In many ways, the British and American political systems are poles apart. Despite our ‘special relationship’ and the frequent comparisons that are drawn between British and American politics, the two systems have distant genealogical relationship. The American system was designed by the Founding Fathers as the evolution of the constitutional monarchy of Britain, an attempt to rectify the flaws they perceived in the British political process.
At the base of this is the American preference for a formal, codified constitution, interpreted by their Supreme Court, in contrast to the uncodified, informal constitution of the UK, with parliamentary sovereignty. This difference is the focus of Jonathan Sumption’s penultimate Reith Lecture, where he dismisses the hope that a more legal constitutionalism, in the manner of the United States, might resolve the ‘problem of majoritarian tyranny’. You can read earlier articles in this series: here, here and here.
Throughout these lectures, Lord Sumption’s attention has been on the delicate relationship between the political and the legal; and how the need to contain the most toxic majoritarian impulses of the people must be balanced against ensuring the people feel that their views are both heard and implemented. Building on his past lectures, Sumption continues here to argue that a representative democracy is the most effective way of achieving this, discouraging us, at this moment of constitutional upheaval, from gazing too desirously at the legal constitutionalism across the water, where judges, insulated from the citizenry, ‘are thought to produce more enlightened judgments’.
Sumption points to the need for participation to ensure the ‘essence of democracy’, with the means of reaching a decision prioritised far above the nature of the decision actually reached. This, in Sumption’s view, is the best method of ‘accommodating disagreements between citizens as they actually are’. The corollary of this is that judicial decision-making, when engaging with fundamental rights, is its antithesis, being ‘political choices only made by a smaller and unrepresentative body of people’.
To demonstrate the inadequacies of legal constitutionalism, Lord Sumption points to the Lochner era, a period of particularly activist decision-making by the US Supreme Court (SCOTUS) in the early 20th century. During this period, SCOTUS interfered in the economic policies of the government, striking down liberal laws concerning hours of work, child labour, and trade unions. This was done on the basis that it interfered with ‘due process’ and that liberty ‘required absolute freedom of contract’; and ultimately it took political threats of vote-packing from President Roosevelt to see the reforms finally upheld in the courts, allowing the New Deal and the American economy to soar free.
Sumption is clearly eager to demonstrate that liberals, who praise judges as Solomons, incorruptible automatons of reason, should be careful in what they wish for. He juxtaposes Lochner, an anathema to liberals, with the venerated decision of Roe v Wade, where the liberal wing of SCOTUS struck down absolute prohibitions on abortions that were in place across many states. He also points to how the legislatures can be farsighted, with the British parliament having passed legislation similar to that debated in Lochner a century earlier.
Lord Sumption is right to point to the fallibility of judges, with Lochner relegated to a benighted group of SCOTUS decisions that also includes Dred Scott and Korematsu, where the Court upheld, respectively, the constitutionality of slavery and the detention of Japanese-American citizens during WWII. Lord Sumption’s argument, however, ignores the unique disdain that the Lochner era decisions are held in, both within the United States and internationally, and that countries, when drafting their constitutions throughout the 20th century, took steps to minimise the risk of decisions like Lochner blocking political progress.
These more modern constitutions reflect our developing understanding of constitutions, shifting from the extremes Lord Sumption points to in British and American politics, and instead moving towards a middle ground that accommodates both judicial and legislative power. To suggest, as Lord Sumption does, that the American constitution is still the ‘archetypal legal constitution’ ignores the vast swathes of constitution-making that have taken place across the globe since the 18th century.
The Canadian system is a clear example of progress, where the drafters wanted to avoid the risk of judicial supremacy, depriving the people of their voice, but simultaneously wanted to minimise the risk of a ‘majoritarian tyranny’. Their system, which allows for the legislatures to vote to override decisions of the Supreme Court of Canada, ensures that the people are heard, albeit through their representatives, but requires that the legislature acknowledge their preference for a different conception of the rights at issue.
Lord Sumption’s romanticising of political constitutionalism has echoes of David Cameron’s ‘Big Society’, where the former prime minister called for the community to come together under common values. The idealism is noble, but ignores the brutality of reality, where fear and selfishness are more immediate driving forces, and where an institution that has security and independence from such pressures can more easily resist them. As I have argued before, the courts in the UK provide such a check, and it is a mistake to see them as the Herculean obstacles Lord Sumption presents them as. If the ills of judicial decision-making are as manifold as Lord Sumption suggests, it is curious that they are so rarely overturned by parliament. Given that our parliament can overcome any decision of the courts, if it collectively wishes to, perhaps Lord Sumption should consider why they do not do so more often.