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Ian Cram: Some Thoughts on Constitutional Amendment

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How changeable ought constitutions to be? A strange question perhaps for a UK constitutional lawyer to pose given the relative ease by which political majorities in this jurisdiction can swiftly effect far-reaching constitutional revision. The prompt for this blog came whilst in Athens recently for a conference on constitutional reform, The conference had been timed to coincide with the ending of a five year moratorium on constitutional amendment laid down in the Greek Constitution. For Greeks, this has proved to be a case of especially bad timing. Since the start of the financial crisis in 2007-8, the mandatory time lapse between constitutional revision meant that no amendment to the Constitution was possible before May 2013. In the current period, any successful revision will require special majorities via complex amending formulas that necessitate an unlikely degree of consensus across Greece’s polarized political class (elections in June 2012 saw seven political parties elected to Parliament including, for the first time, the far-right, ultra-nationalist Golden Dawn with 18 MPs out of a total of 300 MPs). Unsurprisingly, one of the options being discussed is an amendment to relax the stringency of existing amendment procedures (discussed here). The flip side of avoiding rash constitutional change by a narrow majority of MPs acting for party political gain is now unfortunately plain to see -  a fragmented political elite unable to coalesce around an agreed set of reform proposals as large sections of the Greek people continue to suffer severe financial hardship.

The ease with which constitutional amendment can occur is typically described as lying on a point somewhere on a spectrum at whose polarities lie ‘rigid’ and ‘flexible’.  The more ‘rigid’ a constitution is said to be, the harder it will be to amend the constitutional text. For example, a constitution which constrains the actions of legislatures or state officials via procedurally entrenched foundational norms or basic constitutional commitments will be deemed ‘rigid’. This might be considered attractive from the perspective of establishing a set of underpinning commitments or values such as core democratic norms (eg the regular holding of free and fair elections, the protection of individual rights to vote, expression, association etc.) but how desirable is it for the commitment strategy of an earlier set of framers and their electorate to bind the hands of the current generation? And what of the yet more rigid position of putting certain constitutional provisions beyond amendment altogether as occurs in Germany where neither the federal system of government nor the basic principles of Article 1 (human dignity) or Article 20 (state order) may be amended? Can an absolute bar on amendment at any time in the future ever be justified? Or is there an optimal design of constitutional amendment that maximises (or, less ambitiously, accommodates satisfactorily) both (i) a set of core commitments and (ii) the freedom of the present-day electorate to participate in the re-making of their own constitution? Presumably a defence of entrenched core commitments need not entail putting all provisions of the constitution beyond the reach of ordinary majorities in the legislature.

In the UK, the lack of formal procedures requiring special majorities points up the ease of constitutional amendment. The obvious advantage in such a system is that it allows a democratically elected majority in the legislature to act swiftly to address unanticipated external threats as well as updating/amending laws to reflect changed social/moral attitudes. The obverse is that constitutional revision can occur in a hurried and partisan fashion, without adequate consultation among all affected/interested individuals and groups where change is forced through in an unprincipled fashion using the governing party’s (or parties’) parliamentary majority.

Take as a recent example of a major constitutional change the Fixed-term Parliaments Act 2011. The Act fixes the date of the next General Election for May 7, 2015 unless one of two triggers for an earlier election are satisfied – namely a two thirds majority of the total number of MPs in the House of Commons pass a motion for an early General Election or where a vote of no confidence is passed by the Commons, an alternative government that commands majority Commons support is not formed within 14 days. Whatever one thinks of the purposes behind and merits of the Act, the processes by which it was enacted (including the use of a three-line whip of MPs and peers) have been sharply criticised. Whilst understanding the need for progress on the matter, the Commons Political and Constitutional Reform Committee stated that,  “bills of such legal and constitutional sensitivity should be published in draft for full pre-legislative scrutiny, rather than proceeded with in haste… we regret …the rushed timetable that the Government has unnecessarily adopted for the Bill, and the incremental and piecemeal approach to constitutional change that the Bill seems to represent.” The House of Lords’ Constitution Committee took an even more critical line that extended to the merits of the measure, commenting that “the origins and content of this Bill owe more to short-term considerations than to a mature assessment of enduring constitutional principles.” It is hard to discern a sense of prevailing constitutional values or identity when constitutions are so readily alterable. Unless some version of common law constitutionalism is asserted, the UK Constitution may be thought to lack a capacity for commitment to deeper value norms.

By contrast, the formal amendment requirements of Article V of the US Constitution are said to make the US Constitution difficult to amend. Article V states that an amendment can be proposed by two thirds majorities of both the House of Representatives and Senate and ratified by three quarters of the state legislatures (38 state legislature ratifications would be needed today). Alternatively, Article V provides that two thirds of the state legislatures can request a constitutional convention to propose a constitutional amendment that in turn requires the ratification of conventions in three-quarters of the states. From a total of 27 successful amendments to the Constitution since 1787 (including ten in 1791), not a single constitutional amendment has been secured via the constitutional convention route. The onerous special majority procedures allow just thirteen states to block constitutional reform and lend the degree of rigidity that is evidenced by the infrequency of constitutional revision. In truth however, where formal amendment is onerous, ‘informal’ amendment is more likely to occur through new judicial and legislative interpretations of constitutional text. The First Amendment may not have been amended since its ratification by three-quarters of the state legislatures in 1791. Nonetheless, the nature and scope of free speech protection has undergone a radical judicial transformation in the intervening years. The landmark Holmes and Brandeis dissents in Abrams (1919) and Gitlow (1925) for example are rightly credited with fashioning ultimately a much more powerful form of constitutional protection for dissenting speech against federal and state government regulation.

Conclusion

Thomas Jefferson famously rejected the power of a previous generation to bind the present, advocating a constitution that would lapse every nineteen years which would allow the next generation to author its own framework of laws. In a letter to James Madison, he stated:

“I set out on this ground which I suppose to be self-evident: ”That the earth belongs in usufruct to the living;’ that the dead have neither powers nor rights over it… We seem not to have perceived that by the law of nature, one generation is to another as one independent nation to another.” (Letter to James Madison, Paris September 6, 1789.)

For Jefferson, constitutional amendment needed to be relatively simple to achieve. The responsiveness of constitutions to popular opinion was crucial. He would doubtless be amazed at the constitutional impasse in which Greek society now finds itself. At the same time however, it is not clear that his idea of fixed and relatively brief life spans for constitutions would offer the degree of stability that modern political and economic structures require. The search for an optimal constitutional amendment mechanism continues.

Ian Cram is Professor of Comparative Constitutional Law at the University of Leeds.

Suggested citation: I. Cram, ‘Some Thoughts on Constitutional Amendment’ U.K. Const. L. Blog (12th November 2013) (available at http://ukconstitutionallaw.org).

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Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

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I Parliamentary sovereignty in other countries

 In this post I defend the absence of judicial strike down powers in the UK by exploring the ways in which other countries besides the UK manage to function well as liberal democracies without courts enjoying strike down powers, and looking at some of the negative aspects of the USA system, which is sometimes held up as a model to which the UK should look.

A doctrine of parliamentary sovereignty in the particular sense that the courts will give effect to legislation passed by the Parliament on any subject matter, even if it is ‘unconstitutional’, is not unique to the UK. It applies in common law based New Zealand which – like the UK – does not have a formally entrenched written constitution (though a 75% majority in a referendum is required to certain aspects of the electoral system). It also applies in some of our Northern European neighbours, notably Finland, Sweden and the Netherlands.

