Constitutional Law, Administrative Law, and Human Rights. A Critical Introduction Chapter 1

Defining the Constitution

Author: Eze-Odikwa Tochukwu Jed

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College Reg Number: MOUAU/CME/14/18475

We hold these truths to be self- evident. That all men are created equal. That they are endowed by their creator with certain inalienable rights. That among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of those ends, it shall be the right of the people to alter or abolish it, and to institute new government, laying its foundations upon such principles, and organizing its powers in such form, as shall seem to them most likely to effect their safety and happiness.

—- Thomas Jefferson, Philadelphia, 4 July 1776.

It may seem odd to begin a textbook analyzing the law and politics of the British constitution by quoting from the United States’ Declaration of Independence, a document drafted by Thomas Jefferson in 1776. The Declaration was written because the American colonists rejected the British constitutional system under which they had previously been governed. Jefferson’s words were intended firstly to provide a justification of the American colonists’ decision to rebel against British rule, and secondly to outline the broad moral principles that the revolutionaries would try to preserve in their new country.

This book begins with Jefferson’s words in part because there is much common ground between American and British perceptions as to the moral principles which should underpin a country’s constitutional arrangements. However, they have been chosen primarily because they continue to provide a succinct, eloquent statement of the issues with which constitutional lawyers in any modern democratic country should be concerned.

We might contrast the sentiments of the Declaration with the various definitions of the British constitution offered by authors of several recent textbooks. Colin Turpin suggests that the constitution is: ‘a body of rules, conventions and practices which regulate or qualify the organization and operation of government in the United Kingdom’; deSmith’s classic introductory text regards the constitution as ‘a central, but not the sole feature, of the rules regulating the system of government’. A longer version is offered by Vernon Bogdanor, for whom the constitution is: ‘a code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and defines the relationship between these and the public’.

These authors are trying to tell us what the constitution is—to describe the form that it takes. The Declaration, in contrast, is telling us what a constitution is for—to analyze the functions it performs. This book presents a functionalist view of the British constitution, concerned more with the ‘Why?’ than with the ‘What?’ of contemporary arrangements. It assumes that the purpose of a constitution is to articulate and preserve a society’s fundamental moral principles. This is not to suggest that knowledge of the form that the constitution takes is unimportant, nor that issues of form and function are unrelated; it is simply to stress that one cannot understand the law of the constitution without looking beyond its surface image.

The book does not offer a one sentence ‘definition’ of the constitution. Rather, the entire book may be seen as a ‘definition’. But this book amounts to only one definition, no more conclusive than any other formula that a student may encounter. British constitutional law is a subject as much concerned with history and politics as with legal rules. Definitive answers to particular problems are often elusive, and it is almost always possible to advance plausible alternatives to the solutions that have apparently been adopted.

This introductory chapter identifies certain evaluative criteria which readers might keep in mind when considering the description and analysis of Britain’s current constitutional arrangements presented in the rest of the book. The following pages explore several abstract questions concerning the functions that a constitution might perform to illustrate the complex nature of the subject we are studying. We also devote some attention to the solutions which the American revolutionaries adopted to resolve the constitutional difficulties which they faced when the United States became an independent country. This is not a comparative book, nor is it suggested that the American solution is necessarily ‘better’ in any particular sense than the British model. The British and American systems are however very different in the form that they take. This is highly significant for our purposes, because the Americans claimed that their revolution was fought not against the moral principles of the British constitution, but against the corruption of those principles by the British Parliament, the British government, the British judiciary, and the British people.

We return to these historical matters shortly. Before doing so however, we may usefully spend some time considering the meaning of what we might (from an early twenty- first century vantage point) intuitively regard as the most important function a constitution should perform—to ensure that a country is governed according to ‘democratic principles’.

1.1 The Meaning(s) of Democracy

That modern Britain is a democratic country is perhaps a contemporary ‘self- evident truth’: the point is so obvious that few observers would ever question it. But if we dig beneath the surface of that assumption, we may find that we hold different views about the essential features of a democratic state, and would reach different conclusions about how democratic a country Britain actually is. That, however, is a judgment best reserved to later chapters. At this point, we might more sensibly ask what yardsticks we might use in answering these questions.

What is democratic governance? Some hypothetical examples

The following hypothetical example assumes that the constitution of the countries concerned (countries A and B) provide that laws be made by referendums, in which all adult citizens are granted one vote. A law is passed if 50%+1 of those citizens who vote support the proposal. Let us assume that a majority of citizens in both countries A and B decide that they are not prepared to tolerate the poverty caused by an economic depression which has left 20% of the adult population unemployed.

Economic policy as a constitutional issue?

In country A, a new law provides a generous scheme of unemployment benefits. The benefit scheme is financed by imposing heavy income taxes on the wealthiest 30% of the population. In doing this, the law frees the poorest members of society from the threat of starvation and homelessness. But it deprives the richest citizens of a substantial slice of their income, which they had planned to spend pursuing their own favoured forms of happiness.

In country B, the law requires that men and women aged over sixty retire from work. A small retirement pension will be paid to the people forced to retire. In doing this, the law reduces the problem of unemployment at a modest financial cost to the majority of the population, but imposes substantial hardship on people over sixty years old who do not want to retire.

