and ‘democracy’ is highly contested. However, both metrics are respected throughout the world as imperfect but valid indicators of what they are attempting to assess.

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In this chapter I do not hope to comprehensively challenge the notion that some form of constitution is essential to state survival. After all, if we do not limit a constitution to being a single written document, then we must accept that constitutions can come in many forms. However, it would be foolhardy and irresponsible to suggest that states lacking any aspects of constitutionalism can survive and prosper, and pursue democratic ends. That being said, in this chapter I do hope to muddle and complicate the notion of what a ‘good’ constitution is or should be, and especially what role written constitutions play in the operation of constitutionalism and the protection of rights.

6.1

‘GOOD’ CONSTITUTIONS

Even if it has been acknowledged that there is no perfect constitution,7 the idea that a good constitution—one with a delicate balance of powers, articulation of rights, and hints of endearing symbolism—is essential to the survival of a state largely remains in the constitutional literature and beyond.8 And yet, history points to a large swath of states that have had good constitutions, but in which there has been a fundamental breakdown in the state’s governmental structure. And the opposite is also true: states with relatively average constitutions, some would even say poor constitutions, have thrived. 6.1.1

Qualities of a ‘Good’ Constitution

The idea of what a good constitution encapsulates has not been fully illuminated in the literature. Does a stirring preamble, detailed separation of powers, and articulated bill of rights pass as a good constitution? Some may concede this. Another question is where power is located within the constitution, and whether or not these points are easily identifiable within the document. As Murphy notes, successful constitutional charters will ‘plate political power with the gold of authority’, thus conferring legitimacy.9 But these, of course, are only elements of constitutions themselves. What also matters is how (and

Additionally, by using these we can judge state performance on a global, rather than local or regional, level. 7 X Contiades & A Fotiadou, ‘Amendment-Metrics’ in R Albert, X Contiades & A Fotiadou (eds), The Foundations and Traditions of Constitutional Amendment (2017), p 237. 8 As Stephen Lukes wrote in his novel, ‘It may sound difficult, but the problem of setting up a state can be solved by a nation of devils, as long as they possess understanding’ (S Lukes, The Curious Enlightenment of Professor Caritat (1996), p 14). 9 WF Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (2007), p 199.

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where) the constitution is made, who was involved in its drafting, what type of discussion and debate took place, and whom (if anyone) voted to implement it. These latter elements concern constitutional founding, as opposed to explicit constitutional drafting and design. And to some, these founding elements are just as important as the contents of the constitution. But even beyond the founding elements and the written constitution itself, ‘good’ constitutions may be determined by their endurance or longevity. However, for the moment I will ignore the idea of endurance and longevity as being connected to ‘good’ constitutions, and instead focus on the founding and the written constitutional elements. Recent scholarship has focused on setting out particular criteria that good constitutions should contain. While some scholars have actively shied away from this type of constitutional assessment, suggesting that it could be a ‘dangerous path’,10 others have tried to address it head on. Hélène Landemore undertook this difficult mission, identifying 10 aspects that would factor into such an assessment: formal quality, conflict resolution propensity, rights-heaviness, democraticity, temperance, deliberative capacity, value fitness, adaptability, durability and inspiration.11 She goes out of her way to mention that ‘nothing in this definition suggests that a constitution needs to be written’, but given her criteria, an unwritten constitution would appear to score low on her scale. Landemore was partially building on John Carey’s writing, which proposes three key constitutional elements: democracy, temperance and durability.12 Carey found that inclusive constitutional moments produce increased democracy and restraints on government, and also longer constitutional durability.13 Ginsburg and Huq have also identified four mid-range components linked to assessing constitutional performance: legitimacy, channelling political conflict, limiting agency costs and creating public goods.14 There is some overlap here, especially in relation to democratic values in the constitution and the ability for conflict resolution. But the authors have gone about assessing ‘good’ constitutional values from varying perspectives, and it would be difficult to say that any of these factors is unimportant. One thing that most of the authors above do not do—perhaps for good reason—is weigh their factors in terms of importance. For example, is channelling political conflict as

Contiades & Fotiadou, n 7 above, p 237. H Landemore, ‘What is a “Good” Constitution” in Ginsburg & Huq, n 3 above, p 79. Also, ‘inspiration’ is added for a constitution to be ‘great’, not just ‘good’. 12 JM Carey, ‘Does It Matter How a Constitution is Created?’ in Z Barany & R Moser, Is Democracy Exportable? (2009), pp 156–159. 13 Ibid, p 175. 14 T Ginsburg & A Huq, ‘Assessing Constitutional Performance’ in Ginsburg & Huq, n 3 above, pp 16–23. 10 11

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important as legitimacy; or is temperance more or less important than adaptability or creating public goods? The reason that these authors have not done this is probably because it is too difficult to determine which factors are more important, given that societal, technological and global developments can all affect when these elements may carry more or less weight. Contextual circumstances also dictate when certain factors come into play and how particular institutions or state actors may respond. Thus, the factors have to be vague enough to take into account a range of economic, social and political elements that also factor into state operation. The more meaningful discussion for my argument here lies in some of the unarticulated characteristics, and limits, of ‘good’ constitution making. 6.1.2

Constitutions and State Failure: Ill-fated ‘Good’ Constitutions

Perhaps the most striking example of an ill-fated ‘good’ constitution is the Weimar Constitution of 1919. Written and designed by eminent scholars and practitioners, and incorporating principles such as rechtsstaat (‘rule of law’), even this impressive roadmap could not stop Adolf Hitler and the Nazi Party from rising to power. As Ellen Kennedy says regarding the failure: When the constitution failed in 1933, it was a failure at every level. Constitutionalism as the political theory of liberalism had failed. The constitutional order, as a political system, had failed. And the constitution as the foundation of law, as the referent of legal and political discourse, and as the framework of political action had failed.15

But not all constitutional failures are as dramatic or comprehensive as Weimar, and replacement occurs for a variety of reasons, not least of which could be constitutional updating. Those interested in constitutional performance should take a few sobering minutes to visit the Comparative Constitution Project’s ‘Timeline of Constitutions’ website.16 Here, visitors can take in a vast range of constitutional lifespans from jurisdictions around the world. The timeline includes notice of constitutional amendments and even displays where some constitutions were interim or had been suspended, and where the birth of new constitutions arose. Scouring the landscape of constitutional endurance, some may be surprised about the abundance of constitutional charters that have been in force throughout history (or at least from the late eighteenth century, which is when the database begins tracking the data). A large number of these E Kennedy, Constitutional Failure: Carl Schmitt in Weimar (2004), 155. Comparative Constitutions Project, ‘Timeline of Constitutions’, http://​comparativecons​titutionsproject​.org/​chronology/​. 15 16

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documents were written by experts and based on time-honoured constitutional principles, such as the separation of powers and rule of law. And yet many of these models have failed. Thus, in some sense the mass consulting exercise of constitutional experts drafting these important national documents has been, if not a disappointment, an outright failure. Something else, besides the quality of the written constitution itself, is at work. In their celebrated text about how democracies die, Levitsky and Ziblatt note that postcolonial Latin America is a good example of good constitutions gone bad.17 Many of these constitutions, often based around the American Constitution of 1789, eventually succumbed to military coups or populist autocracy.18 The authors note: Even well-designed constitutions cannot, by themselves, guarantee democracy. For one, constitutions are always incomplete. Like any set of rules, they have countless gaps and ambiguities. No operating manual, no matter how detailed, can anticipate all possible contingencies or prescribe how to behave under all possible circumstances.19

But there still remains a firm belief in the idea that states must incorporate a written constitution based on the traditional separation of powers and incorporating traditional rights and freedoms in order for a state to function effectively. As noted above, there is even a sense that ‘cleverness’ in constitutional drafting can impact the endurance of the document.20 However, the single most important factor that determines whether a constitution succeeds or fails is a human element: the degree of commitment to the bargain. The ‘incompleteness’ of Levitsky and Ziblatt’s statement is human nature, which cannot be formally incorporated into a charter or imposed onto a people (even if a constitution itself is imposed). Thus, aspects such as an inspirational preamble may lead to enhanced commitment, but it is unlikely to engender sweeping commitment or even move public opinion in favour of a constitution. Ginsburg and Huq’s ‘legitimacy’ criterion touches on commitment, but legitimacy does not necessarily capture commitment. Even citizens who view a constitution as illegitimate could still abide by the structure it puts in place. And further, a highly legitimate constitution can still be overrun because of poor government functionality or other factors, such as severe economic inequality.

S Levitsky & D Ziblatt, How Democracies Die: What History Reveals About Our Future (2018). 18 Ibid, p 98. 19 Ibid, p 99. 20 Hardin, n 1 above, p 69. 17

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Thus, determining whether state failure and the abundance of constitutional replacement that reacts to this, has to do with constitutional failure, or perhaps circumstances outside of constitutional control, is difficult to determine. But if we are going to talk about the characteristics of ‘good’ constitutions, then the vastly important factor of citizen commitment must be one element taken into consideration. 6.1.3

A Note on Constitutional Misuse

Constitutional operation bears resemblance to the realities of law more generally, in that there is often a difference between the law on the books and the law in practice. But at the constitutional level these differences can be used in a more sinister fashion, by allowing states to proclaim certain rights or values they do not really possess or do not truly abide by. Unearthing such constitutional misuse is relatively easy to do in relation to authoritarian regimes. Stalin’s and Mao’s ‘fig leaf’ constitutions have often been a focus in this regard.21 Written constitutions in these and similar regimes are often used for ‘cosmetic purposes’ or a form of ‘window dressing’ to conceal the actual workings of state operation.22 For example, the Constitution of the People’s Republic of China (PRC) proclaims in Article 33 that the state ‘respects and preserves human rights’;23 Article 35 mentions ‘freedom of speech, of the press, of assembly, of association, of procession and of demonstration’;24 and Article 36 references ‘freedom of religious belief’. These are not just bogus constitutional elements, but outright lies. China is notorious for abusing each one of these rights.25 And yet, these countries still enjoy the benefits of having such rights enumerated in their constitutions, both for their citizens and the world to see. But not all constitutional misuse can be associated with authoritarianism. Imperialism also has much to offer in this regard. Linda Colley aptly declares that, ‘enthusiasm for employing new written constitutions as engines of improvement and enhanced rights could easily become entangled with the

21 Murphy, n 8 above, p 14 (describing the ‘constitutional scripts’ of Stalin and Mao as ‘fig leaves’ intended to ‘impress foreigners’). 22 T Ginsburg & A Simpser, ‘Introduction’ in T Ginsburg & A Simpser (eds), Constitutions in Authoritarian Regimes (2014), pp 5–10. 23 Constitution of the People’s Republic of China, art 33. 24 Ibid, art 35. 25 In the 2019 Freedom House report, n 6 above, China scores 11/100 in terms of aggregate overall freedom. On specific indicators, where 1 is most free and 7 is least free, China scores 6.5/7 on ‘freedom rating’, 7/7 on political rights and 6/7 on civil liberties.

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ambition to deploy these instruments in order to manage, shape, and even invade others’.26 Indeed, Napoleon often employed written constitutions to enlarge and control his European empire, as did trans-Atlantic emperors such as Brazil’s Pedro I.27 Further, in America, written state constitutions were able to connect with the federal constitution to exclude particular segments of society. This allowed the US to ‘represent itself as a continent-wide nation, while simultaneously practising a mode of overland empire that was based in part on slave labor’.28 Additionally, since written constitutions must be written in some language, any language chosen is going to exclude those who do not speak it. Thus, in some sense written constitutions have ‘served to formalize the marginalization or exclusion of men and women not considered fit for citizenship’.29 The difficulties noted by Colley remain present in many countries widely championed for democratic operation and their protection of rights, as will be seen below. Outside of authoritarian and imperialist contexts, however, many ‘good’ written constitutions employ sham or undemocratic elements. A well-documented sham element is the inclusion of anti-torture provisions. Undergoing a rigorous statistical analysis, Chilton and Versteeg found that incorporating anti-torture provisions into constitutions does not reduce torture.30 Scholars have even found that torture is more common in countries that have declared it unconstitutional.31 Thus, as Chilton and Versteeg conclude, ‘if we want to reduce levels of torture around the world, we have to find a better way to do it than just amending constitutions’.32 The idea of incorporating aspirational elements within constitutions is inherently controversial, especially when states do not fulfil their end of the bargain. Often this may happen with socio-economic rights, as deprived states may not have the resources necessary to fulfil their constitutional obligations to provide food, water and education, or may have to draw the line somewhere in terms of providing or limiting these for particular groups. In these instances, ‘[f]rom the perspective of the average L Colley, ‘Empires of Writing: Britain, America and Constitutions, 1776–1848’ (2014) Law and History Review 237, 254. 27 Ibid, p 256. 28 Ibid, p 257. Emphasis in original. 29 Ibid, p 258. 30 A Chilton & M Versteeg, ‘The Failure of Constitutional Torture Prohibitions’ (2015) 44 Journal of Legal Studies 417, 447 (‘we do not find a single model that produces a positive and statistically significant effect for the constitutional prohibition of torture’). 31 LC Keith, ‘Constitutional Provisions for Individual Human Rights (1977–1996): Are They More than Mere “Window Dressing?”’ (2002) 55 Political Research Quarterly 111, 128 tbl.1, 134. 32 Chilton & Versteeg, n 30 above, p 448. 26

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citizen, the difference between an aspirational but unrealistic constitution and a sham constitution may be at best a matter of degree and at worst a matter of semantics’.33 Circumstances such as these call into question the whole constitutional drafting project. This is especially true if constitutions can be used by dictators or tyrants as shields from criticism, and if they continue to be used to marginalise or exclude certain members of society. Thus, just because states possess an external and overt ‘good’ constitution does not mean that state functionality mirrors this in operation. The opposite may be true. Additionally, just because some provisions incorporate international consensus on various topics does not mean that the state is actually abiding by these provisions. As Barber stresses: An instrumental constitution makes sense to a particular population only when its members generally believe that the government and the society under the constitution is maintaining or making reasonable progress toward a good and just state of affairs.34

Given the potential for constitutional misuse or abuse, should we not be attempting to judge ‘good’ constitutions on their accuracy, honesty and forthrightness? Law and Versteeg have gone some way to capturing this,35 but more could be done in this area. Whether constitutions are actually ‘doing what they say on the tin’ is an important element to capture. Rights inserted by authoritarian regimes for window dressing is one thing, but anti-torture provisions by democratic regimes that still engage in torture is quite another. Additionally, if internal mechanisms have changed so significantly as to render constitutional provisions defunct or irrelevant, then that would also contribute to the accuracy factor. Another highly relevant factor could be a measurement for inclusiveness. As seen above in relation to imperialism, constitutions may exclude particular groups from the constitutional settlement. While measurement of particular rights and freedoms may relate to this element, it cannot capture it fully. None of the authors discussed above has identified accuracy or inclusiveness as characteristics that would be among ‘good’ constitutional elements, but these components are fundamental to the constitutional writing project.

33 D Law & M Versteeg, ‘Sham Constitutions’ (2013) 101 California Law Review 863, 869–870. 34 S Barber, Constitutional Failure (2014), p 55. 35 Law & Versteeg, n 33 above.

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SHAKY CONSTITUTIONAL FOUNDATIONS

A few prominent and long-standing constitutions are based on shaky constitutional foundations. Some have been written and implemented by outsiders and received no underlying vote by the people, while others were written for different times or even different states. This section explores some of the unique constitutions that have, for better or worse, stood the test of time. 6.2.1

Imposed Constitutions

All constitutions contain qualities of imposition,36 but some have been imposed to a greater degree than others. Given the importance that many provide to constitutional authorship, it is slightly ironic that some of the most successful post-World War II states have had imposed constitutions, where political outsiders played a decisive role in the implementation of a constitutional settlement. One prominent case is Germany, as the Basic Law of West Germany was initially written as a temporary document. The British, French and American authorities approved the document on 12 May 1949, and it was then quickly approved by the state legislatures. However, the agreement was never submitted to the people for popular ratification, based on fears that particular regions would be hostile to it.37 The document still contains Article 146, which states that the Basic Law ‘shall cease to apply on the day on which a constitution freely adopted by the German people takes effect’.38 And yet, even through the fall of the Berlin Wall and the unification between East and West Germany, it has endured. Throughout its time under the Basic Law, Germany has prospered economically, socially and culturally. The German economy has for a long period been the envy of Europe, and much of the world. But it is not just the German economy that has been flourishing. Rights and freedoms in Germany have also thrived under the Basic Law. According to Freedom House’s 2019 report, overall freedom, political rights and civil liberties are all rated ‘most free’.39 This is backed up by the Economist’s Democracy Index, which rates Germany as a full democracy, placing it within the top 15 countries in the world on this scale.40 Thus, the origins of the Basic Law, the way it was D Law, ‘The Myth of the Imposed Constitution’ in Galligan & Versteeg (eds), n 1 above, pp 264–265. 37 J Collings, Democracy’s Guardians: A History of the German Federal Constitutional Court 1951–2001 (2015), xxvi. 38 German Basic Law, art 146. 39 Freedom House, ‘Germany’, n 6 above. 40 Economist Democracy Index, n 6 above. 36

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written, the lack of a nation-wide referendum, and the mending of two separate nations, have not been detrimental to the state’s overall performance. The success of the Basic Law highlights a key aspect of constitutional endurance: constituent acceptance. Since its implementation, the German citizenry has accepted the Basic Law as a written constitution, and felt no need to draft another document. This is true even after the fall of the Berlin Wall and the joining of East and West Germany. But there is an additional issue with the Basic Law, which was brought up in Chapter 3. Germany contains an extremely powerful constitutional court, the Bundesverfassungsgericht, which possesses the final word in terms of compatibility with the Basic Law. And yet, the powers of the constitutional court are not articulated until Article 92.41 Thus, in terms of accuracy and forthrightness, on this particular element the Basic Law may score quite low, as it does not acknowledge the powers of (arguably) the most important branch of government until extremely late in the document. Another prominent example of what is commonly viewed as an archetypal imposed constitution is Japan’s 1947 Constitution, which was implemented with approval by the House of Peers and the House of Representatives, but which was also not voted on by the people.42 Written primarily by two senior American army officers with law degrees, this document has gone unamended since its adoption and recently celebrated its 70th anniversary. And yet, post-war Japan has also thrived economically, socially and culturally. Just as the German economy has been the envy of Europe for many decades, so has the Japanese economy been the envy of the East Asia. And again, it is not just the economy that is thriving. Freedoms, political rights and civil liberties were all rated as ‘most free’ by the 2019 Freedom House report, and Japan received an aggregate freedom score of 96/100.43 The Economist’s Democracy Index currently categorises Japan as a ‘flawed democracy’,44 but it is difficult to argue that the Constitution has been unsuccessful since its implementation. Japan’s enduring Constitution also contains significant implications for constituent acceptance. As David Law has explained in detail, public support for the document was higher than for alternatives presented by the government, and this support remained intact long after its implementation.45 But the most

41 Article 92 states, ‘[t]he judicial power shall be vested in the judges; it shall be exercised by the Federal Constitutional Court, by the federal courts provided for in this Basic Law, and by the courts of the Länder’. 42 Although David Law takes issues with classifying this as imposed, as the Constitution has always enjoyed wide public support (Law, n 36 above). 43 Freedom House, n 6 above. 44 Economist Democracy Index, ‘Japan’, n 6 above. 45 Law, n 36 above, pp 252–259.

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fascinating aspect of Japan’s Constitution is that it has gone unamended for over 70 years. This lack of amendment significantly challenges the idea that formal adaptability and flexibility are key components of a ‘good’ written constitution. 6.2.1.1 Taiwan’s 1947 Constitution Taiwan’s Constitution came about under unusual circumstances. It was adopted in China in 1947 during the Chinese civil war, before democratic advocates fled to Taiwan in 1949. In reality Taiwan is now an independent sovereign state, as it governs itself through its Constitution and is not reliant on any other entity to pass or enforce laws for it. However, the PRC still claims that Taiwan is a renegade province (even though China has no methods of formal governance over the island), and applies international pressure on other states to conform to this view. As originally written, the 1947 document was to govern the whole of China, and not merely Taiwan. During Chiang Kai-Shek’s authoritarian rule (1950–1975), the Constitution went largely untouched. The original Republic of China (ROC) Constitution also incorporated some strange set-ups. The National Assembly, not Taiwan’s legislature (the Legislative Yuan), was given powers to elect the president and vice-president and to amend the written Constitution. This appears to be akin to some sort of Electoral College set-up. Additionally, unlike other tripartite constitutions, which divide constitutional authority into three separate functions (executive, legislative and judicial) the Taiwan Constitution is composed of five ‘yuan’, or branches: in addition to the three traditional constitutional branches, the Control Yuan and the Examination Yuan are also part of this five-power collection. It was not until 2005 that the document was extensively amended.46 These changes brought about a mixed electoral system that halved the number of members in the legislature, eliminated the National Assembly, and increased court powers. One prominent author has said that these amendments ‘Taiwanized’ the Constitution.47 And yet, scholars have identified some undemocratic features of the Taiwan Constitution that continue to linger, and may prove problematic down the line.48

46 BC Jones, ‘Assessing the Constitutionality of Legislation: Constitutional Review in Taiwan’s Legislative Yuan’ (2015) 23(2) Asia Pacific Law Review 37, 51. 47 JR Yeh, The Constitution of Taiwan: A Contextual Analysis (2016), p 4. 48 CY Huang, ‘Unpopular Sovereignty: Constitutional Identity Through the Lens of the Sunflower and Umbrella Movements’ in BC Jones (ed), Law and Politics of the Taiwan Sunflower and Hong Kong Umbrella Movements (2017); (forthcoming) CC Lin, ‘Undemocratic constitutional law in Taiwan’ in BC Jones (ed), Democracy and Rule of Law in China’s Shadow (2021).

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Thus, Taiwan’s Constitution poses two significant challenges for whether or not it should be considered ‘good’: the founding elements of the Constitution are highly questionable, and some significant content of the Constitution, such as the One-China principle, contains dubious democratic credentials. And yet, for all its faults and quirks, Taiwan as a country has thrived under its Constitution, especially since democratisation in the 1990s. From the 1960s to the 1990s Taiwan was one of four so-called ‘Asian Tigers’ (along with South Korea, Hong Kong and Singapore) whose economies experienced significant growth during the period. While no longer growing at the same rate, Taiwan’s economy remains robust both regionally and internationally. The country’s transition to democracy over the past few decades has been swift, and it now stands as one of the leading Asian nations in terms of human rights protection.49 In fact, the New York Times has recently dubbed Taiwan the new bastion of free speech in Asia, supplanting Hong Kong—which had held the unofficial designation for a number of decades.50 The 2019 Freedom House report rated Taiwan 93/100, which was tied with the UK and Austria, and higher than long-standing democracies such as the US and France.51 Additionally, all three sub-categories (freedom rating, political rights, civil liberties) were rated as 1/7 (most-free).52 But it is not just free speech that Taiwan is pioneering in Asia. The country has also championed gay rights, and was the first country in the region to legalise same-sex marriage.53 And yet, from a contemporary perspective, it is extremely difficult to assert that Taiwan’s 1947 Constitution is ‘good’. After all, the document was not written for a small state delicately positioned in East Asia, but for an Asian powerhouse: China. But it endures nevertheless. 6.2.2

Implications for Constitutional Foundings

Although many positive aspects have been linked to particular aspects of constitutional founding, the examples above demonstrate that even a shaky constitutional founding can produce constitutional longevity, economic pros For example, it has incorporated the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), and is one of the only East Asian countries to allow same-sex marriage. 50 C Horton & A Ramsay, ‘Asia’s Bastion of Free Speech? Move Aside, Hong Kong, It’s Taiwan Now’ New York Times (14 April 2018), https://​nyti​.ms/​2GXM2NE. 51 Freedom House, n 6 above. 52 Ibid. 53 L Guo, ‘Taiwan becomes first in Asia to legalise same-sex marriage’ (17 May 2019) The Guardian, https://​www​.theguardian​.com/​world/​2019/​may/​17/​taiwan​ -becomes​-first​-asian​-county​-to​-legalise​-same​-sex​-marriage. 49

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perity, rights protection and high democratic functionality. Additionally, the incorporation of undemocratic constitutional elements—even significant ones such as the One China principle in Taiwan’s Constitution—may not matter as much as we think they do. After all, scholars have pointed out that the American Constitution is full of such inconsistencies,54 and yet it has endured. Indeed, the role these drafting deficiencies play in the public conscience is severely underdeveloped in the constitutional literature. Below, I turn to other jurisdictions that, from a contemporary perspective, could be said to have deficient or even ‘poor’ constitutions, but that perform well on international democracy and human rights metrics.

