It’s often fun to be a skeptic. Or contrarian. Or infidel. Or heretic. However, it’s not always fun, for example, in the cases of St. Jean de Brebeuf or Galileo, but it can be for those who delight in wilting smiles and clutched pearls. At a time where people often describe their considered thoughts with the phrase “I feel like…,” and where polarization may be linked to increased group-think on any number of topics, it can be delicious to jolt those who seek the warmth of tribal agreement into genuine puzzlement. James Allan is a junkie for this skeptical jolt, especially when it comes to the modern post-war orthodoxy about rights, constitutionalism, and judicial power.

He also stands out as one of the most amusing skeptics. Consider some titles from his scholarship: “Jeremy Waldron and the Philosopher’s Stone” (asking what Jeremy Waldron would do as a wizard/judge); “Portia, Bassano, and Dick the Butcher: Constraining Judges in the Twentieth Century” (which ends with reference to Dick the Butcher’s memorable line from Henry VI: “the first thing we do, let’s kill all the lawyers”), and my favourite, “Statutory Bills of Rights: You read words in, you read words out, you take Parliament’s clear intention and you shake it all about — Doin’ the Sankey hanky panky” (referring to a beloved children’s dance and Lord Sankey’s misunderstood “living tree”).

It’s interesting that there is growing sympathy on the American left for some of the positions Allan stands for, particularly criticism of the supremacy of the U.S. Supreme Court over important rights questions like abortion, guns, and affirmative action. There is a long tradition on the left, in the U.S. and in the rest of the English-speaking world, of defending legislative politics and even populism against judicial activism. Some excellent modern scholars representing this tradition include Richard Bellamy, Ran Hirschl, Samuel Moyne, Ian Shapiro, Mark Tushnet, and Jeremy Waldron. In an age where a commitment to having judges aggressively intervene in politics seems like a new orthodoxy, these thinkers share Allan’s heretical skepticism, while differing significantly from him in their arguments and political preferences. There is also a strong tradition of critiquing judicial activism on the right, although conservative critics tend to be less willing to condemn constitutionalism tout court.

Allan’s scholarship, including his latest book The Age of Foolishness: A Doubter’s Guide to Constitutionalism in a Modern Democracy, offers a trenchant critique of modern constitutional orthodoxy. It is interesting partly because it agrees with left critics of orthodox constitutionalism about the superiority of pure Westminster parliamentary supremacy, while arguing that old-school originalist constitutionalism is the second-best option, or the only realistic option for those polities that have entrenched constitutional rights. Unlike many critics of judicial activism and bills of rights, he is also an unrepentant fan of constitutional federalism. And while many critics of judicial activism on the right subscribe to natural law style thinking about rights, Allan is a thoroughly Humean and consequentialist skeptic about moral “right answers” to controversial rights questions.

This adds up to an unusual set of views that should intrigue readers from very different perspectives. The limits of Allan’s arguments are partly imposed by his own controversialist approach to challenging constitutional orthodoxy. His arguments seem to justify direct democracy rather than representative democracy, and his consequentialist theory would profit from more serious engagement with empirical scholarship on democratic institutions. Even so, there is much to value in the questions it raises. The humour is a bonus.

From Canada to Oz

Allan is one of the English-speaking world’s most reliable academic skeptics when it comes to questioning the orthodoxy established by the post-war spread of human rights discourse, constitutionalism, and judicial power. In the wake of the Second World War, much of the world adopted American-style constitutional bills of rights and increased judicial power, and even Westminster constitutions such as New Zealand and the United Kingdom adopted statutory bills of rights. Canada is perhaps the most Americanized Commonwealth constitution, having adopted an entrenched bill of rights in 1982, while Australia is the last bastion of the Commonwealth world lacking even a federal statutory bill of rights (although two Australian states do have such statutes, and Australia is more American than Canada in other ways, such as its elected upper house). Allan is a Canadian ex-pat who fled Canadian de facto judicial supremacy for the brumby constitutionalism of Oz. 

Allan argues that Canada’s experience with an entrenched bill of rights and judicial review shows off the democratic dangers of judicial review, whereas Australia is a much more democratic place for lacking a federal bill of rights of any kind. In both his scholarship and his entertaining political columns for the Australian edition of The Spectator, Allan is keen to explain to Australians how the judicialization of politics has threatened democracy across the world. He’s also eager to point out how even in Australia, where there is no federal bill of rights, the courts have to some extent invaded political affairs by reading “implied” rights into the structural features of the Australian Constitution, notably the right to vote (for prisoners) and freedom of political communication.

His argument moves from the most abstract questions about the relationship between morality and law to a “thin” consequentialist account of the value of democracy, and then moves on to why the orthodox constitutional commitment to entrenched bills of rights and judicial review undermines that value. He also makes the case that constitutional federalism does not undermine the majoritarian value of democracy. The book concludes with Allan’s thoughts on constitutional interpretation, where he sides with old school “original intent” originalism, alongside Richard Kay, Larry Alexander, and Stanley Fish, against the newer (no longer quite so new) “original public meaning” originalism of Larry Solum, Jeffrey Goldsworthy, Keith Whittington, Stephen Sachs, and Will Baude (he doesn’t engage Sachs and Baude but he should). He is also interested in parrying living constitutionalist arguments from scholars like Heidi Hurd. He does not engage with the new brand of common good constitutionalism advocated by Adrian Vermeule, but that would be an interesting test of his arguments.