How would we decide if these laws were ‘democratic’? Should we ask only if the law has majority support, and if the answer is yes, go no further? If so, both laws (and presumably the constitutional arrangements under which they were passed) would be democratic. Or should we demand that there be an inter- relationship between the level of support a law attracts and the severity of its consequences for particular minorities— the more severe the law, the greater the degree of support it must attract to be democratic? If we accepted that principle, could we then agree that forcing people to retire from work is more ‘severe’ than imposing heavy taxes on the rich? If so, could we further agree that forced retirement would be ‘democratic’ if it enjoyed 55% (or 66% or 75% or 100%) support, while 50%+1 would be sufficient to ‘democratize’ large tax increases? Or thirdly, should we conclude that there are some laws whose consequences would be so severe that they may never be enacted by a democratic society, even if supported by 100% of the population? If so, would either forcing people to retire from work at sixty or imposing large tax increases on the wealthiest sections of the population fall into that category?

Waging war as a constitutional issue?

Alternatively, let us suppose that country C declares war on countries E, and F. The majority of voters in country E decide that they attach more importance to taking steps to win the war than to safeguarding personal liberty, and so enact a law (we might call it the War Emergency Powers Detention Law) which allows the government to imprison (without trial, and for an indefinite period, but in humane conditions) anybody suspected by specified government employees of having connections with the enemy country, for fear that such people might be spies or saboteurs. Country C’s attacks are eventually repelled. Several thousand people are imprisoned under the law for the three years that the war lasts. No investigation is ever carried out to establish if the government’s suspicions about those people detained are well- founded.

In country F, the majority of the population decides that it must accord moral priority to liberty of the person over winning the war, and rejects the proposed War Emergency Powers Detention Law. Subsequently, enemy agents succeed in sabotaging military facilities and undermining the citizenry’s morale to such an extent that country F is defeated, and subjugated by country C.

Which country has acted in a democratic fashion here? Does a desire to preserve the country’s independence justify interference with people’s physical liberty? Does the answer to this question depend on the severity of the interference—or on the severity of the threat from the aggressor? Or on the outcome of the war? Would we need to know the size of the majority supporting each measure before deciding if it was democratic?

Combating terrorism as a constitutional issue?

Let us suppose, as a third example, that country X has recently been subjected to several terrorist attacks by an extremist political group. The attacks have involved the planting of bombs in crowded shopping areas, and have killed and injured many people. The following Prevention of Terrorism Law is proposed. It has five sections. The proposed law is approved by 51% of voters on a 90% turnout. The sections provide that:

1. Any police officer may arrest and question any person she/he suspects of being a terrorist or of being a supporter of terrorist activity. The person may be detained for up to seventy- two hours without being charged with a crime.
2. Any police officer of the rank of Inspector or above may authorize the continued detention for a period of up to twenty- eight days of any person detained under section 1.
3. Any police officer may inflict mild beatings on any person detained under section 1 or section 2 if any police officer believes this would uncover information which would prevent a future terrorist attack.
4. Any police officer police may torture and/or severely beat any person detained under section 1 or section 2 if any police officer believes this would uncover information which would prevent an imminent terrorist attack.
5. No action claimed by any police officer to be taken under any section of this law may be the subject of any legal proceedings in any court.

We might accept that the people who proposed and voted for the law are motivated by a sincerely held belief that its enactment will save many people from being killed or injured by terrorist attacks. Many of the law’s supporters also believe that the police would never actually detain anyone who was not involved in some way with a terrorist group. Other supporters take the view that the law is bound to be applied to wholly innocent people, some of whom will be severely injured by torture; but that is a price worth paying to reduce the number of terrorist attacks. Should we pay any attention in evaluating the law to the motivations of the voters who support it? And if so, is the first or second group acting in the more ‘democratic’ fashion?

It is also evident that the various sections of the law interfere to different degrees with the physical liberty and well- being of individuals detained under it. Should our evaluation of the ‘democratic’ nature of each provision turn on the level of support each received? If so could we accept, if only in the context of country X being subject to terrorist attack, that a three day detention is such a trivial matter that the barest of majorities is sufficient to lend section 1 a democratic character? And if we accept the principle that more severe interferences demand higher levels of support, what criteria should we use to assess severity? Is a twenty- eight day detention in humane conditions more ‘severe’, for example, than a mild beating and release after three days? Would our views on the acceptability of the law change significantly if section 5 were removed?

Complicating the question

Such questions—and such laws—can provoke endless argument as to the proper meaning of ‘democratic’ governance. It might be suggested that the central function performed by a society’s constitutional law is how it reconciles its people’s divergent beliefs about issues of great moral significance.

Moreover, we can rapidly make the questions raised by such ‘laws’ and the constitutional orders in which they are made more elaborate by bringing the hypothetical law- making process under closer scrutiny. Would our conclusions about ‘democracy’ alter if it transpired that the law enacted in country A was supported by the 70% of the population who would not have to pay extra taxes to finance it, but opposed by the 30% who would suffer reduced income if the new system was introduced? Or alternatively, that it was supported by all of the richest 30% but opposed by many of the unemployed, who regarded it as a patronizing erosion of their dignity and self- respect? Similarly, would our views as to the democratic nature of the new law made in country B change if we learned that it had been enthusiastically supported by almost all people over the age of sixty? Would either law become more or less democratic in our eyes if we discover that neither country permits unemployed people to cast votes in the law- making process?

