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.
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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?
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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.
But.
There are serious problems if constitutional law is exciting.
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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.
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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.
Perhaps.
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.
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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.
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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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Comments are welcome but pre-moderated, and so comments will not be published if irksome.
How do you reconcile this with your earlier view that there should not be a written, i.e. statute, constitution?
Setting rights out in statute is different in both kind and scale to setting out an entire set of constitutional arrangements in an entrenched code.
I am still reeling from your Wednesbury Addams pun. Constitutional law is not meant to be “funny” either. But well done for raising a smile at such a time.
And thanks for the usual thoughtful and considered contribution to the debate. A voice of sanity seems an increasingly scarce resource at the moment.
Some people find constitutional law exciting. Some people find watching boxing or football exciting. Some people might even find watching paint dry exciting. Chacun à son goût. Personally I find the relationship between constitutional law and politics exciting.
Taking my life in my hands here – I find your ninth paragraph from the end confusing. Should it be ‘how those with power are held to account’ not ‘who’?
Corrected, with thanks
David, would you please clarify why you believe (if that is so) that the United Kingdom should not have a fully codified Constitution, with an included Bill of Rights, which would then be accessible and understandable for a large body, if not to all people, and not be seen as a murky field of knowledge accessible to only the privileged few. Sure times change and with it society’s norms, but surely suitable amendments to the constitution could be introduced as and when necessary as society changes.
Is it just being British and being different because the Brits were first, after largely throwing off the yoke of royalty, and enjoyed an unwritten democratic institution without a written or codified constitution and while the Continent was still largely ruled by Royalty?
As an aside regarding the US Constitution, the Supreme Court apparent ability to interpret their constitution as the original drafters first conceived it in another time (1787) with many of the amendments adopted relatively shortly thereafter or in terms of the present time being largely dependent on whether there are more liberal (Democrat) or conservative (Republican) appointed justices is perplexing. Surely, the constitution should always be applied in terms of the norms of the present time and the justices political allegiances (if any) should be irrelevant.
If such a constitution, with liberal and practically enforceable protections, could magically exist, I would clap and cheer.
But there is no viable path to such a constitution, and we should work with what we have got and not get distracted by that grand A-level essay topic.
Anything that includes The Addams Family and Batman to help illustrate points has got to be a winner. Thank you for spacing your arguments out. It makes the blog much easier to read that great wedges of text.
For me, a better word to use instead of ‘dull’ would be ‘stable’. That way, those that find constitutional law interesting during periods of relative constitutional stability are not denied their pleasure.
As a layman on legal matters, I find your succint style very welcome. Keep up the good work, David.
The 2019 Reith Lectures were given by Jonathan Sumption, on the role of law in politics. He conveyed in depth his thoughts on constitutional matters and whether or not the UK should have a written constitution. If a link is allowed, the readership of your recent constitutional posts are likely to find it interesting; it gave me a much better understanding of the matter and made me reconsider my views.
https://www.bbc.co.uk/programmes/m00057m9/episodes/player
To amend a popular aphorism, Roe vs Wade is an American solution to an American problem. The problem that needs a solution, is that it has a legislature that makes it unusually difficult to get controversial statutes on the book.
So I think the balance of the argument might vary according to the legislative arrangements.
But it can be good, in many places, that there is Someone Else to handle issues that are too politically toxic to get through the legislature. On the other hand, a Someone Else expands the range of things that legislatures refuse to deal with.
In Britain, the EU, rather than a court, long played the Someone Else role. Politicians would quietly support things in Brussels that at home they disowned and blamed on the EU. I suspect that, on balance, the absence of that Someone Else will not be good for Britain.
The other unfortunate and US-specific issue is the politicisation of their supreme court. Most other successful countries have avoided that basic flaw of governance. But I think they are stuck with it, and there is more risk of it getting worse than better. Franklin Roosevelt tried to override (what he saw as) an obstructive supreme court with the 1937 Jucidiciary Reorganization Bill, which would allow him to “pack” the court with his own appointees. He could well have achieved it, had not elements in his own party seen the danger and impeded its passage. That is a mechanism that cannot be relied on today.