The writer is in Australia.
There are some terrible ideas that just won’t die. That’s because the progressives love them so much they’ll keep trying and trying. This column is about one such idea, a bill of rights. Now as readers will know I was a huge and vocal opponent of the lockdown thuggery and authoritarianism of the Covid two-and-a-half years. More than a few fellow anti-lockdowners asked me if a bill of rights would have helped. Unequivocal answer: No. My longstanding opposition to a bill of rights was only strengthened due to what we saw during the lockdown thuggery. Why? Well, we’ve just lived through the biggest experiment in protecting (or not) civil liberties ever. Lockdowns imposed what retired U.K. Supreme Court judge Lord Sumption called “the biggest inroads on our civil liberties in 300 years”. And how many democracies had judges who did anything to push back? Zero. You can’t point to a single case anywhere in the democratic world of judges invoking one to roll back or limit the lockdown thuggery and authoritarianism. Not in the U.S. with its potent and entrenched bill of rights. Not in my native Canada with its even more potent and entrenched bill of rights (the top Canadian judges being even more activist than the U.S. ones in striking down laws and intervening in social policy-making). Not in Britain with its powerful statutory version of a bill of rights, one so potent many cheerleading, pro-bill of rights law professors in Britain consider it virtually as potent as the U.S. model.
In none of those countries did the unelected top judges step in to soften or curtail the lockdown thuggery. Nor did it happen in continental Europe. In fact nowhere. There were two cases in the world, one in Scotland and one in the U.S., where the court said, in effect, “if that big box store gets to open then so does this church”. Wins, but not bill of rights wins. So if you think that, say, U.S. First Amendment jurisprudence would have helped, we lived through a real life experiment and the answer is now clear. No it would not have helped!
Second point. Even if you ignore the clear evidence of the lockdown years it is also the case that no non-U.S. country can buy the U.S. First Amendment case law. All post WWII countries with bills of rights – ones that were entrenched or enacted in the last half century or less – include equality type rights. And these virtually always are held to trump the free speech and religious liberty rights. You are going to end up with judges who copy the EU and Canada and Britain, not the U.S. They’re going to go down the virtually unconstrained path of ‘proportionality analysis’, which takes us to the next point.
Thirdly, when you buy a bill of rights you are simply buying the views of the unelected judges (and more broadly of the lawyerly caste, and they were all-in for the lockdown thuggery). That’s because bills of rights deal in amorphous, loosely articulated entitlements – ‘right to free speech’, ‘freedom of assembly’ and so on. As Jeremy Bentham noted over 200 years ago, people tend to assume these amorphously articulated entitlements mean you can say anything. Wrong, and wrong for good reason. Even the U.S. with its First Amendment imposes all sorts of limits on speech from no inciting violence to no kiddie porn. It’s just that those limits will now be laid down by an unaccountable, unelected judiciary rather than by an elected and removable politician. Be clear. That is why activist progressives would walk barefoot over broken glass to get a bill of rights. They think, rightly, that the judicial caste will deliver more of their first-order political and moral preferences and druthers than the democratic process.
And here it’s worth making two ancillary observations. Firstly, 60 years ago the median lawyer was to the political Right of the median voter. Today, the median lawyer is a standard deviation or more to the political Left. (The data on this from the U.S. where political donations are public information are scary.) These are your future judges. Have you seen our law schools? Have you seen what the current High Court of Australia is doing even without a bill of rights? Because it’ll be much worse with one. My second ancillary observation is this. Having spent a big chunk of my professional life arguing against the undemocratic nature of bills of rights, in no small part because when you buy one you are simply buying the worldview and druthers of the judges and lawyerly caste, I cannot understand why Bruce Lehrman and his team did not opt for a jury defamation trial. (I say this now because I openly said it at the time.) I would never, ever put my fate in the hands of a judge on an issue of facts and what conclusions to draw from them. That’s not because of insincerity worries or real or apparent bias. It’s because I believe that tradies, secretaries, grannies, truck drivers, waitresses et al. would likely see the evidence very differently than would most members of the inner-city judicial caste. Give me a jury any day! And if you doubt there’s much of a worldview difference just recall how most judges were for Yes and most voters for No in last year’s Voice referendum. (In the openly Yes camp this included retired Chief Justices, a sitting superior court Justice, Bar Councils, Law Societies, an over-exuberant KC, the list goes on.)