How relevant to our evaluation of the democratic credentials of country X’s Prevention of Terrorism Law would it be to know that many of the people who supported the law had no clear understanding of what was meant by the term ‘torture’ used in section 3; or had not appreciated that a person who was released after having been detained for the maximum twenty- eight days permitted by section 2 could be detained again the day after being released?

A constitution as a social and political contract?

We might readily agree that the issue of ‘consent’ permeates the many plausible answers that could be offered to those hypothetical questions. As a statement of general principle, it is difficult to find fault with Jefferson’s suggestion that ‘government derives its just powers from the consent of the governed’. Problems arise when we go further and ask what exactly the concept of ‘consent’ actually means.

The notion of a constitution as some form of ‘contract’, negotiated either among the citizenry themselves, or between the citizenry and its rulers, was not a novel idea, if only in philosophical terms, in 1776. The French philosopher Jean- Jacques Rousseau had explored the concept of ‘direct democracy’ through an idealized small city state, in which all citizens participated personally in fashioning the laws under which they lived. In such a society, the legitimacy of all laws would rest on the citizenry’s constant, express consent to the process of government. Rousseau rejected the idea of a divine, or natural, or God- given system of government; his men and women were not sculpted by their creator and endowed with those ‘inalienable rights’ that the American revolutionaries were so keen to defend. Rousseau’s social order resulted from agreements between every individual citizen and the citizenry as a whole, from which government was formed. All government action therefore had a ‘contractual’ base; the citizens’ rights and obligations under their constitution derived from covenants that they willingly made.

John Locke’s celebrated Second Treatise on Government, first published in 1690, pursued the concept of constitutions as contracts in a slightly different form. Unlike Rousseau, Locke maintained that society was subject to a form of natural or divine law which imposed limits on individual behavior. Government existed to provide mechanisms for enforcing the substance of such natural laws, the terms of which would serve as the constitution within which the government operated:

it is unreasonable for Men to be Judges in their own Cases . . . Self- love will make Men partial to themselves and their friends . . . Ill Nature, Passion and Revenge will carry them too far in punishing others. And hence nothing but Confusion or Disorder will follow, and therefore God hath certainly appointed government to restrain the partiality and violence of Men.

Locke and Rousseau were engaging in an exercise in abstract, academic philosophizing: they were sketching ideal solutions to hypothetical problems, rather than offering a detailed programme capable of immediate implementation in their respective countries.8 Indeed, in the early 1700s it was difficult to identify any historical examples of such idealized sentiments being put into practice. David Hume’s famous 1748 essay on the formation of constitutions and governments, ‘Of the Original Contract’, recorded that:

Almost all governments which exist at present, or of which there remains any record in story, have been founded originally either on usurpation or conquest, or both, without any pretense of a fair consent or voluntary subjection of the people.

Nonetheless, Locke’s and Rousseau’s writings provided an important reference for the American and French revolutionaries whose armed struggles were waged so that their countries might try to construct a new, ‘ideal’ form of constitutional order. But even at a hypothetical, abstract level, the idea of constitutions as political contracts or covenants raises major difficulties. The foremost among these is, as Rousseau recognized, ‘to determine what those covenants are’.

Locke presented the emergence of government as a prerequisite for protecting individual citizens’ ‘property’, a concept construed broadly as encompassing their lives, their physical and spiritual liberty, and their land and possessions. These matters could thus be construed as entitlements which citizens derived from ‘natural law’, and are an obvious source of inspiration for Jefferson’s notion of ‘inalienable rights’. The terms are too vague to permit any exhaustive definition. Yet by focusing on the specific objectives of the American revolutionaries we can gain some indication of the issues they might encompass.

The Declaration’s complaints against the British government concerned both the way that laws were made and their content. The overall thrust of the argument was that Britain was seeking to establish ‘an absolute Tyranny over these States’, but the general accusation comprised many specific complaints. Jefferson accused the British of, for example, ‘imposing taxes on us without our consent’ and ‘[keeping] among us, in times of peace, standing armies without the consent of our legislatures’. Jefferson is not arguing here that the levying of taxation or the maintenance of an army in peace- time are per se unacceptable features of government power, but that they are acceptable only if ‘the people’ affected by the measures have agreed to them.

Jefferson also identified British actions which apparently were unacceptable per se. The British had, for instance:

dissolved Representative Houses repeatedly. . . . [and] refused for a long time, after dissolutions, to cause others to be elected. . . . [and] refused to pass laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable in them and formidable to tyrants only.

This grievance, so keenly felt, suggests that Jefferson considered that no part of the government process can be acceptable if ‘the people’ cannot choose their preferred law- makers at regular intervals. Without this power of choice, the people could not ‘consent’ to the laws, and therefore those laws could not be ‘just’.