New Zealand

Politics in New Zealand resembles that of the UK in a number of respects, including the development of constitutional conventions of political restraint in relation to the constitution and the cultivation of good relations between the courts, the Parliament and the executive (M. Palmer ‘Open the door and where are the people’ The white population of New Zealand is relatively homogeneous and cohesive. Special measures – the Treaty of Waitangi – protect the Maori.

The New Zealand Parliament enacted a Constitution Act in 1986 which describes the country’s constitutional arrangements but leaves the traditional doctrine of parliamentary sovereignty broadly in place. The principal purpose of the 1986 Act was to patriate the New Zealand constitution by breaking its links with and dependence on the United Kingdom’s legal system.

The constitutionality of laws in New Zealand, not being protected by American-style judicial review, is promoted in a range of informal ways. In 1986 Minister of Justice, later Prime Minister, Geoffrey Palmer established a non-statutory Legislation Advisory Committee. The Committee is serviced by the Ministry of Justice and generally meets every six weeks. Its terms of reference are as follows:

(a) to provide advice to departments on the development of legislative proposals and on drafting instructions to the Parliamentary Counsel Office;

(b) to report to the Attorney General on the public law aspects of legislative proposals that the Attorney General refers to it;

(c) to advise the Attorney General on any other topics and matters in the field of public law that the Attorney General from time to time refers to it;

(d) to scrutinise and make submissions to the appropriate body or person on aspects of Bills introduced into Parliament that affect public law or raise public law issues;

(e) to help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines and discouraging the promotion of unnecessary legislation.

Its members include the President of the Law Commissioners, academics, practising barristers, judges and parliamentary counsel and civil servants. While it has no delaying power and it is open to the government to ignore its reports, it is assumed to have an effect upstream in government during the preparation and then the parliamentary processing of bills. It is very rare for the New Zealand Parliament to pass laws that would be regarded as ‘unconstitutional’. I shall return to lessons that may be drawn from the New Zealand approach in due course.

Sweden, Finland and the Netherlands

Doctrines of parliamentary sovereignty in the sense that the courts may not hold an act passed by the primary legislator to be invalid as being ‘unconstitutional’ also operate among some of our Northern European neighbours (see Jaakko Husa‘ Guarding the Constitutionality of Laws in the Nordic Countries: A comparative perspective’ in 48 American Journal of Comparative Law, 2000, p. 345). Practice in these non-common law, small country jurisdictions may seem of little relevance to the UK, but we share a number of important and influential characteristics with them which can cast light on how they, and the UK, manage quite well without constitutional review by the courts.

There is very little American or German style ‘judicial review’ of legislation in Sweden: judicial review is only permitted if the conflict with the Constitution or another higher law is ‘clear’ or ‘manifest’ (see Thomas Bull ‘Judges without a Court:  Judicial Preview in Sweden’ in T. Campbell, K. D. Ewing and Adam Tomkins The Legal  Protection of Human Rights: Sceptical Essays, Oxford, Oxford University Press, 2011;  Lars-Goran Malmberg in X. Contiades, ed. Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, Abingdon, Routledge, 2012); in Finland there is none (see Jaakko Husa The Constitution of Finland, Oxford, Hart Publishing, 2011; Tuomas Ojanen ‘Constitutional amendment in Finland’ in Contiades ed, above; M. Suksi ‘Finland’ in Oliver and Fusaro, How Constitutions Change, Oxford, Hart Publishing, 2011; Kaarel Tuori in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, above). These countries rely substantially on pre-legislative, abstract scrutiny – preview – of bills by special parliamentary committees: for instance the important and highly regarded Constitutional Committee of the Finnish Parliament; and, in the case of Sweden, on the work of its extra-parliamentary legislative committees in preparing proposals for legislation, and its Law Council, an official independent body similar to the French Conseil d’état or the New Zealand Legislation Advisory Committee, which scrutinises and reports on bills.

The Netherlands also lacks judicial review of Acts for constitutionality by the courts: this is forbidden by article 120 of the Constitution (see C A J M Kortmann and P P T Bovend’Eert The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law, Boston, Kluwer Law and Taxation Publishers, 1993). The Netherlands system relies on its Council of State to ‘control’ [scrutinise] and report on bills before they are passed. Its parliamentary committees are weak.

Each of the ‘preview’ bodies in these three countries includes lawyers in its membership – judges, academics or practitioners – and in some respects they adopt formal procedures which resemble those of the courts: hence the phrase ‘judicial preview’ may be applied to them, though they are none of them ‘courts’. In summary, each of these countries has developed a system of constitutional preview involving extensive consultation about and expertly advised non-partisan scrutiny of legislative proposals at a number of stages in the legislative process which has proved effective in preventing the making of ‘unconstitutional’ laws.

Despite the restrictions on or absence of judicial review for constitutionality only seldom, if at all, are laws passed which seriously conflict with constitutional principles in these countries. (Readers may be thinking that ‘seldom’ is not as good as ‘never’; and why does only ‘serious’ conflict matter? Perfection is unachievable in these matters. Is it the fact that bad laws of a constitutional nature have never been passed and given effect by the courts under their written constitutions in countries with judicial review? Surely not. (I shall consider the position on this issue in the United States briefly below.) On the other hand the Netherlands is a monist system and thus treaties, including for instance human rights treaties, have direct legal effect and give rise to rights that individuals may enforce in the courts. Thus there is in practice a form of judicial review of provisions in Acts which a court in the Netherlands may ‘disapply’ in case of incompatibility with treaty provisions, some of which are ‘constitutional’ in nature.

Sweden and the Netherlands, like the UK, are constitutional monarchies: they have evolved continuously over at least two centuries gradually subjecting the exercise of formerly wide powers by the head of state and government to legal and conventional constraints. The Constitution of Sweden dates from the Instrument of Government, 1809. The Constitution of the Netherlands as an independent state and monarchy dates back to 1814. Finland was part of Sweden until it became a Russian Grand Duchy – similar to a monarchy – of Russia in 1809. The Finnish Constitution of 1917-1919 was drafted on the assumption that the country would be a monarchy or German Grand Duchy, but this became impossible after the defeat of Germany in World War I and Finland turned to electing a President who enjoyed some powers of a King. Thus although the Finnish Head of State is a President the country has retained some of the traditions of continuity that constitutional monarchies possess ( see Seppo Hentila in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) pp. 35-45; Jaakko Husa,  above.)

Each of these countries has a parliamentary executive, thus allowing constitutional traditions and conventions of responsible and responsive government to evolve and regulate the relations between the parliament and the executive in ways that are not possible in non-parliamentary, presidential systems; each has a fairly homogeneous population most of whose members share senses of common identity and common interests. Where, as in the Aland Islands of Finland, a population has a separate identity, special arrangements for their protection have been made. These countries have fairly consensual political traditions (see for instance Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, 2nd edn. , Berkeley: University of California Press, 1975, on The Netherlands), and there are cultures of non-partisan approaches to constitutional matters or political traditions of pragmatic compromise: these tendencies may be reinforced by the fact that each uses a system of proportional representation in elections. The Finnish Constitutional Committee and the Swedish and Netherlands Councils of State act in quasi-judicial ways, taking advice from lawyers, often academics, and  evidence, formulating their opinions in terms of constitutional legality, and generally adopting non-political positions.