6.3

CONSTITUTIONALISM WITHOUT ‘GOOD’ CONSTITUTIONS

Another long-standing claim of written constitutions is that they provide an enhanced form of constitutionalism, which could restrain an out-of-control executive or legislative branch.55 Nowadays, any state proposing to scrap their constitution for the implementation of constitutional statutes would certainly be swimming against the tide, and they would probably be disparaged for not adhering to the rule of law and for advocating little or no form of constitutionalism. Without an entrenched constitution in place, states could be said to lack the very essential element for restraining state power. After all, constitutions not only set forth governmental powers, but accentuate limiting powers as well. And, in the ‘absence of constitutional review, the argument goes’, important values such as ‘human rights would enjoy no protection’.56 But, why do we need codified constitutions in order to set forth these limiting powers; can this not effectively be done through other means, such as prominent statutes or parliamentary rules? Some jurisdictions that do not possess ‘good’ constitutions demonstrate that this is possible. 6.3.1

The HRA and Protection of Rights in the UK

Returning to power after 19 years in opposition, the Labour Party implemented some significant changes to the UK constitution at the end of the twentieth century. One of those was incorporating the European Convention on Human Rights (ECHR) into domestic law, which came in the form of the Human RA Dahl, How Democratic is the American Constitution? (2003). G Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 54(4) American Political Science Review 853. 56 A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000), p 138. 54 55

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Rights Act 1998 (HRA).57 Before this, UK courts could not directly rely on the document, and citizens searching for particular rights remedies had to take the expensive and lengthy route of applying to the European Court of Human Rights (ECtHR). Domestication of the ECHR eliminated many of these issues. The HRA takes the form of a statutory bill of rights, however, and is not an entrenched bill of rights located in a single codified constitution. Thus, it can be amended by regular legislation, and in theory does not receive any special protection within the UK constitutional structure.58 Operating as a statutory bill of rights, the HRA has been quite successful: it has provided a strong form of rights protection in the UK while also upholding parliamentary sovereignty. While many jurists and legal academics believe the idea of strong rights protection involves the ability of the judiciary to strike down statutes, the HRA has demonstrated that this is not the case.59 Indeed, it has reinforced the fact that the UK can operate without an ‘entrenched’ bill of rights, and certainly without a written constitution, although in many ways the successful operation of this statute involves mutual respect from each constitutional branch. 6.3.1.1 United Kingdom: Establishing a ‘culture of human rights’ Within the UK there has been a good deal of discussion about the lack of establishment regarding a culture of human rights, even after 20 years of the HRA being in force.60 Of particular concern is the way that rights are portrayed in certain media outlets, in addition to the way that rights are discussed at times by government ministers. Further, it is often argued that there is a general apathy to human rights within certain regions of the UK, such as England (compared with Scotland or Northern Ireland),61 or that citizen understandings of human rights are mistaken (e.g., a common refrain is that other people’s human rights

Human Rights Act 1998, c 42. ECHR rights receiving protection under the HRA include Articles 2–12 and 14, Articles 1–3 of the First Protocol, and Article 1 of the Thirteenth Protocol. 58 Of course, this has been challenged by many. Most notably, in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), Justice Laws attempted to set out a list of ‘constitutional statutes’ that were unable to be amended by implication (i.e., without clear and direct language). Additionally, looking at the structure of the UK’s devolution settlements, it would be difficult to argue that the HRA is not essential to many of them, most notably Northern Ireland’s. 59 A Kavanaugh, ‘What’s so Weak about “Weak-form Review”? The Case of the Human Rights Act 1998’ (2016) 13(4) International Journal of Constitutional Law 1008. 60 Joint Committee on Human Rights, ‘Enforcing Human Rights’, HC 669, HL Paper 171 (2018), pp 39–45. 61 Ibid, paras 137–140. 57

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are being looked after, but not their own). These important concerns should be taken seriously, as law, after all, is contingent on the fact that citizens recognise and accept the prevailing legal establishment, and diminishment of this could affect the operation of the rule of law or threaten the legitimacy of the courts or wider legal structure. But in reality a new culture of human rights has been established, and it is comprised in the legislature, the most important institution within the UK constitutional system. A new Joint Committee on Human Rights (JCHR) was formed in 2000, and incorporates members of both the Commons and the Lords. The HRA also mandates that ministers putting forward legislation must provide a statement of compatibility with the HRA under section 19 of the Act.62 But outside of these formal structures, one encouraging sign that human rights are being taken seriously in Parliament comes from looking at parliamentary debate. Paul Yowell found that from the creation of the JCHR in 2000 to the end of the 2001–2005 Parliament, there were only 23 substantive references to the work of the JCHR. Yet in the following parliamentary session (2005–2010), there were over 1000 substantive references to the work of the JCHR.63 This means that the quality of debate regarding human rights has increased in Parliament, largely because of the Committee’s work. But more than that, it demonstrates that Parliament is taking rights seriously, regardless of whether certain media outlets (or even citizens) are doing so. Potential effects on the parliamentary culture of human rights can also be seen at the domestic and international level. On both, the long-term implications demonstrate that the UK is doing better in terms of its rights protection. Domestically, at the time of writing, 40 declarations of incompatibility have arisen since the HRA was enacted. Twenty-seven of these were made from 2000 to 2010, while only 13 have been made from 2011 onwards.64 The UK has recently also been doing much better in its cases before the ECtHR. From 1999 to 2010, the UK averaged 13 judgments a year, finding at least one ECHR violation. But from 2011 to 2018 for the same statistic, the UK averaged 5.5 judgments,65 suggesting that rights protection within the UK is improving. In terms of its overall failure rate before the ECtHR, the UK places sixth among

Human Rights Act 1998, s 19. P Yowell, ‘The Impact of the Joint Committee on Human Rights on Legislative Deliberation’ in M Hunt, HJ Hooper & P Yowell (eds), Parliaments and Human Rights: Redressing the Democratic Deficit (2014), p 143. 64 JCHR, n 60 above. 65 Data comes from ECtHR Annual Reports, https://​www​.echr​.coe​.int/​Pages/​home​ .aspx​?p​=​court/​annualreports​&​c. The breakdown per year is as follows (judgments finding at least one violation in parenthesis): 2018(1), 2017(2), 2016(7), 2015(4), 2014(4), 2013(8), 2012(10), 2011(8). 62 63

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Council of Europe members, at 59%. This is behind states like Denmark, the Netherlands, and Sweden, but above other European countries such as Italy, France and Germany.66 This may not be what some consider exceptional performance as regards rights protection, but it is also far from deficient. The decreased rate of violations may be down in part to the how the JCHR performs its work. While previously it tried to comprehensively examine every legislative proposal for significant human rights issues, the JCHR now primarily focuses on government legislation, and only those bills that present human rights issues. Usually, this leads to about one-third of all the government bills put forward being scrutinised by the Committee. The JCHR also focuses its efforts on finding issues as early in the legislative process as possible. Immediately after the Queen’s Speech detailing the government’s impending legislative programme, Committee legal advisers huddle to work out how to move forward. The JCHR also recommends amendments to legislation as it is going through the parliamentary process in order for some provisions to become Convention compliant.67 In short, rights protection within the UK has been significantly aided by the HRA and the front-end protections in Parliament. No doubt the judiciary also plays a key role here, but given their lack of strike-down powers, their role is to advise the government and public authorities on compatibility. In doing this, they also perform an essential role in upholding human rights. 6.3.2

Australia: Rights Protection with No Bill of Rights

By contemporary standards Australia’s Constitution is deficient. Written essentially by Westminster in 1900 and coming into force in 1901, it largely lays out the basic operations of state functionality. Critically, however, it does not contain a bill of rights, and Australia remains the only democratic nation without an entrenched bill of rights or human rights statute at the federal level. Without this integral element, which has been key to the major development of written constitutions around the world, one would think that rights protection within Australia would be insufficient. In fact, the opposite is true: freedom, political rights and civil liberties are flourishing in Australia. According to a 2019 Freedom House report, Australia had an aggregate score of 98/100, which was tied for the third highest score in the world.68 Australia’s scores on freedom, political rights and civil liberties were all rated at 1 (‘most free’).69 Ibid. M Hunt, ‘The Joint Committee on Human Rights’ in A Horne, G Drewry & D Oliver (eds), Parliament and the Law (2013), pp 223–249. 68 Freedom House, n 6 above. 69 Ibid, ‘Australia’. 66 67

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If Australia does not have even a statutory bill of rights, then how does it score so highly on these international metrics? What it does have is a combination of external pressures and parliamentary formalities, both of which have been relatively recently implemented. An Australian Human Rights Commission was established in 1986,70 and helps ensure compliance with federal statutes on different types of discrimination.71 The Human Rights (Parliamentary Scrutiny) Act 2011 established a Joint Committee on Human Rights, similar to that mentioned for the UK above, and carved out an ‘exclusive’ model of rights protection for Parliament. The 2011 Act defines human rights, and incorporates conventions such as the ICCPR and ICESCR, among others.72 Additionally, statements of compatibility have been implemented through the Act, not just for bills but also for legislative instruments.73 Furthermore, two Australian sub-national jurisdictions possess human rights legislation: the state of Victoria contains a Charter of Human Rights and Responsibilities Act 2006 and the Australian Capital Territory (ACT) passed a Human Rights Act in 2004. These pieces of legislation contribute to protection of rights at the sub-national level, perhaps enhancing the national protection regime. Of course, it would be naïve to say that the operation of rights protection in Australia is immune from difficulties. Major rights issues throughout the years have centred on the indigenous population, who ‘continue to lag behind other groups in key social and economic indicators, suffer higher rates of incarceration, and report routine mistreatment by police and prison officials’,74 and Australia’s immigration and asylum policies, which have been viewed by both domestic and international critics as harsh.75 Even with these significant rights issues, however, it is difficult to argue that on the whole Australia does not provide robust protection of rights and freedoms in comparison to many other jurisdictions throughout the world. Moreover, this is done with a lack of a federal bill of rights, which is often considered an indispensable element to contemporary constitutional drafters.

Australian Human Rights Commission Act 1986, No. 125. For example, the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, and Age Discrimination Act 2004. 72 Human Rights (Parliamentary Scrutiny) Act 2011, s 3(1). 73 Ibid, s 8, 9. 74 Freedom House, n 6 above. 75 Amnesty International Report, ‘The State of the World’s Human Rights’ (2018), https://​www​.amnesty​.org/​en/​documents/​pol10/​6700/​2018/​en/​. 70 71

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The New Zealand Method: Statutory Constitutionalism

As Janet McLean says, the ‘New Zealand constitution does not appear to share much in common with modern constitutions’,76 and has even been characterised as ‘chimerical’ by one prominent writer.77 The country contemplated adopting a written constitution in the 1980s, but instead adopted a number of constitutional statutes, among them the Constitution Act 198678 and the Bill of Rights Act 1990.79 Similar to the UK's Human Rights Act, these un-entrenched statutes are subject to amendment via normal primary legislation. Given that very little of New Zealand’s constitution is entrenched, there is ‘no doubt’ that it has changed significantly over time,80 and this flexibility has worked out well. Most of the evidence regarding the operation of democracy and overall rights protection in New Zealand demonstrates that it performs well in both these categories. Freedom House gives New Zealand an aggregate score of 98/100, which is tied for third highest in the world.81 The country’s overall freedom, political rights and civil liberties are all rated 1 (‘most free’).82 Further, the Economist Democracy Index rated New Zealand as top in its region, and fourth overall globally.83 This solid performance has been achieved by a country that does not possess an entrenched written constitution, whose judiciary does not possess strike-down power of primary legislation, and which is deemed to have one of the most ‘political’ constitutions in the world. New Zealand’s constitution depends on a wide collection of actors in terms of interpreting and upholding constitutional values. Indeed, similar to the UK constitution, much of the constitution is not legislative or judicial in nature, and relies on various public servants or office-holders to uphold constitutionality and determine how to move forward when disputes arise. Thus, office holders such as House Clerk, Solicitor-General, and Secretary of the Cabinet, among others, are major players in terms of adhering to constitutional conventions, providing authoritative advice, and resolving constitutional disputes.84 In terms of rights protection, New Zealand encompasses a Human Rights Commission, 76 J McLean, ‘The Unwritten Political Constitution and its Enemies’ (2016) 14(1) International Journal of Constitutional Law 119, 120. 77 MSR Palmer, ‘What is New Zealand’s Constitution and who Interprets it? Constitutional Realism and the Importance of Public Office-holders’ (2006) 17 Public Law Review 133, 135. 78 New Zealand Constitution Act 1986, No 114. 79 New Zealand Bill of Rights Act 1990, No 109. 80 Palmer, n 77 above, p 147. 81 Freedom House, n 6 above. 82 Ibid. 83 Economist Democracy Index, n 6 above. 84 Palmer, n 77 above, pp 152–153.

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established in 1977 and mandated to promote and encourage human rights.85 The Commission received boosted functions and powers through the Human Rights Act 1993, which was largely a non-discrimination law applying to both government and the private sector. Through the Commission, citizens can also make complaints, and the organisation can help victims pursue remedies, such as mediation or possible court action. The 1993 Act also established the Human Rights Review Tribunal and a Race Relations Commissioner. The tribunal is able to hear complaints under the Act, and its decisions can be appealed to the High Court. Another important feature in terms of upholding rights is the Waitangi Tribunal. Established after the enactment of the Treaty of Waitangi Act 1975, this tribunal—which is not a court of law but a permanent commission—engages in inquiries and makes recommendations on claims brought by the Māori people against the Crown. Although it can only recommend, and its influence ‘depends on the cogency of its arguments’, it is nevertheless a ‘significant contributor’ to New Zealand’s constitutional architecture.86 However, the New Zealand constitutional structure also encounters many challenges in terms of functionality and rights protection. After the change from a majoritarian to a proportional voting system through the Electoral Act 1993,87 some fringe/populist parties have gained electoral traction. At the time of writing, New Zealand First—a party known for nationalism and protectionism—is in a coalition government with the Labour Party. Some argue that this constitutional change will lead to even more fringe political parties coming into power.88 Additionally, human rights issues still arise. Freedom House noted that Māori and Pacific Islanders ‘experience some discrimination in schools, the workplace, and the healthcare system’, and are also ‘disproportionately represented in the penal system’.89 Unfortunately, no equivalent to a JCHR operates within the New Zealand Parliament, which could mean that even during the parliamentary stages, human rights issues are not receiving adequate attention. This has led some scholars to cast doubt on the operation of statutory human rights protections, arguing that the government can often dominate the parliamentary process.90 But beyond this ‘unacceptably fragile’

Human Rights Commission Act 1977, No 49. P Rishworth, ‘New Zealand’ in D Oliver & C Fusaro, How Constitutions Change: A Comparative Study (2011), p 248. 87 Electoral Act 1993, No 87. 88 RM Rosenbluth & I Shapiro, Responsible Parties: Saving Democracy from Itself (2018), pp 179–183. 89 Freedom House, n 6 above. 90 JL Hiebert & JB Kelly, Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom (2015). 85 86

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constitutional system, the challenge is to explain not so much ‘why it occasionally fails but rather how it seems to work at least most of the time’.91 In doing this, the New Zealand experience suggests we must look beyond the operation of written constitutions and entrenched bills of rights. 6.3.4

Further Thoughts on Front-end Protections

The UK, Australian and New Zealand examples above are often described as historical accidents, sui generis cases, or the products of evolution, rather than deliberative constitutional and democratic choices. They would certainly not be the model ‘good’ constitution that experts or drafters would look to when deciding on particular constitutional arrangements. And yet, no matter how they are perceived, these jurisdictions demonstrate that unwritten, partially written, and un-entrenched constitutions can still succeed, even thrive, in contemporary times. But for states contemplating new constitutional settlements, these options are almost completely out of the question. It is hardly disputable nowadays whether to write or not write, include a bill of rights, or entrench fundamental principles. Most contemporary constitutional experts would say that these are all necessary. The examples above, however, challenge this thinking.

6.4

GOING BEYOND CONSTITUTIONAL ‘CLEVERNESS’

A number of things follow from the above. First, it is extremely difficult to classify what a ‘good’ constitution is compared to an average or poor constitution. Some constitutions that contemporary scholars would describe as flawed or perhaps even poor come from countries that have long-standing commitments to democracy, human rights and constitutionalism, and are performing well on international democracy and human rights indicators. There is also ample room for reassessing what a good constitution encapsulates. Above, I recommended inserting some type of indicators for accuracy and inclusion. The former would be an indicator that a constitution is ‘doing what it says on the tin’, and does not possess sham or window-dressing elements. The latter would measure how inclusive constitutions have been in terms of the particular populations they govern, something that appears to be missing from our current assessment of constitutions. A measurement for constitutional acceptance or ‘buy-in’ from the citizenry would also be valuable when assessing constitutional performance. When McLean, n 76 above, p 120.

91

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looking at constitutions that had shaky foundations, constitutional acceptance by the citizenry appeared to be the key factor in relation to constitutional success. Additionally, from examining three jurisdictions lacking key elements of entrenched written constitutions (the UK, Australia and New Zealand), it was seen that protection of rights and the operation of constitutionalism can still exist, even in a strong form. Given the proliferation of post-World War II constitutions throughout the world, the idea that cleverly drafted ‘good’ constitutions can not only save states from failure, but also enhance state operation, facilitate rights protection, and engender constitutionalism, remains in the literature and beyond. In reality, the success of these vastly important governmental elements is far more complex than the ‘cleverness’ or ‘quality’ of the written constitution itself.

7. Constitutional paternalism: the rise and problematic use of constitutional guardian rhetoric1 In constitutional systems the world over, finding a label that rises above the lofty heights of ‘constitutional guardian’ is difficult. Although diverse in application, this description implies that whoever attains such status also bears ultimate responsibility for the care and maintenance of the state’s most important legal and political principles. Today, scholars, practitioners, and even judges themselves laud judiciaries as the constitutional guardians of their respective jurisdictions,2 which connects to the ‘constitution as truncheon’ form of idolatry described in Chapter 1. However, there are significant questions as to when this language emerged and what impact it may have on various constitutional settlements. This chapter examines the use and implications of constitutional guardian rhetoric. It does so by analysing when and where the constitutional guardian language arose and took hold, as well as why such language matters. Regarding the latter, I maintain that the use of this language is factional, overly paternalistic, and dissuades other state actors—especially citizens—from participating in constitutional guardianship. After all, the protection and health of a constitutional state is a collective endeavour, and is not limited to one particular person or branch of government—regardless of what powers they may possess. Nevertheless, by most accounts investigated below, such constitutional guardian language is increasing, with the vast majority of references indicating the judiciary as the anointed guardians. Although the use of such language has become commonplace over the past few decades, the effects of such language on the constitutional state have not been fully considered. In various times and places throughout history, scholars have debated which actor or actors constitute the ultimate constitutional guardians in particular states, but the idea is quite new in some common law jurisdictions where the judiciary has not played a dominant role. As the previous chapter discussed, This chapter is adapted from BC Jones, ‘Constitutional Paternalism: The Rise and Problematic Use of Constitutional Guardian Rhetoric’ (2019) 51 NYU Journal of International Law & Politics 773. 2 See, e.g., M Scheinin, H Krunke & M Aksenova (eds), Judges as Guardians of Constitutionalism and Human Rights (2016). 1

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the United Kingdom does not have a codified constitution, New Zealand possesses only a statutory constitution and bill of rights, and Australia has a written constitution but no bill of rights. While the judiciary in the United States has played a major role throughout the nation’s history, some recent constitutional scholarship focuses on constitutionalism outside the courts, or even discusses taking the Constitution away from the courts.3 Nevertheless, within the UK there remains consistent talk of drafting a written constitution.4 No doubt constitutional guardianship language would increase if this happened, as UK citizens would be increasingly forced to think in constitutional, as opposed to ordinary legal and political, terms. Indeed, the UK may provide a good example of increasing guardianship language as regards to the judiciary—despite the comparatively high constraints in comparison with other jurisdictions. The Human Rights Act 1998 (HRA) has become increasingly engrained, and the UK also established a new Supreme Court (UKSC) in 2009, which is, at least in theory, a mirror of the former Law Lords. Accordingly, the UKSC does not contain all the trappings of a normal supreme or constitutional court, especially in the sense that it cannot strike down primary legislation passed by the Westminster Parliament. Nevertheless, the courts can now make declarations of incompatibility under the HRA,5 and a number of rulings over the last two decades portray the UK judiciary as not merely the servant of a sovereign Parliament, but as the protector of certain constitutional values such as the rule of law6 and even, at times, of parliamentary sovereignty.7 Still, even with the HRA and the subsequent developments, suggesting that the UK judiciary are guardians of the constitution may be a stretch, especially given the significant amount of other actors within the UK that perform essential, and crucial, constitutional functions.8

3 See, e.g., M Tushnet, Taking the Constitution Away from the Courts (1999), p 194. 4 This arose primarily around the 800th anniversary of the Magna Carta. See, e.g., R Blackburn, ‘Enacting a Written Constitution for the United Kingdom’ (2015) 36 Statute Law Review 1, 1–3; V Bogdanor, Beyond Brexit: Towards a British Constitution (2019). 5 Human Rights Act 1998, c 42, s 4. Kavanagh even argues that, post-HRA, UK judicial review can no longer be classified as ‘weak’. See generally A Kavanagh, ‘What’s So Weak About “Weak-form Review”? The Case of the Human Rights Act 1998’ (2015) 13 International Journal of Constitutional Law 1008. 6 See R (Evans) v Attorney General [2015] UKSC 21; R (UNISON) v Lord Chancellor [2017] UKSC 51. 7 See, e.g., R (Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5. 8 BC Jones, ‘Our Forgotten Constitutional Guardians: Preserving Our Respect for Law’ (2019) Statute Law Review, pp 10–12 (online publication: 8 April 2019).