A third category of complaints suggests that there were some laws to which ‘the people’ could not consent even if they wished to. The Americans were outraged, for example, that Britain subjected them to laws which ‘deprived us in many cases of the benefits of Trial by Jury’ and ‘transported us beyond seas to be tried for pretended offences’. The presumption that one’s guilt in criminal matters be established by a jury of one’s peers, and that the scope of the criminal law be clear and stable, were seemingly regarded as fundamental principles of social organization by the colonists. One might attach similar importance to Jefferson’s claim that the British King had:

obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

But it is perhaps easier to identify precisely those aspects of government behavior which the revolution was fought against, than those it was fought for. The rhetoric of ‘All men being created equal’ and sharing ‘inalienable rights to life, liberty and the pursuit of happiness’ is beguiling, almost perhaps bewitching. We might (again intuitively) regard such sentiments as integral ingredients of a democratic constitutional order. But what do they mean? Their concern, broadly stated, appears to be with the nature both of the legal powers that a government possesses and of the processes through which that power is exercised. The bulk of this book explores those concerns in the British context, but we might first consider the answers which Jefferson and his contemporaries offered to these questions.

1.2 The First Modern Constitution?

The following pages offer a simplistically drawn picture of the constitutional settlement at which the American revolutionaries finally arrived in 1791. It is intended to operate not as a yardstick against which to measure the adequacy of the details of the British constitution, but as a comparator which indicates alternative ways in which modern societies might organize their constitutional structures.

The problem—majoritarianism

The central principle informing the deliberations of the framers of the American constitution could be described as a pervasive distrust of human nature. This sentiment was best expressed by one of Jefferson’s contemporaries, James Madison, in The Federalist Papers No 10:

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed . . . . A zeal for different opinions concerning religion, concerning government and [above all] the unequal distribution of property . . . have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co- operate for their common good.

Madison saw no merit in trying to suppress diversity of opinion per se. That men would take different views on all manner of questions was an inevitable and indispensable component of both individual and collective liberty. He was however greatly concerned to draw lessons from history concerning the dangers that a country faced from within its own borders by the combination of citizens sharing the same ‘vexatious’ or ‘oppressive’ sentiments into distinct political ‘factions’, a faction being:

a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

A form of government in which laws expressed the wishes of the electoral majority would ensure that irrational or oppressive schemes favoured by minority factions would not be given legal effect. But, Madison suggested, this ‘majoritarian’ system of law- making offered no protection to society when oppressive or irrational ideas were favoured by a majority. That an idea enjoyed majority support did not necessarily make it conducive to the ‘public good’: majorities might be misinformed about important issues, or be temporarily persuaded to abandon their better judgment by the seductive rhetoric of charismatic leaders, or simply be prepared to sacrifice their country’s long term welfare to gain a short term, sectional advantage. Consequently, Madison argued that the most important characteristic of the Constitution he was urging his fellow Americans to adopt was its attempt to ensure that ‘the majority . . . be rendered unable to concert and carry into effect schemes of oppression’.

The solutions—representative government, federalism, a separation of powers, and supra- legislative ‘fundamental’ rights

Madison suggested that the dangers of faction could be reduced by adopting a form of ‘representative government’, in which laws would be made not directly by the people themselves, but by representatives who the people had chosen to exercise law- making power on their behalf in a legislative assembly. Madison hoped:

to refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.

We might take something of a diversion at this point, and wonder how Madison’s notions of ‘wise’ legislators fits with contemporary understandings of ‘democratic’ government. Let us return to countries A and B, and assume that laws are made not by the people directly, but by 100 legislators who are selected by the people to act on their behalf; a law is enacted if a simple majority of legislators support it. We may further assume that for the purposes of selecting its legislators, both countries are divided into electoral districts with equal populations, each of which returns one member to the legislature; all adult citizens have one vote in choosing their representatives, and the legislative seat is won by whichever candidate receives the most votes.

Would we consider the law enacted in country A as democratic if we learned firstly, that ten of the fifty- five legislators who voted for it represented areas where the majority of electors opposed any tax increase, and secondly that the ten legislators concerned had promised their electors they would vote against any such measure? Would it make any difference to our answer if the reason for the ten legislators’ change of heart was the force of arguments presented in favour of the law during a debate in the legislature? The answer to this question presumably depends on how we answer the logically precedent question of whether the role of a legislator is simply to transmit the wishes of her electors into law, or is rather to exercise her judgment as to the ‘best’ response to particular issues, even if her electors would wish her to reach a different conclusion?

A constitution in which law- making power is delegated or entrusted to a small number of citizens makes the task of judging the democratic nature of laws more complex, for we immediately become concerned not just with the merits of the particular law per se, but also with the merits of those laws which determine the way that legislators are selected and the ways that they behave during the law- making process. Might we question the ‘democratic’ basis of every law country A enacted, for example, if some electoral districts contained twice as many electors as others, but still returned only one member? Or, to revisit a familiar question, if unemployed people were not permitted to vote? Might we also feel uneasy about the law- making process if we learned that many seats in the legislature had been contested by four or five candidates, all of whom attracted approximately equal electoral support, so that the winner was voted for by barely 30% of the people qualified to vote?

A less contentious matter, at least from the American revolutionaries’ perspective, was the presumption that the people’s representatives, once elected, should enjoy unimpeded freedom to discuss any subject they chose, and to cast their law- making votes in any manner they wished. The colonists’ aforementioned complaints over British interference with the operation of their colonial legislatures have clear philosophical roots in Locke’s suggestion that ‘consent’ to government demanded that the people’s legislature should not be hindered by any legal rules:

from assembling in its due time, or from acting freely, pursuant to those ends for which it was constituted, the Legislative is altered. For tis not a certain number of men, no nor their meeting, unless they have also Freedom of Debating, and Leisure of perfecting, what is for the good of the Society wherein the Legislature exists. . . . For it is not Names that Constitute governments, but the use and exercise of those powers that were intended to accompany them.