Where a non-partisan approach to constitutional matters does not exist in a substantial section of the population of a state, where for instance a population is seriously divided on class, racial, sectarian, tribal or religious grounds, non-partisan politics, especially in relation to minorities and constitutional matters, may be impossible: experience in Northern Ireland, with its divided unionist and nationalist communities, in the middle of the twentieth century illustrates the point. In such countries there may well be a need for a judicially enforceable Constitution –and/or international agreements to resolve conflicts – as are provided for by the Northern Ireland Act 1998 and the Belfast Agreement (Cm 3883, 1998).

The UK shares many characteristics with New Zealand, Sweden, Finland and the Netherlands including evolution of constitutional arrangements over many years and parliamentary executives.  Of course, the UK does not have a tradition of consensual party politics or coalition government. This may be due to the first past the post electoral system and to the fact that British politics retains elements of a class system, which in turn are reflected in some of the policies of the main political parties: class is less important in New Zealand and our Northern neighbours than in the UK. The UK does however, I suggest, have cultures and traditions that are hostile to partisan, and in favour of non-partisan, constitutional politics – again, Northern Ireland has been an exception: there consociationalism now provides a new form of consensus politics. But among the general public and in opposition parties opposition to partisanship in constitutional politics is deeply embedded in Great Britain.

It is broadly agreed and understood among Westminster parliamentarians and among the general public that constitutional change should not be brought about with a view to benefiting the party or parties in government or their supporters; rather constitutional changes should promote honestly held views about the public interest and where the balance between individual rights and conflicting public interests lies. Allegations of partisanship are of course made, especially by opposition parties and the critical press, when constitutional changes are under consideration. But Governments proposing change in the UK will never admit to partisanship: if they were to do so this would attract general public disapproval.

Partisan party political considerations no doubt influence the priority given to some proposals for constitutional change over others: commitments by the Labour government that was elected in 1997 to devolution to Scotland and Wales were no doubt influenced by fear of the Scottish National Party and Plaid Cymru winning over Labour voters if no such promise was made. That consideration does not however of itself detract from the merits of devolution, which are based in senses of shared national and regional identities and desires for government in these areas to promote general interests within each territory and for public servants to prioritise the interests of their populations, and not sectional interests.

This non-partisan understanding about constitutional change in the UK may exist because each government is an opposition in waiting and each opposition party is a government participant in waiting. The electoral system operates so that there are regular changes of government. It is not therefore in the interests of either government or opposition parties to concede a right to the others to use their power in relation to the constitution for party political advantage without any public interest justification. The terms of such debates take for granted that constitutional change should be non-partisan.

To sum up, nowadays the systems in New Zealand, Sweden, Finland and the Netherlands, and in the UK, include informal procedures, legal and political cultures and traditions which enable their constitutional arrangements to function reasonably well and generally without discriminating against parties and classes of people – without judicial strike down powers.

II Countries in which the courts may disapply or strike down legislation: the case of the USA

As is well known doctrines of parliamentary sovereignty in the specific sense that the courts will apply Acts passed by the Parliament regardless of their wisdom, workability or constitutionality do not apply in many countries with written and entrenched constitutions: the Constitution itself may contain clauses which limit the legislator’s power to make certain laws, for instance laws which interfere with federal principles or constitutionally protected human rights, or the independence of the judiciary either forever (eternity clauses, as in the German Basic Law) or unless and until the text of the Constitution is amended in accordance with special procedures such as two thirds majorities in the legislature and assent by three quarters of the states (as in the USA), referendums (as in Switzerland) and so on. And in those countries the courts – either all courts, or a Constitutional or Supreme Court – may disapply (in a concrete case) or strike down (for universal effect) legislation passed by the legislator/Parliament which breaches the Constitution: the USA and Germany are well known examples of countries in which a strike down power exists, but this is the case in very many liberal democracies.

The USA

The USA is an interesting example of how a system based on the common law has evolved differently from that of New Zealand and the UK and its Northern European neighbours. The USA was formed in a revolution and rejected the hereditary monarchy; it introduced instead an elected, rather monarchical, Presidency many of whose powers are very broad and ill-defined in the Constitution, legally controlled to an extent by Congress and by judicial review by the Supreme Court – but not, politically, by conventions. Other presidential powers are so constrained by Congress, in which the President may not have a majority, that it becomes almost impossible for even the most basic new laws to be passed without protracted political wrangling.

Why is this not the case in the UK – and in New Zealand and Canada and other Commonwealth nations? (s ee for instance T. Kahana ‘Canada’, M. P. Singh ‘India’, and P. Rishworth ‘New Zealand’ in Oliver and Fusaro, eds, above). In these countries conventions have evolved over time to deal with the fact that the Crown was not subject to judicial review – individual ministerial responsibility to Parliament being the most significant of these conventions. No such evolution took place in the USA because, the system being presidential rather than parliamentary, no confidence relationship exists between the President and Congress, and because all the ground rules are assumed to be contained in the Constitution and the decisions of the Supreme Court: in this respect the USA is a highly positivist system. The fact that the USA took a different and ‘non-conventional’ route from that taken by the UK and many Commonwealth countries and many other constitutional monarchies may go some way to account for the development of constitutional judicial review in the USA and in other states with executive presidencies, and for its absence in the UK and its legally related cousins.

The positivist approach and the absence of political conventions that constrain the exercise of executive power may also account for the fact that neither party political nor constitutional politics in the USA are consensual: the Constitution itself has been subject to political manipulation, the appointments to the Supreme Court have become politicised, and many executive and Supreme Court decisions on constitutional issues are wide open to allegations of political partisanship. Given that the United States Supreme Court’s constitutional judicial review jurisdiction is commonly looked to as an example to be followed by the UK, we should bear in mind that America is very different from the UK in many respects. It is not a parliamentary system. It is federal while the UK is a union state:  it is essential in a federation that the states are judicially protected against encroachment on their powers by the federal institutions. By contrast the devolution arrangements in the UK specifically preserve the UK Parliament’s sovereignty. America’s political culture is even more aggressive than that of the UK and far less civil in its political and legal affairs: incivility is recognised as a problem in the USA (see for instance Susan Herbst, Rude Democracy: Civility and Incivility in American Politics,  Philadelphia, Temple University Press, 2010; Dr Leslie Gaines-Ross ‘Incivility is harming America’s reputation’ at http://reputationxchange.com/2011/06/21/incivility-is-harming-americas-reputation/) whereas it is not – so far – seen to be a real problem in UK politics and legal practice.

