A government of laws, and not of men.

-John Adams, Novanglus Essays No.7

…whoever hath an absolute Authority to interpret any written, or spoken Laws; it is He, who is truly the Law-giver, to all Intents and Purposes…

-Bishop Benjamin Hoadly, The Nature of the Kingdom, or Church, of Christ

I have in a previous post gestured towards some of the problems which attends American constitutionalism. I wish in this post to criticise, not the system itself per se, but the reasoning behind the system. Things can still function or work, partially at least, even if the rationalisations or reasoning behind it is fundamentally flawed. What a critique of the reasoning behind the system will show is that the system (partially) works despite the reasoning and not because of it. It would then gesture towards the need to rethink the raison d’etre of the American constitutional system as well as to point to fundamental weaknesses in it which should be corrected.

A Government of Laws or Law Interpreters?

One of the fundamental ends behind the idea of the American constitutional system is that it ought to create “a government of laws, and not of men”. It seeks to remove, or at least minimise, the caprice of man by entrenching a set of rigid and fundamental laws which virtually cannot be altered, or at least, can only be altered with the greatest of difficulties by any other part of the government.

While the desire to remove the caprice of man from the business of government is noble, it is questionable whether or not constitutionalism accomplishes that goal. The problem of trying to create a government of laws is that laws needs to be enforced and interpreted, and who else does the enforcing and interpreting than man? The law’s ability to rule men is contingent upon other men who are both willing and able to adhere to a disciplined reading of the constitution.

This doesn’t mean that a state of affairs where the rule of law broadly prevails in a commonwealth for most people is impossible. It simply means that such a state of affairs is still, in the end, contingent upon the existence of competent and dutiful man occupying positions of interpreting and enforcing the law. A rule of law prevails only if there exists sound man who are willing to enforce that law and read it in a disciplined manner.

So it doesn’t mean that there isn’t, broadly speaking, the rule of law in America. The nation has been chugging along for more than two centuries and, generally speaking, it isn’t a third world hell hole. However the failure to appreciate Bishop Hoadly’s observation that the interpreter of the law is the true king has created a fundamental anomaly in the American constitutional system. In the American system the constitution is supposedly supreme. Legislators cannot pass laws which contradicts the constitution. But who decides when a law contradicts the constitution? The answer has to be the Supreme Court with their powers of judicial review. Should they declare a law to be “unconstitutional”, that would simply be the end of the matter and there is no way to overturn their ruling. As the British jurist A.V. Dicey shrewdly observed:

…no legislature throughout the land is more than a subordinate law-making body capable in strictness of enacting nothing but bye-laws ; the powers of the executive are again limited by the constitution ; the interpreters of the constitution are the judges. The Bench therefore can and must determine the limits to the authority both of the government and of the legislature ; its decision is without appeal ; the consequence follows that the Bench of judges is not only the guardian but also at a given moment the master of the constitution.

–Introduction to the Study of the Law of the Constitution

Eventually the judges are not merely the guardians but the masters of the constitution. In the attempt to create a rule of law instead of man they ended up making it a rule of nine sovereigns instead.

Accountable Sovereigns

There is nothing inherently wrong with a body being invested with unlimited sovereignty. The Parliament of the United Kingdom after all possesses unlimited legislative powers according to the widely received doctrine of parliamentary sovereignty as formulated by Dicey.

However even if parliament possesses unlimited legislative authority, there are “natural” or realistic restrictions on what parliament can do. They can be voted out and removed from their seats if they make laws unsound to the public. Mechanisms exists to hold parliament accountable even if they are legally sovereign and supreme. More importantly, parliament is substantially a part of the political process and is the proper forum whereby politics is done.

In the American system on the other hand we have nine unelected persons who are in principle and practice accountable to no one and cannot be removed by any procedure except by impeachment. These nine judges are practically sovereigns for they have virtually unlimited veto and interpretative power over any constitutional or national laws. They can declare new rights into existence by a legal fiat or remove them by the same action. Under the Due Process clause which prohibits the deprivation of “liberty… without due process of law”, judges have suddenly discovered liberties to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education”. As Singapore’s Attorney-General V. K. Rajah remarks:

There is no clear basis in the US Constitution for these rights, and the US courts have not articulated any clear framework for how these un-enumerated rights are identified and defined. It is difficult to resist the conclusion that these rights are entirely a judicial creation.

–Interpreting the Constitution

The most important thing however is that they can pass all these judgements and technically nobody can contradict or stop them. They exist only tangentially to the political process and are touched by it only at the rarest moments of death or retirement. In effect they wield an incredible amount of political power but are above the political process. If they say black is white and white is black, only a constitutional amendment can contradict them. Why would anyone believe that a centralised document which norms all national laws and which meaning is decided by nine practically unaccountable persons would somehow bring about the rule of law instead of man?

Conclusion: The Inescapable Necessity of Politics

The logic behind the American constitutional order is an attempt to circumvent the human element by reducing politics into simply a matter of mechanically applying deductions from laws. However laws must be interpreted and enforced and they must be interpreted and enforced by man. There is simply no escaping the human element by finding refuge in the constitution. Any attempt to disarm political power by system construction fails because that system itself will eventually need to be run by man, and man with their own political convictions and ideas. If the rule of law has prevailed, generally, in America, that is only because by Providence or good luck the government has more or less been filled by men who do more or less respect the rule of law, man who have drunk deep from the wells of the English common law system.

What is clear however is that law will only be respected if it is apolitical. If the law, as an institution, is seen to be politically partisan then no one will respect it. Unfortunately the only way it can be apolitical is if it is subordinate to the political body. As such if anyone has any problems with any law or judicial decision then there should exist accessible political processes to a political body with unlimited legislative powers to correct them and as the proper forum for doing politics. The law will only be respected as an institution only if they are seen to be merely doing their duty and implementing the outcome of the political process after the fact.

There is an element of luck, or the grace of God, or the Mandate of Heaven, in the acquisition of sound government. Eventually we can only pray or hope that there do exist sound men who occupy political office and rule wisely and justly. But the attempt to remove this necessary element of luck of needing sound politicians by creating a set of rules will only end up displacing political power to those who would interpret and enforce the rules.

Today we can see with great clarity that the Supreme Court of the USA cannot bear the weight and responsibility of being politicians and masters of the constitution. To end with another quote from Dicey:

From the fact that the judicial Bench supports under federal institutions the whole stress of the constitution, a special danger arises lest the judiciary should be unequal ta the burden laid upon them. In no country has greater skill been expended on constituting an august and impressive national tribunal than in the United States. Moreover, as already pointed out, the guardianship of the Constitution is in America confided not only to the Supreme Court but to every judge throughout the land. Still it is manifest that even the Supreme Court can hardly support the duties imposed upon it. No one can doubt that the varying decisions given in the legal-tender cases, or in the line of recent judgments of which Munn v. Illinois is a specimen, show that the most honest judges are after all only honest men, and when set to determine matters of policy and statesmanship will necessarily be swayed by political feeling and by reasons of state. But the moment that this bias becomes obvious a Court loses its moral authority, and decisions which might be justified on grounds of policy excite natural indignation and suspicion when they are seen not to be fully justified on grounds of law.