The issue of representative government invites us to consider further dimensions of the concept of liberty adverted to in the Declaration. Jefferson’s condemnation of imprisonment for ‘pretended offences’ addresses liberty in a physical and individual sense. Yet the Declaration also suggests that liberty bears more abstract and collective meanings, particularly in respect of matters concerning freedom of speech and conscience.

This leads us once again to consider the notion of ‘consent’ to government. Jefferson and his contemporaries assumed that ‘man’ was a rational, autonomous being; the preservation of his liberty demanded that ‘he’ make decisions on the basis of full and accurate knowledge. Consent had to be informed consent. The American revolutionaries thus placed a considerable premium on safeguarding individual citizens’ freedom of conscience and expression in relation to political matters. Consequently, the restrictions which Britain had placed on the activities of representative colonial legislatures were perceived by the colonists as an intolerable infringement of their collective liberty.

This particular strand of ‘liberty’ can be compromised in many ways, and it is intimately tied to our contemporary understandings of ‘democratic government’. Would we conclude, for example, that no law made by the legislative assembly of our hypothetical country A could be democratic if it was a criminal offence for any person to reveal details of legislators’ speeches or votes on the proposals before them? In such circumstances, electors would not know which legislators had supported or opposed tax increases, and so could not make informed choices as to their preferred candidate at the next election. Would we draw the same conclusion about country B if we learned it was a crime in that society for anyone to voice criticisms of the laws enacted by the legislature, with a view to convincing electors to choose different representatives at the next election? These issues are obviously of major significance to any attempt to gauge the adequacy of the mechanism through which legislatures are elected.

Madison’s particular vision of ‘representative government’ clearly demands that one accept the desirability of fostering a certain degree of elitism in one’s governors, and as such demands that law- makers ignore the irrational or oppressive sentiments of the citizens they represent. But this elitism may substantially dilute the ‘representativeness’ of the laws enacted. The preamble to the US Constitution begins with the words: ‘We the people of the United States, in order to form a more perfect union . . . ’. Yet ‘the people’ who chose the legislators who framed the Constitution comprised barely 10% of the populace of the colonies. Voters were all male, almost all were white, and the great majority were atypically well educated and affluent. The consent of the poor, the uneducated, and women was not presumed necessary to the establishment of the United States’ newly created form of government, seemingly because the framers of the Constitution doubted that such groups, which comprised the mass of the populace, could be relied upon to support ‘rational’ (from the framers’ perspectives) constitutional provisions.

Such discriminatory principles might lead us to conclude that the ‘consent’ which the revolutionaries sought was somewhat illusory. This question is one to which we will frequently return in the context of British constitutional history and practice. Yet we may also consider it prudent to be concerned with the powers that legislators might wield once they have assumed (in accordance with whatever notion of popular consent determines their selection) their law- making powers. Madison recognized that it was by no means a complete answer to the spectre of tyranny simply to hope that a system of representative government, in which legislators were selected by an elitist electorate, would invariably produce rulers who would have the wisdom and capacity always to forswear sectional objectives favoured by factions of the population. One could not always rely on ‘patriotism and love of justice’ rather than ‘temporary and partial considerations’ being the dominant forces in the minds of one’s chosen law- making representatives, no matter how carefully they were selected. Madison considered that it was: ‘In vain to say that enlightened statesmen will be able to adjust . . . clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm’.

In those circumstances, the problem of majoritarianism was simply displaced from the arena of ‘the people’ themselves to the much smaller number of citizens who served as legislators. For the designers of the US Constitution, this indicated that preserving ‘the public good’ might demand that the helmsmen steering the ship of state either be precluded from embarking on voyages to undesirable destinations, or at the very least, be subject to constraints that made such journeys very difficult.

Federalism and the separation of powers

The American colonists’ sense of themselves as citizens of a single nation was not well developed. Each colony had been created, in the legal sense, by ‘Charters’ granted by the British monarchy. These had been granted at different times, and on rather different terms. By 1776, the (then) thirteen colonies (from a British perspective) or States (in the revolutionaries’ eyes) had developed distinctive political and social cultures, which were expressed in their respective laws. Yet the colonists also shared many common practical and philosophical concerns. The most pressing was obviously justifying and then succeeding in their revolutionary war: this was a task that could be achieved only if the colonies acted in a co- ordinated manner; aspects of their individual identities would have to be surrendered to a ‘national’ military and political project. But having won their independence through such unified action, the revolutionaries then faced the dilemma of how best to structure the inter- relationships between the nation, the States and the people. Their eventual solution was to fashion a ‘federal’ constitution.