The US Supreme Court has of course a positive record in relation to the Constitution, in particular human rights, in some areas, including the desegregation of schools (Brown v Board of Education 347 US 483 (1954)), and abortion (Roe v Wade 410 US 113 (1973). American arrangements are not, however, by any means watertight guarantees of human rights or good government (see generally T. Campbell, K.D. Ewing and A. Tomkins The Legal Protection of Human Rights: Sceptical Essays, above), and this should be borne in mind by those arguing for the adoption of constitutional review in the UK. No system is watertight. The USA Constitution and the Supreme Court’s role in interpreting and upholding the Constitution, and the political and public cultures there have not prevented the following:

a)     Slavery (abolished by the Thirteenth Amendment, 1865; compare the ending of slavery throughout the British Empire by Act of Parliament in 1833, and its ending at common law in Somersett v Steuart (1772) 20 St Tr 1 (England) and Knight v Wedderburn  (1778) Moor 14545 (Scotland)).

b)    Racial segregation (upheld by the Supreme Court  in Plessy v Ferguson  163 US 537 (1896), but later declared unconstitutional by the Supreme Court in Brown v Board of Education 347 US 483 (1954); the move to constitutionally required integration came with the Supreme Court decision in Green v School Board of New Kent County  391 US 430 (1968)).

c)     Discrimination (phased out in a series of Civil Rights Acts in 1964, 1965 and 1968).

d)    The denial of voting rights to slaves (ended by the Fifteenth Amendment, 1870, which guaranteed the right to vote without regard to race) and women (the Nineteenth Amendment, 1920, completed the extension of the franchise to women, providing that the right to vote could not be denied ‘on account of sex’).

e)     Denial of many labour rights (Lochner v New York 198 US45 (1905)).

f)     Prohibition (established by the Eighteenth Amendment in 1920, ended by the Twenty First Amendment in 1933).

g)     The race based gerrymandering of district boundaries (found to be unconstitutional by the Supreme Court in Gomillion v Lightfoot 364 US 339 (1960); see also Miller v Johnson 515 US 900 (1995) and Hunt v Cromartie 532 US 234 (2001). Partisan gerrymandering continues).

h)    The widespread use of the death penalty,

i)      The upholding of unfair campaign financing practices (Buckley v Valeo 424 US 1 (1976); Citizens United v Federal Election Commission 558 U.S. 310 (2010)).

j)      Resolution by the top court of a major presidential election dispute in favour of the candidate who received fewer votes than his opponent, reinforcing the incentives for a President to pack the Supreme Court with sympathetic judges (Bush v Gore 531 US 98 (2000)).

k)    Detention of suspects without trial off-shore for lengthy periods.

Such problems should be borne in mind by those encouraging the UK and its courts to adopt US style judicial review, especially if they are encouraged to do so unilaterally and without a mandate in the form of legislation passed by Parliament or the adoption of a written constitution for the UK. A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.

III Concluding remarks

Of course other countries with entrenched written constitutions and Constitutional or Supreme Courts exercising judicial review of Acts may have different experiences of the workings of their arrangements. Such a system works well in Germany, for instance. But each has its own history and political and legal cultures. These should not be overlooked when fundamental changes to the British arrangements by virtue of unilateral and thus irreversible assumption of a strike down power by the courts is contemplated or argued for. Hints by some of the judges in Jackson v. Attorney General ([2006] 1 AC 262) to the effect that the courts may exercise a reserve power to refuse to give effect to a provision in an Act that was contrary to the rule of law should ring alarm bells. If the UK were to adopt an entrenched written constitution providing for a Supreme or Constitutional Court with strike down powers the controversies about such powers would not go away. But at least the Court could point to the Constitution as granting it that power. Our current courts cannot point to any such legitimating source: they should not assume such a power.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London. 

 Suggested citation: D. Oliver, ‘Parliamentary Sovereignty in Comparative Perspective’ UK Const. L. Blog (2nd April 2013) (available at http://ukconstitutionallaw.org)

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Jacob Rowbottom: Campaign Lies and the First Amendment

It is now a tradition that during an America presidential election year, commentators shall declare the campaigns to be the ‘nastiest’ and ‘dirtiest’ ever. It is difficult to know whether such a claim is true of the 2012 election, as tough campaigning has a long history in the USA (as a NY Times article from last month explains). There is, however, no doubt that candidates at all levels of the American system have engaged in and been subject to some fierce attack messages (a recent Campaigns and Elections article provides some notable examples). Yet negative messages do not breach campaign ethics. Strong criticism of parties and candidates is part of the cut and thrust of elections. The real problem arises when electoral messages turn out to be false – and a quick viewing of websites such as FactCheck.org show the doubts about the truth of some campaign messages in the current American election.

Given the seemingly free exchange of robust (and sometimes brutal) campaign communications, it may surprise some readers that several US states have laws that prohibit certain false statements about candidates during an election campaign. These are the American equivalents of British law that led to Phil Woolas being forced out of his seat following the 2010 general election (s.106 of the Representation of the People Act 1983). For example, the key state of Ohio has laws prohibiting knowingly or recklessly false statements being published about a candidate. It employs a combination of administrative remedies (through an Election Commission finding or a fine) and criminal penalties (as a last resort). Despite the presence of such a law, a recent article in the Cleveland Plain Dealer casts doubt on the effectiveness of these measures.  Much the same can be said about its British counterpart.

A bigger constitutional question is whether such laws are consistent with the right to freedom of speech under the First Amendment. This is something I considered briefly in an article for OJLS published over the summer. On my reading, the US case law was ambiguous. The US Supreme Court has not addressed the issue directly. Previous statements from the Supreme Court point in different directions, with some emphasizing the importance of political expression and others stressing that knowingly false statements have no value. Since my article was finalized, the Supreme Court’s decision in June in US v Alvarez sheds more light on this issue and drops some hints as to how the Court might approach false campaign statement laws.

Alvarez did not concern campaign communications, but a statute called the Stolen Valor Act, which made it a criminal offence to falsely claim to have been awarded ‘any decoration or medal authorized by Congress for the Armed Forces of the United States’. The issue for the Court was whether the First Amendment protected false statements. A majority of the court decided that while lies can be prohibited in some circumstances, falsity alone does not preclude First Amendment protection. In his plurality opinion, Justice Kennedy thought the system of free speech is self-correcting and that the normal ‘remedy for speech that is false is speech that is true.’ Applying strict scrutiny, he found the Stolen Valor Act to be unconstitutional. In a concurring opinion, Justice Breyer reached the same conclusion, but applied a less intense standard of intermediate scrutiny.

The government relied on a number of cases, including New York Times v Sullivan (1964) to support the Stolen Valor Act. The ruling in Sullivan famously protects those making statements about public figures from defamation actions. However, the Sullivan ruling still allows defamation actions to be brought when malicious (ie knowingly or recklessly false) defamatory statements are made about public figures. One reading of Sullivan is therefore that knowingly or recklessly false statements can be restricted – even on political matters – without raising First Amendment concerns. The argument is of interest as many of the American campaign speech laws have been drafted to conform to this reading of Sullivan, prohibiting only those false statements about candidates that are made with ‘actual malice’.

The Supreme Court in Alvarez, however, rejected this reading. The basic thrust of Justice Kennedy’s reasoning is that defamatory statements normally fall outside the First Amendment. The public figure defence in Sullivan is a way of softening that exclusion to give breathing space for political speech. On this view, Sullivan merely deprives the malicious speaker of the public figure defence and in such cases restores the normal position that defamatory statements fall outside the First Amendment. While I am still thinking through the implications of this reasoning, it means that the Supreme Court now treats the Sullivan rule on malicious statements as specific to defamation and does not deal with false statements more generally.

Alvarez also provides some indication of how campaign speech laws might be treated. In a recent analysis of the decision, Prof Rick Hasen, a leading US election lawyer, notes that there is ‘unanimous skepticism of laws targeting false speech about issues of public concern.’ For example, Justice Breyer, in a concurring opinion, said that controls on ‘false statements about philosophy, religion, history, the social sciences, the arts, and the like’ would risk suppressing true as well as false statements, and that such controls could call for strict scrutiny. He went on to say:

‘In the political arena a false statement is more likely to make a behavioral difference (say, by leading the listeners to vote for the speaker) but at the same time criminal prosecution is particularly dangerous (say, by radically changing a potential election result) and consequently can more easily result in censorship of speakers and their ideas.’

