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127 pages

English

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The Age of Foolishness is a doubter’s guide to current lawyerly thinking about all things related to constitutionalism in a democracy. This book offers a thorough-going skeptical critique of the views that dominate our legal caste, including in law schools and among judges, and place too much weight on judges to resolve important social policy disputes and too little on democratic politics. The author argues that politics matters in a way that our legal orthodoxy often downplays.

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Political Science

Constitutional theory

Democracy

Law

Justice

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Publié par	Academica Press
Date de parution	01 juin 2022
Nombre de lectures	0
EAN13	9781680537895
Langue	English
Poids de l'ouvrage	1 Mo

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The Age of Foolishness:
A Doubter’s Guide to Constitutionalism in a Modern Democracy
James Allan
Academica Press
Washington~London
Library of Congress Cataloging-in-Publication Data
Names: Allan, James (author)
Title: The age of foolishness : a doubter’s guide to constitutionalism in a modern democracy | Allan, James.
Description: Washington : Academica Press, 2022. | Includes references.
Identifiers: LCCN 2022939788 | ISBN 9781680537871 (hardcover) | 9781680537888 (paperback) | 9781680537895 (e-book)
Copyright 2022 James Allan
Contents Preface Introduction Part I Setting the Stage Chapter One Doubts About Human Rights 1. Doubts about Foundations i. Human rights as moral rights ii. Human rights as tools to advance the general welfare iii. Human rights where no foundations given – just assume they exist 2. Doubts about Finessing Foundations Chapter Two Other Doubts Related to Human Rights 1. Reasonable Disagreement 2. Democracy 3. Attendant Costs of the Fat Understanding Part II Doubting Orthodoxy’s Understanding of, and Commitment to, Democracy Chapter Three Why Politics Matters Chapter Four A Churcillian and Benthamaite Defence of Democracy 1. Preliminaries 2. Considering and Rejecting Possible Lines of Rebuttal: Pollyanna prevails over Cassandra i. Embrace Paternalism and Prefer Aristocracy ii. Reject Procedural Democracy on Wholly Moral Grounds iii. Assert that Strong Judicial Review (of the sort that cannot plausibly be characterized as a form of Constitutionalism) still Beats Democracy iv. Fret About Centralization and Growing Bureaucratic Power 3. Concluding Remarks for this Chapter Chapter Five A Reflection on Majoritarianism Part III Constitutionalism in the Democratic World Chapter Six Start with Informal Constitutionalism 1. Constitutionalism 2. Formal and Informal Constitutionalism 3. Harkening back to Chapter Three and the Role of Politics in Constitutionalism Chapter Seven The Move from Unwritten to Written Explored 1. So can that Promissory Check be cashed? Can you know what’s being taken off the democratic table when you opt for a written constitution? 2. Decide looking forwards not backwards Chapter Eight The Types of Strong Judicial Review Distinguished 1. Preliminaries, Clarifications and Framing the Argument 2. Constitutional Judicial Review of the Heads of Powers Federalism Type Chapter Nine A Last Word on the Latest Constitutional Innovation 1. The Reading Down Provision in a Statutory Bill of Rights 2. The Declaration Provision in a Statutory Bill of Rights 3. A Brief Digression to Confront a Possible Rejoinder Part IV And Lastly on to Constitutional Interpretation Chapter Ten Laying the Groundwork 1. Stop One 2. Stop Two 3. Stop Three At Trip’s End Chapter Eleven Why Doubters Like Me Like Originalism 1. Introductory Remarks 2. The Simple-Minded Larry Alexander Chapter Twelve Some Last Words on Constitutional Interpretation 1. The Hurd Objection to OIM Intentionalist Interpretation 2. The Kay Gambit 3. Even Bigger Doubts about Proportionality Last Remarks Indicative Bibliography Index
Preface
As a conservative with a good many libertarian instincts, I have spent almost all of my working life in law schools around the common law world. (I practised law briefly in Toronto and London.) Today’s law schools are all orthodox left institutions. The median law school academic in all of them (and this is true of virtually all today’s law schools in the US, Canada, Britain, Australia and New Zealand, and true too of the wider universities as well) is noticeably to the left politically of the country’s median voter. In some law schools that gap looks more like a chasm. I see myself as a moderate right-of-center voter who puts a high value on free speech, individual enterprise, small-not-big government, strong national defense, and democratic decision-making; who is firmly opposed to affirmative action or positive discrimination type programs by universities and employers; who detests cancel culture; and who thinks these five anglosphere countries are amongst the very best places on earth for anyone, ever, to have lived. That makes me patriotic. And all these views rest on what might be described as Hobbesian and Humean foundations, about human nature, about the sort of world we live in, about how to understand moral evaluations and the status of the claims they make, about the prima facie benefits of traditional structures and institutions, and so on. Accordingly, and as Boswell reports Johnson as saying of Hume, I am a Tory by Chance. That said, and despite my own self-perception as a moderate right-of-center voter, more than a few of the professoriate in these orthodox left academies consider those sorts of views of mine to fall a good way to the right on the political spectrum. Seriously. On occasion, I have even been described by those within legal academia as sitting at the hard or far right end of the political spectrum. Seriously. They think that says something about me. I think it says something about them, and about today’s law schools and universities.