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Although the UK maintains an unwritten constitution, it is not immune from the use of guardian-esque language, especially as the prospect of a codified constitution continues to grow.9 Lady Hale, former President of the UKSC, has touched on guardianship in public speeches,10 including one explicitly entitled: ‘The Supreme Court: Guardian of the Constitution?’11 In that speech, she begins by questioning whether the UKSC fulfils the guardian role, and ends by noting that, to a certain extent, the court functions as ‘the guardians of the UK Constitution’.12 This latter assertion arose within the context of the first major Brexit case, Miller v Secretary of State,13 in the sense that the government stopped arguing that the procedure behind the triggering of Article 50 to leave the European Union was not justiciable. The government’s acceptance that the issue could be heard by the courts, at least in Lady Hale’s eyes, added weight to the prospects of the UKSC’s constitutional guardian status. Ultimately, the case allowed the UKSC to play a part in determining the process of the UK’s exit from the European Union. In addition to Lady Hale, other Supreme Court justices have recently acknowledged the courts as ‘guardians’ of various items, including that of constitutional principle.14 Outside the UK context, however, the tendency for judges and others to proclaim courts as constitutional guardians or guardians over various rights

Such a document was proposed in Scotland before its 2014 independence referendum, and there have been a number of calls for a UK-wide document after the vote to leave the EU. Scottish Government, ‘Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland’, https://​www2​.gov​.scot/​Resource/​0045/​00452762​ .pdf. See Bogdanor, n 4 above. 10 See Lady Hale, Speech at the Public Law Project Conference, ‘Who Guards the Guardians?’ 1 (14 October 2013), https://​www​.supremecourt​.uk/​docs/​speech​-131014​ .pdf (acknowledging that ‘[i]t is a truth … that judicial review is …“a critical check on the power of the state, providing an effective mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are lawful’”). 11 Lady Hale, Deputy President of the Supreme Court, ‘The Supreme Court: Guardian of the Constitution?’ (9 November 2016), https://​www​.supremecourt​.uk/​ docs/​speech​-161109​.pdf. 12 See BC Jones, ‘Dissonant Constitutionalism and Lady Hale’ (2018) 29 King’s Law Journal 177, 182–183. My emphasis. 13 Miller, n 7 above (‘Miller I’). 14 See, e.g., P Sales, ‘Legalism in Constitutional Law: Judging in a Democracy’ (2018) Public Law 687, 698 (‘The courts in this respect are guardians of constitutional principle, providing a measure of stability for the state and protection against the unprincipled exercise of political power and the tyranny of the majority’). Sales goes on to identify the courts as ‘guardians of judgments about the ambit of the margin of appreciation’ (p 697), ‘guardians of human rights’ (p 697), and ‘guardians of the political principles which bind the parts of the state together’ (p 705). 9

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and freedoms is much more pronounced.15 This rise in judicial assertiveness corresponds with the rise in a number of other legal barometers documented by academics throughout the years, including the number of written constitutions, the number of statutory and constitutional bills of rights, the number of constitutional courts, and the wide powers that constitutional courts wield.16 It is no surprise that over the past few decades, popular books include The Global Expansion of Judicial Power,17 Governing with Judges,18 and Towards Juristocracy.19 This chapter complements these works, providing further evidence that legal mechanisms and legal actors are the favoured routes for constitutional adjudication nowadays. Indeed, a highly legal—as opposed to political—form of constitutionalism is increasingly how most states structure their constitutional systems. Whether this turn is beneficial for the health of many democracies remains up for debate, and this could be important when identifying the constitutional guardians within a particular system.

7.1

THE RISE OF THE GUARDIAN LANGUAGE

The idea of state guardianship is traceable as far back as Plato’s Republic. When articulating the differences between rulers and subjects, Plato maintained that rulers should be chosen from the elders within a society, and only the most respected elders could be considered ‘guardians’.20 Humanised through their education,21 guardians ‘ought to be wise and efficient, and to have a special care of the State’.22 If the guardians were wisely chosen and possessed these essential qualities, they would be able to discern the best interests of their country and how these aims should be achieved.23 Without a doubt, Plato’s ideas have long endured. Writing on the cusp of the twenty-first

15 See, e.g., KL Scheppele, ‘Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe’ (2006) 154 University of Pennsylvania Law Review 1757, 1772. 16 See, e.g., T Ginsburg, ‘Written Constitutions Around the World’ (Spring 2015) Insights on Law & Society, p 4. 17 CN Tate & T Vallinder (eds), The Global Expansion of Judicial Power (1995). 18 A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000). 19 R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004). 20 Plato, The Republic (1991), pp 120–121. 21 Ibid, pp 125–126. 22 Ibid, p 121. This is later qualified as ‘those who in their whole life show the greatest eagerness to do what is for the good of their country, and the greatest repugnance to do what is against her interests’: ibid. 23 Ibid.

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century, Robert Dahl notes that ‘[t]he claim that government should be turned over to experts deeply committed to rule for the general good and superior to others in the knowledge of the means to achieve it … has always been the major rival to democratic ideas’.24 From a constitutional law perspective, there are major questions as to when the use of guardian language arose and when it subsequently took hold. In Britain, some may consider Sir Edward Coke’s statement in Bonham’s Case as a potential beginning, where he said that ‘in many cases the common law will control Acts of Parliament and adjudge them to be utterly void’.25 These were provocative words in 1610, and remain so today, as questions about judicial power continue to divide the public. Coke’s statement explicitly declares that statutory law is subservient to judicial control, which is how some guardianship elements are often expressed today. After the Glorious Revolution in 1688 and the eventual entrenchment of parliamentary sovereignty, however, the guardian discourse took a different direction within the British context.26 Blackstone, writing in the mid-eighteenth century, displays an understanding of the constitution more aligned with its post-revolution trajectory. He labels those individuals serving in Parliament as ‘guardians of the English constitution’, adding that they are ‘the makers, repealers, and interpreters of the English laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and well-weighed improvement’.27 Given the wide influence of Blackstone’s Commentaries, this remains a prominent statement on the role of constitutional guardians. In the American context, Alexander Hamilton discusses the judiciary’s ‘duty as faithful guardians of the Constitution’.28 Importantly, however, Hamilton does not single out the members of the judiciary as the sole faithful guardians of the Constitution, but rather acknowledges their guardianship capacity in the wider context of other constitutional actors, including citizens.29 Despite the prominence of the Federalist Papers, neither the federal Constitution of RA Dahl, On Democracy (2000), p 69; RA Dahl, Democracy and Its Critics (1989), p 64 ('Guardianship has always been the strongest competitor to the democratic vision and remains so today'). 25 SE Thorne, ‘Dr. Bonham’s Case’ (1938) 54 Law Quarterly Review 543, 547. 26 RH Helmholz, ‘Bonham’s Case, Judicial Review, and the Law of Nature’ (2009) 1 Journal of Legal Analysis 325, 329. That did not stop American judges and scholars from picking it up, as it is commonly cited in the American context as a justification for judicial review (ibid, p 327). 27 W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons (W Prest, ed) (2016), p 9(12). 28 The Federalist No 78 (Alexander Hamilton). 29 Ibid. Critically, Hamilton says the judiciary was or would be faithful guardians, not the faithful guardians or the only guardians. 24

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1789 nor any subsequent US state constitutions explicitly refer to members of the judiciary as guardians. Therefore, while prominent thinkers discussed the judiciary as constitutional guardian at the time of the nation’s formation, the founding documents themselves did not reflect such an approach. Considering the above, guardianship language did not apparently take hold before or during America’s founding era. A couple of decades after the establishment of the United States, the judiciary expanded and clarified its own role in the seminal case of Marbury v Madison, a decision in which the Supreme Court established itself as having the power to ‘say what the law is’.30 This decision recognised the Supreme Court’s role as the ultimate constitutional authority and established a basis for expanding the judiciary’s constitutional jurisdiction, similar to the attempt in Bonham’s Case, but without explicitly utilising guardian rhetoric. Nevertheless, against the backdrop of the growing power of the American judiciary, scholars and judges made more explicit guardianship connections. Writing in the late nineteenth century, renowned Oxford professor AV Dicey confronted the idea of guardianship. When describing the US system of federalism and the judiciary’s role, he stated that ‘the Bench of judges is not only the guardian but also at a given moment the master of the constitution’.31 Although the latter phrase received criticism, Dicey retained it through multiple editions. Despite Dicey’s characterisation of the American structure, the portrayal of the judiciary as constitutional guardian was not prominently used for most of the early and mid-twentieth century. In fact, in a stark reminder of what prominent US Supreme Court justices thought about constitutional guardianship structures in the early twentieth century, Oliver Wendell Holmes stated that, ‘legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts’.32 Modern iterations of the US Supreme Court, however, have been more bullish about their constitutional guardian role.33 Notwithstanding reticence around the constitutional guardianship language in the common law context, other jurisdictions have addressed the idea in depth. A substantial debate ensued in the 1920s and 1930s between Hans Kelsen and Carl Schmitt on the subject of constitutional guardianship. In brief, Schmitt argued that the executive is the proper constitutional guardian, while Kelsen contended that a constitutional court should be recognised as such.34 Marbury v Madison, 5 U.S. 137, 177 (1803). AV Dicey, Introduction to the Study of the Law of the Constitution (8th edn) (1982), p 100. 32 Missouri, Kansas and Texas Railway Company v May, 194 U.S. 267, 270 (1904). 33 See, e.g. Cooper v Aaron, 358 U.S. 1, 18 (1958) 34 L Vinx (ed), The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (2015), p 5. 30 31

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Their debate focused mostly on the German context; and the prospect of the legislature or other constitutional actors playing a guardianship role did not receive much consideration. Post World War II, Kelsen’s argument in favour of a constitutional court has been widely recognised, as evinced by the dramatic increase in the number of constitutional courts throughout the world,35 and especially in continental Europe.36 Beyond mere establishment, these courts’ ancillary powers continue to grow, as the judiciaries police a wider extent of the political process, including the dissolution of political parties.37 While the Kelsen–Schmitt debate is significant in terms of the discussion here, it occurred well before the use of constitutional guardian language took hold, and therefore does not provide an answer to the question of when the use of such language rose to prominence. Without a definitive answer regarding when the idea and use of constitutional guardianship became commonplace, this inquiry turns to a survey of written constitutions, judgments from a number of common law jurisdictions, legal scholarship and international news reports to determine when and where this language arose. 7.1.1

Written Constitutions Using Guardian Language

Given the rise of constitutional guardian language in relation to the judiciary, it is reasonable to begin an inquiry with the most formal possible origins of such language: written constitutions. One might reasonably expect that if courts, scholars, journalists and others use this language in relation to judiciaries, then written constitutions themselves will have granted judiciaries this status. This section examines written constitutions from around the world to determine whether these founding documents explicitly designate the judiciary as constitutional guardians. The inquiry only considers constitutions currently in force at the time of writing, and not past constitutions subsequently replaced. The vast majority of the world’s written constitutions lack any type of explicit guardian language beyond that used in a parental or legal guardian manner.38 However, in constitutions that do employ protecting and defending

See, e.g., T Ginsburg, ‘The Global Spread of Constitutional Review’ in GA Caldeira, R Daniel Kelemen & KE Whittington (eds), The Oxford Handbook of Law and Politics (2008), pp 81, 85–88. 36 See Stone Sweet, n 18 above, pp 34–49. 37 T Ginsburg & Z Elkins, ‘Ancillary Powers of Constitutional Courts’ (2009) 87 Texas Law Review 1431, 1440–1444. 38 Beyond the general protecting and defending nature of guardianship, some constitutions do use the term in a more parental or legal guardian manner, especially in relation to children or incapacitated adults. My analysis does not include that lan35

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guardian language—though not necessarily always directed at the judiciary— most were adopted in the past three decades: Bhutan (2008); Burkina Faso (1991); Burundi (2005); Chad (1996); Djibouti (1992); Gabon (1991); Hungary (2011); Mali (1992); Mauritania (1991); Paraguay (1992); Rwanda (2003); Senegal (2001); Sierra Leone (1991); Somalia (2012); Swaziland (2005); and Togo (1992).39 Only three constitutions using explicit constitutional guardian language pre-date 1990: France (1958), Uruguay (1967) and Micronesia (1978). Figure 7.1 shows that this language and the approach it establishes primarily took hold in the 1990s, and has continued, albeit to a limited extent, in the years since. The number of written constitutions in the

Figure 7.1

Constitutions using guardian language: 1950–present*

*Based on a search for ‘guardian’ language on the Constitute Project website. Follow ‘Explore Constitutions’ hyperlink and then search ‘guardian’ in the search bar.

guage. For example, in Chapter II of the Jamaican Constitution, it states, ‘[p]rovided that a person who has not attained the age of twenty-one years (other than a woman who is or has been married) may not make an application under this subsection himself but an application may be made on his behalf by his parent or guardian’: Jamaican Constitution, 25 July 1962, No 1550, Chapter II. This type of guardian language is not included in this study. 39 Constitute: The World’s Constitutions to Read, Search, & Compare, https://​www​ .constituteproject​.org/​. Not all of these instances necessarily identify the judiciary as the guardian of the constitution, but they do all use ‘guardian’ language in relation to one or more branches. The specifics of such language, such as who they identify as guardian, are discussed further below. Also, many of the constitutions on the Constitute Project website are translations, which also needs to be taken into consideration.

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2010s using explicit guardian language equals the total that came into force from 1950 to 1989. Thus, although use spiked in the 1990s, guardianship language still occurs much more frequently in contemporary constitutions than it did in previous eras. Importantly, constitutions vary in the phrasing that establishes the extent of judicial power. The most common phrasing provides that the power to interpret the constitution is vested in the judiciary or in a particular set of courts. Such phrasing does not explicitly use the term ‘guardian’. Some constitutions, such as those in force in Germany and Taiwan, which embolden the judiciary with wide-ranging powers, use this more typical phrasing. Germany’s Basic Law states, ‘[t]he judicial power shall be vested in the judges; it shall be exercised by the Federal Constitutional Court, by the federal courts provided for in this Basic Law, and by the courts of the Länder’.40 Taiwan’s Constitution reads, ‘[t]he Judicial Yuan shall interpret the Constitution and shall have the power to unify the interpretation of laws and ordinances’.41 Both thereby express the more traditional conception of judicial power that is widespread in older constitutions. They enshrine members of the judiciary as faithful interpreters of a constitution or holders of judicial power, rather than judges as constitution makers or guardians of the document. Newer constitutions, by contrast, are at times more definitive in relation to judicial power. They allot wider and more explicit powers to constitutional courts in lieu of other branches, though many do so without using guardianship language. The South African Constitution, for example, states that the Constitutional Court ‘makes the final decision whether a matter is within its jurisdiction’42 and also ‘makes the final decision whether an Act of Parliament … is constitutional’.43 The Constitution thereby specifically and explicitly allocates broad powers to assess compliance with the Constitution to the Constitutional Court.44 Even then, however, it does not explicitly refer to the court as a guardian, or even the guardian of constitutional values. Other constitutions use different language to hint at or imply such guardianship. For example, the Czech Republic Constitution reads, ‘[t]he Constitutional Court is the judicial body responsible for the protection of constitutionality’.45 These examples demonstrate that some constitutions go beyond the faithful interpreter language, either explicitly expanding the powers of constitutional courts or implying some type of enhanced protector role. The Czech and South 42 43 44 45 40 41

Basic Law, art 92. Taiwan Constitution, art 78 (1947). South African Constitution 1996, § 167(3)(c). Ibid, § 167(5). Ibid, § 167(4). Constitution of the Czech Republic, art 83.

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African Constitutions are significant because they were written in the 1990s, when constitutional guardian language in these written documents significantly increased.46 Not all constitutional guardian language, however, refers to the judiciary. Several of the constitutions included in Figure 7.1 explicitly identify guardians outside of the judicial context. Senegal’s 2001 Constitution states, ‘[t]he President of the Republic is the guardian of the Constitution’,47 and Hungary’s Constitution asserts that the President ‘shall embody the nation’s unity and shall safeguard the democratic operation of state organisation’.48 Other constitutions that explicitly identify the president as ‘guardian of the constitution’ include the constitutions of Mali,49 Mauritania,50 Sierra Leone51 and Somalia.52 Such labelling may indicate power struggles in action, which could be a feature of increasingly factional constitutional language. Given that executive branches are often the ones attempting constitutional reform, it is unsurprising that some of the newer constitutions anoint them as guardians. For example, in Hungary, the Fidesz Party enacted a new constitution after its sweeping election victory in 2010, labelling the president ‘guardian of the democratic functioning of state operation’.53 Of course, nominating just one person, such as a president, is just as problematic—or perhaps worse—than nominating one branch to do the guarding, as it diminishes the collective status of constitutional guardianship. To put such a weighty endeavour on one actor is also inherently risky, as authoritarian leaders may abuse such powers. The guardianship role can also be over particular rights or liberties, rather than the constitution as a whole. Some of the constitutions that nominate the president as a more general guardian also appoint the judiciary as guardian of particular rights or liberties. This latter qualification of guardianship is the most common type of classification for the judiciary under written constitutions. For example, the French Constitution notes that the judiciary is ‘guardian of the freedom of the individual’;54 the Rwandan Constitution states that The Czech Constitution came into force in 1993, and the South African Constitution came into effect in 1996. 47 Constitution of the Republic of Senegal, art 42. It then later notes, ‘[t]he judicial power is the guardian of the rights and freedoms defined by the Constitution and the law’: ibid, art 91. 48 The Fundamental Law of Hungary, art 9(1). 49 Constitution of the Republic of Mali 1992, art 29. 50 Constitution of Mauritania 1991, art 24. 51 Constitution of Sierra Leone 1991, art 40(3). 52 Provisional Constitution of the Federal Republic of Somalia, 1 August 2012, art 87(1)(c). 53 Hungarian Constitution, art 9(1). 54 Constitution of France 1958, art 66. 46

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‘[t]he Judiciary is the guardian of human rights and freedoms’;55 and Chad’s Constitution asserts that the judiciary ‘is the guardian of the freedoms and of individual property and sees to the respect of the fundamental rights’.56 Swaziland is perhaps the most inclusive and forthcoming in terms of its constitutional guardian language, noting in its preamble, ‘[w]hereas all the branches of government are the Guardians of the Constitution, it is necessary that the Courts be the ultimate Interpreters of the Constitution’.57 This language focuses on guardianship as a collective endeavour, but gives ultimate interpretive power to the judiciary. On the basis of this collective approach to guardianship, the Swaziland Constitution is unique for two major reasons. First, it acknowledges that all branches are constitutional guardians, something that no other written constitution explicitly does. Second, it directly establishes, in the preamble, that the courts will be the ultimate interpreters. This contrasts with other jurisdictions, where supreme or constitutional courts wield immense power, despite their articulated powers in the constitution having a significantly less prominent place,58 as Chapter 3 highlighted. Only two constitutions explicitly label the judiciary as the sole constitutional guardian, rather than qualifying guardianship to particular rights, liberties or freedoms, or disaggregating this role among the branches. Paraguay’s Constitution asserts that ‘[t]he Judicial Power is the guardian of the Constitution. It interprets it, it complies with it and it has it complied with’.59 Similarly, Bhutan’s Constitution notes, ‘[t]he Supreme Court shall be the guardian of this Constitution and the final authority on its interpretation’.60 Despite the similar exclusive guardianship role for the judiciary, the constitutions differ in that the Paraguay Constitution establishes an extremely wide role for the judiciary, explicitly noting the interpretative and compliance functions. In contrast, the Bhutan Constitution emphasises the traditional interpretative role more commonly ascribed to the judiciary. While other constitutional language may strongly imply constitutional guardianship for the judiciary, only these two written constitutions formally and explicitly establish this approach. The discrepancy between the language in the Swaziland Constitution and that found in many US state constitutions provides an interesting contrast regarding the placement and reference to significant constitutional authority. An extremely common initial provision in US state constitutions is to note Constitution of the Republic of Rwanda 2003, art 43. Constitution of the Republic of Chad 1996, art 143. 57 Constitution of the Kingdom of Swaziland 2005, preamble. 58 See the US Constitution, which does not mention judicial power until art III(1), which is over halfway through the document. 59 Constitution of Paraguay 1992, art 247. 60 Constitution of the Kingdom of Bhutan, art 111. 55 56

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that all political power originates in ‘the people’. Given that many US state constitutions were written in the nineteenth and twentieth centuries, more contemporary constitutions—such as those of Bhutan, Paraguay and Swaziland— may acknowledge judicial power in a more robust and explicit manner. Such acknowledgements may be a sign of increasing acceptance of the enhanced role of the judiciary worldwide. Nevertheless, even if one disagrees with strong judicial powers within a constitutional state, at least the Swaziland preamble candidly acknowledges that the judiciary plays a pre-eminent role in constitutional interpretation.61 As Chapter 3 also pointed out, the same forthright approach cannot be found in many other Constitutions. 7.1.2

Legal Judgments Using Guardian Language

Constitutional guardianship language also arises in legal judgments.62 The survey performed for this chapter included three common law jurisdictions— the United States, Canada and Australia—and identified that although some of the explicit use of guardian language predates the complementary appearances in some contemporary constitutions, most of its use occurred over recent decades. One of the main articulations of the courts as a constitutional guardian came in the 1971 US Supreme Court case of Perez v Ledesma, where in a 5–4 judgment, the court found that it had no jurisdiction to review a district judge’s decision invalidating a local ordinance.63 A concurring opinion by Justice Brennan notes that—contrary to Holmes’s statement above—the federal courts are ‘the primary guardians of constitutional rights’, and that federalism concerns should not be a controlling factor.64 Although the status of the Supreme Court as ‘guardian and interpreter of the Constitution’ does officially appear on its website,65 corresponding guardianship language has not been a critical feature within the court’s judgments, which tends to focus on ‘ultimate interpreter’ language.

Constitution of the Kingdom of Swaziland, preamble. While the prior section of the chapter filtered out references to ‘legal guardian’ as opposed to ‘constitutional guardian’, the inquiry here required a different approach. To ensure consistency across jurisdictions, the following searches only include the phrase ‘guardian/s of the constitution’. Given the wide amount of legal judgments that discuss ‘legal guardianship’ in relation to children or incapacitated adults, searching for this phrase helped narrow the statistical inquiry. 63 Perez v Ledesma, 401 U.S. 82, 86 (1971). 64 Ibid, p 118 (Brennan J, concurring). This passage was later cited in Steffel v Thompson, 415 U.S. 452, 463 (1974). 65 US Supreme Court, ‘The Court and Constitutional Interpretation’. 61 62

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The same does not necessarily hold true in US state courts, which have increasingly employed the terminology within the past few decades.66 This is somewhat surprising, given that no US state constitution explicitly labels the judiciary as constitutional guardians. Figure 7.2 tracks the use of guardian language in state court judgments. Such constitutional guardian language did not start gaining traction until the 1950s, and did not begin to peak until the 1970s, when it almost doubled from the previous decade. While that is potentially attributable to the Perez v Ledesma concurrence noted above, it seems unlikely that increasing state court use of the term can be understood on the basis of the concurrence alone.

Figure 7.2

Guardian language in US state court judgments: 1900–2019*

*Based on a Westlaw search of the phrase ‘guardian of the constitution’ in US state court judgments (n=147).

Given that virtually all US state constitutions were written before the rise in constitutional guardian language, it is unsurprising that judiciaries and state supreme courts are not labelled in that specific manner. Nevertheless, the trend in usage from the 1970s onwards appears consistent. A similar trend is found in the federal Canadian courts over the past few decades. In the case of Hunter v Southam Inc (1984), heard shortly after the

The numbers presented in Figure 7.2 represent only a small fraction of the vast number of cases heard before state courts each decade. Nevertheless, the data reinforces the trend seen in other areas regarding the use of constitutional guardian language. 66

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adoption of the Canadian Charter of Rights (1982),67 the leading judgment notes, ‘[t]he judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind’.68 As Figure 7.3 demonstrates, use of similar guardianship language has slowly increased since then.

Figure 7.3

Guardian language in Canadian Federal Court judgments: 1980–2019*

*Based on a Westlaw search of the phrase ‘guardian of the constitution’ in Canadian federal court judgements (n=39).

In Australia, guardianship elements were first introduced in the Australian Communist Party case (1951), as the High Court employed Marbury v Madison69 to assert that the doctrine of courts deciding whether a statute is within its constitutional powers was ‘axiomatic’ within the Australian system.70 Despite the significance of Australian Communist Party, explicit use of the phrase ‘guardian of the constitution’ was only used three times by the High Court from 1960 to 1999.71 Yet in the 2000s, it was used in five High Court judgments,72 almost doubling its use throughout the previous four decades

Constitution Act 1982, Part I. Enacted as Sch B to the Canada Act 1982 c. 11. Hunter v Southam Inc [1984] 2 SCR 145. 69 Marbury, n 30 above. 70 Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 262–263. 71 W Austl v Hamersley Iron Pty Ltd (No 2) (1969) 120 CLR 74, 79; Victoria v Commonwealth (1975) 134 CLR 81, 118–119; Kruger v Commonwealth [1997] 190 CLR 1, 175 (Gummow J) (Austl). 72 The five judgments are: Chief Exec Officer of Customs v El Hajje [2005] 224 HCA 35, para 124; Forge v Australian Sec & Investments Commission (2006) 228 67 68

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combined. The reason behind such a significant increase is unclear. Unlike the Canadian experience, where the term gained traction slowly, Australia’s 2000s spike appears to have come out of nowhere. Despite this temporary increase, however, such language was not used once by the High Court in the 2010s. 7.1.3

Law Journal and News Articles Using Guardian Language

Finally, this inquiry examines the use of guardian language in law journal scholarship and news articles. For the law journal section, this chapter consulted HeinOnline’s Law Journal Library to search for the phrase ‘guardian of the constitution’. The results produced 1,142 results in total, from law journals around the world.73 Of course, it is important to consider the dramatic growth in the number of legal periodicals throughout the twentieth century, which likely accounts for some of the increase in the use of the language throughout the years. Regardless, the data evinces substantial growth and acceptance of the phrase in the last few decades.