Breyer’s remarks suggest that it would be difficult to tailor a control on false campaign speech in a way that would not chill some true expression and that such controls could also be open to abuse by prosecutors and adjudicators.

Justice Alito offered a dissenting opinion, stating ‘false statements of fact merit no First Amendment protection in their own right’. While he thought the Stolen Valor Act should be upheld, he too hinted that laws prohibiting false campaign speech might fall foul of the First Amendment. Even though false statements have no intrinsic value, Alito reasoned that this should not be the end of the question. Restrictions on false statements of fact can still have a chilling effect. For this reason, restrictions on certain types of false speech may still be afforded some ‘instrumental constitutional protection’. Like Breyer, Alito thought that in relation to ‘philosophy, religion, history, the social sciences, the arts, and other matters of public concern’ it would be ‘perilous to permit the state to be the arbiter of truth.’ The dissenters also argued that such a power ‘opens the door for the state to use its power for political ends’.

These statements are only indications of where the Court might go and do not address the campaign speech issue directly. These initial sentiments of the US Supreme Court stand in contrast to the position of the British courts following Woolas, which concerned the British law on false electoral statements. In that case, Thomas LJ stated that Article 10 of the European Convention ‘does not extend to a right to be dishonest and tell lies’ and that this is applies to lies about the ‘political position of a candidate’ as well as those about a candidate’s ‘personal character’. Thomas LJ argued that dishonest statements in an election campaign ‘are aimed at the destruction of the rights of the public to free elections’ and thereby relied on Article 17 to exclude any protection under the European Convention. The British approach appears to give the government a free hand in restricting dishonest campaign messages.

Ultimately, the issue is a difficult one and the British and the emerging American approaches show two different paths. My feelings on this are mixed, as I think the campaign lies do pose a substantial harm to the electoral process and in some cases it cannot be remedied with ‘more speech’. At the same time, I have serious reservations about allowing courts or agencies to determine the truth of campaign messages. In any event, I think false statement laws have limited effect and can only ever be enforced in a small number of cases.

It remains to be seen what will happen in the USA. Prof Hasen concludes in his paper that following Alvarez ‘we are likely to see more false campaign speech in elections, including some brazen lies.’ Just as Citizens United unleashed new channels for money to enter politics, Alvarez could open the door for more lies to enter campaign debate. Yet you may ask whether protecting dishonest campaign speech would really make such a difference. Given the limited enforcement of the existing state laws, the removal of the campaign speech laws may not in practice be such a great change from the status quo. If campaigners under the current rules feel free to mislead and lie, what difference will it make if those laws are struck down? The significant development would be the recognition of constitutional right to tell lies in elections, which might be taken as a signal for people to eschew certain campaign ethics. If that happens, then maybe the next election cycle really will be nastiest and dirtiest ever.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Campaign Lies and the First Amendment’  UK Const. L. Blog (30th October 2012) (available at http://ukconstitutionallaw.org)

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Andrew Hammel: Why the Circumcision Judgment looks so weird to American Eyes

The Cologne Landgericht decision proclaiming religious circumcision to be a form of illegal assault will apparently soon be superseded by legislation permitting the practice under certain conditions. Nevertheless, the mere fact that the decision came about – coupled with its endorsement by many members of the German criminal-law community and the fact that approximately half of Germans want to see religious circumcision punished by law – points at a continuing controversy. Circumcision also presents an interesting cross-cultural case study, since it is not expressly regulated in either the United States or (yet) in Germany. An enlightening 2002 analysis by Geoffrey P. Miller shows that all U.S. published U.S. court cases about male circumcision involve botched operations or problems with obtaining parents’ consent. It appears that no U.S. court has yet addressed a situation in which a doctor has been criminally prosecuted for competently performing a circumcision with the consent of the child’s guardians.

Even were such a case to emerge, it’s difficult to imagine a similar outcome. Following the First Amendment’s explicit ban on ‘established’ churches, the Supreme Court has limited government interference in private religious rituals. A line of Supreme Court cases has called for the government to display a ‘wholesome neutrality’ toward all religions, and to avoid unnecessary ‘entanglement’ of church and state. Accordingly, the Supreme Court has forbade American government entities from pronouncing on internal church administration, drawing government administrative boundaries to accommodate religious sects, or banning controversial religious practices under the pretext of public safety. This basic suspicion of intermingling secular administration and religion is widespread among legal officials. The average District Attorney, presented with a case in which a third party complained about a properly-performed circumcision, would almost certainly use her discretion not to prosecute.

The second (somewhat related) strand of jurisprudence emphasizes family autonomy. In a landmark 1972 case, Wisconsin v. Yoder, the Court upheld the right of Old Order Amish families to withdraw their children from formal education at the age of 16, observing that though there is no explicit guarantee of family autonomy in the Constitution, ‘the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society.’ The state, for example, may not ban parents from sending their children to private religious schools or even educating them at home, as long as curricular standards are met. The fundamental Constitutional principle of American family law, repeated in case after case, is to presume that “natural bonds of affection lead parents to act in the best interests of their children”. When the parental autonomy is bound up with religious practice, the rationale for judicial circumspection becomes even clearer.

And indeed, the decision of the Cologne court demonstrates the problems that occur when courts intrude in this area. Considering its worldwide resonance, the decision itself is astoundingly brief, just a few paragraphs long. At one point, the court accuses the doctor (and, by implication, the boy’s parents) of infringing the boy’s right to choose his own religious affiliation. Yet the mere fact that a child is circumcised doesn’t irrevocably commit him to Islam, as the 55% of American males who are circumcised can attest. Second, the court can hardly have thought through its proposed right for children to freely choose their religion. Both of Germany’s established religions provide for elaborate public rituals in which children are brought into their parents’ or community’s faith long before they are of age to make binding legal commitments under German law. Granted, these induction ceremonies don’t involve circumcision, but the court did not bother to limit its principle only to these cases. Like many legal commentators, the court also confidently proclaimed circumcision to be against the child’s best interests without ever suggesting why the child’s parents, who obviously had different views, should be ignored.

These problems help explain the different reactions to the decision among German and foreign observers. Christian Germans (whether devout or nominal) are rarely circumcised. This is in stark contrast to the United States, where routine circumcision was adopted during the late 19th century on hygiene grounds (including the prevention of masturbation) which would now be considered dubious. Yet the practice remains well-accepted: The American Pediatric Association recently concluded that “scientific evidence demonstrates potential medical benefits of newborn male circumcision” and explicitly noted that it is “legitimate for parents to take into account cultural, religious, and ethnic traditions, in addition to the medical factors, when making this decision.” By contrast, circumcision in Germany has only been customary among two religious minorities, one of which was decimated during the Third Reich, and the other which only arrived in significant numbers in the last 40 years. The generally positive reaction to the decision among Germany’s socially conservative legal culture shows a lasting undercurrent of suspicion against customs and beliefs that have “non-European” roots – and of the parents who wish to pass them on to their children.

