Judges tend to be rather pompous and self-important people. And when they are feeling particularly pompous and self-important, they like to use a certain word: ‘constitutionalism’.
The term ‘constitutionalism’ is intended to invoke in the listener’s mind a range of nebulous ‘hooray’ words and phrases: the rule of law, limited government, the separation of powers, fundamental rights, an independent judiciary and so on. But what it really means is much simpler than that. It is a code word for depoliticisation. Once a concept has become ‘constitutionalised’ it becomes almost untouchable politically. It is taken out of circulation in public discourse and becomes part of the immutable structure of government.
The reason for this is that a ‘constitution’ is the legal framework which gives form to what the American political philosopher Harvey Mansfield calls a ‘regime’ – the government by a certain group or class, a certain ‘some’, over the many. A constitution comprises the rules by which that relationship is defined and constructed. This means that the contents of a constitution are not typically up for debate. They are, as it were, pre-political. They are the structure within which politics is made possible.
When something is constitutionalised, then, that means it becomes part of the foundation of the relationship between state and society. A good example from the UK constitution would be the principle of Parliamentary supremacy. Parliament makes law. And it is the supreme lawmaker – what it says is law is law, provided the proper process has been followed. Parliamentary supremacy is a constitutional principle because it is literally constitutive of a regime: it makes clear who is in charge (the representatives of the electorate) and determines how their rule is operationalised. And because it is constitutional it cannot be challenged politically or legally circumvented (except perhaps through extraordinary means) – it is in this sense fundamental.
One should be very wary, then, of talking blithely about the ‘constitutionalisation’ of anything. Because what that really means is to build something into the very framework of government. It is to set that thing apart from ordinary democratic or political processes, and indeed to make it part of the means through which the state itself and its governance of society is given form.
In light of all this, when Lord Carnwath, former Justice of the Supreme Court, stood up to deliver a speech at the LSE about the ‘constitutional’ protection of the environment last week, I found myself raising my eyebrows. Protection of the environment is one thing, and reasonable people will tend to agree that it should be the subject of at least some attention and effort. Constitutional protection of the environment is something rather different. It implies not just that government policy should be to protect the environment, or that Parliament should legislate to protect it. It implies that the protection of the environment should be itself constitutive of a regime: the ‘some’ who rule the many should do so at least in part in the name of better protecting the environment, and on the grounds that they are the ones who are best equipped to do so.
And this further implies, naturally, that protecting the environment should become a subject that is beyond or prior to politics. It should not be a matter of debate and certainly should not be a subject left to the vagaries of electoral fortune. It should instead be part of the very framework within which political decision-making takes place. Political decision-making, in other words, should be carried out on the basis that protection of the environment is a given. You can have any policy, as long as it’s green.
Lord Carnwath is a highly intelligent and well-educated man, so he of course understands the implications of advocating ‘constitutional’ protection of the environment very well. He is in favour of ‘constitutionalising’ it precisely because he does not think the matter should be open to democratic decision-making. It should be a matter for experts – scientists and, naturally, judges – and them alone.
Carnwath makes no bones about this. Democracy, in his view, should not enter the picture. It is damned by omission. When, for example, he is discussing the recent decision of the European Court of Human Rights (ECtHR) in the KlimaSeniorinnen case, in which the Court found that the Convention in effect contained a right to be protected from the effects of climate change, Carnwath shows himself to be contemptuous of concerns about the implications of this ruling for democratic legitimacy. “I see no practical harm and much good,” he merrily declares, “in the judicial extension of the Convention to encompass rights which have long been accepted by judges round the world as fundamental to human existence.” Note the emphasis: the lodestar for Carnwath is most certainly not what voters around the world might have accepted, but rather his fellow judges – as though it is only their views that count when it comes to matters of policy.
And when turning to events in the US, Carnwath gives us a significant ‘tell’ in his remarks about the Environmental Protection Agency and its new Trump-appointed climate change sceptical administrator, Lee Zeldin. Revealing himself to be rather keen on lawfare, at least in respect of environmental matters, Carnwath declares that he is “hopeful that the US courts will find it hard to accept that the Environmental Protection Agency, as a statutory body, can lawfully adopt an approach which flies in the face of all scientific reality”. You read it here first, folks: it should be against the law for a government agency to adopt policy that conflicts with “scientific reality” – even if its head is a political appointee of a President. When it comes to a conflict between ‘science’ and democracy (we’ll leave the substantive content of ‘scientific reality’ to one side), the former simply must win.
What Carnwath was advocating last week, in other words, was nothing short of the constitutionalisation of an environmental protection regime: a set of arrangements in which a technocratic ‘some’ – judges, climate scientists and so on – simply get to rule society in light of their overarching objective (i.e., reducing ‘climate change’ through reduced greenhouse gas emissions). This objective would thereby become not simply a matter of political choice but a part of the structure of the state itself – a given, that permeates every aspect of policy as such. It would become one of the reasons as to why the state exists at all.
What are we to make of the fact that a former senior judge should be talking in public at an important university in a manner so contemptuous of democracy?