Figure 7.4

Law journal use of ‘guardian’ language: 1900–2019*

*Based on a Hein Online Law Journal Library search for the phrase ‘guardian of the constitution’ (n=1,142).

CLR 45, para 125 (Kirby J); NSW v Commonwealth (2006) 229 CLR 1, paras 210, 231; Thomas v Mowbray (2007) 233 CLR 307, para 229 (Kirby J); MZXOT v Minister for Immigration & Citizenship [2008] HCA 28, 42. 73 The initial search was performed on 24 May 2018, and an updated search was performed on 13 March 2019.

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Figure 7.4 shows an initial steep increase in the use of the phrase ‘guardian of the constitution’ in the 1990s, continuing into the 2000s. The use of the phrase almost doubled from the 1980s to the 1990s. Use in the 2010s—when the search was performed—had already eclipsed the previous decade’s total. This demonstrates that it is not merely official government documents augmenting the use of such language. Constitutions and legal judgments show increasing use of guardian-esque language, and the language of legal academics follows suit and expands substantially on the use of the term. Importantly, it is difficult to know whether one is driving the other, or if both are mutually reinforcing and together contributing to the growth in the use of the concept. Of course, it may not be that surprising to see that legal academics are framing the courts in this way. As Stone Sweet wrote close to two decades ago, ‘legal scholars, in pursuing their own corporate interests, operate to legitimize’ constitutional courts and their case law.74 Beyond legal academia, news articles also manifest the growing trend. I scoured international news articles for their use of guardian-esque language, using Westlaw’s News feature. This database includes news from all available areas: Africa, Asia, Australia and New Zealand, Canada, Europe, Latin America, the Middle East, the United States, and the United Kingdom. While the database maintains an archive dating back to only 1980, there were 2,113 results in that timeframe.75 The data, as shown in Figure 7.5, displays a dramatic increase of language use during this time period. The use of the phrase ‘guardian of the constitution’ more than doubled from the 1990s to the 2000s, and doubled again in the 2010s (at the time of the search). Importantly, given the low numbers in the 1980s and 1990s—when the language was being used more frequently in constitutions, legal decisions and legal academia—it did not appear as often in the news. Accordingly, it seems the news media is not responsible for leading the growth around the phrase. Instead, they are apparently following the trend originating in other sources, such as constitutions, legal judgments and legal scholarship. While constitutional guardian language arose in many contexts at varying times, it is challenging if not impossible to identify its initial use. From a written constitution era perspective, there are indications that it was present before and around the American founding through the Federalist Papers and even in some state court judgments.76 Decisions such as Bonham’s Case and Stone Sweet, n 18 above, p 147. The initial search was performed on 22 June 2018, and an updated search was performed on 13 March 2019. 76 For examples of early state court judgments, see Riley v Riley, 3 Day 74, 81 (Conn. 1808) (‘It is a sufficient answer to this objection, that the supreme court of the United States, the peculiar guardian of the constitution, did not think such a decision as 74 75

The rise and problematic use of constitutional guardian rhetoric

Figure 7.5

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International news use of guardian language: 1900–2019*

*Based on a Westlaw search of the phrase ‘guardian of the constitution’ in the International News feature (n=2,113).

Marbury were, and continue to be, a strong force in support of the guardianship approach and suggest the historical roots of the term. However, after examining current constitutions, surveying legal judgments from several jurisdictions, and searching law journal and media use of the language, the majority of evidence suggests that the more widespread use of such language came to the fore over the last three-to-four decades. These trends also suggest that official documents, such as constitutions and legal judgments, may drive the use of such language, while the media reacts and follows.

7.2

THE SIGNIFICANCE OF THE CONSTITUTIONAL GUARDIAN LANGUAGE

This chapter argues that there are two main reasons why this linguistic shift matters. First, the use of guardianship language is unnecessarily factional and may foment inter-branch tension. While constitutional power struggles are

at all impugning that clause of the constitution’ (emphasis in original)); Commonwealth v Lewis, 6 Binn. 266, 283 (Pa. 1814) (‘But the judiciary are the guardians of the constitution, and it is a presumption in favour of the law that they have not questioned it’).

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not new,77 guardianship language often originates from a judicial branch that constitutions usually identify as faithful interpreters of the law or constitution, rather than its ultimate guardians. This is especially true in common law jurisdictions where supreme or apex courts are not explicitly provided the same extensive powers as modern constitutional courts. The interpreter and guardian roles are importantly different. Interpretation is a crucial but undoubtedly narrower role for the judiciary, while guardianship implies a broader power to actively protect and defend the constitution. This is amplified further when courts refer to themselves as the ultimate constitutional guardians within their respective jurisdictions.78 Employing the majesty and significance of written constitutions, courts often attempt to exclude or dissuade other constitutional actors from interpreting the document, thus displaying an unnecessarily factional attitude towards other branches. In many respects, use of this language is similar to the ‘constitution as truncheon’ form of idolatry described in Chapter 1. Second, such language is exceedingly and unnecessarily paternalistic. The manner in which the courts use guardianship language follows a more legalised conception of the role, rather than adhering to a general responsibility to protect and defend. Such language may also lull citizens into believing they have no responsibility in ensuring the maintenance of constitutional principles. Given these combined effects, this section argues that guardian language usurps an individual and collective responsibility for protecting constitutional values and norms and makes citizens overly reliant on one person or branch of government to act as guardian. Thus, this type of language also connects with one of the main themes of this book: that constitutional idolatry is overly paternalistic. 7.2.1

The Judiciary’s Use of Unnecessarily Factional Language

In asserting their authority over the other branches, the courts often employ unnecessarily factional language, attacking the legitimacy or will of other constitutional actors. Indeed, the renowned US case of Marbury v Madison79 had a far broader impact beyond establishing for the judiciary the ability to strike down legislation. Linguistically it outlined a roadmap for judges—in the United States and in other jurisdictions—for expanding judicial power. 77 See HF Pitkin, ‘The Idea of a Constitution’ (1987) 37 Journal of Legal Education 167, 168 (‘[Constitutions] are human creations, products of convention, choice, the specific history of particular people, and (almost always) a political struggle in which some win and others lose’). 78 See the Canadian case of Hunter v Southam, n 68 above. 79 Marbury, n 30 above.

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Through its bold assertion that it is ‘emphatically’ the judiciary’s job to say what the law is,80 and its repeated reference to and idolisation of a written constitutional document, the judgment now serves as a well-worn and time-honoured justification for judicially mandated constitutional intervention. Indeed, the decision laid a basic foundation for factional constitutional language designed to increase judicial power in the face of claims by other worthy constitutional actors. Academics and practitioners today widely recognise that Chief Justice Marshall relies ‘on more indirect arguments’ to support the holding.81 Much of the decision revolves around rhetoric, as opposed to any legal precedent or constitutional provision, as a basis for judicial review or the striking-down of legislation. Marshall also emphasises the written nature of the US Constitution,82 in contrast to the UK constitutional structure, as a basis for increased judicial authority. His decision justifying a judicial strike-down power by extolling the virtues of the American Constitution is one of the most influential and widely cited judicial decisions in history, and serves to establish a strong but implicit guardianship role for the judiciary.83 There remains little doubt that the legendary decision continues to inspire judges to be more proactive in asserting judicial authority.84 The Israeli case of Bank Mizrahi provides an incredible contemporary example of the use of factional language. In that case the Supreme Court decided that Israel’s Basic Law contained ‘supra-legal’ constitutional status, thus abruptly attempting to transform the country from ‘a state based on the English model of parliamentary sovereignty’ into a ‘constitutional state’,85 thereby considerably expanding the scope of judicial review.86 Mirroring Ibid, p 177. A Tucker, ‘Constitutional Writing and Constitutional Rights’ (April 2013) Public Law 345, 352; BC Jones, ‘Preliminary Warnings on “Constitutional” Idolatry’ (January 2016) Public Law 74, 84. 82 Marbury, n 30 above, pp 176, 178. 83 See, e.g., M Tushnet, ‘Marbury v. Madison Around the World’ (2004) 71 Tennessee Law Review 251, 260 (arguing that ‘Marbury is the likely origin of strong-form review’, and that this system of review has been widely copied throughout the world). 84 See, e.g., S Hendrianto, Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial Heroes (2018) (citing Marbury throughout as an inspiration for the Indonesian Constitutional Court). 85 S Navot, ‘Israel’ in D Oliver & C Fusaro (eds), How Constitutions Change: A Comparative Study (2011), pp 191, 194, 198; CA 6821/93 United Mizrahi Bank Ltd v Midgal Cooperative Village 49(4) PD 221, para 109 (1995) (Isr.). 86 See Y Rabin & A Gutfeld, ‘Marbury v. Madison and Its Impact on Israeli Constitutional Law’ (2007) 15 University Miami International & Comparative Law Review 303, 318–330. 80 81

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Marbury, the President of the Supreme Court at the time, Justice A Barak, praised the enactment of the Basic Law: Human Dignity and Liberty,87 despite the fact that it, like the US Constitution, does not explicitly provide for judicial review. Justice Barak’s extraordinarily forceful and idealistic rhetoric goes well beyond that used by Chief Justice Marshall, as he declares that, ‘there is now the possibility that the constitutional change will be internalized; that human rights will become the “daily bread” of every girl and boy’.88 He continues: The prospect is of recognition of the Court’s role as guardian of the constitution, balancing the constitutional values established in the constitution and supervising the constitutionality of administrative activity. The prospect is of the ascent of the glory of human rights, and enhanced goodwill and fellowship among human beings, each born in the image of the Creator.89

Justice Barak devotes two pages in his judgment to discussion of Marbury, dramatically noting that the ‘doctrine is a cornerstone of the American constitutional system. Remove it and the entire structure collapses’.90 The lack of explicit judicial review authority of statutes in the American Constitution suggests, however, that Justice Barak’s assessment is an overstatement based only on conjecture. Nonetheless, Justice Barak’s analysis evinces the seriousness with which he understands constitutional system reliance on judicial review. But Justice Barak does not just focus on the American context, noting that judicial review for constitutional adherence exists throughout the world, and that the ‘twentieth century is the century of judicial review’.91 He continues, noting ‘judicial review of the constitutionality of the law is the soul of the constitution itself. Strip the constitution of judicial review and you have removed its very life. The primacy of the constitution therefore requires judicial review’.92 And reflecting on the role of judicial review and democracy, he proclaims, ‘[t]he substantive answer is that the judicial review of constitutionality is the very essence of democracy’, and ‘whoever argues that judicial review is undemocratic is in effect arguing that the constitution itself is undemocratic’.93 Ultimately, he believes that members of the judiciary, through judicial review

Basic Law: Human Dignity and Liberty (1992). An English language version is provided by the Knesset here: https://​www​.knesset​.gov​.il/​laws/​special/​eng/​basic3​_eng​ .htm. 88 United Mizrahi Bank, n 85 above, para 109. 89 Ibid. 90 Ibid, para 75. 91 Ibid, para 80. 92 Ibid, para 78. 93 Ibid, para 80. 87

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itself, express the ‘values of the constitution’ by articulating ‘the fundamental conceptions of society as it moves through the shifting sands of history’.94 It is difficult to find another legal judgment that so willingly transposes the essence of Marbury’s factionalism without any critical examination of judicial review itself. Additionally, even with the establishment of judicial review in Marbury, a number of prominent judges and academics are critical of these powers. Writers such as James Bradley Thayer,95 Alexander Bickel,96 Larry Kramer97 and Jeremy Waldron,98 among others, produced works that challenge the values explicated in Marbury and the wide expansion of judicial review more generally. Prominent constitutional scholar Mark Tushnet undertook the thought experiment of doing away with judicial review, concluding that ‘[t]he effects … would probably be rather small, taking all issues into account’.99 Nevertheless, prominent examples of guardianship language exist in other jurisdictions. In Australia, the High Court noted the following in a 2006 judgment: It is that potential that demands from this Court, which is the guardian of the Constitution, a response protective of the text and structure of the document. If this Court does not fulfil its protective role under the Constitution, what other govern-

Ibid, para 81. See JB Thayer, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard Law Review 129, 130 (‘So far as the grounds for this remarkable power are found in the mere fact of a constitution being in writing, or in judges being sworn to support it, they are quite inadequate. Neither the written form nor the oath of the judges necessarily involves the right of reversing, displacing, or disregarding any action of the legislature or the executive which these departments are constitutionally authorized to take, or the determination of those departments that they are so authorized’). 96 See AM Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn) (1986), p 21 (‘Besides being a counter-majoritarian check on the legislature and the executive, judicial review may, in larger sense, have a tendency over time seriously to weaken the democratic process’). 97 See LD Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004), pp 249–253 (noting that the original conception of American constitutionalism gave ‘[f]inal interpretive authority … [to] “the people themselves”… and courts no less than elected representatives were subordinate to [the people’s] judgments’). 98 See J Waldron, Political Political Theory: Essays on Institutions (2016), pp 195–245, 244 (Waldron specifically focuses on rights-based review, and argues that ordinary legislative procedures are preferable, as a ‘final review by courts adds little to the process except a rather insulting form of disenfranchisement and a legalistic obfuscation of the moral issues at stake in our disagreements about rights’). 99 Tushnet, n 3 above, p 154. 94 95

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mental institution will do so? What other institution has the power and the will to do so?100

In Cormack v Cope, the High Court emphasised the written nature of the Australian Constitution in contrast to the UK constitutional structure,101 stating that, ‘the Parliament in Australia is controlled by a written Constitution’.102 The court continued, ‘[w]hilst it may be true the Court will not interfere in what I would call the intra-mural deliberative activities of the Parliament, it has both a right and a duty to interfere if the constitutionally required process of law-making is not properly carried out’.103 In Bribery Commissioner v Ranasinghe, the court recognised its ‘duty to see that the Constitution is not infringed and to preserve it inviolate’.104 Much of this language echoes Marbury, which consistently praises and centralises the written nature of the constitution while emphasising the role of the courts within the broader system over-reliance on a specific constitutional provision as justification for intervention.105 Canadian jurisprudence contains similar factional language, especially after the passage of the Charter of Rights and Freedoms in 1982.106 When first striking down a major law under the Charter, Judge Dickson stressed that ‘[t]he Constitution of Canada, which includes the Canadian Charter of Rights and Freedoms, is the supreme law of Canada. Any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect’.107 Dickson further notes, ‘[t]he judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind’.108 Justice Dickson’s use of ‘the’ renders the judiciary the exclusive guardian of the Constitution, and attempts to limit or devalue interpretation by other constitutional actors. In a more recent case, Manitoba Métis Federation Inc v Canada (Attorney General) (2013), the court repeatedly stresses its guardianship role. The decision asserts, ‘this Court has found that limitations of actions statutes cannot prevent the courts, as guardians of the Constitution, from issuing declarations NSW v Commonwealth, n 72 above, para 210. Cormack v Cope Qld (1974) 131 CLR 432, 453. 102 Ibid. 103 Ibid, p 454. 104 Bribery Commissioner v Ranasinghe [1965] AC 172, 194 (quoted in Cormack, n 101 above, p 453). 105 Marbury, n 30 above, pp 176, 178 (1803). 106 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Sch. B to the Canada Act 1982, c 11 (UK). 107 Hunter v Southam, n 68 above, p 148. 108 Ibid, p 155. My emphasis. 100 101

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on the constitutionality of legislation. By extension, limitations acts cannot prevent the courts from issuing a declaration on the constitutionality of the Crown’s conduct’.109 This establishes a broad guardianship role for the courts. Perhaps the most revealing line is this: ‘[t]he courts are the guardians of the Constitution and … cannot be barred by mere statutes from issuing a declaration on a fundamental constitutional matter. The principles of legality, constitutionality and the rule of law demand no less’.110 Thus, the judgment not only asserts that courts are the proper guardians, but also proclaims that three extremely important constitutional values—legality, constitutionality and rule of law—support such an exclusive role for the judiciary. The judgment ends by noting: It is difficult to see how a court, in its role as guardian of the Constitution, could apply an equitable doctrine to defeat a claim for a declaration that a provision of the Constitution has not been fulfilled as required by the honour of the Crown. … The Constitution is the supreme law of our country, and it demands that courts be empowered to protect its substance and uphold its promises.111

Again, there are deep echoes of the Marbury logic throughout this judgment, in addition to the employment of constitution as a heavyweight truncheon. More significantly, the language displays a strong sense of factionalism and accordingly minimises the role of other branches, and, by implication, the role of citizens. 7.2.2

The Judiciary’s Overly Paternalistic Understanding of Guardianship

In addition to increasing factionalism, guardianship language weakens the role of the people at the heart of the democratic constitutional state, and is connected to a more consequentialist argument: that use of guardianship language undercuts any type of ‘We the People’ or collective importance that may be present within or run through the constitution. After all, collective protection of the constitutional system is a foundational tenet of constitutional democratic thinking,112 and democratic constitutions are commonly understood as the embodiment of the will of the people. However, guardianship language has the potential to dilute citizens’ understanding of their responsibilities. If citizens

Manitoba Métis Federation Inc v Canada [2013] 1 SCR 623, 683. Ibid, p 685. 111 Ibid, p 690. 112 See, e.g., Kramer, n 97 above, p 199 (‘The Supreme Court is not the highest authority in the land on constitutional law. We are.’). 109 110

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do not take their responsibility seriously, but instead become overly-reliant on courts to enforce and uphold constitutional values or norms, then society will unduly empower a purely judicial interpretation of the constitution at the cost of losing the perspective of its most important benefactors. When overreliance on the judiciary becomes the norm, constitutional paternalism by the courts inevitably develops. Thus, the judiciary’s understanding of the term ‘guardian’ is highly relevant. Although commonly used to refer to ‘[a] person who protects or defends something’,113 the word ‘guardian’ has a long and distinguished history in law. The Oxford Dictionary of Law states that ‘guardian’ means, ‘[o]ne who is formally appointed to look after a child’s interests on the death of the child’s parents. … A guardian automatically has parental responsibility for the child’.114 Importantly, legal guardianship is not limited to children. The law may also subject adults with mental illness or mental capacity issues to some type of guardianship.115 Ultimately, this type of guardianship provides the legal guardian with the right to make decisions for those under their responsibility.116 With decision-making authority, the guardian gains power. This legal conception of guardian is undoubtedly more paternalistic than the general use of the term as one that protects or defends particular constitutional principles. Understanding how the courts view their guardian role is therefore essential to understanding the significance of the designation. If the courts understand their guardianship role as a general responsibility to protect and defend, there is greater space for participation by other actors towards that collective end. Under this approach, the court would understand its role in the broader separation of powers framework, or perhaps even with a modern departmentalist role.117 If, on the other hand, the courts understand their guardianship role more like the singular overarching legal responsibility, they are more likely to assume sole decision-making authority.

Guardian, Oxford Dictionaries, https://​www​.lexico​.com/​definition/​guardian. A Dictionary of Law (6th edn) (2006), pp 246–247. 115 For example, in the UK under the Mental Health Act 1983 ‘guardianship orders’ can be given for those suffering from mental disorders (Mental Health Act 1983 c. 20, s 37). 116 Interestingly, this type of guardianship is sometimes mentioned in constitutions. For example, the Fiji Constitution notes in s 11(3) that, ‘Every person has the right to freedom from scientific or medical treatment or procedures without an order of the court or without his or her informed consent, or if he or she is incapable of giving informed consent, without the informed consent of a lawful guardian’. 117 For a view on departmentalism, see R Post & R Siegel, ‘Popular Constitutionalism, Departmentalism, and Judicial Supremacy’ (2004) 92 California Law Review 1027, 1031. 113 114

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Evidence suggests that the more legalistic understanding is dominant in many jurisdictions. In the New South Wales decision discussed above, the Australian High Court boldly asked: ‘[i]f this Court does not fulfil its protective role under the Constitution, what other governmental institution will do so? What other institution has the power and the will to do so?’118 This type of assertiveness suggests that the court sees itself as better positioned and more committed to guard the constitution than any other branch or institution, and embodies a more legalistic conception of its guardian role. Similarly, the Canadian Supreme Court identified three constitutional principles as positively within the legal sphere: legality, constitutionality and rule of law.119 It further noted that the constitution ‘demands that courts be empowered to protect its substance and uphold its promises’.120 This language asserts that the judiciary, as opposed to a collection of branches or citizens, is ultimately responsible for certain constitutional decisions. Finally, Justice Barak’s holding in Israel’s Bank Mizrahi case describes judicial review as the ‘soul’ of the constitution and asserts that judicial review alone can articulate the constitution’s values.121 This insists that judicial decision-making power address problems in a manner reflecting the legalistic understanding of the guardianship role. These examples contrast with the approach taken by UK courts, which show little willingness to explicitly assert themselves as guardians over the UK’s long-standing unwritten constitution. The UK approach to the role of the courts is, accordingly, less paternalistic and more collective. Never has this been more on display than in the recent Miller II case regarding Boris Johnson’s prorogation of Parliament.122 In a unanimous 11–0 judgment that could easily have brought forward echoes of Marbury or the lofty factional language of Bank Mizrahi, the UKSC judgment did not once mention the ‘rule of law’, and in fact supported the collective ideal of upholding major constitutional principles, such as parliamentary sovereignty and accountable government. This judgment demonstrates that courts can help the collective ideal of protecting and defending the constitution without having to engage in factional language about the superiority of constitutional guardianship.

NSW v Commonwealth, n 72 above, para 210. Manitoba Métis, n 109 above, p 685. 120 Ibid, p 690. 121 United Mizrahi Bank, n 85 above, para 81. 122 R (Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41. 118 119

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7.3

GUARDIANSHIP: A COLLECTIVE ENDEAVOUR

Although we might find comfort in believing that the twenty-first century will be as kind to democracy as the twentieth, the historical record tells us that democracy has been rare to human experience. Is it destined once again to be replaced by non-democratic systems, perhaps appearing in some twenty-first century version of Guardianship … ?123

Two decades into the twenty-first century, Robert Dahl’s prediction appears to be taking form: unelected judges in apex courts throughout the world are increasingly viewed as the guardians of their respective constitutions. As judiciaries and other constitutional actors increasingly use factional constitutional guardian language as a means of expanding judicial power, a form of constitutional paternalism has emerged throughout many jurisdictions. There has been a significant rise in the use of guardian language on multiple fronts: in constitutions, in legal judgments, in academic writings, and throughout various media outlets. Based on the statistics provided above, this appears to be a relatively recent phenomenon. Indeed, the significant growth found in academic writings suggests that legal scholars are one of the main drivers of the phenomenon. This corresponds with what Smith found in relation to constitutional idolatry over two decades ago: that far from being an element of popular culture, the 'leading temple' engaging in this practice is 'the legal academy itself'.124 Although discussion around the idea of state guardianship was present in Plato’s Republic, and language of constitutional guardianship has been present since the founding of the United States, this language did not gain major traction until the late twentieth century. Such language arose without much consideration as to its specific meaning, including the potential effects on those within the constitutional state. Normatively, most constitutions do not formally label guardians. Constitutions that do explicitly mention guardianship tend to conceal such language by putting it not front and centre, but in the middle or latter portions of such documents, thus obscuring its prominence and relevance. In the judicial realm, guardian-esque language may be fuelling more factional and combative judgments. Further, the language of many judgments takes on a more legal conception of the term guardian, implying that something has gone wrong, and only the judiciary can fix it. This increased use of guardian-esque language epitomises what actors worldwide should not do in terms of policing constitutions. Its unneces See Dahl, n 24 above, p 180. SD Smith, 'Idolatry in Constitutional Interpretation' 79(3) Virginia Law Review 583, 587-88). 123 124

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sarily paternalistic qualities may lull citizens—who are in fact the ultimate guardians—into constitutional complacency. Additionally, the more various entities, and especially the judiciary, assert guardianship over particular areas of a constitution, the more such assertions amount to little more than trivial power struggles as opposed to authentic attempts to protect certain constitutional powers or functions. Ultimately, as this guardian language is commonplace within the constitutional state, citizens, law-makers and academics alike should strive to understand its relevance and potential effects. Constitutional guardianship, after all, is not something that should be taken for granted, especially when its collective status is crumbling.

