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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