The answer is that we should be very worried about it. Carnwath is 80 years old now, and 10 years retired. And one might be fooled into thinking that these trendy comments are those of an old man struggling to make himself relevant. The frightening truth, however, is that Carnwath would likely have graduated from Cambridge in the mid-1960s, and that universities (including university law schools) have become steadily more technocratic and Left-leaning since then. As this is the case, it is likely that the people who are now trickling upwards into the judiciary and senior judiciary to replace the likes of Carnwath will be just as, if not more, convinced than he that democracy is a dirty word and that the best way to govern is to powerfully increase the ‘constitutionalisation’ of substantive areas of policy. He is, in other words, to be understood as something of a harbinger of what is to come as the judiciary becomes steadily more populated by people who have been educated to believe that it is judges and scientists who should be deciding how people live, not political representatives. This, it is safe to say, does not bode well for the future of politics in Britain; ‘wokeness’ might have peaked (although I have my doubts about that), but we are really only at the beginning of a movement to thoroughly technocratise the way in which we are governed.
Dr David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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This exactly why the only way to fight against climate tyranny is to confront the core premise head pn: that CO2 released from human activity results in catrastophic climate change. Until this foundational idea is debunked we won’t get anywhere.
Agreed. Don’t let the Enemy hold ground of the Enemy’s choosing.
Like they do on GB News every day. They argue against CC on the speed and cost, yet they feed the beast that C02 is evil.
I agree, but the core premise is wider than that: any Human activity is destroying the planet and so must be stopped. Once one thing is successfully stopped, the Eco-tyrants will move on to the next.
Unfortunately we have Lenin’s army of useful idiots to deal with, with their reusable bags, enthusiasm for reusable glass bottles, horror of the demon plastic, embrace of local, seasonal, organic produce, etc who are easy game for the Eco-loons rattling their collection tins to fund their fight to protect the Environment, as informed by the Daily Mail.
I suppose it’s Neo-Paganism.
Yet they hate Trump with his tariffs, yet with more tariffs, less is being shipped overseas and more is encouraged to be made in the home nation.
You need a positive. A negative only confuses the sheep.
It’s the Sun that drives our climate, and the natural oscillations, due to ocean currents, the shape of the oceans, and the spinning, tilted Earth, is added to that.
It’s a standard problem in Engineering, and then we have the variations in Space Weather, with sunspots, corona holes, magnetic connections, flares and high energy particles being emitted.
It’s an interesting subject, and includes how people’s health is affected and earthquakes and lightning are triggered.
And that the cold weather (especially in Switzerland) kills more old biddies that the hot weather. So maybe enshrine in law that energy must be affordable to stop the old freezing to death in winter.
I agree we should rubbish their claims but politically, electorally it might be enough to break the link between the uncertainty over climate from the imperative of action. We should adopt Lord Lawson’s view.
To see them read his book but in essence they are that economy breaking measures are not justified now for an uncertain risk in decades time.
Excellent – that means he is worried that if it’s left to the politicians, his side will lose.
I like the US Constitution, but that was and is a limit on state power. The rest is left up to politicians (and activist supreme court justices inventing rights where none exist – but that has been eventually remedied through the ballot box via nominating different Justices.
I like the US constitution too because it is designed as limits put by the people on state power. And that is what a constitution should be, in my view.
The view of the constitution that these activists have is the opposite – a constitution as a set of rules set by the state to control people.
I guess it’s the difference once again between individualism and collectivism. The US constitution is clearly designed to protect the rights of the individual against the power of the state.
The US constitution wasn’t very effective with the last WH resident, even if the constitution was clearly designed, so it always comes down to who is in charge.
When lawyers can dictate the conclusions of scientific experimentation, there’s a big, big problem to solve.
I like how last week Trump just came out and said….The judges think they are president, they elected me not them.
I claim the human right to be protected from impending poverty as a result of the actions of green activists and judge (some overlap) which fly in the face of common sense and empirical scientific fact.
Let’s just this straight…
…Lawyerly old buffer, Lord Carnwath, at best bearer of a couple of science O-levels acquired over 60-years ago, now has the sheer blind effrontery to declare his Lordly self, Lord High Confirmator of “Scientific Reality.”
Latterday Gilbert and Sullivan at its most ironic. All prostrate and face the Bar at Middle Temple. The lawyer is an ass first class.
Over to Maestro Feynman…
“…No government has the right to decide on the truth of scientific principles, nor to prescribe in any way the character of the questions investigated.“
Scientific reality is that there are no facts in science just temporary hypotheses and theories.
I think it was Einstein who remarked that a thousand experiments do not prove a theory, but it takes just one to disprove it.
He did upset the status quo
but the problem wasn’t the Science, it was that he was living in Germany, in the 1930s. 
Popper’s Principle – a theory can never be proven true, only can ever be proven untrue (that one in a thousand result).
To be fair, I don’t think he would claim it’s his own judgment. The laws of our country have been drafted in such a way that climate change is defined as a threat to existence (and all the bogus science along with it). So strictly speaking he’s just applying the law. Presumably he also agrees strongly with the premises, but they aren’t necessarily his own.
