In his fourth Reith lecture, entitled “Rights and the Ideal Constitution”, Jonathan Sumption turns to the American experience of struggling to reconcile democracy with rights adjudication.  It is a cautionary tale, illustrating some of the damaging political consequences of relying on courts in an attempt to ward off majoritarian tyranny.

The lecture opens by noting and quoting Alexis de Tocqueville’s observation, in the 1830s, that American lawyers had become the new aristocracy, united in contempt for public opinion and serving as “the most powerful, if not the only counterpoise to the democratic element of the constitution”.  For Sumption, this is not necessarily a criticism.  He recalls his argument, articulated especially in his second lecture, “that democracies depend for their survival on their ability to mitigate the power and the impulses of electoral majorities”, arguing that representative politics is a more effective technique to this end than is judicial enforcement of legal restrictions on legislatures.  Here, as throughout this lecture series, an old-fashioned liberal sensibility is on display, in which democracy (or at least the unruly temper of the people) is a problem to be managed.

In arguing about “the proper limits of democratic choice”, the British routinely look to the experience of the United States, whether for “inspiration” or “as a warning”.  Sumption notes that “a mounting tide of hostility to representative politics over the past three decades… has naturally been accompanied by a growing interest in the legal constitutional model, especially among the judiciary”.  The Constitution of the United States is the exemplar of this model, he says, just as the UK exemplifies the political constitution.  It has certainly been immensely influential, not only in British constitutional discourse but also in informing constitutional design in Australia and Canada and many other jurisdictions.  Most importantly of all, as Sumption says “the United States has had a longer and more varied experience than any other country”, which is invaluable in evaluating rights adjudication as a constitutional device.

Sumption notes that in its original 1787 form, the Constitution simply provided a framework for making collective decisions.  The framers, Sumption says, initially looked to representative politics to restrain the people, but those who came after have not shared this confidence and have entrenched constitutional rights to ward off majoritarian tyranny.  After the adoption of the Bill of Rights and the assertion by the Supreme Court in Marbury v Madison of authority to quash Acts of Congress, Sumption concludes that the US Constitution displayed “the three basic features which have come to be regarded as the hallmarks of every legal constitution”: (1) a bill of rights which is higher law, (2) subject only to amendment by some extraordinary procedure, (3) which judges may enforce by quashing any act, including legislation (cf. the Australian Constitution which lacks (1)).

The appeal of the American model, Sumption argues, is that it seems to prioritise principle over passion or prejudice, placing some matters “beyond the reach of popular choice” because elective institutions cannot be trusted to act “with the necessary restraint, intelligence or moral sensibility”.  Hence, it reserves authority “to the sort of people, namely judges, whose superior qualities and independence of public opinion are thought to produce more enlightened decisions”.  I agree entirely that enthusiasm for judicial review of legislation is often simply enthusiasm for the rule of judges.  However, in the American context, the legal model is also often understood to be a means by which “We the People” may exercise self-government over time, with commitments made by way of extraordinary lawmaking processes upheld by the courts.  Thus, neither President nor Congress exclusively represents the people and the Supreme Court does the will of the people when it enforces the terms of the Constitution against other institutions.  This frame of analysis is obviously open to serious objection, especially in view of how difficult it is for the people to change the terms, but it exercises a powerful hold on the constitutional imagination.

The lecture does not closely discuss the idea that in constitutional rights adjudication the Supreme Court might be doing its legal duty and upholding the people’s past choices.  Sumption notes that when judges identify a constitutional right they assert “that it derives from a higher law than the ordinary decision-making processes of the state [and thus] that it its existence and extent are not to be determined by political choice.”  The problem, Sumption goes on to say, is that “many judicial decisions about fundamental rights are themselves political choices, only made by a smaller and unrepresentative body of people.”  Thus, his concern, rightly, is that in practice rights adjudication invites or licenses judges to make their own authoritative political choices.

Sumption illustrates the problem by way of the Due Process Clause of the Fourteenth Amendment, which the Supreme Court has used as a ground  on which to introduce a novel right to privacy, to quash economic and social reforms throughout the Lochnerera, and to legislate about abortion and same-sex marriage.  He draws two lessons from this review: first, judicial decisions in such cases “always involve a large element of political value judgment” and second, they “are not necessarily wiser or superior to the judgments of the legislature”.  This is a strong critique, which echoes and supplements his third lecture’s discussion of the Strasbourg Court’s Article 8 jurisprudence.