8. Idolatry and constitutional change Far from being considered regular maintenance to imperfect human creations, constitutional amendment nowadays is often viewed as a special, inspirational, or transformational ‘moment’ in the life of a nation. Indeed, that any type of constitutional change is more significant or should be more difficult than statutory change is a foundational component of modern constitutionalism. Albert and Oder label constitutional amendment ‘a unique moment in the life of a state’,1 a statement that echoes Ackerman’s theory of higher law-making constitutional moments, where once-idle citizens come forward to stitch together a new piece of the constitutional settlement.2 And yet written constitutions contain many mundane items that could be easily and practically changed, outside of the trappings of such constitutional ‘moments’. However, once inscribed into a written constitution, these elements become the products of potential ‘dead hand’ controls, frustrating the will of the people and at times testing the limits of constitutional democracy. One of the few things that constitutional scholars agree on is that some type of constitutional change is essential for democracies: ‘timely reform (reform that’s not too late) and the capacity for timely reform are essential to constitutional survival’.3 Or, as Levinson eloquently puts it, ‘[a]n ever-changing (and presumably progressing) society should with some frequency check its wardrobe and cast out that which no longer fits’.4 While these statements sound relatively uncontroversial, they are about as far as the agreement goes. The idea of constitutional entrenchment and how difficult it should be to produce constitutional change deeply divides scholars. Additionally, the idea that citizens should be able to ‘cast out’ constitutional provisions that no longer ‘fit’ sounds attractive, but in reality it is much more difficult than merely updating one’s wardrobe. The reasons for this are numerous, but a major one is ‘unamendability’. Many constitutions now contain eternity clauses or unamendable provisions that are explicitly labelled as such or are pronounced so by the

1 R Albert & BE Oder, ‘The Forms of Unamendability’ in R Albert & BE Oder (eds), An Unamendable Constitution? Unamendability in Constitutional Democracies (2018), p 2. 2 B Ackerman, We the People, Volume 1: Foundations (1993). 3 S Barber, Constitutional Failure (2014), p 8. 4 S Levinson, Constitutional Faith (1988), p 9.

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courts, making any type of change in relation to these factors virtually impossible, except by constitutional replacement or revolution.5 Some scholars have even chosen to classify these unamendable provisions as ‘the ultimate expression of democracy’,6 as opposed to a technical and dysfunctional undemocratic restraint. Thus, unamendability for major constitutional commitments—even though it provides a form of ‘constitutional handcuffs’7—is becoming increasingly common. But lately the idealistic vision of constitutional amendment has encountered difficulty from both extremes. Some written constitutions seem virtually impossible to amend: the US Constitution’s high thresholds in many ways deem the US a ‘frozen’ republic,8 and the Canadian Constitution is said to be at a standstill9 and potentially even harder to amend than the American Constitution.10 Beyond these cases of frustrated formal amendment, however, the opposite is true for many jurisdictions: constitutional amendment nowadays is subject to what many categorise as ‘abusive constitutionalism’, where political actors ‘abuse the constitution with recourse to the constitution’s own formal amendment rules’.11 Indeed, it seems to have become widely accepted that ‘authoritarian regimes deploy the trappings of written constitutionalism to their own ends’.12 While a sizeable middle ground regarding healthier constitutional amendment does exist, there is little doubt that some constitutions are frozen in time, while others are readily abused by leaders to further their own ends. If any constitution was at risk of abuse, it would be the UK constitution, which remains one of the most easily amendable constitutions in the world.13 But some have argued that the UK constitution has endured ‘because of its

Y Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (2017), p 21. A recent survey found that for the third wave of constitutionalism (1989–2015), over 50% of new written constitutions contained such provisions. 6 Y Roznai, ‘Necrocracy or Democracy? Assessing Objections to Constitutional Unamendability’ in Albert & Oder (eds), n 1 above, p 54. Emphasis in original. 7 R Albert, ‘Constitutional Handcuffs’ (2010) 42 Arizona State Law Journal 663. 8 D Lazare, The Frozen Republic: How the US Constitution is Paralyzing Democracy (1996). 9 T Kahana, ‘Canada’ in D Oliver and C Fusaro (eds), How Constitutions Change: A Comparative Study (2013), p 39. 10 R Albert, ‘The Difficulty of Constitutional Amendment in Canada’ (2015) 53(1) Alberta Law Review 85, 86. 11 Albert & Oder, n 1 above, p 2. 12 T Ginsburg & AZ Huq, How to Save a Constitutional Democracy (2018), p 23. 13 R Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (2019), p 99. 5

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capacity for change’:14 the current unwritten constitution is ‘evolutionary and flexible in nature, more easily enabling practical problems to be resolved as they arise and individual reforms made’.15 Especially when it comes to conventions, which the UK constitution heavily relies on, sacrificing flexibility for rigidity would be ‘unwise’.16 Over the past century, and especially in the past couple of decades, the UK has undergone a significant amount of constitutional change.17 Membership of the Council of Europe and the European Union (including the UK’s recent exit of the EU), enactment of the Human Rights Act 1998, devolution for Scotland, Wales and Northern Ireland, in addition to the establishment of a new Supreme Court, have all arisen over the past few decades. These examples demonstrate the vitality and dynamic nature of constitutional change in Britain. Establishing a written document would certainly alter this, making future changes inherently more difficult, because it could ‘only be changed by special procedures’.18 Yet some are concerned that the UK constitution is too easily changed, and the processes that produce such change have become flawed.19 Indeed, constitutional change in the UK can occur sometimes in haphazard and unremarkable fashion. In a 2011 report, the Lords Constitution Committee noted many flaws with the current system, including a lack of formalised processes and insufficient scrutiny.20 The same Committee noted similar difficulties in a 2009 report about fast-track legislation.21 In addition to other problems, these are serious concerns that should be addressed, but whether they are serious enough to sacrifice flexibility for rigidity has not yet been fully debated. This chapter first examines how constitutional idolatry impacts constitutional change. It then explores how the United States’ super-entrenched Constitution has produced a form of constitutional disillusionment with

14 P Norton, ‘Introduction: A Century of Change’ in Norton (ed), A Century of Constitutional Reform (2011), p 2. My emphasis. 15 Political and Constitutional Reform Committee, ‘A New Magna Carta’ (10 July 2014), HC 463, p 24. 16 R Brazier, Constitutional Reform: Reshaping the British Political System (3rd edn) (2008), p 164. 17 Norton, n 14 above. 18 FF Ridley, ‘There is no British Constitution: A Dangerous Case of the Emperor’s Clothes’ (1988) 41(3) Parliamentary Affairs 340, 343. 19 Brazier, n 16 above, p 8. R Blackburn, ‘Enacting a Written Constitution for the United Kingdom’ (2015) 36(1) Statute Law Review 1, 5; see also Andrew Blick, Beyond Magna Carta: A Constitution for the United Kingdom (2015), p 4. 20 Lords Constitution Committee, ‘The Process of Constitutional Change’ (18 July 2011), HL Paper 177. 21 Lords Constitution Committee, ‘Fast-track Legislation: Constitutional Implications and Safeguards’ (7 July 2009), HL Paper 116.

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the written Constitution itself, and also with the Supreme Court. Finally, the chapter analyses how the unwritten UK constitution primarily relies on constitutional maintenance, rather than constitutional moments, as regards constitutional change.

8.1

HOW CONSTITUTIONAL IDOLATRY IMPACTS CONSTITUTIONAL CHANGE

A relatively significant literature now exists on comparative constitutional amendment procedures,22 and although much of it does an adequate job of explaining the difficulties from a procedural, rule-based perspective, most of it gives short shrift to the intrinsic value of written constitutions as an impediment to amendment.23 As this book highlights throughout, contemporary societies often covet such documents, viewing them as prominent state symbols and beacons of national pride. Therefore, another hurdle to the amendment of constitutions operates at a cognitive level, represented in the connection citizens have with the written constitution itself, as opposed to ordinary statutes. Statutes are usually attached to the ordinary business of politics and law-making, while constitutions are often viscerally connected to their authors or enactors (sometimes public demigods), larger national identities, and, commonly, supreme or constitutional courts. Modifying constitutions may affect the ‘sacrality’ of the founding judgment,24 and could be akin to altering the national identity: past, present and future. The combination of these factors means that long-standing constitutions serving considerably symbolic functions could be considerably difficult to amend. Given that written constitutions may come about after revolution, civil war or other types of major constitutional change, they are often attached to influential individuals that carry significant historical or cultural importance. For example, James Madison is linked with America’s 1789 Constitution, given the intricate role he played during its writing and passage; the same can be said of Charles de Gaulle in relation to France’s 1958 Constitution; and Nelson Mandela in relation to South Africa’s 1997 Constitution. Amending or replacing these constitutions in some sense repudiates the authors or founders

22 For a general review of the literature, see Albert, n 13 above; R Dixon, ‘Constitutional Amendment Rules: A Comparative Perspective’ in T Ginsburg & R Dixon (eds), Comparative Constitutional Law (2011), pp 96–111. 23 Dixon, ibid, p 107 (‘[t]he more the population is attached to or identifies with the constitution, the greater the burden of persuasion facing those attempting to achieve change via constitutional amendment’); Albert, n 13 above, takes the idea of veneration much more serious than most others, but still only gives it a few pages: pp 162–164. 24 Albert & Oder, n 1 above, p 7.

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of the particular constitution in question, something that many citizens may not be ready for or may prefer not to do. In some cases it is impossible not to think of the written constitution without thinking of particular founders. Praise for these individuals can often morph into ‘ancestor worship’,25 a source of idolatry that may also lead to decreased constitutional change. Indeed, those campaigning against constitutional change can often champion these founders in their attempt to preserve the status quo, which means that those on the other side have an uphill battle. Such historical figures loom large over the constitutional amendment process, even if they argued during their lifetime that every generation should be able to draft or amend the constitution as they see fit.26 After all, how do we repudiate the wisdom of Madison, Jefferson or Washington? How do we go beyond the resilience and optimism of Mandela? And perhaps more importantly, how does a current people repudiate the aspiration and optimism of a previous generation, especially a founding one? This psychological barrier may indeed loom larger than any practical barrier found in a constitutional text. A recent experiment by two political scientists provides evidence that constitutional veneration likely impedes constitutional change. Zink and Dawes found that the ‘constitutional status quo bias’ inhibits citizens from accepting constitutional amendment proposals.27 Their experiment took into consideration the political and policy preferences of the participants, and ruled out these factors as possible explanations, finding that: ‘in addition to the reasons individuals resist change in general, there is something about constitutions per se that biases individuals against proposals that would result in constitutional change’.28 Examining this at both the federal and state level, the effect was more pronounced at the federal level, suggesting that it was the US Constitution in particular that may be producing such effects. Zink and Dawes’ article contains important scientific evidence regarding the phenomenon, and

See, e.g., P Brest, ‘The Misconceived Quest for Original Understanding’ (1980) 60 Boston University Law Review 204; B Ackerman, We the People, Volume 3: The Civil Rights Revolution (2014), p 340. 26 Perhaps the best example of this is Thomas Jefferson. While Jefferson argued that written constitutions should be replaced every 19 years, he is probably most famous for being a founding father of the American Constitution. Thus, Jefferson as an author and founder of the American Constitution carries more weight than Jefferson as a constitutional reformer. 27 JR Zink & CT Dawes, ‘The Dead Hand of the Past? Toward an Understanding of “Constitutional Veneration”’ (2016) 38 Political Behavior 535. 28 Ibid, p 537. 25

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backs up assertions that scholars have made regarding veneration for years: that a significant cognitive component is involved in constitutional change.29 The powerful connections to a collective founding, to a national identity, to historical figures of great importance, and to anniversaries designed to celebrate constitutional endurance can all combine to enhance the potential effects of constitutional idolatry, and stifle constitutional change.

8.2

ENTRENCHED CONSTITUTIONAL DISILLUSIONMENT?

Of late, adjudicated constitutionalism’s increasingly isolated high-mindedness, its overwrought identitarianism, and its distorted sense of American exceptionalism, have conspired to make our Constitution look just a tad trashy.30

The US is currently entangled in a fascinating constitutional paradox: the formal procedures to amend the Constitution are so exceedingly high that virtually no change can take place; and yet, a 5–4 bare majority vote in the Supreme Court can easily produce significant constitutional change. This ongoing situation has led to a particular type of constitutional disillusionment within the US, as under Article V procedures the people themselves have been virtually excluded from bringing about constitutional change, while bare majorities within the Supreme Court can sometimes radically restructure various areas of constitutional law. Thus, the Constitution that first articulated ‘We the People’ now solely relies on judges to produce any meaningful constitutional change. Bruce Ackerman once said, ‘a funny thing happened to Americans on the way to the twenty-first century. We have lost our ability to write down our new constitutional commitments in the old-fashioned way. This is no small problem for a country that imagines itself living under a written Constitution’.31 Of course, this statement—especially as regards the ‘ability’ to write down new commitments—is relative. Twenty-seven amendments over 230 years is not constitutional maintenance; it is minimalist constitutional upkeep. Constitutional life support is perhaps a more apt description. In total, there have been over 11,000 attempts to amend the US Constitution, and since

29 S Levinson, ‘“Veneration” and Constitutional Change: James Madison Confronts the Possibility of Constitutional Amendment’ (1990) 21 Texas Tech Law Review 2443. 30 R West, ‘Ennobling Politics’ in HJ Powell & JB White (eds), Law and Democracy in the Empire of Force (2009), p 86. 31 See B Ackerman, ‘The Living Constitution’ (2007) 120 Harvard Law Review 1737, 1741.

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1792 only 17 amendments have passed (and not all have survived).32 The idea that entrenchment or super-entrenchment works, and that cutting off any constitutional change via ordinary politics remains an overall good for states, only fuels ‘tidal-wave’ constitutionalism—when citizens become so frustrated with the status quo that they must resort to forms of higher law-making. Especially in highly polarised times, super-entrenchment and the severe lack of constitutional change mechanisms available—besides for change via the Supreme Court—lead to a type of constitutional disillusionment. Indeed, such disenchantment seems highly noticeable in current constitutional discourse, especially among constitutional scholars. The disillusionment is present at multiple levels, but I will concentrate on two in particular here. On one level, it is present as regards frustration with the 1789 Constitution itself and the formal amendment procedures; on another, there is significant disillusionment with the ease by which the Supreme Court can enact constitutional change. First I will examine the disillusionment regarding the Constitution itself, and then I will look at the Court. 8.2.1

Disillusionment with the Constitution

The awful truth, unarticulated by any major American political figure today, is that much of the fault for our present discontent lies in the U.S. Constitution, a distinctly eighteenth century document that inflicts significant damage upon our twenty-first century reality.33

In his 1988 book, Constitutional Faith, Sanford Levinson decided that, on the bicentennial anniversary of the original US Constitution, he would have signed the original document, even given all its faults. He describes being convinced by Frederick Douglass, the abolitionist, that even acknowledging its deficiencies, the Constitution at its core was deeply anti-slavery. Almost two decades later, in Our Undemocratic Constitution, Levinson repudiated signing the Constitution a second time, and strongly argued that the US needed to make some drastic constitutional changes.34 He did so because the inadequacies of the 1789 Constitution had become much more apparent to him, and that discussing this inadequacy was necessary, even essential. But Levinson is not 32 In fact, America’s amendment rate from 1789 to 1992 was 0.13, one of the lowest in the world (A Lorenz, ‘How to Measure Constitutional Rigidity: Four Concepts and Two Alternatives’ (2005) 17(3) Journal of Theoretical Politics 339, 360). 33 S Levinson, ‘What Should Citizens (As Participants in a Republican Form of Government) Know about the Constitution?’ (2009) 50 William & Mary Law Review 1239, 1253. 34 S Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (2006), p 5.

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the only scholar disillusioned with the status quo. In fact, a chorus of scholarly criticism has been addressed at the document. In a recent text championing statutory as opposed to Constitutional success, Eskridge and Ferejohn note that, ‘the Constitution of 1789 is too old to answer most of the looming social, political, and moral questions that Americans want answered, and there is no process for updating it that is both workable and legitimate’.35 This work follows that of eminent political scientist Robert Dahl, whose classic work, How Democratic is the American Constitution?,36 exposed significant flaws in the document and how it has evolved. Dahl begins the book with a bold-faced truth about the Founders and constitutional change, that they were ‘limited by their profound ignorance’,37 and goes on to warn more generally that the ‘Framers of 1787 appear to have limited today’s framers to a system that is neither consensual nor majoritarian but is a hybrid that possesses the vices of both and the virtues of neither’.38 Other prominent constitutional scholars have taken a harsher view of the written document. In On Constitutional Disobedience, Louis Michael Seidman suggests that the only way out of the current constitutional malaise is that Americans should disobey or even ignore the Constitution. Throughout his work, Seidman refers to the Constitution as ‘strange’,39 ‘deeply flawed’,40 ‘countermajoritarian’,41 ‘exceedingly cumbersome’,42 and ‘increasingly irrelevant to contemporary disputes’.43 He laments that the severe lack of constitutional change coupled with a worship of the Founders has led to a situation where instead of discussing what is best for the country at present, conversation often revolves around whether the Founders would have thought it appropriate. But, in Constitutional Failure, Sotirios Barber goes even further, arguing that the Constitution has failed because American government itself has failed.44 Barber refers to the Constitution as a ‘dead man walking’,45 declaring that, ‘Constitutional worship is the biggest obstacle to successful thought about the

35 WN Eskridge & J Ferejohn, A Republic of Statutes: The New American Constitution (2010), p 4. 36 RA Dahl, How Democratic is the American Constitution? (2002). 37 Ibid, p 7. 38 Ibid, p 149. 39 LM Seidman, On Constitutional Disobedience (2012), p 18. 40 Ibid, p 4. 41 Ibid, p 36. 42 Ibid, pp 12, 17. 43 Ibid, p 25. 44 Barber, n 3 above. 45 Ibid, p 113.

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Constitution’s problems’, and that it ‘forces people to falsify both moral and material reality’.46 Thus, a wide chorus of eminent US constitutional scholars have displayed not only dissatisfaction with the document, but even strong assertions of disillusionment. Below are two examples of how a lack of constitutional maintenance is hurting American democracy. 8.2.1.1 The Electoral College: far from ‘one person, one vote’ In the aftermath of Donald Trump’s 2016 election, the glaring constitutional defect of the Electoral College was on full display: an election system that allowed the loser of the national popular vote—by a margin of almost three million votes—to attain the presidency is certainly a questionable system. And yet, Trump’s victory was far from the first time this has happened. In 2000, George W. Bush lost the popular vote to Al Gore by almost 500,000 votes, but still attained the presidency because of an edge in the Electoral College. In 1824, John Quincy Adams became president after losing both the popular vote and the electoral vote to Andrew Jackson, who won both categories. But Jackson had not attained the necessary amount of Electoral College votes for an outright victory, and the House of Representatives eventually voted in Adams. In 1876, Rutherford B. Hayes lost the popular vote by 250,000, but won the Electoral College by one vote. In 1888, Benjamin Harrison received 233 electoral votes to Grover Cleveland’s 168, winning the presidency. But Harrison lost the popular vote by more than 90,000 votes. Far from being the epitome of ‘one person, one vote’, these discrepancies highlight significant inequalities in the method of presidential selection. Now, many are so frustrated with the current system and the lack of potential Article V change that they are attempting to undermine the Constitution via the states. A National Popular Vote (NPV) initiative among states has taken shape, which would award state electoral votes to the candidate who wins the popular vote.47 At the time of writing, 15 states and the District of Columbia have signed it, which equates to 196 electoral votes. The agreement comes into legal force when the total electoral votes of states signing on reaches 270. While there are arguments concerning its constitutionality, its very existence points to disillusionment with the current text, and even a significant attempt to undermine the current workings of the Constitution.

Ibid, p 117 (parenthetical text omitted from quote). Congressional Research Service, ‘The National Popular Vote (NPV) Initiative: Direct Election of the President by Interstate Compact’ (9 May 2019), https://​fas​.org/​ sgp/​crs/​misc/​R43823​.pdf. 46 47

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The lack of change regarding the Electoral College is interesting, considering the presidency has been the subject of numerous constitutional amendments: the 12th Amendment is about the election of the president; the 20th Amendment concerns presidential terms and possible vacancies; the 22nd Amendment details presidential tenure; the 23rd Amendment concerns presidential electors for the District of Columbia; and the 25th Amendment concerns presidential vacancy, disability and inability. Thus, for the limited number of formal amendments that the US Constitution contains, a significant amount of amendments have prescribed and clarified a number of issues regarding the roles and functions of the American presidency. And yet, the inequalities of the Electoral College remain. 8.2.1.2 The ‘advice and consent’ clause The Constitution says in Article II, s 2(2) that the President possesses the power to nominate judges to the Supreme Court with the ‘Advice and Consent’ of the Senate. The latter element of this provision has now evolved into Senate confirmation hearings for Supreme Court nominees. These confirmation hearings, once a relatively tame affair, have become quite the spectacle. Although they have been described by former Vice President Joe Biden as an exercise of ‘Kabuki theatre’,48 modern hearings consistently garner widespread media coverage across national and international news outlets. But what some may characterise as Kabuki theatre, others may see as the needless over-politicisation of the judiciary, which harms Supreme Court legitimacy and perhaps even the rule of law more generally. In fact, before she became a Supreme Court Justice, Elena Kagan described the situation as a ‘distinct and more troubling confirmation mess’ that often ‘takes on an air of vacuity and farce’.49 The hearings also provide a unique platform for perpetuating constitutional idolatry. For example, in his opening statement at the Senate hearing, Justice Kavanaugh said, ‘I have a long record of service to America, and to the Constitution. I revere the Constitution’.50 And Justice Sotomayor in her opening statement said that ‘it is our Constitution that makes’ the American dream possible, and that she looked forward to ‘being part of a process that reflects the greatness of our Constitution and of our nation’.51 These statements provide pleasing sound bites, but in fact they say little about the justice’s E Chemerinsky, The Case Against the Supreme Court (2014), p 303. E Kagan, ‘Confirmation Messes, Old and New’ (1995) 62(2) University of Chicago Law Review 919, 920. 50 ‘Brett Kavanaugh’s Opening Statement: Full Transcript’ (26 September 2018) New York Times, https://​nyti​.ms/​2NItSCM. My emphasis. 51 ‘Opening Statement: Judge Sonia Sotomayor’ (13 July 2009) NPR, https://​www​ .npr​.org/​templates/​story/​story​.php​?storyId​=​106551585. 48 49

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approach towards constitutional interpretation. Indeed, the hearings provide little space for critical discussion on the operation of the Constitution itself, given that nominees nowadays refuse to engage with constitutional questions that may come before the Court. Thus, if the most important constitutional players in the US process are not required to provide thoughtful answers to some of the most pressing and important constitutional issues, then continuing with the hearings is a colossal waste of time and resources, not to mention a mounting threat to the legitimacy of the Supreme Court. But the ‘advice and consent’ provision has been problematic for different reasons. While it says that the President has the power to appoint Supreme Court justices, it does not specify much beyond that. After Justice Antonin Scalia’s death in 2016, then-President Barack Obama nominated Justice Merrick Garland to replace him. At the time, Republicans had control of the Senate (54/100), which means they also controlled the Senate Judiciary Committee, the body that would initiate hearings on Garland’s nomination. But while the Constitution says that the President has the power to appoint members of the Supreme Court, it does not say when or if the Senate must hold hearings on any given candidate. Even though President Obama still had 11 months left of his second term, Republicans refused to let him use his appointment powers under the Constitution by not even holding hearings on his nominee. Thus, Senate Republicans did not just reject the nominee after undertaking their duties to provide ‘advice and consent’; they declined to engage in ‘advice and consent’ at all, therefore refusing to follow the constitutional text. This situation may have established a convention that a President cannot appoint Supreme Court justices during their final year in office, but it also provides further evidence of constitutional disillusionment, as major constitutional actors refuse to abide by their constitutional duties. 8.2.2

Disillusionment with the Supreme Court

The second element of disillusionment is with the Supreme Court, the self-proclaimed ‘ultimate interpreter’ or guardian of the Constitution. Although disillusionment with the Constitution and with the Supreme Court may go hand in hand, there also seems to be a distinct element of disillusionment with the Court itself, and how the justices have been interpreting (and amending) the Constitution. Although strong objections to judicial review and the Court’s power in the constitutional framework can be traced back to Thayer in the late

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nineteenth century,52 and then Bickel in the middle of the twentieth century,53 the current discontent goes well beyond these prominent accounts. Contemporary scholars—indeed, some of the most experienced and highly regarded constitutional lawyers in the United States—now openly attack the Court’s legitimacy and democratic credentials. Just before the turn of the century, Tushnet directly challenged the Court’s authority in Taking the Constitution Away from the Courts, where he argued that the United States should revert to a form of ‘populist constitutional[ism]’, where not the Supreme Court, but ‘the public generally should participate in shaping constitutional law more directly and openly’.54 Erwin Chemerinsky recently took this argument further in The Case Against the Supreme Court,55 admonishing the Court’s record and declaring that it has ‘frequently failed, throughout American history, at its most important tasks, at its most important moments’.56 Others have said that, ‘the Court does not have the legitimacy, the wisdom and expertise, or the enforcement resources to generate important changes in the Constitution’.57 Recently, in Unfit for Democracy,58 Stephen Gottlieb argues that the Roberts Court does not regard protections in the Bill of Rights as important, has little regard for the notion of popular control of government, and has essentially turned off the great ‘melting pot’.59 Such analysis provides mounting evidence of disillusionment with the Court within the academic community. Some of this disillusionment flows from the power of the Court, its methods of interpretation, and generally how well it is performing its job. But the disillusionment goes well beyond the law review audience. 8.2.2.1 An out-of-touch Court? Signs of disillusionment with the Court do not just come from legal academia. Both the political left and the right have been frustrated with the Court in recent years. Perhaps the pinnacle of frustration came after the Citizens

52 JB Thayer, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard Law Review 129. 53 AM Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn) (1986). 54 M Tushnet, Taking the Constitution Away From the Courts (1999), p 194. 55 Chemerinsky, n 48 above. 56 Ibid, p 5. 57 Eskridge & Ferejohn, n 35 above, p 4. 58 SE Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics (2016). 59 Ibid, pp 189–205; See also, A Cohen, Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More Unjust America (2020).