The damage occurred in 2008: the rest is History.
1997.
Politically, yes.
Redefining Science, 2008.
I know what Rumpole of the Old Bailey would think of him. That old Barrister had principles in that TV series. Law being blind and all that, great series repeating on TPTV on Tuesdays.
He is in favour of ‘constitutionalising’ it precisely because he does not think the matter should be open to democratic decision-making. It should be a matter for experts – scientists and, naturally, judges – and them alone.
This is just a feeble justification for technocracy – the rule of people who think of themselves as our moral and intellectual superiors.
There’s a magical group in world who know what the truth is. Furthermore, they are never, ever wrong – and indeed, they have never been wrong in the whole history of human politics. They are the possessors of Wise and Numinous Knowledge (W.A.N.K. for short). Under no circumstances should this magical group be challenged. Our job, as members of the general public, is to admire, obey, and shut up.
What Sowell calls the “Vision of the anointed”
Cheap, fossil fuel based energy is fundamental to human existence. And the scientific reality is that there is no evidence of adverse climate change due to man made CO2 emissions. I hope he means that these truths are to be pursued…
Everyday something shocking.
“Protection of the environment is one thing, and reasonable people will tend to agree that it should be the subject of at least some attention and effort.”
I am a reasonable person – reasonable in its true sense, use of reason and logic based on knowledge – and I don’t agree.
“Environment” is an abstraction and a cause become business become racket.
What is around us is our environment – not rain forests, not turtles in the Pacific, not Bonobo apes… that’s not our environment – and people as best they can do take care of it if it is in their power to do so. But so much has now been moved into the hands of the State, for whom “Environment” is a global crusade led by NGOs, international bureaucracies, and rich people.
The consequence is the interests of “Environment” displace the interests of Humans to their detriment, immiseration and impoverishment.
I agree it should be taken out of the hands of politicians – as should nearly everything – and put back into the hands of the Humans whose environment surrounds them.
People come first.
Worth remembering: our ancestors were nomadic/semi-nomadic hunter-gatherers. They ate, burnt, cut down, trashed their environment in order to survive and prosper… then moved on.
“people like me should have more power” says person who likes power
Lord Carnwath
He can f-off. Such arrogance. These lawyers need to be taken down a peg or two.
“A good example from the UK constitution…” could the professor kindly advise me in which library or GOV link I can read the “UK Constitution”.
It’s in case law, starting in 1215.
But would you let the lawyers, in the current political climate, write a new constitution?
There’s a monument to it at Runnymede. Magna Carta RIP.
For a moment, only a moment, I thought, yes, keep Ed away from Energy Policy, and then, oh dear, it dawned on me that nothing would change, as the 2008 Climate Act defines what is true, in the eyes of the judges.
Thanks for the warning, not that many on here need that type of warning. To get a good glimpse into where this is heading Declined is an excellent dystopian satire. Or the film Demolition Man to name a few.
I’m getting many articles from Climate Cosmos on MSN and they are on the sceptical side, keep them coming as they say: Top 10 Ways Renewable Energy Might Be a Lie
Carnwath has most probably been fingered by the neo-Malthusian anti-humanity and super wealthy banking and corporatist proponents of the climate change/save the planet brainwashing mantel that hides the fundamental intention to reduce and control and impoverish populations. He and his ilk are in no way Leftist.
If fascist regimes are characterised by a disdain for democracy, the privileging of the state and it’s institutions over the individual and the self-perpetuation of an elite by coercion or worse, what does this say about Carnwarth and the rest of the activist judiciary? “Highly intelligent and well educated” he may be but he and his kind are also highly dangerous.
The Judiciary and Lawyers it would appear are attempting a coup, they are deliberately provoking the people and the Government to see how far they can get away with imposing a new form of Government, one wherby Judges and Lawyers become the literal masters, imposing their world views on us through laws and punishments. They need to be reigned in and quickly. I doubt this will happen as Starmer himself is a member of this tribe and believes that like them he is so much more clever than everyone else and so should be able to control people and force them into living the way, thinking the way that he and his tribe dictate, it also will allow him to “rule” the country even if and when the Labour Party loses power.
It is now up to the people to stop these very dangerous authoritarians.
An extremely sinister and anti-democratic argument. The great and the good know better than we mortals.
It’s no good arguing that the extremely distinguished gentleman has overreached himself.
The root cause of this problem is not the judges, nor indeed the civil servants, who are also pushing to increase their power. (OBR anyone?)
The root cause is that the useless second raters who largely make up the House of Commons need to start fighting for their power. They need to insist on substantive laws, rather than enabling acts that give powers to Ministers/civil servants to issue regulations. And when a legal expert like Lord Carnwath pronounces that politicians’ powers should be reduced, our politicians need to stand up and disagree.
I’m afraid the time has come to rebalance our “constitution”, which we can do by introducing political appointment of senior civil servants and confirmation hearings for judges.