Toppling Statutes?

Thoughts on modern constitutions

In 1755, Corsicans ratified the constitution of their new republic, which was to prove a historical blip. The French conquered the island in 1768, but the constitution enjoys a minor celebrity as the first of a sovereign nation. The Enlightenment concept of a constitution was meant to challenge the unlimited power of kings and to institute democratic rule, but as Linda Colley has shown in The Gun, the Ship, and the Pen, many were the product of wars — and ­written by the ­victors. Today, all 193 member states of the United Nations have constitutions — even North Korea, Eritrea, and Russia. Most of these codified governing principles last only a couple of decades. According to one estimate, 935 ­constitutions were drafted between 1789 and 2005.

Constitutions are of great importance for democracies, which the political scientist Samuel Huntington suggested in 1991 have formed in three waves: from 1828 to 1926, from the Second World War to the mid-1960s, and starting in the mid-1970s. As late as 1942, there were only twelve democracies; today, estimates place the total at over seventy. These are a very mixed lot: the Economist Intelligence Unit’s Democracy Index 2021 identified twenty-one “full democracies” and fifty-three “flawed” ones, as well as thirty-four hybrid regimes and fifty-nine authoritarian states. Huntington also noted that each democratic wave sees some new democracies fall back. There’s been much hand-wringing recently about such backsliding, but the big picture suggests the erosion has not been extraordinary. The world has become a good deal more democratic since the mid-twentieth century, and many new constitutions have appeared. But much of the recent concern about decline is directed at the older, established democracies. The EIU now rates even the United States as “flawed.” Will it ever be great again?

Allan Hutchinson, a distinguished research professor at Osgoode Hall Law School, in Toronto, shares the grim assessment of American democracy, of which he offers a sweeping indictment in Democracy and Constitutions: Putting Citizens First. Hutchinson’s book focuses on the U.S. and Canada. It argues that “liberal constitutionalism,” which the author sees as the dominant ideology among constitutional experts, favours strong constitutionalism and weak democracy when what’s needed is actually the opposite: strong democracy and weak constitutionalism.

Democracy and Constitutions attacks every ­element of the liberal constitutionalist ­construct. Constitutions don’t provide neutral frameworks for politics, for instance, but reflect the interests of their drafters (in the American and Canadian cases, the white, male elites of the distant past). Judges inevitably betray their personal biases, because there is no coherent, objective methodology for “neutral” rulings. Moreover, the liberal identification of “fundamental rights” is misguided in that there can be no transcendent proof of their validity. And the rigid amending formulas of many constitutions are counter-majoritarian and thus constrain necessary revisions. Constitutionalists’ refusal to see the “unconvincing preciousness of their stance” is a type of “willful blindness.”

Hutchinson makes his points forcefully and persuasively, and many distinguished experts would agree with much of his analysis. The revered status given to constitutions as founding documents and the noble lie of judicial neutrality are myths that may shore up our institutional regimes, but they do not necessarily serve our democratic objectives.

“Democracy” is a much contested term, and Hutchinson has a particular and highly majoritarian conception of it. For him, the “primary consideration in any effort to effect change” should be “what present measures will best increase the greater participation and control which people have over those institutions and practices which most affect their lives today.” He calls for extensive and equal participation, with more responsibility and transparency. Constitutions should be more democratic at every stage, beginning with who draws them up.

Hutchinson proposes that these documents be drafted by popularly elected conventions. There are various examples of this in practice already, including the current constitutional convention in Chile, which began last summer and was given one year to prepare a draft that will then go to a referendum. Hutchinson also wants representative cross-sections of citizens involved in such matters, not just elites and experts. But he doesn’t discuss alternative participatory models for constitutional ­drafting: Spain and Nepal, for example, used their legislatures, while Kenya’s constitutional committee of experts did extensive public outreach before a draft was revised by politicians and then submitted to a referendum. Hutchinson’s at times thin and non-comparative approach ignores many complex issues of process, such as super-majorities and vetoes for key minorities. In some contexts, majority and minority populations work out power-sharing arrangements and possibly mutual vetoes, as happened in Belgium and Northern Ireland.

With his proposals for revision, design, and interpretation, Hutchinson becomes much more radical. Because constitutions can become outdated, he would have major drafting conventions every twenty-five years for revision. Moreover, once a constitution is adopted, he would still keep the possibility of a constitutional override, whereby a legislature could vote to exempt a law from a specific provision. He doesn’t discuss the risk that periodic updates might wake sleeping dogs or the prospect that legislative overrides could add to uncertainty as to what the law really is.

When it comes to the substance of constitutions, Hutchinson argues against formal ­constraints on what can be included, but he strongly opposes the constitutionalist view of rights as fundamental. Rather, he sees them as “the product of contingent political agreement with no higher or other-worldly definition or validation.” Even so, he ­recognizes that drafters will often include both individual and social rights — touching upon the environment, health, housing, and so forth — but he wants those to be interpreted through political, not judicial, mechanisms.