Two Models of Freedom and Responsibility

Yet there is another factor driving the circumcision controversy: a stronger emphasis on social cohesion. Again, the comparison with the United States is instructive. America is, in many respects, an outlier in terms of governmentally-enforced social cohesion. There is no national identity card in the United States, and some 10 per cent of the population has no picture identification of any kind. American rules regarding home schooling and religious education are among the most liberal in the world. Unlike every other government in the world, the American state is constitutionally debarred from banning hate speech and propaganda in the name of social harmony. Aside from wartime, compulsory military or civil service has never existed in the United States. And, of course, the American social safety net is designed only to provide transitional, time-limited aid. The possibility that the devout might create self-perpetuating ‘parallel societies’, a perennial source of anguish in the European media, is largely absent from American public discourse. This is not because such parallel societies do not exist in the USA – quite the contrary is true – but because their existence is not seen as problematic as long as they do not encourage crime or exploitation. (Of course, these libertarian hallmarks coexist with a massive security sector and the highest imprisonment rates in the world – but exploring this paradox is beyond the scope of this post.)

Although the German political order also guarantees its citizens wide-ranging civil freedoms, the approach is subtly different. In an interesting article on the ‘German Idea of Freedom‘ Edward J. Eberle argues that Germany’s conception of individual liberty — while robust and deeply-rooted — differs significantly from that found in the United States. In contrast to the freewheeling American conception of individual rights (accompanied by an equally unfettered free market), the German conception of liberty ‘take[s] place within a moral structure erected on ethical concepts that include human dignity and its multiple radiations, people acting within the bounds of a social community with its ensuing reciprocal obligations, and a Sozialstaat.’ Further, the discussion of rights in Germany is coupled with ‘duties rooted deeply in the culture and community’.

This conception of ‘freedom’ conditioned by social integration (which, of course, prevails in many Continental European cultures) enables the state to make claims on its citizens that would be controversial in Anglo-Saxon countries. German court decisions, for example, permit government officials to reject parents’ chosen names for their children on a number of grounds, including that the name might subject the child to ridicule or does not clearly indicate the child’s gender. Until recently, military service was compulsory in Germany, although many young men opted out under liberal conscientious-objector laws. Germany also has a registration law, which requires Germans to timely inform their government of any change in address. Germany has comprehensive federal laws regulating everything from the permissible size of huts on garden allotments to the content of vacation contracts, and a sizable contingent of ‘order police’ (the Ordnungsamt) to enforce them. The German legal order does not provide for untrammeled free speech – pro-Nazi rhetoric is illegal, and media which publish insulting or privacy-intruding material may be confiscated and their owners fined.

The flip side of this intrusion is an impressive network of social rights and benefits. Despite recent reforms, German social welfare benefits are still much more generous than their American counterparts — but recipients may also required to submit to intrusive surveillance. Germany has universal health insurance provided by subsidized insurance companies which are run on the principle of ‘solidarity’. Germans receive large welfare subsidies for having children, and enjoy some of the most generous family leave policies in the world. Virtually all higher education is provided free of charge (or for nominal tuition) by government-funded universities. All workers are guaranteed several weeks of paid vacation per year. Even welfare recipients can petition for extra money to pay for a child’s wedding or a vacation.

To put it simply, the German social bargain permits the state to intrude more deeply into citizens’ affairs in certain areas, in return for providing them with an array of services designed to foster personal development and socialize common life-risks. Germans face more subtle pressure to conform to majority social norms, but in return enjoy benefits conferred by that majority itself. This ideology of ‘duties rooted deeply in the culture and community’ may have influenced the German court’s reasoning: Instead of simply endorsing parental autonomy tout court, the judges asked whether the parents’ choice would bind their child closer to the majority ‘culture and community’ of Germany. Because it would not, it was that much easier to second-guess. Yet the reaction to the court’s decision seems to mark a subtle shift in consensus-minded Germany toward accommodating beliefs and rituals which will always remain outside the mainstream.

Andrew Hammel is an Assistant Professor at the Law Faculty of

Heinrich-Heine-Universität, Düsseldorf.

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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Douglas Edlin: Executing the Laws

Lethal Force and Legal Process

According to Article II, Section 3 of the US Constitution, the President of the United States must “take care that the laws be faithfully executed.”  In a speech delivered earlier this month, Eric Holder, the Attorney General of the United States, offered a legal defense of actions taken by the United States government to kill American citizens living abroad who pose an imminent threat to US national security.  In the speech, Attorney General Holder explained the Obama Administration’s approach to the identification, detention, and prosecution of suspected terrorists.  Holder also explained that, in certain circumstances, the United States must use lethal force rather than the legal process to combat the threat of terrorism.  Here is a brief excerpt:

[J]ust as surely as we are a nation at war, we also are a nation of laws and values.  Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals . . . Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.  This is simply not accurate.  “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.  The Constitution guarantees due process, not judicial process.

After reading this, my immediate thought was:  is that correct as a statement of US law?  And a thought that occurred to me shortly thereafter (with this blog and its readership in mind) was: would this be an accurate statement of UK law?

What Process is Due?

The fundamental requirements of due process are adequate notice and a fair hearing.  The US government may not deprive someone of his life, liberty, or property without first advising him of the claims against him and providing him an opportunity to defend against those claims before an impartial decision maker.

On this understanding of due process, a judicial hearing is not always required.  In the US, as in the UK, administrative agencies and other non-judicial bodies often conduct hearings in which competing claims are resolved and rights are enforced.  This satisfies due process in the absence of a judicial process.

But this does not really respond to Holder’s argument.  The question is whether the government can bypass a judicial process where an American citizen is suspected of “levying War” against the United States, or “in adhering to their [those of the United States] enemies, giving them Aid and Comfort.”  The problem for Holder is that Article III, Section 3 of the United States Constitution specifically anticipates the threat to national security posed by treason and explains how citizens suspected of treason must be treated by the government: “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

The reference to “open court” in Article III, Section 3 seems to indicate that the process that is due to a citizen accused of treason is a judicial process.  It is a hearing in court.  The reference to a person being “convicted of treason” (and the placement of this language in Article III) establishes this as a power held solely by the judiciary.  In fact, in Marbury v. Madison, Chief Justice John Marshall noted that this specific “language of the constitution is addressed especially to the courts.”  The courts alone have the power to convict defendants of crimes, and treason is the only crime defined by the US Constitution.

This reading is consistent with the US Supreme Court’s decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).  In Hamdi, the US government claimed the authority to detain US citizens indefinitely without a hearing.  Although the majority and dissenting justices disagreed about the specifics of the process, they agreed that, at a minimum, due process required the government to give Hamdi notice of its claims against him and an opportunity to contest these claims before “a neutral decisionmaker.”  The majority believed that this neutral decision maker could be a military tribunal or a federal court.  In dissent, Justice Scalia (possibly the most ideologically conservative member of the Court at this time) and Justice Stevens (perhaps the most liberal) concluded that only a federal court hearing would meet the requirements of the Constitution:

“Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime . . . The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property.”

Holder’s claim that the US government may kill a US citizen in the absence of any judicial process seems inconsistent with his reassurances that the United States government may act, even in the fighting of a war, only in a manner consistent with “the rule of law and our founding ideals.”  In her opinion for the plurality in Hamdi, Justice O’Connor was careful to emphasize that “it is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”  Justices Scalia and Stevens expressed their understanding of the relationship between the rule of law and the founding ideals of the US in this way: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

The Hamdi Court held that the US government cannot unilaterally and indefinitely detain a US citizen.  Some judicial process is required to ensure that the requirements of due process are maintained when the US government deprives someone of his liberty.  It would seem that the same process would be needed when the US government intends to deprive a US citizen of his life.