The legal model “marginalises the political process”, taking some matters out of the hands of legislators and voters, and privileging instead the (all too fallible) views of some judges.  Sumption does not have a romantic view about voters or legislators, who of course act for a mix of good and bad reasons.  His case for democracy is twofold.  First, political stability requires legitimacy.  In the UK as much as in the US, “‘We the people’ is the emotional foundation of democracy”, by which Sumption means, I think, that it is vital that we recognise public decisions as in some sense our acts, which is unlikely unless we have an opportunity fairly to participate in their making.  Second, and relatedly, “counting votes… reflects our sense of social and political equality”.  Entrenching a controversial scheme of values within the constitution unfairly privileges citizens who share those values, disabling free choice by political equals.  The point of a democratic political system, Sumption concludes, is to enable participation, to accommodate disagreements between citizens as they are, not as they would be if they were somehow detached from their prejudices or interests.  The American model, as it has developed in practice, disables citizens from settling their disagreements by way of the political process, forcing them instead to turn to the courts.

When a political controversy is taken up, or taken over, by the courts, Sumption argues, compromise and political settlement becomes much more difficult.  He speculates that abortion has remained so much more controversial in America than in Britain (and Europe) for this reason.  This is plausible, I say, for abortion law in the US is much more permissive than in many European countries, despite public opinion, precisely because it has been constitutionalised.  Further, as Sumption makes clear, politics does not disappear just because a question is taken up by the courts.  This is clear not only in the politicised reasoning of the courts, but also in the, inevitable and justified, political competition for control of appointments to the courts and in the, unseemly but unsurprising, spectacle of the appointments process.  Sumption here understates his case.  The judicial usurpation of the abortion question has profoundly distorted American politics, turning each presidential (and senatorial) election into a contest for power to appoint the swing justice.  It is very unlikely that Donald Trump would have been elected President if millions of conservative Americans, otherwise reluctant to vote for him, had not reasoned that he would appoint better (more congenial) judges than Hilary Clinton.

The lecture confronts directly the familiar argument that judicial review is necessary to prevent majoritarian tyranny.  Sumption notes, drily, that “what constitutes majoritarian tyranny very much depends on how you define your minority and what you regard as tyranny”.  This is certainly true and the risk of majoritarian tyranny does not make minority rule unobjectionable.  There is also no reason, as Sumption’s review of the Due Process Clause jurisprudence confirms, to think that courts will typically make better decisions than legislatures. However, the fear of majoritarian tyranny has obvious grounds in the experience of slavery, the original sin of the US Constitution, and Jim Crow laws.  But this experience does not establish that judicial review has somehow proved its worth in a tragic context.  The Constitution was obviously no guarantee against slavery; on the contrary, it secured the rights of slave-holders.  The Supreme Court’s contribution, by way of Dred Scott, was baleful.  And its record since then, notwithstanding Brown v Board of Education, has been mixed at best.  As Cass Sunstein put it, writing fifty years after Brown, “Most of the time, the judiciary has been an obstacle to racial equality”.  By contrast, our sovereign Parliament abolished the slave trade and then slavery decades before the US, without a civil war, and the political constitution, in New Zealand and the UK, has over time made provision for decent treatment of minority groups, including fair participation in politics.

Sumption’s conclusion is that it is a mistake to look to law to restrain majorities.  The only real constraints are political, by which he means not only representative institutions but also a political culture which encourages active political engagement and shared bonds between citizens.  He concludes that “courts cannot parry the broader threat that legislative majorities may act oppressively, unless they assume general legislative powers for themselves.”  I would say that his lecture helps make clear that courts are not competent to exercise these powers, that assuming such powers might well lawlessly depart from the Constitution itself, that the exercise (and especially the assumption) of such powers would violate democratic principle, establishing unjust rule by (five of nine) judges.  It would also invite, quite rightly, political pushback, in which citizens struggle to appoint judges who will hew more closely to settled law and/or will not interfere so readily with representative institutions.  For the time being, it seems as if the pushback will take the form simply of attempting to wrest control of the Supreme Court from the other side.  One may hope in due course for a wider, less partisan attempt to limit judicial review more generally.  Either way, Sumption’s lecture makes very clear that the US Constitution is not a model to follow.