Hutchinson is preoccupied with rights, and he has little or nothing to say about such major design alternatives as parliamentary versus presidential structures, unitary versus federal regimes, the role of executives versus legislatures, or the choice of electoral laws. He does, however, call for reinvigorated and more numerous institutions, with “more people participating more often” in “second-, third- or even fourth-look bodies,” even though he does not elaborate on how the proliferation of forums might work.

It seems Hutchinson’s most passionate ­concern is to get judges out of interpreting constitutions and rights. Giving legislatures these responsibilities instead will make people appreciate that rights are not the product of a judicial elite. Half measures will not do. Making courts more representative and democratic would change only appearances — not the reality of judicial supremacy. Hutchinson even objects to “weak” judicial review, such as we have with the notwithstanding clause in the Canadian Charter of Rights and Freedoms, because it puts legislatures in the invidious position of overruling courts, which are seen, falsely, as non-political and authoritative.

Constitutional interpretation is simply too important to be left to lawyers and judges, Hutchinson believes. His real problem is not with judicial activism or conservatism but with the undemocratic and elitist nature of the bench. He proposes instead that citizen juries rule on constitutional issues. These might need “some initial education in constitutional history and tradition,” but, given such a role, people would begin to make the constitution their own and take their responsibilities more seriously. He thinks this approach might relieve democratic ennui and disempowerment, but he doesn’t consider whether it might also create deep uncertainty in some areas.

The Harvard law professor Mark Tushnet shares some of Hutchinson’s concerns about judicial supremacy, and in a blurb for Democracy and Constitutions, he describes some of the author’s suggestions as “provocative.” This is an understatement. It’s hard to imagine some of Hutchinson’s proposals ever being adopted. I found myself wondering whether any country comes even remotely close to his vision. And then it struck me: Switzerland! But his would be a Switzerland on steroids.

Like Hutchinson, the Swiss have a deep mistrust of judges and judicial supremacy. Their Federal Supreme Court cannot overrule a law approved by the federal parliament, even if it is unconstitutional. (It also tries to avoid overruling cantonal laws.) Laypersons can apply to become judges in Switzerland. The country went through a major review of its constitution in 1999, when it added fundamental rights. Indeed, there is no more participatory democracy in the world: the country’s 8 million people have twenty-six cantons and 2,324 municipalities (compared with our ten provinces, three territories, and perhaps 3,500 municipalities, for 38 million people). Swiss citizens can petition for referendums on anything. At the national level, fifteen or so issues are decided annually, and many more are taken up in cantonal and municipal referendums. The burgers of tiny ­Appenzell ­Innerrhoden gather annually for the outdoor Landsgemeinde, when they can vote down any measure passed by their cantonal council. (I was a guest one year, when they banned nude hiking.)

So it’s possible to travel some way down Hutchinson’s road, but even the Swiss don’t go as far as he proposes. While the supreme court cannot overrule any federal law, parliamentary lawyers scrutinize proposed legislation for compliance with the constitution. Controversy would arise if something deemed unconstitutional were to be approved. Citizen juries have not replaced judges. The use of the referendum really sets Switzerland apart, because politicians are constantly aware that 50,000 people can petition to challenge a law, so there is a high premium on achieving consensus to forestall a referendum.

Unfortunately, Hutchinson does not look at the Swiss model, and he is strangely silent about referendums, the most participatory form of democracy. Analysis of these two topics would have enriched the book. The Swiss love their democracy and the country is very rich. But its outcomes on various measures generally fall within the normal range of Western democracies. It has not escaped serious right-wing populism, with the Swiss People’s Party being the largest in the parliament and holding two key ministries. Its referendums can have both progressive results (as with COVID rules) and regressive ones (as with bans on minarets and full-face coverings, both anti-Muslim symbolic gestures). Interestingly, by comparison with other democracies, Switzerland has low voter turnout in elections and most referendums, so all these opportunities to participate seem to lead to a certain fatigue, not the enthusiasm Hutchinson would expect.

There is no doubt that our democracies face increasing challenges, including polarization and alienation. Diagnoses abound of the causes, including inequality, the loss of status by the less educated, regional decline, and the fragmented and partisan media universe. It is far from obvious that a cure will be found in Hutchinson’s program of disempowering judges, empowering citizen juries to interpret constitutions, decentralizing power, and multiplying democratic institutions and participatory opportunities. Moreover, abstract schemes for root-and-branch reinvention of established systems require revolutionary circumstances just to get off the ground.

Despite all that happened in Ottawa and at our borders this February, we in Canada are still far from revolution. So incremental improvements in institutions and some significant policy changes to address our current ills seem the order of the day. But a discussion of these must be found in a different book.