Traitors pose a unique threat, but not an unanticipated one.  In their rejection of shared values and in their access to protected locations and information, their betrayal undermines the security of our lives and our beliefs.  These threats were well known to the authors of the US Constitution.  That is why the language of Article III, Section 3 exists.

A Shared Tradition

In adverting to “our constitutional tradition” in Hamdi, Justice Scalia was referring quite specifically to the Anglo-American constitutional tradition.  The language of Article III, Section 3 itself is adapted from the Treason Act of 1351 (levying war, adhering to enemies, and giving them aid and comfort) and the Treason Act of 1695 (requiring a trial and the evidence of two witnesses to the same act).  In his Hamdi opinion, Justice Scalia includes references to the Statute of Treasons, the Habeas Corpus Act of 1679, and several English cases from the seventeenth and eighteenth centuries.

Is Justice Scalia’s understanding of our constitutional tradition accurate?  If Eric Holder were speaking about British policy, would due process require a judicial process in the UK?  I think the answer is yes.

The argument has been made frequently since 11 September 2001, at least in the US, that evidence of potential terrorist threats may be extracted from detainees through torture (or “enhanced interrogation,” or “degrading treatment,” or whatever one may choose to call it).  In the UK, the courts have refused to accept this argument.  In A v. Sec. of State for the Home Dept. (No. 2), [2005] UKHL 71, the House of Lords reaffirmed the common law prohibition against the use in court of any evidence obtained by torture.

Even more recently, in R (on the application of Mohamed) v. Sec. of State for Foreign and Commonwealth Affairs (No. 2), [2011] QB 218, the Court of Appeal was asked to consider the scope of the prohibition against torture in relation to the principle of “open justice.”  As Justice Scalia did in Hamdi, the Court of Appeal referred to “our shared traditions.”  In Mohamed, the Court was particularly concerned with a court’s obligation to explain the reasons for its decision:

“The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law . . . [T]he principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression.  Ultimately it supports the rule of law itself.  Where the court is satisfied that the executive has misconducted itself . . . all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.”

If Holder were describing British policy, it seems almost inarguable that due process would require some judicial involvement.  As with Hamdi and detention, if the rule of law and British constitutional principles prohibit the British government from torturing individuals suspected of terrorism (or using evidence obtained through torture against suspects), it is difficult to imagine that those same constitutional principles could permit the British government to kill individuals suspected of terrorism without any legal accountability in a judicial forum.

Where an individual claims that the government has violated his fundamental rights, due process requires a judicial process.  The notion that the government may violate the law in the course of executing the law – whether that is in the detention of suspects, the use of torture to obtain evidence, or the summary execution of criminals – fundamentally contradicts the principle that the government is limited by the law.  In our shared constitutional tradition, claims that the executive has violated the law are heard in court:

[T]he English conception of the rule of law requires the legality of virtually all governmental decisions affecting the individual to be subject to the scrutiny of the ordinary courts . . . The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government.  This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators.  (Begum v. Tower Hamlets London Borough Council, [2003] UKHL 5, per Lord Hoffmann)

 The question remains whether and how the UK and US governments can protect their citizens by pursuing terrorist elements and threats in a manner that is consistent with our constitutional tradition.  Maybe it is more difficult for constitutional democracies to fight terrorists.  Maybe that is because what we are fighting for actually makes the fighting more difficult.

Traitors and Terrorists

Benedict Arnold received a trial.  So did Guy Fawkes.  So did John Walker Lindh.

According to Nils Melzer, Targeted Killing in International Law, Britain shifted its police policy after 11 September 2001 to a “shoot-to-kill” approach in certain instances of imminent threats of terrorist violence.  Of course, this is quite different from drone attacks against citizens on foreign soil.  The tragic shooting of Jean Charles de Menezes can be distinguished from the killing of Anwar al-Awlaki in many ways.  One distinction is that al-Awlaki was a US citizen and de Menezes was not a British citizen.  A second distinction is that de Menezes was killed on British soil and al-Awlaki was killed in Yemen.  And another distinction is the activity each man was engaged in immediately prior to his death.  The challenge is to decide which distinctions matter, and which do not, when considering how the UK and the US can combat terrorism without allowing the rule of law to become a casualty of that war.

It is easy for the government to say that it cannot wait when a terrorist is located.  It must act before that individual escapes from view and has the opportunity to plan or carry out an attack against the UK or the US.  It is easy for the government to say that it cannot conduct a trial of a citizen who has taken up arms against his nation.  It has to fight the war first.  But if the threat of terrorism means that the goal must be killing a citizen rather than trying him, even though trying him is what we have done in the past, the principles of law must still control the government.  Not just the principles of the law of war, but the principles of the law of the constitution.  There must be a process by which the rights of that person are considered along with his military value as a target.

This might not be as daunting as it seems.  The judges of the US Foreign Intelligence Surveillance Court have for decades reviewed ex parte requests by the government for permission (or occasionally retroactive approval) to conduct covert surveillance operations in the US.  Congress could create a separate court similar in composition and procedure to the FISC, or amend the Foreign Intelligence Surveillance Act to empower the FISC itself, to permit expedited review of government requests to engage in targeted killing.  The court would be able to review the basis for the government’s claims of imminent threat, the target’s involvement, and satisfaction of the principles of necessity, distinction, proportionality, and humanity, which govern the use of force in war (and which Holder discussed in his speech).  Although this would not provide the traditional judicial hearing envisioned by due process, it would provide judicial involvement in determining the legality of the government’s actions as well as some independent consideration of the rights and interests of the individual involved.

In his speech, Holder claimed that the US will not target one of its citizens without first engaging in “a thorough and careful review.”  Holder also said that the President is not “required to get permission from a federal court before taking action.”  But when the action the President is contemplating is intended to take the life of an American citizen, the Constitution prohibits the government from taking that action without due process.  And in the famous phrase of Justice Brandeis in Crowell v. Benson, 285 U.S. 22 (1932):  “under certain circumstances, the constitutional requirement of due process is a requirement of judicial process.”  The government’s first effort should always be to capture a citizen warring against his nation, and to try him in court, for treason or another crime.  Where that truly is not an option, however, an alternative judicial process, such as the FISC, must be invoked to ensure that lethal force is never substituted for legal process by a government limited by law.

The United Kingdom and the United States must be able to defend themselves from the threats of terrorism, and from the threats of treason.  However unprecedented the threats of terrorism may be, the threats of treason are not new.  For hundreds of years, the UK and the US have used judicial processes to try those accused of betraying their nation.  In a nation of laws and values, it seems impossible to reconcile indefinite detention and torture with due process.  There may be a need for targeted killing.  But a nation cannot defend its principles by violating them.  The shared tradition of the UK and the US requires some judicial process by which the actions of the executive in conducting the war on terrorism may be evaluated according to the principles of Anglo-American constitutionalism.

Douglas Edlin is an Associate Professor and Chair at the Department of Political Science, Dickinson College, Carlisle, Pennsylvania.

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Douglas Edlin: The Substance of Things Hoped For.