Churchillian Pollyanna

There’s quite a bit packed into this book, as it is drawn from Allan’s wide-ranging scholarship, so it would be a mistake to try to explain every step in his argument. But I will try to offer some commentary on the abstract part of the argument about the nature of law and morality and to dig a little deeper into his theory of democracy and constitutionalism.

The discussion of abstract questions about the nature of moral disagreement about rights and natural law is not the strongest part of the book. It is dissatisfying to read in Chapter 1 that it is “uncontroversial” to say that St. Thomas Aquinas’ thinking falls into the category of theories “that draw on theism and a benevolent, theistic God who creates the world in which some conduct is wrong and some right.” There is a line of natural law thinking that rests natural law on the revealed nature of God, e.g. Locke’s argument against suicide (you can’t kill yourself because you are God’s property) arguably fits this category of thinking. For Aquinas, natural law is defined as the law of practical reasoning premised on “self-evident principles,” and it is explicitly contrasted with divine law as revealed in scripture. There is debate about the extent to which Aquinas’ theory of practical reasoning is naturalist or not (does it reject or elide the is-ought problem?), but it is indeed controversial to say that the “most venerable and historically influential” natural law thinking is premised on theism. Theistically grounded natural law arguably became more predominant in connection with the rise of nominalism in the late Middle Ages and early modern period.

But this proves to be more of a distraction than a roadblock for the argument. Allan’s basic point is that there is reason to doubt the availability of moral truth about many of the rights questions faced by citizens today. He grounds his doubts on non-cognitivist skepticism about Thomistic, Kantian, or contractarian accounts of moral rights. And he follows Waldron in holding that even if there was access to the “right answer” about hot-button rights questions, that would not necessarily entitle those with the right answer to impose on those who disagree, especially for those who think some burden of justification must be part of processes for imposing answers. Knowing the truth about a rights issue like abortion or same-sex marriage does not tell you the truth about which institutional arrangements should decide that issue.

Allan matches his pessimism about our access to moral truth with “Pollyanna” style optimism about “Churchillian” democracy: he is optimistic about the “thin” political realist’s case for majoritarian democracy as the least bad political regime. He justifies this optimism by arguing against “thick” conceptions of democracy and dismissing “Cassandra” style doubts about “thin” democracy with consequentialist arguments. Allan draws on the late political theory of Jeremy Bentham to link the “thin” conception of democracy as “letting the numbers count” procedural majoritarianism with anti-paternalism. On this line of thinking, paternalism is bad because the best judge of a person’s happiness is that person. Having representatives accountable to the equal votes of adult citizens better ensures some alignment between the interests of those in power and the interests of voters. Democracy in this “thin” sense is more anti-paternalist than other decision-procedures because it delivers results that better align with the preferences of more people subject to the decisions of the state. By not overloading the idea of democracy with the “thick” values of one subgroup, “thin” democracy is less paternalistic and more realistic because it also allows democracy to do things that some take to be wrong or evil.

He uses a striking hypothetical to illustrate this approach to democracy. He asks us to imagine two neighboring families, each seeking to raise a teenage son. One family actively helps their son with his studies up to a point, including directing him when to study and for how long, but at a certain point, decides to let the son make these decisions for himself. The son asks the parents to continue directing his studies but they refuse because they think over the long haul it is better for him to learn to develop and continue these habits on his own. A neighboring family is in a similar situation with their son, but unlike the first family, they cede to their son’s wish for them to continue to direct his studies, even past the point where they might have wanted him to take on this responsibility for himself. Allan asks us: Which family is more anti-paternalist? He thinks there is a strong case that the first family is less paternalist because although there is an initial paternalism in refusing the son’s pleas, the long-term consequences involve less active supervision and interference over his decisions. He relates this to the debate about majoritarianism and constitutionalism by claiming that his Churchillian defence of majoritarian democracy is like the first family in that it can explain how it can be undemocratic for a majoritarian democracy to adopt constitutional constraints on legislative decision-making, even softer constraints like “weak” judicial review and statutory bills of rights.

This helps show why Allan justifies parliamentary sovereignty over “locked in” constitutionalism, where one generation locks in its views on important rights matters in a paternalistic relation to future generations, or elite judges get an unaccountable paternalistic say over such rights questions (the latter being more realistic). He uses the hypothetical to help distinguish his view from the rights-based critique of judicial review offered by Waldron: if the “right to participate” is equally shared, then why can’t the voters act like the second family and invite paternalistic rule by judges and other institutions? Allan takes his consequentialism to have an advantage in countering the argument that constitutional and statutory bills of rights have democratic legitimacy insofar as they are enacted by majorities. The initial democratic approval does not suffice to justify an instrument that over the long haul robs each citizen of a more equal say over what their interests are.