I do not know if it is those underlying views and attitudes of mine, or something else, but I am also an outlier when it comes to my views about constitutions, constitutional law, the proper role of judges and of how they should approach the task of interpretation of legal texts, the value of democratic decision-making, the worth of bills of rights, and more. My views are consistently opposed to today’s legal orthodoxy, to the preponderant views and positions of those not just in legal academia but also of those in the wider lawyerly caste. As I have written recently in law review articles and in chapters in books in ways that touch on all those constitutional-related topics, it occurred to me that I might be able to take some of those pieces, revise them, add new parts, blend them all together into a coherent whole, and end up with a book. It would amount to a doubter’s guide to constitutionalism (and its related aspects) in today’s common law democratic world. So that is what I have done. Given the unorthodox nature of my views – some in the lawyerly caste might well go so far as to describe them as Beyond the Pale – I thought this book’s title might benefit from a phrase from Dickens, from the first paragraph of one of his great works.
Now as I am re-using bits and pieces of my past writings and blending them together with new bits into some sort of new whole, let me here acknowledge and thank the publishers of where these earlier pieces first appeared. My chapter in The Political Approach to Human Rights was published by Routledge; my chapter in The Challenge of Originalism: Theories of Constitutional Interpretation was published by Cambridge University Press; and my chapter in The Legal Protection of Human Rights: Sceptical Essays was published by Oxford University Press. Then there were twelve of my earlier law review articles of which I made use: ‘Not in for a Pound – In for a Penny?’ and ‘Meagher’s Mischaracterisation of Majoritarianism’ appeared in the King’s Law Journal ; ‘Why Politics Matters’ in Jurisprudence ; ‘Against Written Constitutionalism’ in the Otago Law Review ; ‘Judit Varga, Hungary and the Rule of Law’ in the Hungarian Review ; ‘Informal Constitutionalism and the Role of Politics’ in E Publica Direito E Politica ; ‘A Tribute to Australia’s Killer of “Living Constitutionalism”‘ in Public Law Review ; ‘A Churchillian and Benthamite Defence of Democracy’ in the San Diego Law Review ; ‘The Special Kay Defence of Non-Originalist Judges’ in the University of Connecticut Law Review ; and ‘In Honor of a Simple-Minded Originalist’ in Constitutional Commentary . Thank you, again, to all those publications.
Lastly, thanks are due to my wife of more than three and half decades. She has put up with living with a professional heretic, iconoclast, apostate, skeptic, call it what you will. I was lucky. I married up.
I dedicate this book to my two kids, Cameron and Bronwyn. Great kids. One very lucky dad.
James Allan,
November 2021.
Introduction
This short book doubts much of the orthodoxy as regards constitutionalism in a modern democracy. Today’s emerged consensus amongst the lawyerly caste in, say, the United States, Britain, Canada or Australia, as well as in many non-common law democracies, will be the target of my skepticism and doubt. At the risk of painting too broad a picture, there is amongst that caste too little love of democracy. Hand in hand with that disdain there also travels too great love for unelected judges adopting approaches to interpreting constitutions (and other laws) that leave those same judges effectively unconstrained. On this approach to interpretation the judges are not locked in by the intentions of those who were understood to have the legitimate authority to make the law in the first place, to create and craft the constitution. Indeed, it is hard to see anything that locks them in and binds the choices they can make, nothing external to the internal workings of their own brains – call that product their druthers, their policy preferences, their moral beliefs, their desire to achieve rights-based outcomes, their deep-seated commitment to discovering and implementing Kantian deontological duties, whatever. The point is that these sort of judges treat the constitution as ‘living’ and thereby become the Dr. Frankensteins who themselves create a newly-minted constitutional content for that jurisdiction. They transmogrify the constitutional text into substantive outcomes that look remarkably similar to what these judges would have produced were they legislators (with scope to choose their preferred policy) rather than judges (in theory supposed to be in search of the preferred policy of the law-maker). And these outcomes of interpreting in this ‘living’ constitution way are ones that sit above mere statutes produced by the legislature. They are inoculated against democratic gainsaying or