19th November 2020
Constitutional law, at least in the United States and the United Kingdom, is currently exciting.
And this is a bad thing, as constitutional law should not be exciting.
Constitutional law should be dull.
At least that is what I have said, many times.
For example, here.
And also many times on Twitter.
It is an aphorism of which I am fairly proud.
But is the import of it actually true?
Should constitutional law be boring?
And if so, why?
Yesterday on Twitter I was implicitly challenged on this.
It can be exciting if it interprets the law giving rights to people who didn't have them before. https://t.co/21vFUVPfav— Female Enlightenment (@OlympedeGouges) November 18, 2020
The tweeter had a good point.
Litigation can lead to great, wonderful, heartening victories for those without rights.
Think of the great anti-segregation and the pro-abortion cases in the United States, or the welcome sequence of rulings on LGBT issues at the European Court of Human Rights at Strasbourg.
Each of these results rightly make any liberal person want to clap and cheer.
There are serious problems if constitutional law is exciting.
First, litigation is risky, expensive and uncertain.
There is a certain frame of mind that has it that ‘common law rights’ that have come through ‘actual cases’ are to be preferred to those which are set out in a statute or other legal instrument.
(I used to hold such a view myself.)
But this view is complacent and reeks of privilege.
Few, if any, people are in a position to bring cases.
Litigation is expensive and takes up sometimes years of your life.
Litigation is inherently risky and, at least in England, you are often at peril of having to pay the other side’s costs.
And litigation is unpredictable – you can have a substantially strong case and still lose on some technicality that one judge may uphold and which another judge may not have done.
To say rights should rest entirely on case law is, in fact, to say little useful at all.
The second problem is that rights based on case law can be precarious.
What is given by a court can usually be taken away by a court.
For example, Roe v Wade is one of the most significant cases of modern times.
But it is (and has long been) just one Supreme Court case from being reversed and, if it is reversed, then the right to abortion based on that case is likely to be adversely affected too.
The right would be far safer if it was enacted in legislation, or embodied in a constitutional amendment.
Perhaps such legislation is unrealistic, and a Supreme Court judgment is the best one can have.
But is still true that case law, and the excitement of case law, is not the ideal basis for such a fundamental right, as the right to have an abortion.
The right should be in legislation, beyond the risk of a sudden court reversal.
The third problem is that too much constitutional case law implies an unstable political system.
Constitutional law should set out the parameters of acceptable political activity with an agreed process for what happens when elements of a political system are in tension.
But if those parameters themselves are casually disregarded or continuously contested then that destabilises the political system.
Since 2016, both the United States and United Kingdom have had people in the executive who care neither for conventions nor for the disapproval of others for breaching those conventions.
Donald Trump and Dominic Cummings both, in their different ways, see supposed constitutional restraints as things to discard and to sneer at.
This, of course, is a short-term view – the quick thrills of the vandal and the hooligan.
In the medium- and longer-term those with power need the authority which comes from settled, consistent and predictable political practice.
Here, authority can be imagined as being on one end of a see-saw, with autocracy on the other.
Any fool with power can be autocratic.
But such personal rules are usually erratic and rarely sustainable.
This is why wise rulers work through – and thereby develop – legislative assemblies, systems of justice, and bureaucracies.
Not because they are forced to, and have such things imposed upon them, but because they realise it makes peaceful and stable government far easier.
Constitutions change over time – even codified constitutions – but if there is constant intensity as to constitutional matters then this indicates a lack of consensus as to the parameters of a political system.
And that, in turn, indicates breakdowns in what matters are rightly in the realm of everyday politics: how those with power should be held to account, what laws should be made, what are the priorities for the executive, what should be the policies that should be implemented, and so on.
In the United States and the United Kingdom you can see the contradictions and polarisations in everyday political matters, with overbearing partisanship and constant hostility and confrontation.
This is not good.
And this is why constitutional excitement is a symptom of wider political failure.
Personally, I rather enjoy constitutional excitement – with all the sardonic glee of a Brummie Wednesday Addams (or should that be Wednesbury Addams?).
Some people, as a butler once said to a batman, like to see the world burn.
But it really is not good for a healthy political system.
Politics should be exciting, but constitutional law should not be.
Constitutional law should be dull.
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