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United judgment,60 which allowed for the expansion of special interest money in general elections, as noted in Chapter 4. Over eight years after the decision, a wide majority of citizens (close to three-quarters) want the case overturned by constitutional amendment, something that probably will not happen given Article V’s burdensome requirements.61 But wider evidence of disillusionment can be seen. Journalists have changed the way that they cover the Court in recent years, taking a less deferential approach to the institution.62 This less deferential approach has filtered into other areas, such as late-night comedy shows now mocking the Court’s oral arguments.63 And while all this is happening, the Court itself has been unable to make sufficient institutional changes in terms of its transparency and overall operations. There remain no cameras in the courtroom, so citizens cannot witness the Court in action; no notifications as to when particular judgments will be given; and no simplified press releases that explain the judgments to lay individuals and journalists in an easy-to-read manner.64 All this makes the institution very difficult for ordinary citizens to connect with, and puts a significant slice of constitutional law out of touch of the general public. 8.2.3

What the US Constitution Failed to Include

Disillusionment over the state of the US Constitution has also raised awareness on what has been left out of the document. The drafting of written constitutions and bills of rights has moved on significantly since the eighteenth century, and the US Constitution and Bill of Rights are no longer leading texts for equivalent documents written today.65 Essentials such as a right to life and the right to privacy would likely be included if a new American Bill of Rights were penned today. Perhaps even some element of human dignity would make it in. Or, better yet, a provision on the manner in which the Constitution should be interpreted could help, including how much weight should be given to the views of Founders or other important historical persons. Without these Citizens United v Federal Election Commission, 558 U.S. 310 (2010). S Kull, ‘Americans Evaluate Campaign Finance Reform’ (May 2018) Program for Public Consultation, http://​www​.publicconsultation​.org/​wp​-content/​uploads/​2018/​ 05/​Campaign​_Finance​_Report​.pdf. 62 R Davis (ed), ‘The Symbiotic Relationship Between the U.S. Supreme Court and the Press’ in R Davis, Covering the United States Supreme Court in the Digital Age (2014), pp 4–5. 63 BC Jones, ‘Disparaging the Supreme Court, Part II’ (2016) Wisconsin Law Review 239, 246–250. 64 Ibid, pp 255–260. 65 B Ackerman, ‘The Rise of World Constitutionalism’ (1997) 83 Virginia Law Review 771, 773. 60 61

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features, citizens remain vulnerable to confusion on whether they are indeed part of the Constitution, or merely quasi-judicial inventions that are subject to amendment as the composition of the Supreme Court changes. The implications for these failings may be significant in the grand scheme of American democracy. Would a ‘right to life’ have compelled Congress or others to do anything more than they have done to reduce mass shootings, or provide more affordable standards and options for health care, or have potentially dissuaded trigger-happy cops from shooting unarmed victims? Would a modern provision in relation to privacy have prevented the widespread privacy abuses revealed by Edward Snowden in 2013, and taken into consideration not only aspects of physical privacy but our increasingly important digital privacy? Would insertion of something akin to ‘human dignity’ have prevented governments from implementing policies such as ‘separate but equal’, indiscriminately interning American citizens, or delivering judgments such as Dred Scott,66 Plessy v Ferguson67 and Korematsu v United States,68 all of which remain significant black marks on the Court? Of course, it is impossible to answer these questions. The only thing that we know for sure is that there are many aspects of contemporary life that the US Constitution does not address, and that any type of practical constitutional maintenance at the moment remains completely off the table.

8.3

EMPHASISING CONSTITUTIONAL MAINTENANCE, NOT CONSTITUTIONAL MOMENTS

Constitutional scholars have routinely identified the UK’s constitution as one of the easiest in the world to change.69 That being said, the UK constitution also contains some features that many contemporary constitutionalists would consider antiquated or outdated. This presents something of a paradox, as the constitution is both easily amendable, but retains some dated features. The reason for this paradox is that the UK constitution frequently undergoes incremental changes that align with a form of constitutional maintenance, as opposed to constitutional moments. Although the 1688 revolution settlement established the basics of the current UK constitutional settlement, it would be difficult to find a mechanism within that structure that has not undergone some type of change over the centuries. And while there have been ‘key moments’

68 69 66 67

Dred Scot v Sandford, 60 U.S. 393 (1857). Plessy v Ferguson, 163 U.S. 537 (1896). Korematsu v United States, 323 U.S. 214 (1944). Lorenz, n 32 above, p 359.

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in the UK’s constitutional history,70 there have not been a plethora of what Ackerman would describe as ‘constitutional moments’ since the revolution (perhaps the Representation of the People Acts or devolution). In fact, the UK constitution has changed more because of responses to events71 than because of any higher-level constitutional law-making. As Brazier notes, the constitution is a ‘triumph of gradualism’.72 That is not to say that many of the changes were not difficult or controversial; they certainly were. But they were gradual and steady, rather than tidal-wave constitutional ‘moments’. The former type of change is key to the UK constitution’s operation, as even though it may be easy to change from a comparative perspective, it is the commitment to constitutional maintenance—and not constitutional moments—that has kept the core of the revolution settlement, and the wider UK constitution, intact. Below, I offer a few examples of how constitutional maintenance via Parliament has amended constitutional statutes and major constitutional principles, and has also been used to update important matters such as the date of parliamentary sessions and the roles of constitutional actors, such as the Lord Chancellor. The idea of constitutional maintenance also strongly challenges the conception of constitutional idolatry, as it stresses that no part of a constitution is too delicate, too special or too integral to the constitutional system, to be changed. 8.3.1

Amending Major Constitutional Statutes

The idea of constitutional statutes is relatively new to the UK, but it has gained some traction. Lord Justice Laws famously identified a number of UK constitutional statutes in a 2002 judgment, Thoburn, which included: Magna Carta, Bill of Rights 1689, Acts of Union, Human Rights Act 1998, and Scotland Act 1998, among others.73 And yet, many of these vastly important laws have undergone significant maintenance throughout the years. Almost nothing of Magna Carta remains in force,74 and no contemporary British judge would actually enforce the charter in litigation.75 The Bill of Rights 1689 has been amended on numerous occasions, and some of the more general statements, such as regarding Subjects’ Arms, has been significantly curtailed by modern

70 E Wicks, The Evolution of a Constitution: Eight Key Moments in British Constitutional History (2006). 71 Brazier, n 16 above , p 9. 72 Ibid, p 14. 73 Thoburn v Sunderland City Council [2002] EWHC 195 (Admin). 74 Wicks, n 70 above, pp 5–6. 75 J Rozenberg, ‘Magna Carta in the modern age’ British Library (13 March 2015), https://​www​.bl​.uk/​magna​-carta/​articles/​magna​-carta​-in​-the​-modern​-age.

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legislation.76 Indeed, the Succession to the Crown Act 2013 amended the Bill of Rights 1689, the Acts of Union, and the Act of Settlement, which is no small feat. Other modern constitutional statutes, such as the Scotland Act 1998, have been consistently amended, often taking into consideration political circumstances, such as referendums.77 Of course, more examples could be proffered, but the main question is: would this type of active constitutional maintenance, where major constitutional statutes are amended as necessary, be as efficient or effective under a single written constitution? Such adaptability seems very difficult to imagine under an entrenched codified document. 8.3.2

Amending Major Constitutional Principles

The idea that major constitutional principles are unamendable has been incorporated into a number of constitutional frameworks, sometimes under the guise of ‘eternity clauses’.78 When it comes to the UK constitution, two principles that would potentially fall into this category and that have stood out since the 1688 revolution are the rule of law and parliamentary sovereignty. After the Glorious Revolution, parliamentary sovereignty became the underlying principle of the UK constitution, with Parliament as the highest legal authority. This principle has endured, and was reinforced by the UK Supreme Court in Miller I79 and Miller II.80 And yet parliamentary sovereignty has not remained unamendable. The fact that the UK joined the European Community (EC), which evolved into the European Union (EU), for almost half a century demonstrates that even this principle has remained adaptable and subject to significant amendment. After all, by the time the UK joined the EC, the European Court of Justice (CJEU) had already declared that EU law, not national law, was supreme.81 But joining the EU was not the only controversy the principle has encountered. The series of Factortame cases in the 1990s,82 which again demonstrated that parliamen76 If there was any doubt, following the Dunblane massacre in 1996, the Firearms (Amendment) Act 1997 and the Firearms (Amendment) (No 2) Act 1997 were enacted, which drastically curtailed UK citizens’ rights to own firearms. 77 The Scotland Act 1998 has been amended primarily by the Scotland Act 2012 and the Scotland Act 2016. 78 Albert, n 7 above, pp 665–667. 79 R (Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5. 80 R (Miller) v The Prime Minister [2019] UKSC 41. 81 Costa (Falminio) v ENEL (Case 6/64) [1964] ECR 585; Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. 82 R v Secretary of State for Transport, ex parte Factortame Ltd and others (No 1) [1990] 1 AC 85; R v Secretary of State for Transport, ex parte Factortame Ltd (No 5) [2000] 1 AC 524.

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tary sovereignty had been altered, demonstrates an adaptable constitution that could handle such events. Post-Factortame, the consensus among constitutional scholars was that parliamentary sovereignty was still the underlying UK constitutional principle, because the validity of EU legislation was contingent on the European Community Act 1972, and that Parliament could always repeal this if it so wished. But even after these significant amendments, another example of the underlying constitutional principle being flexibly amended can be offered: the enactment of the Human Rights Act 1998. This statute allows particular UK courts to declare even primary legislation incompatible with the European Convention on Human Rights (ECHR), a power that the judiciary never previously possessed.83 But in allowing this, the statute also upholds parliamentary sovereignty, as a declaration by the courts is not a nullification; the statute remains in force unless and until Parliament decides to change it. Usually Parliament does amend legislation that has been declared incompatible, but the underlying point is that it does not have to, and the courts cannot invalidate primary legislation on their own. Thus, a major constitutional principle was again amended, which may not have been possible if a written constitution with ‘special’ amendment procedures was in place. The operation of the rule of law has also undergone significant change. Initially concerned with whether the government was abiding by law, the idea of rule of law has grown significantly in the British context over the past few decades.84 Major procedural changes in 1976 enhanced access to judicial review in England and Wales, and similar changes were performed in Scotland in 1985. Additionally, the creation of a special Administrative Court in 2000 to hear the majority of administrative cases is another element that may not have been possible with a written constitution in force, or at least would have been much more difficult to accomplish. The same concerns the passage of the Tribunals, Courts and Enforcement Act 2007, which set up a new system of tribunals throughout the UK. In a string of major cases, the rule of law has been repeatedly mentioned in judgments as one of the most important elements of the UK constitution: UNISON,85 Evans,86 Jackson,87 and others. Additionally, the Constitutional Reform Act 2005 inserted the ‘rule of law’ and ‘judicial

Human Rights Act 1998, s 4. See, e.g., BC Jones, ‘The Rule of Law in UK public law textbooks: from critique to acceptance? (2018) Public Law 594. 85 R (UNISON) v Lord Chancellor [2017] UKSC 51. 86 R (Evans) and another v Attorney General [2015] UKSC 21. 87 R (Jackson) v Attorney General [2005] UKHL 56. 83 84

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independence’ into statute,88 which many perceived as bolstering both of these constitutional principles. Thus, similar to parliamentary sovereignty, the principle of rule of law and its connection to how justice is administered throughout the UK has been significantly altered in recent decades, and has largely been shaped through constitutional maintenance. 8.3.3

Altering the Length of Parliamentary Sessions

The length of parliamentary sessions is another item that may be considered untouchable in various written constitutions, as it concerns some essential democratic features: the interval between elections, the passage of new legislation, and the public scrutiny of government by the nation’s elected representatives, among other things. In fact, the length of time that a Parliament sits has been a major issue since before the 1688 revolution, as some Parliaments sat for extended periods, while others only sat for a few weeks.89 This was a problem. After the Glorious Revolution, the Bill of Rights 1689 stated that Parliament would sit ‘regularly’, but did not specify when or for how long. This issue was initially solved by the Triennial Act 1694, which mandated that Parliament sit for a maximum of three years. This changed when the Septennial Act 1716 was enacted, which upped this maximum from three years to seven years. The 1716 Act stayed in force until the early twentieth century, when the Parliament Act 1911 reduced this number to five years. This is where it has stayed ever since, and the Fixed-term Parliaments Act 2011 reinforced this five-year limit. The 2011 Act also took out of the hands the Prime Minister’s sole power to call an election, and placed this power in Parliament: only a vote by two-thirds of MPs, or the loss of a confidence vote in Parliament, can now trigger an early election.90 The importance of these limits cannot be overstated as they connect to the most important function that the people still hold (voting in elections) and to extremely important state outputs (new legislation and scrutiny of government). Nevertheless, the above also demonstrates that these major constitutional elements can and often do get amended, sometimes significantly.

Part I explicitly mentions the ‘existing constitutional principle of the rule of law’, and Part II, Sections 3 and 4 mention judicial independence. 89 For example, the Short Parliament only sat for three weeks: 13 April to 5 May 1640. 90 Fixed-term Parliaments Act 2011, s 2. Although, as the 12 December 2019 election demonstrates, early elections can also come about from passing new primary legislation. 88

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Updating the Historical Constitution: The Constitutional Reform Act 2005

At the beginning of the twenty-first century, not many things in the UK constitution had been more entrenched than the roles of the Lord Chancellor and the Lords of Appeal in Ordinary (Law Lords). The role of the Lord Chancellor dates back over millennia, and the Law Lords as the UK’s highest court dates back to the 1800s: to the Appellate Jurisdictions Act 1876. Indeed, it is entirely possible that these elements would satisfy the characterisation of being a ‘core feature of the self-identity of the state’,91 and perhaps therefore qualify as being ‘unamendable’ under certain constitutions. But the Constitutional Reform Act 2005 addressed both of these historical constitutional structures, and without any hint of a major constitutional moment. In fact, the law’s origins transpired in perhaps the opposite way to how a traditional constitutional moment would happen: the reforms largely came about from a press release, in which senior members of the judiciary were taken by surprise, as they were not consulted.92 Although it was described by one major newspaper as ‘sweep[ing] aside 1400 years of history’,93 the announcement started a dialogue about these historical roles and structures that culminated in the 2005 Act. Under this law the Lord Chancellor’s roles changed from spanning all three branches to being brought under one single branch (the executive, as a Cabinet member). Tony Blair initially tried to eliminate the historic role, but after some pushback it was ultimately kept. Nevertheless, the law did much more than circumscribe the Lord Chancellor’s power: it removed the Law Lords from the House of Lords, and established a new United Kingdom Supreme Court. Thus, even though the Law Lords had been established for over a century, and their judgments were cited throughout the world, the UK’s top court was changed in one fell swoop. The Act also attempted to remedy the perceived lack of separation of powers in the UK constitution, as the court was moved into its own building on Parliament Square, and was thus institutionally separate from the Westminster Parliament. This, again, was a significant constitutional change, as it altered the structure and function of the UK’s highest court. And this was all done through an ordinary statute, which would have been impossible in most other jurisdictions. Another significant development brought on by the Act was the establishment of the Judicial Appointments Commission (JAC).

Albert & Oder, n 1 above, p 7. Brazier, n 16 above, p 38. 93 P Wintour and C Dyer, ‘Blair’s Reforming Reshuffle’ The Guardian (13 June 2003), https://​www​.theguardian​.com/​society/​2003/​jun/​13/​publicservices​.constitution. 91 92

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8.3.4.1 Judicial appointments and judicial independence In addition to the Lord Chancellor’s numerous constitutional roles being curtailed, so too was the power of the Lord Chancellor to choose judges. While previously judicial appointment relied on secrecy, informality and the discretion of the Lord Chancellor,94 a new body was established to oversee the appointment of judges: the Judicial Appointments Commission (JAC). Now, all judicial vacancies are publicly advertised and general calls for applications are open and accessible through the JAC website. The Act did not completely eliminate the role of the Lord Chancellor in choosing judges, as he or she is still given a veto option, but it did eliminate the idea that judges could be handpicked by the Lord Chancellor (via the Prime Minister) without going through any formal process. The same is true for the appointment of UK Supreme Court justices, whose job adverts can be viewed on the JAC website, but whose processes undergo slightly different procedures.95 This process differs markedly from the dramatised US-style judicial appointment that is explicitly political and contentious in nature. As described above, these battles can often turn fiercely and overtly partisan, which may have significant implications for judicial independence and could ultimately impact the legitimacy of particular judges, individual courts, or perhaps the rule of law. The Constitutional Reform Act 2005, although even insiders have noted that it is fairly complicated at heart, establishes a method of selection that is open and transparent, but largely removed from political infighting.96 8.3.5

Delayed Changes, Missed Opportunities and Botched Reforms?

Even though constitutional reform can be done comparatively easily in the UK, there remain a number of what some may consider antiquated constitutional features, such as: the monarchy, an unelected second-chamber, an outdated electoral system and a judiciary unable to strike down statutes. These have all come under heavy criticism at various times, but they remain in the UK’s constitutional framework. Acknowledging these dated features may be something that those measuring constitutional change difficulty should take into consideration in future studies, as it could actually be the case that changing the UK constitution is not as easy as it is made out to be in some major comparative studies. Nevertheless, some of these constitutional features

G Gee, R Hazell, K Malleson & P O’Brien, The Politics of Judicial Independence in the UK’s Changing Constitution (2015), pp 160–161. 95 UK Supreme Court, ‘Appointments of Justices’, https://​www​.supremecourt​.uk/​ about/​appointments​-of​-justices​.html. 96 Gee, Hazell, Malleson & O’Brien, n 94 above, p 190. 94

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represent delayed changes, missed opportunities and botched reforms, a few of which are explored below. The two big constitutional items that regularly get mentioned are reform of the House of Lords and altering the Westminster electoral system. Some may regard the Lords as both a missed opportunity and a botched reform. But some real reform has taken place. A large number of heredity peers were eliminated after passage of the House of Lords Act 1999, and after passage of a 2015 Act, peers can now be expelled and suspended from the chamber.97 Additionally, a new Lords Appointment Commission has been established, which recommends nominations for independent cross-benchers.98 Of course, the Lords has not completely done away with hereditary peers, and its overall numbers still fluctuate based on the number of government appointments. And indeed, it has not been replaced with something like an elected Senate; but there could be good reasons why more comprehensive reform has not yet taken place. Russell has found that, for all its faults, the Lords performs its role as a revising chamber quite well on the whole.99 Thus, while not democratically elected, and therefore recognising its lack of democratic legitimacy, the chamber still serves a useful constitutional function. Should that change in the future, the Lords will no doubt be reformed, or perhaps even abolished. The first past the post (FPTP) election system is another issue that could be classified as a missed opportunity. This is especially true considering that, post-devolution, the devolved states have all decided to use different election systems. Election to the Scottish Parliament, for instance, operates on a mixed system, with 73 MSPs chosen from constituencies and 56 being regional members, who are elected every four years. But opportunities to reform the Westminster system have arisen. In 2011, the Coalition Government held a referendum on reforming the system, but ultimately the vote garnered less than 50% turnout and a change to the alternative vote (AV) system was widely rejected. This may have softened, but it did not eliminate, calls to change the Westminster voting system. Just recently, former Supreme Court Justice Jonathan Sumption said that weaker and less stable governments under a proportional election system would be ‘a price worth paying if it boosted public engagement and enabled politics once more to accommodate differences of interest and opinion’.100 And if any future government wishes to make such a change (or perhaps put it to a public vote), then it will be considered again. House of Lords (Expulsion and Suspension) Act 2015. See House of Lords Appointment Commission, https://​ lordsappointments​ .independent​.gov​.uk/​. 99 M Russell, The Contemporary House of Lords: Westminster Bicameralism Revived (2013). 100 J Sumption, Trials of State: Law and the Decline of Politics (2019), p 112. 97 98

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Some consider devolution within the UK a delayed, botched and incomplete system of constitutional reform, not least because it has left England without any devolved system of government. Known as ‘a process not an event’,101 for many years the level of devolution was also disproportionate among the devolved states, as some possessed more powers than others. For example, the Welsh Assembly could initially only make secondary legislation, but after a referendum in 2011, this was expanded to include primary law-making powers. The Wales Act 2017 brought Wales more in line with the Scottish system, with a reserved powers model, but the Assembly still possesses fewer reserved powers than the Scottish Parliament. Additionally, the lack of an English legislature has produced a complicated English Votes for English Laws (EVEL) system at Westminster, where only MPs from English constituencies get to vote on major legislation concerning England; but this is hardly an ideal solution. The day may yet come when England gets its own legislature, either through a form of devolution or potentially with the break-up of the Union. Nevertheless, devolution within the UK has brought about significant constitutional changes, and it is likely to do so in the future. Brexit also brought forward myriad constitutional challenges, ranging from the appropriate use of referendums to the status of prerogative powers and the role of the monarch in the UK constitutional framework. David Cameron’s decision to hold an EU referendum, largely to take the item off the political agenda, ultimately backfired and resulted in a leave vote. Post-referendum, a variety of factors led to two further general elections within three years. Further, Boris Johnson’s prorogation of Parliament—which in practice suspended Parliament from sitting for a number of weeks and was ultimately ruled unlawful—caused an uproar, and the Queen was at times right in the middle of it: technically, the monarch has to approve any prorogation that takes place. Some had mistakenly believed that the Queen had a say on whether to prorogue, but in reality the Queen must take the advice of her ministers. Thus, good arguments could be made to further insulate the monarch from political matters, further codify elements of the prerogative, and establish better standards for holding national referendums. Some change here would not be unexpected, and may prove beneficial. Constitutional maintenance in the UK is not straightforward: reforms can go wrong, get delayed, or may never happen. Nevertheless, a commitment to constitutional maintenance at least provides the opportunity for reforms to take place, something that cannot be said in other jurisdictions.

