Constitutions are devices that allocate and distribute decision-making power. Nowadays, the main controversy lies in distinguishing between those powers which should be allocated to the political branches and those which belong properly to the courts. In the United States, for instance, we ask whether the regulation of marriage, decisions about gun control, limitations on abortion, or the legality of physician-assisted suicide should be questions left to elected legislatures—at either the state or national level—or if they should be recognised as matters of constitutional rights for the courts to enforce?

The US Supreme Court has determined that, for the time being, some of these issues should be left for the political branches (physician-assisted suicide and, since Dobbs, abortion) whereas others are required to be understood as constitutional rights for the federal courts to determine (gun control and, for now at least, same-sex marriage). In the United Kingdom, by contrast, all four of these matters are controlled by legislation—none has been determined by a judicial ruling. Thus, same-sex marriage is permitted because our parliaments have legislated for it; abortion is permitted to the extent and for the reasons that Parliament has decreed in legislation; gun control is likewise a matter of statutory regulation; and, unlike in Canada (where the Supreme Court ruled in 2015 that the then criminalization of assisted suicide was in breach of the Canadian Charter of Rights and Freedoms), the courts in the UK have thus far been content to leave assisted suicide to legislative judgment. Our parliaments, to date, have voted to reject proposals to amend its criminalization.

Two things strike me when I read the US Supreme Court’s ample case law on these topics. The first is its rampant and manifest inconsistency. The second is its understanding of what is at stake. I’ll come to that in a moment, but first, let me address the point about inconsistency.

In 1997, the Court was invited to rule that state prohibitions making physician-assisted suicide unlawful are in breach of the Fourteenth Amendment (which provides, of course, that “No State shall … deprive any person of life, liberty, or property, without due process of law.”). In Washington v. Glucksberg, the Court declined the invitation, ruling that the asserted right (to assisted suicide) could not be read as falling within the scope of the fundamental rights and liberties protected by the Fourteenth Amendment. That some aspects of privacy and personal autonomy had been found to fall within the Constitution’s safeguarding of “life, liberty, or property” did not mean that all “important, intimate, and personal decisions are so protected,” the Court ruled. In concluding his Opinion for the Court, Chief Justice Rehnquist noted: “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”

Exactly 18 years (to the day) later, the Supreme Court was invited to rule that states which declined to license or recognise same-sex marriage were acting in breach of the Fourteenth Amendment. At the time of the decision, in Obergefell v. Hodges, eleven states and the District of Columbia had amended their laws to recognise same-sex marriage. The others had not or, at any rate, had not yet done so. What Rehnquist said of ongoing political debates about assisted suicide in 1997 was every bit as true 18 years later about debates on same-sex marriage: throughout the nation, debate was earnestly and profoundly engaged, just as it should be in a democratic society.

Yet, by the barest majority, the Court put a unilateral and immediate stop to all that by removing the matter from what it called “the vicissitudes of political controversy,” holding that the matter was not one for the democratic process at all. Instead, it was a matter of fundamental right. As such, its fate would depend on the “vicissitudes” of a majority of nine Justices, rather than on the outcome of democratic elections to representative legislatures. Marriage is no more mentioned in the Constitution than assisted suicide is, yet for the majority in Obergefell, the right to marry was so “deeply rooted” in American “history and tradition,” so “implicit in the concept of ordered liberty,” that the Fourteenth Amendment’s promise of neither liberty nor equality could be safeguarded unless and until the states were commandeered to accept that couples must be allowed to marry irrespective of their sex or gender.

Now, I am in no doubt that there are certain matters which genuinely are so important to human flourishing that they need to be protected in law from the whims—and tyrannies—of majorities. But where those matters are not expressly enshrined in clear legal text, we need to be extremely careful before using our powers of interpretation to imply that they need protection as if they were. That care was evident in Glucksberg but sorely missing in Obergefell. As it happens, I’m in favour of same-sex marriage. If I were an elected representative voting on it as a matter of legislative policy, I’d enthusiastically vote for it. If I were a citizen, voting in a referendum on the matter, I’d endorse it. But I have no sympathy with the majority judgment in Obergefell. That judgment was a power grab, informed not by the majority’s view of what either the Constitution or the law required, but by the majority Justices’ personal policy preferences.

In Dobbs, Justice Alito, writing for the Court, said that “Roe was egregiously wrong from the start,” that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives” and that the Court should always be on its guard against “freewheeling judicial policymaking.” Well, Obergefell was also wrong from the start; the matter should never have been regarded as being for anyone other than the people and their elected representatives; and to pretend otherwise is, I’m afraid, to descend into nothing more than freewheeling judicial policymaking.

What is at stake when a constitution—or a court—decides that an issue should be left for the political branches to regulate, rather than being determined by a court of law? A feature of American jurisprudence, at least when viewed from the other side of Atlantic, is the impression it often gives that what is at stake is a zero-sum game. Either a matter is for the vicissitudes of politics, or it is a matter for the court to rule on. It’s rarely both. British and European jurisprudence on fundamental rights, by contrast, tends not to be so black and white. In the United Kingdom, courts will often say that responsibility for ensuring that rights are upheld is a joint enterprise—a constitutional task judges share with the political branches.