In the modern era, ‘federalism’ is a concept bearing many meanings. As perceived by the American revolutionaries, their federal constitution would have the positive virtue of creating a multiplicity of powerful political societies within a single nation state, each wielding significant political powers within precisely defined geographical boundaries. However, the Constitution placed limits on the political autonomy of each State by granting sole responsibility for certain types of governmental power to the newly created national government. Those matters left within the sole competence of the States, while important in themselves, were not regarded as crucial to the well- being of the entire nation. It would not therefore be dangerous to allow the people of each State to devise their own ‘internal’ constitutional arrangements to determine their respective preferences on these issues: if they chose to indulge factional sentiment within their own borders, so be it; but their choices would have no legal force in the other States. Each State could quite lawfully enact different laws to deal with matters within their geographical and functional jurisdiction.

The principle underlying the creation of a federal nation again derives from a particular view of the meaning of ‘consent’. It assumes that a ‘people’ within which divergent factions held differing views on major (if not fundamental) political matters would be more likely to agree to live under a constitutional order which offered many opportunities for those views to be given legal effect at the same time, albeit within limited geographical areas, than under a system which allowed a majority of the entire population, acting through a national legislature, to impose its preferences on all issues on the entire country.

Even if one accepts this principle as desirable, however, there remains the problem of deciding which powers should be allocated to which sphere of government. The American revolutionaries initially adopted a constitution known as the Articles of Confederation, which gave virtually no powers to the national government. The Articles were rejected within ten years, in favour of a new constitutional settlement which granted the national government considerably more authority. The national government would be empowered to conduct foreign policy, to grant national citizenship, to maintain military forces and wage war, to issue the national currency, to impose customs duties on imported and exported goods, to levy sales taxes (but not income taxes) on a uniform basis throughout the country, to run the nation’s postal service and to regulate commerce among the States and with foreign nations. The States were not permitted to enact laws concerning these matters.

Thus, if our hypothetical countries A and E were organized on the same federal lines as the United States’ Constitution, country A’s central legislature would apparently have been unable to introduce its proposed anti- unemployment law, irrespective of how many legislators supported it, since the constitution seemingly did not give it the power to levy income taxes. Alternatively, if we accepted that the law introduced by country E was an element of the central legislature’s war powers, it could be enacted even if the majority of people in several States heartily disapproved of it.

Madison’s concern with the dangers of faction and majoritarianism was initially directed at placing limits on the power of national government, acting at the behest of either a majority of the people or a majority of the States, to produce irrational or oppressive laws. This safeguard was to be achieved in part by a further development on the theme of representative government. The Constitution eventually devised a representative form of national government which produced a balance between the people as a whole and the people as citizens of their respective States. The framers of the Constitution created an elaborate separation (or fragmentation) of powers within the institutions of the national government. The national legislature, the Congress, would have two component parts. Seats in the House of Representatives were to be apportioned among the States in proportion to their respective populations. In contrast, each State, irrespective of its population size, would have two members in the Senate. The approval of a majority in both chambers would be required to enact laws. Thus, in simple terms, neither a majority of the legislative representatives of the States nor a majority of the population could impose its wishes on the other. The dual nature of the national legislature did not however exhaust the fragmentation of power to which the Constitution subjected the national government.

The task of implementing Congressional legislation was granted not to the Congress itself, but to a separate, ‘executive’ branch of government headed by an elected President. In addition to possessing a limited array of personal powers, the President was also afforded a significant role in the legislative process. Measures attracting majority support in both chambers of Congress would become laws only when signed by the President. Should he refuse his assent, a measure would be enacted only if it returned to Congress and was then approved by a two- thirds majority in the Senate and the House. The President was thus empowered to block the law- making preferences of a small Congressional majority, but not the wishes of an overwhelming majority in both houses.

The framers’ initial distrust of populist sentiment was further emphasized by the electoral arrangements made for choosing the President and the legislators who staffed the two chambers of Congress. While members of the House were to be elected directly by electors in each State, Senators would be selected by each State’s own legislative assembly, and the President would be chosen by an ‘electoral college’ of representatives from each State.

Thus two branches of the national government were to be placed in office by what was in effect an ‘electorate within an electorate’, whose members might be thought likely to (in Madison’s words) ‘refine and enlarge the public views’. Madison assumed that this elitist process would much reduce the possibility that the occupants of the most important national government offices would be motivated by ‘temporary or partial considerations’ when they performed the task of enacting and implementing laws made within the boundaries of their respective constitutional competence. But the Constitution took one further step in its efforts to guarantee that the federal and institutional separation of powers which the revolutionaries considered fundamental to the nation’s long- term security and prosperity would be preserved against the threat of internal factions, even if that faction should be large enough to control the national law- making process.

Fundamental rights and a supra- legislative constitution

It perhaps sounds fatuous to record that the Americans assumed that their Constitution would function as a ‘constituent’ document, but the point is of considerable significance. The framers regarded the rules they had created as ‘the highest form of law’ within American society. The Constitution was the source of all governmental powers; its terms identified the fundamental moral and political principles according to which society should be managed.

Federalism was clearly a fundamental political value to the framers of the Constitution. This was evident not only in the proposed allocation of powers between the national and State governments, but also in the procedures through which the Constitution itself was to gain legal force. As Madison explained in The Federalist Papers No 39:

assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. . . . The act, therefore, establishing the Constitution will not be a national but a federal act.