One reason that the film V for Vendetta resonated so powerfully with Americans was its presentation of such a plausibly dystopian future history.  The US might descend into chaos, but England would endure, because that is what England does.  As Roger Allam declares with utter conviction in his character Lewis Prothero’s gripping catch phrase in the film: “England prevails!”

The England that prevailed in the film was a fascist oligarchy.  The England that actually prevails, however, is a much more interesting form of government.  A constitutional democracy without a written constitution, the English government can occasionally strike an American as something that could exist only in a film.  Yet there it is.  And there it has been.  The endurance of the English constitution challenges several assumptions of the American constitutional mind: (1) that a legally unlimited legislature will abuse its power; (2) that a written constitution is the best protection against abuses of government power; (3) that a bill of rights is the best guarantee of individual rights; (4) that judicial review means voiding the effect and existence of government acts that violate the constitution.

We can easily imagine some slightly timid American, who has just heard about the English constitutional system for the first time, venturing a question: “Pardon me, but, what happens over there when Parliament violates English constitutional principles?”  This is the traditional response: “Oh, Parliament would never do that.”  Then the American finds herself waiting for a smile.  But the smile never comes.  So now the American is feeling a bit uneasy and somewhat emboldened, so she replies, in a very friendly but slightly more urgent tone: “No, seriously, what HAPPENS if Parliament DOES do that?”  And then she receives the same patient rejoinder: “You simply must understand, Parliament would never do that.”

The American’s discomfort is easy to understand.  The US government was famously conceived and framed on the assumption that government cannot be trusted, so its power must be divided and diluted and thereby controlled.  And, of course, the US government was created in a deliberate effort to avoid the perceived problems of the British system of government.  Americans needed to write down what the government could not do, because they could not trust the government not to abuse its power without these written limitations.  The writtenness of the US Constitution reflects this lack of faith.  In contrast, the enduring unwrittenness of the UK constitution reflects, in a meaningful sense, the presence of faith.  Britons don’t need to write down what Parliament cannot do, because they can trust that Parliament will not abuse its power: “Parliament would never do that.”

Please don’t misunderstand me.  Parliament has sometimes passed legislation that Britons find detestable.  But imagine saying to an American, “Congress legislates responsibly in the best interests of the American people.”  A likely reaction would be laughter (or outrage).  If you said the same to a Briton about Parliament, I don’t think you would hear laughter.  Just look at the difference in the titles each legislature gives to its legislation and the differences in approach and self-perception and public reception become so evident.  (Compare, for example, the Anti-Terrorism Crime and Security Act of 2001 in the UK with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 in the US.)  Now, this may seem a small difference.  I believe it is actually a very revealing one.  Electoral politics in the US has become polarized to such a degree that the arguments tend to be about defining the problem (or denying its existence) rather than differing solutions, because winning elections is the goal of the process rather than having the opportunity to address the policy issue in accordance with a party’s view of the public interest.  So the title of the legislation itself becomes a partisan statement rather than a simple declaration of the issue addressed by the statute.  If we get the government that we deserve, then perhaps Americans have no one to blame but themselves.

Or perhaps the blame belongs to the framers of the US Constitution.  What if they did not assume that government could not be trusted?  What if they had a little faith?  Then what would the US constitution say?  What would they have felt the need to write down?  Would they have chosen to write a Constitution at all?

Nevertheless, Americans are proud of their written Constitution, especially after it was amended to eliminate slavery and to provide equal protection, but they do not generally trust the officials who populate the institutions their Constitution created.  (Of course, they elect most of those officials, but let’s not talk about that right now.)

Americans’ pride in their Constitution stems importantly and inescapably from the fact that it is written.  In his famous decision in Marbury v. Madison (1803), which is commonly held to establish American-style judicial review in the US, Chief Justice John Marshall based his reasoning on the written nature of the Constitution: “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.  This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society . . . It is emphatically the province and duty of the judicial department to say what the law is . . . Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law . . . would subvert the very foundation of all written constitutions . . .”

In other words, the Constitution is a law.  As such, it is the business of courts to interpret the written Constitution and to enforce it when a statute is deemed to violate it.  That is what it means for courts to be courts and that is what it means for the Constitution to be a constitution.  At least, that is what these things mean in the US.

Americans’ faith in their Constitution is doctrinal, as a source of legal rules that they can read and enforce in court.  The meaning of their Constitution is determined primarily by the decisions of judges, because through their interpretations of the written text the Constitution exercises its force in the people’s lives.  And since the US Constitution is deliberately difficult to amend, its development is entrusted principally to the judges who articulate its meaning.

Britons’ faith in their constitution is functional, as a conventional dynamic of institutional relationships.  The meaning of their constitution is demonstrated primarily in the operation of its Parliament, because self-regulated and theoretically unbounded legislative power is the foundational principle of the UK constitution.  The English constitution is written in deeds not words.  In continuing to function as it has functioned, the British Parliament demonstrates the enduring value of the English constitution.  And since English constitutional rights are unentrenched, Parliament can alter them whenever and however it chooses.  So constitutional development is entrusted primarily to the legislators whose enactments define and redefine the meaning of English constitutional rights.

Of course, this is an oversimplification, but perhaps a useful one.  To be sure, English courts have played a significant role in defining the meaning and values of the English constitution.  And this role has increased in recent years, and can be expected to expand further with the creation of the Supreme Court of the United Kingdom.  But so long as parliamentary sovereignty remains the fundamental doctrine of the English constitution, constitutional development will belong primarily to Parliament.

In the end, though, the UK and US constitutions are aspirational.  The US Constitution is aspirational in allowing Americans to imagine what their government might be, if only their institutions functioned as they could, if only Americans had faith in them.  The UK Constitution is aspirational in allowing Britons to imagine what their constitution might say, if it were written in a manner that expressed their faith in the customs and traditions from which their institutions evolved.

Grounded on the assumption that Americans cannot trust government, and written down to define what its institutions can and cannot do, the US Constitution helped Americans to have faith in the document as a protector of their rights from a government they cannot trust.  By acting in a manner that respects the rights of Britons, the UK government continues to function in a manner that reflects and justifies their faith in the English constitution.

All of this leads me back to questions that have fascinated me for some time.  Does the US have judicial review (in the American sense) because Americans cannot trust their government or do Americans not trust their government because they have judicial review?  Does the UK not have judicial review (in the American sense) because Britons can trust Parliament or can Britons trust Parliament because they do not have judicial review?

And this leads me back to V for Vendetta.  Constitutions exist to ensure that those disturbing scenes of government failure in the film – anarchy in the United States and fascism in England – remain fictional.  The film highlights the concerns reflected in each nation’s constitutional system.  When faced with a national crisis, which constitution seems most likely to protect the nation’s values and citizens?  Will a crisis force the nation to choose between protecting its values or its citizens?  Without a written constitution, what is there to prevent the English government from descending into totalitarianism?  Might an attempt to preserve the provisions of the written constitution prevent the US government from protecting its citizens and allow the United States to descend into chaos?  Which constitution, unwritten or written, stands the best chance of preserving values and protecting citizens while preventing fears from becoming facts?

Ultimately, I think, the answer to these questions is a matter of faith.

Douglas Edlin is an Associate Professor and Chair at the Department of Political Science, Dickinson College, Carlisle, Pennsylvania.
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Filed under Comparative law, UK Parliament