Supreme legislatures

Supreme Legislatures

or

Legislation by court

The Supreme Court of the United States has a particular dangerous habit from time to time, which is to act as the supreme legislature, and it is one that is a danger in any country where a court has the authority to dictate to governments and legislatures through judicial review.


I could give two examples. Firstly, it has legislated that abortion is a right in the US constitution, and secondly, it has legislated that same-sex marriage is a right in the US constitution. Neither issue, of course, is mentioned in the US constitution, and it cannot be reasonably argued that the individuals who wrote the constitutional clauses cited—and who presumably understood fully the English language they were writing in—meant anything of the kind.

Judging from opinion polls, it is likely every state would have legislated in favour of same-sex marriage anyway, while abortion laws would probably differ greatly from state to state. This is not really relevant however. The problem is that although these are society-changing issues, social "liberals" are disturbingly unconcerned when their opinions are imposed anywhere in defiance of democratic procedure. 

People with socially liberal opinions frequently see their personal opinions as simple natural universal rights ordained by "peace and love" which only bad, "nasty" people could disagree with. They feel entitled to attach any opinion they hold to an increasingly nebulous category of "rights" (in the USA this would typically be "constitutional rights", in Europe the language would more likely be "human rights"). They use this language to linguistically sanctify their opinion and thus, they hope, demonise opposition to it. They are then happy to impose their policies through the supreme legislative activity of judges that share their outlook.

In contrast, one can imagine how the supporters of "judicial activism" would feel if their opponents played the same trick; that is to say if the Supreme Court, for example, declared that the constitution is to be interpreted as banning all abortion. It is interesting that it is so-called liberal stances that seem to advance by the overriding of democratic decision-making.

Judicial activism, for all its intellectual discourse, is simply lying about what is written in the law. One or the other side of the political divide could lie about it. It is interesting that it is the social liberals who seem to benefit from and celebrate judges "discovering" things in a text that are not there.

The doctrine of parliamentary sovereignty can protect the UK to a fair extent from this danger in domestic courts, although the judgement that a referendum needs ratification from parliament (which is itself an expression of the extent of parliamentary sovereignty) is concerning. Parliamentary "sovereignty" vis-à-vis the judiciary is one thing, but if it means soveringty vis-à-vis the electorate expressing itself in a referendum held explicitly on a question of national sovereignty, it is concerning. 

[The question of sovereignty in the UK is ambiguous. Both the sovereign herself (the crown) and parliament claim it. These ideas theoretically combine in the constitutional principle that "whatever the Queen-in-Parliament enacts is law". However, the nation as a whole (~the electorate) appears for the most part to assume that since this is a democracy, it is itself the actual sovereign entity.]

Our treaties have committed us to the danger of a supreme unelected legislature at a supranational level. The European Court of Human Rights, which is separate from the EU and therefore unaffected by Brexit, is (said to be) "unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe" [Lord Hoffmann, senior British judge (retired), Judicial Studies Board annual lecture 2009] 

It is not clear how much support support a court such as the ECHR would have in Europe if it went as far as the US Supreme Court. My object is firstly to highlight the problem in the USA, and secondly to identify the presence of the same risk in the UK, Europe, and indeed any system in which a supreme or human rights court lacks indisputably defined boundaries to its judgements. 

Where judges can make themselves the supreme legislature, elections allow the supreme law-makers and their supporters to claim they live in a democracy, but if some of the most major societal issues are decided by court, then that is not entirely true.

The ECHR, like the Supreme Court of the US, needs boundaries laid down in such explicit language that they cannot be crossed. The need for maximum precision in language applies to the clauses that contains the rights themselves, especially if referenda to make a final decision aren't an option on offer.

I strongly favour the idea, as a general principle in a democracy, that a judicial decision overriding the legislature's legislation automatically trigger a referendum to ratify or reject it, essentially making the electorate itself the supreme court and supreme legislature. Instead of asking judges what the political system is according to their "interpretations", that is to say, preferences, we should ask the national electorate what it is according to their wishes.