Constitutional values as fundamental law

Madison and the other architects of the Constitution rejected the Lockean notion of ‘divine’ law in the sense of considering human beings subservient to a rigid set of rules emanating from a deity. Similarly, they were not persuaded that the moral values which they wished to control the government of their new nation should be subject to an eternally fixed code of ‘natural’ law, which could never be altered. They nevertheless concluded that once they had succeeded in identifying the mutually acceptable principles according to which the foundations of government should be laid, those ‘fundamental Laws’ should enjoy considerable fixity. The moral principles expressed in the Constitution had not lightly been arrived at: they were not lightly to be discarded; they were not to be left at the mercy of the ordinary institutions of government.

But the framers were not so arrogant as to assume that the views they held in 1789–1791 amounted to eternal truths, which would control the government of American society forever. The federal Congress, the federal President, and the various State governments would all be bodies of limited legal competence: they possessed only those powers which ‘the people’ had granted to them in the Constitution, and had no capacity to create new powers for themselves. The ultimate, or sovereign legal authority, was ‘the people’. If the Congress, or the President, or one or more of the States wished to acquire new powers, they would have to persuade ‘the people’ to amend the Constitution. The framers of the Constitution decided that ‘the people’ would express themselves for this purpose through a special law- making process, involving both the Congress and the States, which demanded extremely large majorities. Article 5 of the Constitution permits amendments only if proposed changes attract the support of a two- thirds majority of both houses of Congress and three quarters of the States. Madison and his colleagues had concluded that the fundamental moral values identified in the Constitution had to be deeply entrenched within society’s governmental structure.

‘The people’ was therefore not a law- making body that would be in constant, or even regular session. It would act only on those rare occasions when the overwhelming majority of members of Congress, and an even larger majority of the States, considered that the time had come for aspects of the country’s fundamental laws to be altered. ‘The people’ was not an ordinary, but a quite extraordinary law- making body.

The Bill of Rights

The Constitution was in fact substantially altered almost as soon as it was introduced. The Constitution was adopted on the assumption that Congress’ first task would be to formulate amendment proposals to send to the States for their approval.

Ten amendments, colloquially referred to as the ‘Bill of Rights’, were introduced in 1791. The first eight amendments listed various individual liberties (much influenced by the litany of complaints in the Declaration) with which the institutions of national government could not interfere. These need not be listed in their entirety here, but we might note some of their most important provisions. The First Amendment precluded Congress from enacting laws which abridged freedom of speech, the freedom of the press, and freedom of religious belief. The Fourth Amendment forbade national government officials from conducting arbitrary searches of citizens’ houses and seizing of their possessions. The Fifth Amendment prevented the national government from appropriating citizens’ property, or interfering with their lives or liberty, without ‘due process of law’. The Sixth Amendment guaranteed the right to trial by jury in criminal cases while the Eighth Amendment prohibited the infliction of ‘cruel and unusual punishments’.

Madison and his supporters had initially argued that the ‘Bill of Rights’ was superfluous. Congress and the Presidency possessed only those powers which the Constitution had granted them. Since no powers had been given to infringe the ‘liberties’ listed in the Bill of Rights, the Constitution implicitly forbade the national government acting in such a manner. The Madisonian ‘faction’ was later convinced that giving such liberties explicit protection was a beneficial course to follow. In part this shift of position was for the tactical reason of assuaging opposition to the new Constitution and thereby facilitating its adoption. However Madison also accepted that the Bill of Rights would have an intrinsic, declaratory value, further emphasizing the basic moral principles the revolution had been fought to defend. These provisions themselves could only be altered through the Article 5 amendment process.

The importance which the framers accorded to maximizing the political autonomy of the States within the Constitution’s federal structure is illustrated by their decision to apply the provisions of the Bill of Rights only against the national government, not against the States. If the people of the States wished to impose similar restraints on their respective State governments, they were free to do so. Madison himself, once he accepted the desirability in principle of the Bill of Rights, had favored its extension to State as well as Federal governments. He found little support for this argument either in Congress or among the States; nothing in the text of the first eight amendments indicated that they were to control the States as well as Congress and the Presidency.

The constitutional role of the Supreme Court

The Constitution could be no more than a framework document. It outlined the broad principles within which the government process should be conducted. It did not promulgate detailed rules which would provide answers to every foreseeable (or unforeseeable) problem that might arise. The framers anticipated that there would frequently be ambiguity concerning the national/State separation of powers. Alternatively, within the context of the Bill of Rights, doubt might arise as to whether a Congressional law or Presidential action ‘abridged the freedom of the press’, or imposed a ‘cruel and unusual punishment’. The framers entrusted the task of answering such questions to the United States Supreme Court.

The intended role of the Supreme Court was outlined by Alexander Hamilton in Th e Federalist Papers No 78. Hamilton envisaged that the Court would serve as the ultimate arbiter of the meaning of the Constitution. ‘The people’ had intended that the Constitution would impose agreed limitations on the powers of government bodies, and in Hamilton’s view:

Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.

The Court would therefore stand:

between the people and the legislature, to keep the latter within the limits assigned to their authority . . . A constitution is, in fact, and must be regarded by the judges as fundamental law. . . . the Constitution ought to be preferred to the [legislature’s] statute, the intention of the people to the intention of their agents.

This did not mean that the Supreme Court was to be in any sense ‘superior’ to the Congress:

It only supposes that the power of the people is superior to both, and that where the will of the legislature [or the Presidency] . . . stands in opposition to that of the people, the judges ought to be governed by the latter and not the former.