Fourthly, and this surprises many, in terms of what people can say there is more scope today, right now, to speak your mind in no national bill of rights Australia (re hate speech type claims, re campaign finance rules, re speech related to religion) than there is in my native Canada. Or in the EU or Britain. All have powerful bills of rights in play. That is what you’d be buying because, to repeat myself, the U.S. First Amendment (which did nothing during Covid) is not what’s for sale in today’s bill of rights marketplace.
Fifthly, along with the transfer of social policymaking power to the judges that comes with a bill of rights you magnify by orders of magnitude the issue of who gets appointed to the top courts. Is there sentient being anywhere who believes the Coalition would do a good or even a barely tolerable job in picking top judges who brought with them a commitment to interpretive conservatism? Just look at what the Coalition did in giving us a top court that decided the Love case (the worst-reasoned constitutional case I have ever read from any jurisdiction, not to mention its reliance on identity politics fluffery such as ‘otherness’ etcetera). Or whose judges delivered the woeful Ridd decision. Or that overturned the 20-year-old Al-Kateb case and forced the release of very dangerous people (who aren’t going to be living in nice parts of cities near the lawyerly caste). Oh, and while we’re on the topic of Coalition appointees, it was Team Coalition that appointed the President of the Australian Human Rights Commission who (while silent during all the lockdown thuggery) initiated this new push for a bill of rights. The e-Safety Commissioner was the Coalition’s too!
Personally, I don’t think it’s even in Labour’s interest to bring one in – it was the High Court, remember, that landed the party in its current mess by overturning Al-Kateb. Try to have secure borders with a bill of rights! So no, a bill of rights is still a terrible idea.
James Allan is the Garrick Professor of Law at Queensland University. This article first appeared in Spectator Australia.
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Yes it was a rude awakening during the Scamdemic years as the reality was rammed home to us that 1) we were not living in a democratic and free society any longer, let alone a civilized one, and 2) Nobody else is going to stick up for our human/civil rights so we need to step up to the plate and do it ourselves. Like, where did all the human rights lawyers go? They just all disappeared into the ether!
”One has a moral responsibility to disobey unjust laws.” They’re going to keep coming for us and the net is going to keep tightening, because they know we’re wise to them now. Just don’t participate in the lie and call them out on their bullshit whenever possible. Lawyer Aaron Siri nails it;
”Public health authorities have become obsessed with seizing power to crush civil rights at their whim. They want to have the power to be able, at a moment’s notice, to lock you in your home and otherwise exclude you from society unless you do precisely what they say, including wearing, ingesting, and injecting what they demand. Cruel dictators afforded more freedom.
They seek this power because, as their recommendations have diverged from real world data and reality, they have lost the ability to persuade on the merits. Instead of recognizing the issue is with them – they need to follow the actual data, admit when they were wrong, change course, etc. – they have chosen to do what dictators of the past have done and must do when they can’t persuade on the merits: they resort to mandates, censorship, and force.
Public health “authorities” need to wake up and agree to a line in the sand: persuade on the merits and if they cannot, that is where it ends. People across the globe are keenly aware this line has been crossed and are now seeing the WHO, CDC, etc., for what they are: power hungry organizations that seek to perpetuate and expand their power and control over the bodies of citizens and that will never admit mistakes, will double down on junk data analysis, and gaslight anyone who doesn’t agree with them.
These organizations are potentially the greatest long-term threat to civil rights if their goals of power are left unchecked. Thus, we need to be very weary of WHO’s efforts to expand its power when it meets on May 27, 2024 to seek to finalize an international agreement aimed to “coordinate” its international ability to crush civil and individual rights of those who do not agree to submit to its demands at any time and place WHO believes such submission is required.”
https://twitter.com/AaronSiriSG/status/1790091773890670806
Simon Dolan would agree after two legal challenges that were rejected. We still have inalienable rights, it’s just the British public are ignorant of this.