Former Secretary of State for Wales, Ron Davies, said this in May 1999 (D Torrence, ‘“A process not an event”: Devolution in Wales, 1998–2018’ (2018) House of Commons Library Briefing Paper, No 08318, p 4). 101

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CONSTITUTIONAL IDOLATRY AND CONSTITUTIONAL CHANGE

Constitutional ‘moments’, as forms of higher law-making that operate beyond the realm of ordinary politics, are inescapably linked with constitutional idolatry. The idea that a moment should be something more than a necessary, ordinary and practical change in response to events; that a moment is something special, exceptional, even transformative in the life of a nation, is what sustains this connection to idolatry. This language, and more importantly this idea, has infested and dominated constitutional scholarship,102 perhaps to the point of no return. It has over-dramatised and needlessly immortalised what should be a routine and unsurprising feature of every state: constitutional upkeep. The more citizens disavow notions of constitutional idolatry and higher-level constitution making, the more they can actively maintain these human documents from irrelevance and antiquity, and ultimately retain ownership and authorship of the constitution going forward.

102 This is even true in the British context. See D Oliver, ‘Politics, Law and Constitutional Moments in the UK’ in D Feldman (ed), Law in Politics, Politics in Law (2013), pp 239–256; V Bogdanor, Beyond Brexit: Towards a British Constitution (2019), Ch 7.

9. Constitutional idolatry and democracy: a preliminary conclusion Never before have we known so much about the limits of written constitutions, and yet, never before have these documents been asked to accomplish so much. Along the way, some people have become increasingly convinced that constitutions can transform societies into the states that we desire, rather than looking to society, politics and culture as the predominant avenues of change and the places where we hold our most sacred values. This persistent over-selling of constitutional possibility has generated unrealistic expectations and false hopes, not only among the political and legal establishment and the general public, but also among constitutional scholars, who perpetuate such claims. And yet the trickle-down effects of these documents—and indeed, the effects of decisions from apex courts—are not nearly as significant as advocates imagine. As Robert Dahl has said, ‘no matter what a constitution prescribes on paper, it can only achieve a limited range of goals’.1 Indeed, Murphy notes that most constitutions quickly become ‘palimpsests’, as ‘the original words are soon overwritten by customs, usages, and interpretations’.2 And as Barber reminds us, ‘no constitution can work all the time’.3 Thus, recalculating our expectations of constitutional possibility is essential if we plan on taking the constitutional writing project forward. This book has brought forward many problematic connections between constitutional idolatry and democracy. Even widely praised or venerated constitutions provide little evidence that they better inform or educate the citizenry. In fact, as the analysis in Chapter 3 demonstrates, certain features may help facilitate idolatry yet conceal extremely significant elements, such as judicial power. And although written constitutions are often championed as the ultimate ‘We the People’ devices, in reality they lower the standing of the democratic vote, which remains the most significant power that the people hold. Thus, the idea that constitutions facilitate and uphold ‘We the People’ needs

RA Dahl, How Democratic is the American Constitution? (2002), p 142. WF Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (2007), p 15. 3 SA Barber, Constitutional Failure (2014), p 117 (‘In other words, the best constitution could only be the best feasible constitution under the circumstances’). 1 2

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reconsideration. An analysis in Chapter 5 of newly installed constitutions demonstrates that they do not appear to invigorate democracies or enhance ‘active’ citizenship through the ballot box. There are also major questions as to what a ‘good’ constitution is, and whether having specific elements, such as a bill of rights or ‘clever’ constitutional drafters, leads to better democratic outcomes or state success. Further, the ultimate protection or ‘guardianship’ of these documents is frequently co-opted by apex courts, which use factional paternalistic language to expand their constitutional remit. This overly paternalistic approach to the constitution could dissuade citizens and others from participating in the constitutional project. And finally, written constitutions can often distort the significance of constitutional change and how it should be made, putting less emphasis on regular constitutional maintenance, and more emphasis on special and exceptional constitutional moments. As calls in the UK for such a written document increase, the arguments for and against primarily focus on ‘flexibility vs rigidity’ or ‘transparency vs opacity’.4 While these are important considerations, in reality the debate goes much deeper than this. Full scrutiny of the potential limits and downsides of these texts must be taken into consideration. This remains especially true in light of Brexit, where increased pressure on the unwritten UK constitution led some to consider a written document as a remedy for things such as: clarity on the UK’s constitutional arrangements, a bulwark against questionable moves by the executive, or a grand bargain that could save the breakup of the Union. And yet, in the turmoil that Brexit brought forth, the most common objection nowadays to the possibility of a written constitution is practical: that it would be highly improbable, given the wide disparity of views on many significant matters (e.g., the monarchy, Lords reform, the Westminster voting system, devolution, etc.).5 But ample room exists for a more principled objection: that it would just be unwise, not least because of the reasons accentuated throughout this book.

4 See, e.g., J King, ‘The Democratic Case for a Written Constitution’ in J Jowell & C O’Cinneide (eds), The Changing Constitution (9th edn) (2019). 5 M Keating, ‘Plurinational Democracy’ in DJ Galligan (ed), The Constitution in Crisis: The New Putney Debates (2017), p 134 (‘There might appear to be strong democratic justifications for such a constitution. Yet it would be a serious mistake to try and provide a definitive answer to the UK’s constitutional predicament when this is so deeply contested both by the contrasting starting points and aspirations of the peoples of these islands and by the very different attitudes to the European project. Constitutionalism is better practiced as a conversation around different conceptions rather than the imposition of a single design, whether that be unitary or federal’).

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183

REJECTING IDOLATRY: REASSERTING FAITH IN POLITICS

Perhaps the greatest feat of those advocating written constitutions has been perpetuating the claim that the transition to a stronger form of legal constitutionalism was not revolution, but merely evolution. The idea that an increasingly sophisticated society is an increasingly legalistic society sustains the idea of constitutional writing and, ultimately, constitutional idolatry. That societies not only need, but require, a legally binding document that sits above all else not only to unite them and articulate shared principles, but also to be adjudicated by the courts as to what is or is not constitutionally permissible, is a hallmark of modern constitutionalism. After all, many scholars have pointed to an increase in the number of post-World War II written constitutions, bills of rights, and wide expansion of powers for constitutional courts, all of which have undoubtedly provided a shift to a more legal constitutionalist structure. But as some have pointed out, differences in the protection of rights and liberties among various states ‘cannot be attributed to constitutional systems’.6 The most likely explanation of these differences comes down to state histories, political cultures and the beliefs of societal elites (including legal elites). In the face of increasing constitutional idolatry, a renewed focus on politics and culture remains the best way to ensure democratic outcomes and protect citizens’ rights and liberties. As Chapter 4 explained, constitutional supremacy means both the lower ranking of statutes and the lower ranking of legislators.7 Thus, the state outputs that are most closely connected to ‘We the People’ citizen power—statutes— have lost a great deal of significance, as the adjudicated constitution favours ‘fundamental’ law over statutory law constructed by human actors. But the situation is actually much worse than favouring one type of law over another. Proponents of constitutional supremacy often infantilise politics, attempting to assert the superiority of law and legal reasoning over political decision-making. Sadly, this has come at a cost: citizens nowadays widely bemoan and belittle the effectiveness of the elected branches, especially legislatures, and a larger democratic disaffection can be seen in a number of ways. As noted in Chapter 5, post-World War II voting participation in many constitutional democracies has declined to their lowest levels ever recorded, and wider civic engagement

Dahl, n 1 above, p 99. J Limbach, ‘The Concept of the Supremacy of the Constitution’ (2001) 64(1) Modern Law Review 1. 6 7

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in many jurisdictions is suffering similar effects.8 Younger generations do not feel as close to politics, political affairs, or even to democracy, as previous generations, and that could spell trouble for the health and well-being of many states and international organisations. A lot of the blame for these various ills has been put on politics, political parties and political discourse,9 with many pointing to increased polarisation as the number 1 culprit.10 But could this also be seen as a failure of promises offered by increased written constitutionalism and constitutional design more generally? After all, scholars have championed these documents for their ability to educate, inspire, channel conflict, coordinate and transform societies, in addition to a host of other things. And yet, such lofty assertions never quite seem fulfilled. But if the question of writing or not writing a constitution is still a legitimate one—and indeed it is in the UK’s case—then the implications of drafting a single written constitution must be assessed within this wider context. 9.1.1

Are Court-focused Approaches the Answer?

While the judiciary has been and always will be a vital constitutional component, modern constitutional arrangements place far too much emphasis on the success or failure of this one particular branch. The vast majority of contemporary written constitutions contain extensive powers for the judiciary, even if they do not make this explicit early in the document, as discussed in Chapter 3. Additionally, not just the formal judicial powers, but the ancillary powers of apex courts have also grown significantly as the rise in written constitutionalism took place. This has undoubtedly led to increased judicial involvement into more areas within the state, many of which were previously resolved in the political arena. But there are major questions as to whether this has produced effective or viable methods of democratic governance or an enhanced protection of rights. A recent text by Rosenbluth and Shapiro lays out a stark

8 See, e.g., Hansard Society, Audit of Political Engagement 16 (2019), https://​ www​.hansardsociety​.org​.uk/​publications/​reports/​audit​-of​-political​-engagement​-16. 9 In a sense, I am even guilty of this. See TG Daly & BC Jones, ‘Parties versus Democracy: Addressing Today’s Political-party Threats to Democratic Rule’ (2020) 18(2) International Journal of Constitutional Law (forthcoming). 10 For a good summary of such polarisation, see Z Courser, E Helland & KP Miller, ‘Introduction’ in Z Courser, E Helland & KP Miller, Parchment Barriers: Political Polarization and the Limits of Constitutional Order (2018).

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assessment regarding how successful such court-focused approaches have been in terms of protecting rights: The historical and comparative evidence shows that courts seldom stray far from the preferences of elected governments, and when they do, it is usually in the direction of public opinion rather than away from it. This makes them unreliable checks on majority hostility to minorities. Democracies do better than nondemocracies at protecting minority rights, and courts do not improve what democracies do. Working with electoral incentives might not always solve the problem, but it seems clear that nothing else will.11

Others have acknowledged the limits of court-focused protections in terms of guaranteeing enhanced levels of constitutionalism and democracy. One of the most prominent accounts is Gerald Rosenberg’s The Hollow Hope, which argues that court production of social change cannot happen without the presence of other political and cultural factors.12 Discussing many of the post-Brown v Board of Education13 setbacks as regards the right to equal education for minorities, Rosenberg’s takeaway message is that ‘legal victories do not automatically or even necessarily produce the desired change’.14 Some may characterise this as meaning that the law is no replacement for politics, as the former contains certain limits regarding what it can achieve. The same is true in terms of courts as democracy builders. Tom Daly recently analysed both domestic constitutional courts and regional human rights courts in terms of their abilities to foster democracy building, concluding that a wide gap exists between the perception and reality of how effective they are. He found that ‘constitutional courts are neither a guarantor of, nor a shortcut to, a functioning democratic system’, and that regional human rights courts ‘have encountered stark limits to their abilities to shape young democracies and influence the trajectory of democratisation’.15 Ultimately, he concludes that democracy needs to break its court-focused obsession and move beyond the idea of judicial review being the first and only answer to the complex problems that arise in modern society.16

RM Rosenbluth & I Shapiro, Responsible Parties: Saving Democracy from Itself (2018), p 46. 12 G Rosenberg, The Hollow Hope: Can Courts Bring About Social Change (1991), p 336. 13 Brown v Board of Education of Topeka, 347 U.S. 483 (1954). 14 Rosenberg, n 12 above, p 337. 15 TG Daly, The Alchemists: Questioning Our Faith in Courts as Democracy Builders (2017), pp 105, 137. 16 Ibid, pp 302–303. 11

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There is little doubt that many written constitutions set up ‘juristocracies’, largely based around a strong supreme or constitutional court as the ultimate constitutional adjudicator, thus in theory providing a significant check on politics and government. And yet, as Hirschl notes, ‘the increasingly popular constitutionalization of rights has not proven to be a significant step toward egalitarianism’; in fact, ‘the very notion of judicial empowerment as an efficient response to systemic deficiencies is based on a simplistic and static understanding of political sociology … not to mention a thin functionalist perception of constitutional and political change’.17 Thus, if constitutional cleverness really does matter when drafting—and I have my serious doubts— then many of our contemporary constitutions suffer from a severe lack of imagination. 9.1.2

Reasserting Faith in the Political

Ordinary politics done well and the ordinary law that is its product should earn our respect. Ordinary politics done well, in fact, may be the best check against an empire of force worthy only of disrespect, and if it is, we should worry that adjudicated constitutionalism threatens it.18

If constitutional idolatry based around written constitutionalism and increasing legal constitutionalism is going to be rejected, then the implications of this must be addressed. As Jack Balkin says, ‘to reject idolatry requires faith in something. One smashes idols to reassert faith in the true’.19 That reassertion of faith, ultimately, lies in politics and the statutory law. Especially in this day and age, when parliaments and politicians face unrelenting disparagement, a belief in the political realm and parliamentary sovereignty is the ultimate belief in optimism. Contrary to the idea that legislators and statutes should have a lower standing in our democracies,20 rejecting constitutional idolatry means that these extremely important elements should reassert their standing within our societies as the most important constitutional features. As Chapter 4 pointed out, parliamentary sovereignty in the UK has long been considered the UK’s form of ‘We the People’ popular sovereignty. At least since the Bill of Rights 1689, it has been Parliament that the UK public 17 R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2007), pp 213, 216. 18 R West, ‘Ennobling Politics’ in HJ Powell & JB White (eds), Law and Democracy in the Empire of Force (2009), p 80. 19 J Balkin, Constitutional Redemption: Political Faith in an Unjust World (2011), p 101. 20 J Limbach, ‘The Concept of the Supremacy of the Constitution’ (2001) 64(1) Modern Law Review 1.

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has looked to for authorising the state’s most important functions, such as taxing the citizenry, spending money, passing legislation and holding governments to account. This doctrine puts substantial faith in legislative actors to ensure they respect not only fundamental constitutional principles, but also the rights and liberties of the people. Indeed, given that the UK judiciary do not possess ultimate strike-down powers, the decisions made about primary legislation under parliamentary sovereignty carry significant weight, as only future Acts of Parliament can nullify or amend previous Acts. Thus, in many respects the legislature’s decisions are binding and final, unless and until the current or a future parliament decides to amend the law. This arrangement places a significant amount of power in the hands of elected politicians. However, many people believe that this type of power being in the hands of an elected legislature could easily lead to tyranny (or worse). One prominent account asserts that the fusion between the executive and legislature within the UK structure—which Bagehot deemed the ‘efficient secret’21 of the UK constitution—amounts to ‘elective dictatorship’.22 While some significant questions arise about executive abuses of power within the UK structure, it is more difficult to assert that tyrannical legislation regularly, or even occasionally, emanates from Parliament. For all the bluster regarding what Parliament could potentially do with its extremely wide legislative powers, very few examples of Parliament acting in a tyrannical fashion or bending to a ‘dictatorial’ Prime Minister can be proffered. From a historical perspective, perhaps the Combination Acts 1799–1800 or the Defence of the Realm Act (DORA) 1914 would qualify. Elements of the Terrorism Act 2000 or the Anti-terrorism, Crime and Security Act 2001 could be more contemporary examples of such legislation. But as questionable as these pieces of legislation were, they hardly amount to the horrors by which some are willing to scaremonger about parliamentary power. The real underlying issue for many opponents of parliamentary sovereignty is their unrelenting distrust of legislatures and the legislative process. Legislation, however, contains important mechanisms that court decisions cannot provide. For one, it allows for open and honest debate on the merits of the proposals. This means that citizens are able to see and hear parliamentarians advocating their position on a given piece of legislation, and are able to ascertain how and why law-makers feel that certain provisions are acceptable or unacceptable. Indeed, the human elements of fear, hope, anger, compassion and joy are often on full display, and contribute to this unique context. Court processes discourage such human components, especially from

W Bagehot, The English Constitution (2001). L Hailsham, The Dilemma of Democracy: Diagnosis and Prescription (1978).

21 22

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the most important people in the room: judges. And once oral arguments have been heard, citizens remain unable to see or hear the discussions justices have among themselves when deciding on cases, where many of these emotions or justifications may come out. Legislation also requires a larger meeting of minds. Indeed, it ‘requires larger-scale popular mobilization, bringing in more groups and perspectives, and in the end represents a more direct and explicit “buy-in” by We the People’.23 Indeed, contrary to the ‘elective dictatorship’ allegation, the UK Parliament’s collective processes actually run much deeper than many realise, as non-government parliamentarians often have significant impact on the final form of legislation.24 Thus, especially compared to apex court decisions, legislation requires a richer and more collaborative national commitment. Finally, Parliament provides the most efficient and effective means through which to achieve constitutional maintenance. As elected parliamentarians representing their various constituencies, both individually and collectively, MPs provide a deep connection with the British people. Additionally, they are also knowledgeable about governmental operations and the wider workings of the unwritten constitution. Thus, entrusting them with constitutional reform makes sense on a number of levels. Empowering political actors to deliver constitutional maintenance may be why the UK constitution has dealt well with crises and controversies throughout the years. Facilitating political resolutions, not only for major constitutional questions but also for ordinary political disputes, has led to a robust form of constitutional resilience. Of course, as Chapter 8 points out, some constitutional reforms have been delayed, botched or squandered; but the prospects of constitutional maintenance at least allow for these to be remedied, something that formal entrenchment often closes off. Thus, reasserting faith in the political is essential to rejecting the idolatry of written constitutional instruments.

9.2

CAN CONSTITUTIONAL IDOLATRY AND DEMOCRACY COEXIST?

Chapter 2 discussed the potential positive aspects of constitutional idolatry, acknowledging that some beneficial results could stem from venerating written constitutions. The prospects of an increasingly unified citizenry, an enhanced 23 WN Eskridge & J Ferejohn, A Republic of Statutes: The New American Constitution (2010). 24 This was found by two excellent studies performed almost a half-century apart: JAG Griffith, Parliamentary Scrutiny of Government Bills (1974); M Russell & D Gover, Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law (2017).

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form of constitutionalism, or using constitutions as bulwarks against the encroachment of non-democratic or overbearing regimes certainly sound like promising outcomes. However, when further analysed these positives appear to fade away relatively quickly. Uniting the citizenry is one meaningful outcome that constitutional veneration could potentially produce. But as Chapters 3 and 5 examined, the educative benefits and the prospects of written constitutions inspiring the citizenry are highly questionable. Even in America, where citizens widely praise the US Constitution and the document has been on bestseller book lists, the citizenry lacks knowledge and understanding of the document even at some very basic levels. Thus, idolising, even hoarding, the document does not mean that it is being read and understood. Another potential component to unite and engage comes through constitutional anniversaries. Such events may sound promising, but their downsides outweigh any potential benefits, as they perpetuate the status quo and encourage a lack of introspection regarding how particular constitutional features may be working. As Levinson describes in reference to the 200th anniversary of the American Constitution, there was virtually no suggestion ‘that this might be a particularly suitable time … for a Jeffersonian convention in which we could truly examine, with a skeptical eye, the adequacy of our constitutional structure’.25 In fact, in the city where the US Constitution was written, Philadelphia, the bicentennial exhibition was entitled, ‘Miracle at Philadelphia’, which hardly lends to scepticism and critical thought. Constitutional anniversaries, if they celebrate anything, are a celebration of the status quo. Connected to the idea of a more united and engaged citizenry is the idea that constitutional idolatry can produce some form of enhanced constitutionalism. This, after all, is one of the foundational aspects of written constitutions. And yet, here we see how idolisation may take citizens—including politicians and judges—down completely separate paths. The interpretation of what relevant constitutional provisions mean can easily lead to disagreement, with various camps believing that they are the ‘true’ upholders of constitutional values. The same could be said for bills of rights. The clash of two or more rights (e.g., liberty vs security, privacy vs expression) means that one may be devalued at the expense of another, depending on the circumstances. And even under jurisdictions with a strong sense of idolatry for a written text, political leaders can often repudiate certain constitutional provisions simply by not abiding by them, while still embracing veneration of the document as a whole.26 The

S Levinson, Constitutional Faith (1988), p 13. D Edwards, MA Franks, D Law, L Lessig & LM Seidman, ‘Constitution in Crisis: Has America’s Founding Document become the Nation’s Undoing?’ (October 25 26

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bottom line is that fidelity to statutory law, in conjunction with mechanisms of political and legal accountability (including judicial review), can do just as well at holding authority to account as written constitutions. The success of the Human Rights Act 1998 in the UK is evidence of this. A final positive element of constitutional idolatry was using constitutions as a bulwark against non-democratic or over-bearing regimes. This also seems promising at first glance, especially given the situations that Taiwan and Hong Kong currently face, as China is undoubtedly attempting to exert its influence over these jurisdictions in different ways. Nevertheless, there is no reason that written constitutions have to act as such a bulwark. In both situations, a commitment to democracy seems much more appropriate than veneration of a written document. This is not least because Hong Kong’s Basic Law still recognises and facilitates the ‘one country, two systems’ framework, and Taiwan’s 1947 Constitution still contains mention of the ‘One China’ principle. But even if it was not an issue of democracy versus authoritarianism, a wide range of state symbols could be drawn on to act as bulwarks, such as flags, anthems, historical figures, and other traditions. Thus, using written constitutions as bulwarks must also be discounted.

9.3

CHALLENGING THE INFATUATION WITH WRITTENNESS

Written constitutions have been in vogue for over two centuries, and their presence in state architecture nowadays is commonplace and expected. Nevertheless, increasing idolisation of these documents has produced unrealistic and impractical expectations regarding what they can achieve. This book has challenged many of the underlying assumptions about the effectiveness of these constitutional documents, bringing forward some major questions: can they provide an enhanced sense of unity among the citizenry; can they deliver on their ‘We the People’ claims; are ‘good’ documents necessary for state survival; can they invigorate democracies and provide for a more collective sense of constitutional ownership; and do they provide enough scope for states to perform vital constitutional maintenance? In many ways when answering these questions, written constitutions come up short or raise further questions as to their utility. Thus, recalculating our expectations of these documents—and

2019) Harper’s Magazine. (For example, Edwards says that, ‘arguments about Trump … end up having nothing to do with constitutional fidelity; we’re dealing instead with constitutional selectivity. [W]e should not be able to cherry-pick passages’. Emphasis in original.)

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even at times rethinking whether the constitutional writing project should go forward—is something that needs serious consideration.27 The shift from unwritten to written constitutions has undeniably provided a stronger form of legal constitutionalism in jurisdictions throughout the world. This has left states such as the UK and others (e.g., New Zealand, Australia) as outliers, as they have yet to fully conform to the new model. And yet, these outliers are countries with high degrees of democracy, and whose citizens’ rights and liberties remain some of the best in the world according to international metrics. This challenges the assumption that increasingly sophisticated societies must be increasingly legalistic societies. Indeed, we must remember that ‘the habits, traditions and attitudes of human communities are more powerful than law. Indeed, they are the foundation of law’.28 Idolising written constitutions is a hollow endeavour that will fail to produce better democratic outcomes or help solve increasingly complicated societal problems. That constitutions are created, policed, and ultimately rely on a range of human actors for success is something that future generations should recognise, and embrace. However, capturing that constitutional spirit within one fundamental written document may prove an impossible, and at times even perilous, task.