Unlike the Presidency, the legislature, or the States, the Court had ‘neither sword nor purse’; the effectiveness of its judgments would depend not on any coercive power, but on their legitimacy, which we may construe as their capacity to convince the citizenry that they were in conformity with the meaning of the Constitution.

Great care would thus have to be exercised in selecting the judges who sat on the Supreme Court, for they bore a heavy constitutional burden. Hamilton suggested that:

there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.

The Constitution did not specify either the intellectual or moral qualifications that Supreme Court nominees should possess, but involved both the President and the Senate in their selection. The President would nominate candidates for judicial office, but his nominees could assume their seats only after receiving the approval of the Senate. The President could thus not ‘pack’ the Court with appointees who did not enjoy the confidence of the legislature, although a President and Senate majority who adhered to the same faction could do so. Hamilton had placed much emphasis on a pre- revolutionary custom or tradition, developed (as discussed in chapter three) within the British constitution, but corrupted in the colonies, that both politicians and the judiciary themselves should regard the courts’ ‘interpretation’ of the law as a matter above factional politics. Politicians should thus forswear considerations of personal or party advantage in selecting members of the judiciary, while the judges themselves should exclude such considerations from their judgments.

But the framers did not rely solely on Presidential and Congressional self- restraint to safeguard the independence of the Supreme Court. Once the Judges were in office, neither the President nor the Congress would be able to remove them simply because they disapproved of the decisions the Court subsequently reached. Unless convicted of criminal offences, or guilty of grossly immoral behaviour, Supreme Court Justices were to enjoy lifetime tenure, with payment of their salaries expressly guaranteed in the Constitution itself.

The significance of judicial power

The enormous power and responsibility entrusted to the Supreme Court under the American Constitution can be illustrated by returning to our hypothetical nations. If countries A and E had federal constitutions modeled on the initial American settlement, country A’s tax- raising law if enacted by the country’s Congress would seem to have been illegal as the Congress had no power to levy income tax. In contrast, the detention measures enacted by the Congress of nation E would seem a constitutional exercise of its war powers.

Suppose, however, that the Supreme Court of country A concluded that the law in question was in reality a measure to regulate commerce among the nation’s various States (a matter clearly within the national legislature’s competence) by stimulating economic growth, and the tax thereby raised was merely an incidental side effect. As such, the measure would be constitutional. Similarly let us suppose that the Supreme Court of country E held that the law introducing indefinite imprisonment without trial was cruel and unusual punishment and thereby breached the Eighth Amendment. Would we conclude that such judgments represented a judicial attempt to subvert the fundamental principles of the Constitution, or that they were a surprising but nevertheless defensible interpretation of an ambiguous constitutional text?

It would be misleading to suggest that Supreme Court decisions which frustrated the wishes of the elected Congress or President were necessarily ‘undemocratic’ simply because the Judges themselves were not elected officials. Such accusations would have conclusive force only if one equates ‘democracy’ with a constitutional order which gives unfettered supremacy to a bare legislative majority. They would be less convincing if one took a view of ‘democracy’ which entailed the protection of ‘higher laws’ against the possibly transient and ill- informed views of the greater number of one’s legislators. Within that constitutional context, accusations of ‘anti- democratic’ conduct might as readily be leveled at the elected politicians apparently seeking to subvert the wishes of ‘the people’ from whom their powers derived.

Conclusion

Over 200 years ago, it took a revolutionary war for the American colonists to rid themselves of what they considered to be an unacceptable constitutional order. The new constitution which the United States subsequently fashioned marked a radical departure from traditional British understandings of the appropriate way for a country to regulate the relationship between its people and its government. The principles adopted in the US Constitution have been widely copied by many nations which have created or redesigned their own constitutional arrangements in the modern era. Lest it be assumed that the Americans created an ‘ideal’ constitutional order, we might note that the framers preserved the institution of negro slavery by leaving its abolition to the individual States. Thus while slave- owners had ‘property’ (guaranteed by the Fifth Amendment) in their slaves, slaves themselves enjoyed no inalienable rights, either of a physical or spiritual nature. Jefferson, for whom all men were supposedly created equal, was himself a slave- owner. And those framers who found slavery morally abhorrent were prepared to tolerate its continued existence in the southern States rather than take the risk that some States would reject the new constitutional settlement.

But, as we shall begin to see in chapter two, the contemporary British constitution retains many important elements of the system which the Americans rejected as tyrannical and oppressive in 1776. In modern Britain, there is no likelihood of a violent revolution to overhaul our constitutional arrangements. The country has largely avoided the difficulties posed by armed conflict between factions of its population for over 300 years. For some observers, that basic political reality might be sufficient grounds for concluding that there is no need even to question the adequacy of the constitution, still less to expend energy on proposals advocating fundamental reforms to its substance. Yet as we enter the twenty- first century, the workings of the constitution are the subject of wide- ranging and critical debate. We examine the sources and nature of that debate throughout the remainder of this book. The modest objective of this opening chapter has been to identify some of the general ideas we might use to evaluate Britain’s existing constitutional arrangements. Chapter two turns to what many commentators regard as perhaps the most important part of Britain’s constitutional heritage—the doctrine of parliamentary sovereignty.