The problem might not be that there isn’t a bill or rights but rather that it isn’t written well enough.
If you have a contract that in the end fails to protect you because it didn’t contemplate a particular issue or it wasn’t clearly enough written, you don’t just go, oh well, contracts are pointless. You try to improve your contract for the next time. That’s what you do.
A bill of rights is power ceding contract between the state and the people. If the state acts in a way that is abusive to the population, then you get yourself a better contract.
Vague interpretations can work both ways, for totalitarians and for the hoi polli. That is where the importance of a jury by peers comes in?
I’m not convinced by this at all.
The summary of the author’s argument seems to be that Bills of Rights aren’t worth having because they don’t stop all abuses of rights.
That would be like saying there is no point in having laws against murder or theft, because look, there is still plenty of murder or theft.
The question is do they make things better than they. make them worse? I don’t think he has demonstrated that at all simply because we were all abused during covid.
Let me give one specific example that I think shows that value of laws enshrining fundamental rights.
In Spain there was a lockdown. Eventually the constitutional court got around to evaluating whether it violated the constitution and it found that it was indeed in violation of the constitution. Did it stop the lockdown? No. But is it now clear in Spain that, as long as there is still rule of law in Spain there will not be another lockdown without a very hard to achieve change in the constitution? Yes,
Bills of rights and constitutions cannot be judged on the whether they are perfect, they need to be judged on whether they make things better and I would say they generally do.
They set an expectation, they make rulers be a little circumspect, at the very least they have to come up with arguments for their abuses and they provide an instrument for taking rulers to court.
A crucial first amendment battle is being fought in the US as to whether the government was in violation of the constitution by colluding with big tech firms to censor Americans. That in itself is something which without a bill of rights would not be possible. And if the government loses that will do a lot to stop it in future.
Yes a bill of rights is no guarantee of anything, we always have to be vigilant and fight to defend our rights. But a bills of rights and constitutions are weapons for doing so.
Hi James
This is a rather pathetic and hopeless piece. What’s your alternative remedy then, ah nothing!
So can I presume you are for some status quo ante, which previously depended on a general consensus of values within a society? Well it’s gone, woke-ism is previous political correctness gone puritanical that is authoritarian, and as you say the judiciary are now generally part of that. All the lessons learnt from the reformation and subsequent problems and then rapprochements between religious sectarian divides are now lost through ignorance. Lost because some people believe we have now reached a new enlightenment in woke-ism, and that truth and therefore also righteousness only comes from a notional democratic consensus.
But democratic consensus (if its not representative over and against the executive) is just another form of might is right, which if also puritanical, also believes it is right to force others into its consensus.
The whole point of a bill of rights is that it is an attempt to hold the executive to account, restricting their sovereignty, by protecting individual basic rights from the executive or any other powerful interest group. Yes, and so in that sense these are not democratic they are not meant to be – inalienable rights are not something a parliament can vote on, but neither can the judges.
So a Bill of rights proper is not the preserve of the progressive activist either, the fact that you think they are is due to some other impediment.
Yes no Bill of Rights properly rescued us from the Covid and vaccine shenanigans (although the US one may yet enable a significant rear guard action)
The fact that none of the Bills of rights did so up front in this crisis is not a failure of the idea of a Bill of Rights – what other idea is there? Instead it is because they are all poorly written – so for example none of them make a basic distinction between what might be described as basic equality public rights and the subsequent private diversity rights, which sit on that basic foundation. A Bill of rights sits squarely in the former and cannot stray into the later based on progressive manipulation. Basic public rights always trump private diversity rights because basic rights are in essence a statement of reciprocity and the golden rule upon which private diversity rights depend. In this way you get free speech but also a proper natural limit to it – which isn’t really a limit at all, it’s just a means to identify those people who do not believe in other people’s free speech.
It obviously also needs a free and active court to defend just it, probably as you say, with jurors. But there is no such current court.