27 Ibid. David Law said the following in the Harper’s article cited above (n 26): ‘Countries actually don’t need written constitutions … In a functioning democracy, you don’t need one’. 28 J Sumption, Trials of the State: Law and the Decline of Politics (2019), p 100.

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Index Ackerman, B 10, 75, 89, 163 Adams, JQ 166 adjudicated constitutionalism juristocracy, perpetuation of 85–6, 186 political degradation, and 82–4 separation of powers, and 84–5 Afghanistan 53–4 Albania 99 Albert, R 158 Alexander, L 46 Algeria 50–51 American Tea Party 22, 27 ancestor worship 161–2 Argentina 52 Aristotle 13, 26 aspirations 88–9, 116–17 Australia Constitution bill of rights, lack of 125–6, 129 citizens’ knowledge of 44–5 origins 125 constitutional guardianship 144–5, 151–2, 155 human rights protection 125–6, 129 judiciary, role and powers 144–5, 151–2, 155 Australian Communist Party case 144–5 authoritarianism 115, 117, 159

Bickel, AM 169 Bill of Rights 1689 62–5 bills of rights, generally alternative mechanisms 125–6, 129 democracy-reinforcing effect of 94–6 democratic participation, and 100–104 education function of 36–8 Bingham, T 18, 63 Black, H 27 Blackburn, R 7, 110 Bonham’s case 135–6, 147 Brazier, R 172 Brazil 45 Bribery Commissioner v Ranasinghe 152 Burkina Faso 138 Burundi 49–50, 138 Bush, GW 166 Canada Charter of Rights and Freedoms 106, 143–4, 152 Constitution 159 citizens’ knowledge of 42 democracy-reinforcing effect of 94, 106–8 constitutional guardianship 143–4, 152–3, 155 democratic participation 94, 106–8 judiciary, role and powers 143–4, 152–3, 155 Carey, J 112 Central African Republic 99 Chad 138, 141 Chemerinsky, E 169 Chilton, A 116 China 49, 115, 120, 190 citizen engagement 31–2, 36–8

Bagehot, W 187 Bailyn, B 19 Balkin, J 20, 23, 186 Bank Mizrahi case 149–51, 155 Barbados 100 Barber, S 9, 56, 117, 165, 181 Belarus 48 Belgium 45 Belize 99 Bhutan 52, 54, 138, 141–2 201

202

Constitutional idolatry and democracy

citizen knowledge constitutional judicial powers, of 52–5 crisis of 43–4 democracy, importance for 39–40, 183–4 scope of 40–41, 55–6 US constitution, of 42–4 written constitutions, influences on 40–42, 55–6, 181–2 Citizens United v Federal Election Commission 75–6, 169–70 civic knowledge see citizen knowledge Coke, E 17, 135 Colley, L 115–16 Colombia 98–9 comparative constitutional law 14–15, 113–14, 161–2 Congo 51–2 constitutional amendment ancestor worship, and 161–2 constitutional moments, as 158 constitutional supremacy myth, and 78–9 cultural reform, and 9–10 definition 158 democracy-reinforcing effects of 94–6 democratic participation, and 94–6, 104–8 eternity clauses 78–9, 158–9 idealism of 158–9 national identity, and 161 politicisation of 91–2 trends 12, 25 veneration, implications of 161–3 constitutional anniversaries and holidays 32–3, 189 constitutional authorship 10, 180 ancestor worship, and 161–2 imposed constitutions 118–20 constitutional change see also constitutional amendment challenges of 91–2, 128 constitutional moments 158, 180 constitutional principles, of 173–5 disillusionment, and 28, 163–71 frequency of 20 human rights protection, and 149–50

idolatry influences on 161–3 importance of 158–9 influential persons, role of 161–2 informal change 28 significance, distortion of 182 status quo bias 162–3 studies, limitations of 15 unwritten constitutions, of 15–17, 160 US Supreme Court, and 163–4, 168–70 constitutional contentment disillusionment, and 28, 163–71 theories of 93–4, 108–9 voting turnout trends, and 93–4, 108–9 constitutional disillusionment 28, 163–71 constitutional drafting citizens’ role in 7–8 cleverness in 110, 114, 129–30, 186 constitutional failure, and 113–14 criticisms of 12, 47, 55–6 preambles 47–52, 55–6 constitutional engagement citizen veneration, role of 31–2 constitutional anniversaries and holidays 32–3, 189 preambles, role of 31–2 voter turnout and constitutional contentment, theories of 93–4 constitutional entrenchment 158–9, 163–4 constitutional failure reasons for 113–15 US Constitution, perception of 165–6 constitutional faith 23–4 constitutional fetishism 21–2 constitutional foundings ancestor worship, and 161–2 constitutional change, influences on 161–2 imposed constitutions 118–20 longevity, and 121–2 undemocratic features 120–21, 190 unusual circumstances 120–21, 190 constitutional guardianship

Index

concept development 131–2, 134–5, 156–7 Kelsen-Schmitt debate 136–7 guardianship language development of 132, 134–47, 156–7 factional language, use of 148–53 law journals, in 145–7 legal judgments, in 142–5 paternalism of 148–9, 153–5, 182 significance of 147–55 written constitutions using 137–42 interpretation 131, 154 judicial understanding of 153–5 judiciary role in 131–4, 137–57 US Supreme Court 135–6, 142–3, 168–70 non-judicial guardians 140 particular rights, over 140–41 constitutional idolatry, generally anniversaries and holidays, role of 32–3, 189 benefits of 30–35 citizen engagement, and 30 defining 2, 5, 19–26 enhanced constitutionalism, and 189–90 faith in constitution, and 23–4 forms of idolatry 19–6 legal and political power of 21–2, 26–7 paternalism, and 27–8 political devaluation, and 26–7, 189–90 power, restrictions on 30–31 preambles, role of 47–52 rejection of 183–8 religious or quasi-religious context for 19–21 short-term idolatry 25–6 societal rallying point, constitutions as 24–5, 87 constitutional knowledge constitutional judicial powers, of 52–5 crisis of 43–4

203

democracy, importance for 39–40, 183–4 scope of 40–41, 55–6 studies of 41–2 US constitution, of 42–4 written constitutions, influences on 40–42, 55–6, 181–2 constitutional maintenance 28, 163–4 constitutional misuse 115–17 constitutional moments 1–2, 28, 75 constitutional amendments, as 158, 180 democracy, influences on 112 constitutional narratives 10–11 constitutional paternalism 182 judicial rhetoric, and 148–9, 153–5 constitutional performance see also ‘good’ constitutions citizens’ role in drafting, and 7–8 preambles, role of 7–9 research trends 6–7 constitutional possibility 1–2, 181 constitutional supremacy adjudicated constitutionalism, and juristocracy, perpetuation of 85–6, 186 law, displacement of politics in favour of 82–4 separation of powers, and 84–5 benefits of 69, 71, 183–4 eternity clauses 78–9 interpretation of 70 judicial powers, influences on 70–80 limitations of 71, 183–4 political devaluation, influences on 70–73 supra-national organisations, and 79–80 voting, role of 71–2, 93 ‘We the People’ myth of 69–81 constitutional theory 93–4 constitutionalism, generally covenants, constitutions as 9–10 development trends 5–12 enhanced constitutionalism, development of 189–90 functions of 9–11 principles of 39–40

204

Constitutional idolatry and democracy

written constitutions as enhanced form of 33–4 constitutions, generally conceptual development 13–14 functions of 6–11 perceptions of 9–10, 30, 181 Cooper v Aaron 74–5 Cormack v Cope 152 Court of Justice of the European Union (CJEU) 80 critical constitutionalism 11–12 Croatia 49, 99 Cuba 48 Cullop, FG 56 Czech Republic 103–4, 139–40 Dahl, R 135, 156, 165, 181 Daly, T, 185 Dawes, CT 162–3 Declaration of Arbroath 1320 59 Declaration of the Rights of Man 1789 88 definitions constitutional idolatry 2, 5, 19–26 constitutions 13–14 guardian 154 transformative constitutionalism 9 unconstitutional 2 democracy, generally see also democratic participation adjudicated constitutionalism, and 82–4 challenges of 58 citizens’ knowledge, importance of 39–40, 183–4 constitutional failure, and 113–14 constitutional moments, role of 112 constitutional supremacy, and 70–73 criticisms of 40, 81, 185–6 electoral sovereignty, and 70–73 eternity clauses, and 158–9 judicial focus of 185–6 mandatory voting, impacts of 39, 90 political degradation, and 82–4 referendums, role of 80–81 democracy-hindering 11, 190 constitutional amendment, impacts of 98–9, 104–6, 108

new constitutions/bills of rights, impacts of 98–100, 108 democracy-reinforcing 11 constitutional amendment, impacts of 106–8 theories of 94–6 democratic participation constitutional amendment democracy-hindering effects of 98–9, 104–6, 108 democracy-reinforcing effects of 106–8 constitutional contentment, and 93–4, 108–9 constitutional paternalism, and 182 constitutional role, generally invigorating the populace 89, 94–6, 108 written vs. unwritten constitutions 87–8, 90 constitutional supremacy, and 71–2, 93 institutional influences on 90–91 mandatory voting 39, 90 new constitutions/bills of rights, impacts of 98–100, 108 proportional voting systems 128 research trends 90–91 swing voter’s curse 91 voter turnout fluctuations 90–91, 98–109, 183–4 reasons for, generally 93–4, 108–9 UK, in 100–102 Voting Rights Act 1965 reenactment, US Supreme Court ruling 76–7 Denmark 33, 99 Dicey, AV 136 District of Columbia v Heller 21 Dixon, R 87, 110 Djibouti 138 Douglas-Scott, S 60, 72 education citizen engagement, and 32, 36–8 constitutional function, as 36–7, 56–7, 189 importance of 56–7 preambles, role of 38

Index

Egypt 50 Eskridge, WN 165 eternity clauses 78–9, 158–9 European Court of Justice 80 European Union constitutional developments, democracy-reinforcing effect of 94, 105–6 constitutional supremacy, influences on 79 democratic participation 94, 105–6 faith

constitutional power, in 23–4 God, constitutional references to 50–52 politics, importance in 186–8 Fedderson, TJ 91 Ferejohn, J 165 France Constitution amendments 92, 94, 97, 104, 161 democracy-reinforcing effect of 94, 97 Napoleonic constitutions 116 sovereignty of electorate 72 constitutional guardianship 138, 140–41 Declaration of the Rights of Man 1789 14, 88 democratic participation 88, 97, 104 Frankenberg, G 3, 6, 38 functions of constitutions 6–11 Gabon 138 Galligan, D 60–61 Garland, M 168 Gearty, C 18 Germany Constitution (Basic Law) 54, 78 citizens’ knowledge of 42 electoral sovereignty 72 imposition of 118–19 Preamble 48 constitutional guardianship 136–7, 139 Weimar Constitution 1919 113 Ginsburg, T 87, 112, 114

205

God, references to 50–52 Goldsworthy, J 69 ‘good’ constitutions accuracy and inclusiveness 11, 117, 129–30 benefits of 25, 110–111, 182 constitutional misuse and abuse 115–17 failure, reasons for 113–15, 130 good state functionality, and 116–17, 129 ideal qualities of 111–14, 129–30, 182 imposed constitutions 118–20 origins, relevance of 118–21, 125 poor constitutions, success of 122 Australia, in 125–6, 129 New Zealand, in 127–9 UK, in 122–5, 129 undemocratic elements 116–17, 120–21, 190 unwritten constitutions, as 112 Gottlieb, S 169 Grey, T 19–21 Griffith, J 66 Guyana 49 Hailsham, Lord 16 Hamilton, A 135 Hardin, R 87, 110 Harrison, B 166 Hayes, RB 166 Hirschl, R 12, 77, 186 Holmes, OW 28, 136 Honduras 100 Hong Kong 35, 190 Human Rights Act 1998 (UK) constitutional role of 124–5, 132, 174 declarations of incompatibility 124–5, 174 democratic participation, influences on 100–102 education function of 36–7 implementation of 122–3 limitations of 123–4 human rights, generally appellate courts 80 citizen engagement, and 36–7 codification 88

206

Constitutional idolatry and democracy

constitutional supremacy, and 80 duty to promote 37 judicial protection of 184–6 preambles, references in 52 rights protection trends 124–5, 184–6 sham constitutions, and 116–17 US Constitution, protection under 170–71 Hungary 99, 138, 140 Hunter v Southam Inc 143–4 Huq, AZ 87, 112, 114 imperialism 115–17 imposed constitutions 118–20 India 45, 53 international instruments, constitutional references in 52 Iraq 49 Israel 149–51 Jackman, RW 90 Jamaica 100 Japan 33, 48, 54, 119–20 Jefferson, T 20 Joint Committee on Human Rights UK 36–7, 124 judicial power adjudicated constitutionalism, and 82–6, 186 constitutional references to 52–5 constitutional supremacy, influences on 70–80 criticisms of 187–8 juristocracy, perpetuation of 85–6, 186 separation of powers, erosion of 84–5 US Constitution, references to 52–3 written constitutions, emphasis in 184–6 judicial review citizens’ understanding of 46 constitutional guardianship, and 149–51 influences on 21–2 political question doctrine 85 powers, constitutional references to 52–5

US constitution, references in 52–3 juristocracy 85–6, 186 Kagan, E 21 Kahn, K 1, 3, 23 Kavanaugh, B 167 Kelsen, H 136–7 Kennedy, E 113 King, J 8 Klare, KE 9 Landau, D 12, 87, 110 Landemore, H 112 Law, D 117, 119 law journals, constitutional language in 145–7 legal constitutionalism 66–7, 82–4 Lerner, M 2, 10 Levinson, S 8, 20–21, 31, 39, 88–9, 158, 164–5, 189 Levitsky, S 114 Limbach, J 26, 70 litigated constitutions see adjudicated constitutionalism Loughlin, M 7, 59, 82 Lukes, S 30 Madison, J 20, 31, 58, 161 Magna Carta 15–18 Maldives 33 Mali 138, 140 Malta 99 Manitoba Métis Federation Inc v Canada 152–3 Marbury v Madison 46, 74–5, 136, 144, 147–53, 155 Marshall Islands 51 Mauritania 138, 140 Mexico 33 Micronesia 138 Miller/Cherry v The Prime Minister ‘Miller II’ 155 'Miller v Secretary of State ‘Miller I’ 133 Morocco 100 Murphy, WF 181 Myanmar 49 ‘New’ Magna Carta 12, 16, 18

Index

New Zealand Bill of Rights Act 1990 102–3 constitution 127–9 amendments 98, 102 citizens’ knowledge of 41–2 democratic participation 98, 102–3, 128 human rights protection 127–8 Waitangi Tribunal 128 Nigeria 100 North Atlantic Treaty Organization (NATO) 79 North Korea 51 Norton, P 14 NSW v Commonwealth 151–2, 155 Obama, B 76, 168 O‘Connor, SD 43–4 Oder, BE 158 ownership 10, 180 ancestor worship, and 161–2 Papua New Guinea 51 Paraguay 54, 100, 138, 141–2 parliamentary sovereignty UK, in 14, 60–61, 63–4, 66–9, 186–7, 186–8 paternalism 27–8, 148–9, 153–5 Perez v Ledesma 142–3 Pesendorfer, W 91 Philippines 51–2 Pierce, G 39 Pitkin, H 91 Plato 134, 156 Poland 33, 99 political constitutionalism 66, 186–8 political devaluation adjudicated constitutionalism, and 82–4 constitutional idolatry, and 26–7, 189–90 law, in favour of 82–4 ‘We the People’ constitutional supremacy myth, and 70–73 political question doctrine 85 popular sovereignty see also ‘We the People’ concept development 58–60

207

parliamentary sovereignty, and 68–9 Powell, GB 90 preambles citizen engagement, and 31–2 citizens’ understanding, and 47 constituent power, references to 48 constitutional genius, role of 50–51 criticisms of 55–6 God, references to 50–52 historical references in 49–50 instruments of idolatry, as 47–52 international instruments, references to 52 language of 54–5 nationalism, influences on 55–6 right and freedoms, references to 52 role of 7–9, 25, 38, 47–8, 55–6 Pryor, J 10, 14 referendums 80–81, 179 religion 19–26, 50–52 rhetoric see also ‘We the People’ aspirations, empowerment of 88–9 constitutional faith, and 23–4 constitutional paternalism, and 148–9 transformative constitutionalism, and 24 Romania 45 Rosenberg, G 185 Rosenbluth, RM 184–5 rule of law 5–6, 174–5 Runciman, D 40 Rwanda 138, 141 Sartori, G 22 Scalia, A 168 Schmitt, C 136–7 Scotland 59, 65, 92, 179 Sedley, S 13 Seidman, LM 2, 165 Senegal 100, 138, 140 sham constitutions 11, 116–17 Shapiro, I 184–5 Shelby County v Holder 76–7 Sierra Leone 138, 140 Slovakia 103–4 Smith, SD 156

208

Constitutional idolatry and democracy

Snowden, E 171 Solomon Islands 51 Somalia 138, 140 Sotomayor, S 167 South Africa Constitution 9, 31–2, 53 amendment 161 citizens’ knowledge of 45 Preamble 31–2, 49–50 constitutional guardianship 139–40 South Korea 45, 54 sovereignty 10 Spain 99 statutory constitutionalism 127–9 Stone Sweet, A 72, 80, 85 supra-national organisations constitutional supremacy, influences on 79–80 democratic participation, and 97, 105 international instruments, constitutional references in 52 Swaziland 138, 141–2 Sweden 100 Switzerland 51, 100 Syria 49 Taiwan 34–5, 54, 120–21, 139, 190 Thoburn v Sunderland City Council 172 ‘Timeline of Constitutions’ (website) 113–14 Togo 138 Tomkins, A 66, 68, 82–3 transformative constitutionalism 9, 24, 45 Treaty of Lisbon 2007 94, 105–6 Trump, D 1, 166 Trump v Hawaii 2–3 Tunisia 49–50, 52, 99 Turkey 60–61 Tushnet, M 85, 151, 169 United Kingdom Bill of Rights, modern proposals for 36–7 Brexit 60, 92–3, 133, 182 citizens’ knowledge of 38–9, 41

comparative constitutionalism, and 15 constitutional amendment 159–60, 171–9 constitutional principles, of 173–5 electoral systems reform 178–9 judiciary, role and powers of 174–7 limitations of 177–9 parliamentary sessions, duration of 175 referendums 179 rule of law, and 174–5 constitutional development Act of Settlement 1701 64–5 Bill of Rights 1689 62–5 Constitutional Reform Act 2005 174, 176–7 Declaration of Indulgence 1687 62–3 English Civil War 59 Glorious Revolution 1688 62–6 judicial powers 63–4, 67, 71 legislative powers 64–6 Magna Carta 15–18, 62–3 Monarchy, limitation of powers 64–5 Parliament Act 1911 175 parliamentary devolution 179 Reform Act 1832 62 constitutional guardianship conceptual development 135 declarations of incompatibility 124–5, 132 Supreme Court role and powers 132–4, 155 constitutional idolatry 25–6 constitutional maintenance 179 constitutional moments 171–2 constitutional supremacy, implications of 71 democratic participation electoral systems reform 178–9 Human Rights Act 1998 impact on 101–2 voter turnout trends 100–102 Human Rights Act 1998 36–7, 67, 92, 100–102, 122–5, 132, 174

Index

judiciary constitutional amendments, and 174–7 judicial appointments 176–7 Supreme Court, role and powers 67, 155 Lord Chancellor, role and powers of 176–7 parliamentary sovereignty 14, 60–61, 63–4, 66–9, 186–8 political constitutionalism, and 66 popular sovereignty 59–61, 65–6, 68–9, 186–7 rule of law, evolution of 174–5 unwritten constitution benefits of 14, 159–60 constitutional amendment 171–5, 177–9 criticism of 12–13, 16–17, 38–9, 87–8, 92–3, 159–60, 186–7 limitations of 177–8 politics, role of 25–7 separation of powers, and 176–7 written constitution attempts 4–5, 13, 15, 26, 71, 92–3, 182 United States Constitution advice and consent clause 167–8 amendment of 159, 163–7 attachment to 34 citizens’ knowledge of 39, 42–4 disillusionment with 163–71 exclusions from 170–71 failure, perception of 165–6 fetishism of 21 human rights protections 170–71 judicial appointments 167–8 judicial review, references to 52–3 maintenance of 163–4 oaths to uphold 34 paradox of 163–4 right to bear arms, and 21 sales volume 1, 32, 189 status of 2, 46, 74–5

209

veneration of 19–20, 34 ‘We the People’ myth 73–81 constitutional guardianship conceptual development 132, 135–6 judicial role 135–6, 142–3, 168–70 state constitutions 141–2 constitutional supremacy 73–81 constitutional moments 75 limitations on 73–8 Presidential veto, and 73–4 electoral process Bipartisan Campaign Reform Act 75–6 disillusionment with 166–7 Electoral College, influences of 73, 166–7 National Popular Vote initiative 166 political controls over 75–6 judicial review Constitution, references in 52–3 constitutional powers of 74 law-making by, scale of 77–8 political influences over 75–6 ‘We the People’ concept, and 75–7 Presidential veto 73–4 Supreme Court 21 citizens’ understanding of role of 46 criticisms of 76 disillusionment with 168–70 judicial appointments 167–8 political influences over 75–6, 167–8 religion, influences on 21 role of 3, 68, 135–6, 142–3, 168–70 Voting Rights Act reenactment ruling 76–7 unpopular sovereignty 11 unwritten constitutions see also United Kingdom democratic participation, and 87–8 ‘good’ constitutions, whether 112 Uruguay 33, 138

210

Constitutional idolatry and democracy

veneration constitutional amendment, implications for 161–3 justifications for 34–5 non-democratic regimes, in 34–5 role of 19–26, 181–2, 188–9 Venezuela 52 Versteeg, M 12, 116–17 Vietnam 49 voting see democratic participation Waldron, J 70–73, 82 Warren, C 44 ‘We the People’ constitutional guardianship, and 153–4 constitutional supremacy myth 69–81, 181–2 democratic vote, value of 71–2 judicial powers, and 75–8 political devaluation, and 70–73 referendums 80–81 supranational organisations, impacts of 79–80 democratic constitutions adjudicated/litigated constitutionalism, and 81–6 citizens’ understanding of 48 concept development 59 control over 2–3 criticisms of 48, 58–9 historical influences on 59 law, displacement of politics in favour of 82–4 pre-eminent societal rallying points, as 24–5 separation of powers, erosion of 84–5 sovereignty of 10, 58–61

weaponisation of constitutions 2–3 West, R 34, 56, 82, 163, 186 Wicks, E 59 World Congress on Constitutional Law 2018 25–6 World Constitution, proposal for 25–6 written constitutions, generally challenges of 6, 190–91 civic knowledge, influences on 40–42 constituent power, mentions of 48 constitutional amendment 158–9 constitutional guardianship language in 137–42 constitutional misuse 115–17 constitutional supremacy, and 71–2 constitutionalism, as enhanced form of 33–4, 188–9 democratic participation, influences on 87–8, 90 devaluation of politics, and 26–7, 189–90 development trends 183 education functions of 36–8, 40–42, 189 judicial powers 184–6 limitations, knowledge of 181 need for 183 overreliance on 23–4 role of 4, 110, 190–91 UK, attempts and proposals for 4–5, 13, 15, 26, 71, 92–3, 182 unwritten constitutions, compared with 4–5, 40–42 veneration, of 34–5, 181–2, 190–91 Yowell, P 124 Ziblatt, D 114 Zink, JR 162–3