Scholarly Sarcasm and Skepticism

There are a number of points on which Allan’s sarcastic approach allows him to make good points that might not otherwise be offered in more scholarly tones. For example, throughout the book, he notes that quasi-aristocratic arguments for constitutionalism and judicial review are rarely openly advertised that way. In the real world of rights politics, advocates of entrenched bills of rights are often keen to emphasize how they are only trying to “lock in” a finite set of fundamental rights against the chances that the Robert Mugabes of this world will take over political institutions (he mischievously calls this the “Mugabe objection”).

But in most cases where bills of rights have been enacted, Allan argues that they have been used to expand rights into controversial areas that go beyond whatever society might have agreed to “lock in” at the time of enactment. They go beyond what they were advertised to protect. And where the Robert Mugabes of this world take power, bills of rights and courts don’t exactly inspire confidence as bulwarks for democracy against machete-wielding tyranny. This argument is made humorously and without much appeal to empirical evidence or nuance. Even so, it rings somewhat true, especially the tension between the aristocratic premises vs. democratic advertising for bills of rights as limited insurance plans.

Allan’s sarcasm allows him to say thought-provoking things that other scholars cannot, but it can also get in his own way. Although some of his points ring true, others are weakened by a lack of nuance and charity. In particular, Allan’s book would be strengthened by engaging with the good faith objection that his theory (and Waldron’s) justified direct democracy rather than representative democracy and by drawing more on empirical scholarship.

Consider how Allan’s own hypothetical about the neighboring families relates to his argument: is representative democracy or direct democracy the better analogue for the son who makes decisions for himself? Direct democratic institutions such as referenda, or even sortition-based representation, would appear to be less paternalistic than democratic decision-making by elected representatives. Why don’t these options render electorally representative democracy paternalistic? It seems likely that Allan, a proud Brexiteer who complains about elected politicians subverting the will of the people, approves of direct democracy but simply thinks it is unrealistic as an institutional option in today’s politics. Perhaps he might say that representative democracy isn’t the Churchillian least bad option, but rather the second least bad option. In that case, his argument would be strengthened by exploring why a consequentialist argument justifies the comparably counter-majoritarian outcomes of representative democracy vs. direct democracy.

Allan should do more to reconcile the stridently procedural nature of his majoritarianism with the counter-majoritarian aspects of representative democracy and federalism. His argument about federalism is that judicially enforced federalism is majoritarian because it doesn’t override a majority but rather decides between majorities. But that doesn’t quite acknowledge the counter-majoritarian nature of setting aside decisions for one subset of citizens (e.g. les Québécois in Allan’s native Canada) who may be a local majority but a national minority. There are good grounds for federalism but it’s hard to see how they can be purely majoritarian.

Furthermore, his consequentialism appeals to the actual outcomes of different systems, and so it raises complex empirical questions about which institutional arrangements cause which outcomes. His consequentialism could thereby profit from drawing on the rich vein of empirical and “realist” work done by political scientists on the “thin” functioning of democracy. Political scientists such as Robert Dahl, Richard Bellamy, and Adam Przeworski, who offer empirical insights about thinner conceptions of democracy, would seem to enrich a project aiming to vindicate majoritarianism. Przeworski’s work seems particularly salient given that he offers perhaps the most well-known “minimalist” account of democracy as competitive elections allowing citizens to peacefully remove governments they dislike. Much of this political science offers empirical evidence that “thick” concepts of democracy are often romantic about the democratic effects of super-majority rules and the unconditioned independence and neutrality of unelected institutions like courts. They offer grist for Allan’s majoritarian mill.

But they may also pose a challenge insofar as his own account of democracy may be thicker, and perhaps more inflated, than he realizes. If courts are enabled by political actors seeking to outsource responsibility for cross-cutting issues, does this signal that judicial power is itself a function of democratic dysfunction in representative democracy? If representative systems tend to offload responsibility for rights questions to courts and unelected actors, does that pose a problem for a realist/consequentialist defence of representative democracy? Is it really majoritarian procedures that ensure that representatives track citizens’ preferences or is it capitalist development that ensures per capita income is high and growing and equally distributed enough for citizens to tolerate democracy?

Jim the Butcher

Overall, Allan’s work succeeds as a challenge or provocation to modern constitutional orthodoxy. It succeeds because it highlights many points on which the orthodox view has a story that fails to match reality or suffers from internal conflicts. It also succeeds because mirth is a great weapon against censorious orthodoxy, and Allan’s titles alone can make those who disagree with him smile. “Dick the Butcher” has a lesson for lawyers, even if it’s a little tender for a lawyer like Allan to point it out. Allan’s success is partly limited by his controversialist methods. He may not resolve the questions and puzzles he raises, but neither does the orthodoxy of our age. He inverts the advice attributed to Bismarck about laws and sausages: it is better to know who is grinding what and why. Every citizen a butcher.