Let me give just two examples, before returning to the US case law. In the UK Supreme Court’s leading case on assisted suicide, a majority ruled that Parliament’s legislative judgment (that assisting in someone else’s suicide should continue to be a crime) should be upheld despite its self-evident incursion into personal autonomy precisely because Parliament had kept the matter under active consideration and was likely to continue to do so. Moreover, the record showed that, in considering the matter, Parliament did so in the light of (and not in ignorance of) the competing rights at stake. The court was respectful of and accordingly gave weight to the fact that Parliament had judged the matter in a certain way and, indeed, had done so expressly with reference to the right to life, the right to privacy, and the right to bodily autonomy.

The same is true for the respect—and the weight—the UK’s law lords gave to Parliament’s legislative judgment on how political advertising should be regulated in the UK’s broadcast media. Parliament and court alike knew and understood that this was a matter that more than touches on the right to freedom of expression. It goes to the very heart of free speech. Even if there is a case that the UK’s extensive statutory regulation of political advertising curtails free speech too much, that case was not permitted to prevail in court because the judges were mindful that Parliament had considered the matter both carefully and thoroughly and, moreover, had done so fully cognisant of the importance of free speech. Having considered the matter in this way, Parliament concluded that it was necessary and in the public interest to impose certain restrictions on political advertising in the broadcast media and the court saw no reason to disturb, interfere with, or overturn that judgement. In a sense, the court believed its job was to ensure that the decision to regulate political broadcasting had been taken fairly, reasonably, and in the light of the free speech concerns (which it had been), rather than believing its job was to decide the issue for itself.

The contrast between this nuanced judgment and the much more militant, even absolutist, approach taken by the US Supreme Court in its equivalent case law (the infamous Citizens United case) is obvious. For the US Supreme Court, it did not matter a damn that Congress had deliberated with extraordinary care and attention in seeking to reach bipartisan agreement on campaign finance laws. “Congress shall make no law … abridging the freedom of speech”—no law at all—and that, for the Court, was that. Now, of course, it is true that the First Amendment’s protection for free speech is crafted in absolute terms, but it is also true that what is meant by “speech” is left undefined. In Citizens United, it was simply assumed that corporate spending is speech. Why can’t the enquiry as to what should be included within the scope of the First Amendment’s protection not be shared between the courts and the elected branches (as it would be in Britain and Europe)? What, beyond naked judicial assertion, makes it a matter for the courts alone?

That same zero-sum approach the majority exhibited in Citizens United can be seen also in the Court’s most recent gun-control cases. In District of Columbia v. Heller, there was no doubt that the DC legislature had enacted restrictions on the possession of handguns in order to address and combat the use of such firearms in the commission of crime. There was likewise no doubt that the District had a legitimate, indeed, compelling, interest in seeking to save lives. But it was only the dissent that sought to balance or weigh these factors against the Second Amendment’s right to bear arms. The majority of Justices in Heller saw that right not as something to be measured against the public interest, but as a trump card, to be deployed to flatten the District’s legislation no matter how fair, reasonable, or balanced it may otherwise appear.

So too in last year’s Supreme Court decision in New York State Rifle & Pistol Association: Justice Breyer’s dissent in that case repays close attention. He noted that, in 2020, more than 45,000 Americans were killed by firearms. He noted, too, that many Americans use firearms for perfectly legitimate purposes, including sport, certain types of employment, and self-defence. And he then said this: “Balancing these lawful uses against the dangers of firearms is primarily the responsibility of elected bodies. … It requires consideration of facts, statistics, expert opinions, predictive judgments, relevant values, and a host of other circumstances, which together make decisions about how, when, and where to regulate guns … legislative work.” In short, “the question of firearm regulation presents a complex problem—one which should be solved by legislatures rather than courts.”

This is how rights are generally understood in Britain and Europe. Only very rarely are they trump cards, capable of defeating whatever hand the government is playing, no matter how strong its position or reasonable its argument. If you don’t like the moves the government is making, elect a different one. In democracies, we may reasonably disagree about such matters as same-sex marriage, abortion, gun control, and physician-assisted suicide. In democracies, our disagreements are best addressed and resolved through the democratic process. An understanding of basic rights should no doubt guide and shine a searching light on our debates, deliberations, and disagreements. And, of course, to say this places a great burden on our legislatures, which they may not always be able or willing to shoulder—sometimes it suits weak lawmakers all too easily to leave the difficult matter of adjudicating on the limits of our rights to the courts and the judges. But to use such rights as a means of closing down debate is rarely if ever the way to go, not least when all that achieves is to reallocate decision-making power from the vicissitudes of the ballot box to the vicissitudes of whoever for the time being can command a majority of votes on a Supreme Court.