You are like some kind of a religious fundamentalist harking back to the good old days when the church was in ‘moral’ power – if only we could get back there doing it the way we used to. But the church was lazy, it never worked out its proper answers to all the looming inconsistences it just said do what we say, (the religious reformation was never complete as it was partly hijacked by princes as just a means to get out from under the Pope) and so the church lost its ‘moral’ power. Likewise so have been the conservatives, lazy and they are now just like the Church of England utterly self- contradicted and lost.
The only way to get it back is to answer those inconsistencies and when the people see that they are answered they will be happy to coalesce around it, you will once again get a general consensus of basic public values which might bind a society together .
So stop bloody complaining with no answers and get on with solving the problem! If it’s no Bill of Right’s what is it, and if it is one, what needs to change because all the current ones haven’t worked properly when put to the test.
The bill of rights concept gives the leftist lawyer class even more ability to overrule the will of the people. It is not possible to draft constitutional protections which leftist lawyers won’t simply reinterpret as meaning the opposite of the plain meaning of the text. Decentralisation and making the judiciary accountable to the people are the best protections against an over-powerful state. The US bill of rights might have failed during the COVID tyranny but some states did stand firm against authoritarianism with South Dakota a notable example.
I don’t see how cutting the problem into smaller pieces, protects inalienable rights from progressives of all types, whether politicians, lawyers or people. Inalienable basic rights are not a matter of democracy or self identity, they are more like a law of gravity, just true anyway. The problem is to work out what they are properly.
Scotland and Wales were examples of decentralisation, and they worked really well…. for the progressives.
I don’t think anything works perfectly.
I agree decentralisation – on the whole – is better, simply because it diffuses power.
Power will eventually be abused. Always. The best one can hope for is that one can escape it to better alternatives. As many have done in the US fleeing democrat states for less intrusive republican ones.
Didn’t Portugal also rule against the Lockdowns or Mandates retrospectively.
https://youtu.be/kSNO2BIwFy8?si=WHP__rS-XvIqsYta
Have a watch of this young man. Bloody hero!
If he wanted to be even more provocative he could’ve put Saxon Crusader over a loud speaker. Then again he could’ve had some Sword wielding maniac from the religion of peace chasing him.
Commenters criticising the argument put forward in this article all seem to miss the point: if you want to rely on any law to protect your freedom, you have to get past the judges first.
A Bill of Rights is utterly useless when your rights under it are assessed by the judiciary – they are political human beings enmeshed in a network of goupthink and patronage.
As I’m always banging on in these pages – it’s no good complaining to the referee if he’s been bunged to make sure the other team win.
As Dr Allan points out, juries are the best protection – Magna Carta got that much right.
You seem to be over stating the problem of the judiciary. They work in tandem with the law, so it is also significantly a problem of poorly written laws. But I agree there should be more use of jurors. There is no point complaining about the judiciary if the laws they a refereeing are full of holes.
So for example current ‘rights ‘ laws set up all sorts of conflicts, because they are so badly thought through and written, leaving the judiciary to ponticate over them. But if basic rights are inalienable they will have the same characteristics as for example the laws of physics. They will not self contradict and so they will not leave gaps for progressive shenanigans. The judiciary would advise on the applicable law, and then the juror would decide.
The problem is that this issue implies a fundamental question about what we believe about mankind. The post modern progressives believe in nothing apart from the current consensus . Modernists must believe in some object inalienable aspects, the question now is can they be bothered to work them out.
We don’t want the government to decide what our ‘rights’ are in any Bill, that is not how it should work. The US with it’s Second Amendment is the last outpost to freedom in the West. A point George Galloway made. Broken clock twice per day analogy again.
The American system has not worked well either, its a very expensive time consuming rear guard action.
But what is the alternative? Mob rule?
A well written Bill of Rights, which clearly distinguishes between common basic public rights and diverse private ones. And a free dedicated court which can actively defend just those rights, including the use of jurors.
In the UK this would mean coming out of the European convention on Human Rights and also cancelling the equality act. Not because we don’t believe in such things generally, but because those forms are inadequate and self contradictory expressions of it.
Do we have rights UK Column:https://www.ukcolumn.org/article/interview-with-a-stormtrooper-revisited-do-we-have-rights