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The Dubious Case for a Written Constitution

photograph of monument celebrating Spain's Constitution

Recently, as Boris Johnson was holed-up in Downing Street, trying to resist his inevitable dethronement as Prime Minister, there was some talk of a “constitutional crisis.” On Twitter, “Activate the Queen” was trending (as though expecting a nonagenarian who is now too old and sick to do her job to save the country isn’t a crisis). The concern seemed to be that Johnson might refuse to resign, despite the fact he had lost the confidence of his cabinet. But there was no crisis. Still, this is a good time to examine an issue that raises its head every few years.

The former MP Rory Stewart was one of those worried that a crisis was brewing, and he used this to argue that the U.K. needs a written constitution. Robert Crowcroft, meanwhile, makes some telling points against the written constitution argument. For one, the U.K. has a written constitution, calls for a written constitution really just want us to combine all of the various pieces (like the Magna Carta and the Bill of Rights) which comprise the constitution into one piece.

But what are the supposed benefits of having the constitution written in one place? There seem to be a few arguments for writing down a constitution that I want to look at: clarity, the protection of rights, and the legitimacy of the state. I think the call for a written constitution rests on some other dodgy premises that recent events in the U.K. and abroad bring to light. I think that comparing the calls for a written constitution in the U.K. with how things work in the U.S. – where there is a written constitution – shows that these arguments aren’t as persuasive as they may sound in the abstract.

Some calls for a written constitution seem to hold that if we just had it all written down in one place, we’d know what is acceptable and what is unacceptable. We would have “clarity.” Gopal Subramanium has argued that a written constitution would have helped the U.K. navigate Brexit. Quoting Lord Bingham, Subramanium insists that “constitutionally speaking, we now find ourselves in a trackless desert without map or compass.” Having a written constitution might have told us whether Parliament needed to approve leaving the EU – thus avoiding a major constitutional kerfuffle.

But no constitution can cover every possibility. It is far from clear that had, say, the U.K. written down its constitution in the early 20th Century, that it could have possibly predicted a European power like the EU. Constitutions need to be written at a sufficiently general level that pays heed to potential new scenarios arising. But once you write something at a sufficiently general level, gray areas sneak in, hard cases present themselves, and the inevitable need for interpretation and application arises.

The U.S. Constitution has been argued over in courts for centuries. Still, fresh need for argument and investigation arises (or the Supreme Court would be out of business). There will always be unanticipated conflicts or a conspiring of events not explicitly articulated by the written document yet in desperate need of resolution for the sake of preserving political legitimacy. Even if a written constitution could have covered Johnson’s case, there will always be the possibility of things the constitution doesn’t explicitly and obviously cover. So, it’s not clear that the clarity argument gets us very far.

What about the efficacy argument? Subramanium also suggests that written constitutions protect our rights, more so than, say, the current British system. No doubt the British constitution is complicated and not always clear to the general public in the way that the U.S. constitution is. Citizens might well be empowered knowing more about their rights (this is a clarity-based consideration that feeds into efficacy). Constitutions are also harder to amend, and a simple parliamentary majority cannot usually overturn these rights.So, there is a degree to which written constitutions do protect our rights.

But this runs into a brick wall. Tell a woman in, say, Texas that a written constitution protects her rights when, had she wanted, she could have had an abortion a month ago, but now cannot. Constitutions might protect some rights, but others are very much open to interpretation – and how strongly these rights are protected is another factor, too. So, it’s far from clear that writing anything down makes our rights more secure. The only rights written constitutions make more secure are those that are clearly and obviously stated – yet even the right to free speech or the separation of church and state in the U.S. can be abridged.

Finally, there is the idea that a written constitution can keep the political system in check – it can protect us against the whims of a power-hungry person whose actions delegitimize the system. Rory Stewart (rightly) claimed that Johnson “is a frightening example of what a ruthless person with no respect for the unwritten rules of our system can achieve.”

Firstly, Robert Crowcroft persuasively argued that the fact Johnson is now gone (or will soon be – he is staying on in a caretaker role), shows the constitution works just fine as it is. We’ve little reason to think a written one would be any more effective.

And a comparison with the U.S. is again instructive. Did the U.S. Constitution stop Donald Trump’s attempts to overturn the election? The laws he may have violated might come back to bite him – but had he succeeded, the laws and the Constitution would have meant nothing. That would have been a crisis.

I’m reminded of Bernard Williams’s quip, in Ethics and the Limits of Philosophy, “What will the professor’s justification do, when they break down the door, smash his spectacles, take him away?” The efficacy of a constitution, written or not, depends upon whether it is respected and upheld, not on whether it is scrawled down neatly in one place.

Stewart worries that “gentlemen’s agreements” are what ensured the British constitution worked – but that, too, is a question of what we pay heed to. If we respect gentleman’s codes, the constitution will work fine. It’s when we stop respecting them that it fails, but that’s also a problem about when we stop respecting written, codified constitutions.

It doesn’t seem to me that a written constitution is what matters, what matters is that a constitution is respected.

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The Cost of Free Speech

cartoon image of excited speech bubble

As 2021 got underway, and the United States was dealing with the fallout from the January 6 insurrection, a much smaller-scale political controversy was blowing through Australia’s sweltering summer. The prime minister was on holiday, his deputy Michael McCormack was in charge, and Craig Kelly, an outspoken member of the leading party who is a notorious climate skeptic, alternative COVID-19 treatment theorist, and vaccine doubter, had a hold of the mic and was getting plenty of attention proffering conspiracy-style views on his social media accounts.

Australia has done exceptionally well in keeping the global coronavirus pandemic at bay with strict lockdowns in response to outbreaks, effective contact tracing, and strict quarantine rules for all international arrivals. The country of 25 million, has recorded fewer than 1,000 deaths since the pandemic hit last March. Though the community is generally willing to comply with expert public health advice, there has been some dissent from conspiracy theorists and anti-vaxxers.

As Australia began preparing to roll out its COVID-19 vaccination program, Craig Kelly, that zealous critic of scientific evidence, was hard at work on his personal Facebook page posting in favor of unproven treatments and against vaccines and other public health measures, such as the wearing of masks.

Kelly has a large social media following, and public health officials in Australia, including the Australian Medical Association and the chief medical officer, pushed back hard, expressing concern that his views pose a danger to public health, and calling on senior government figures – the acting Prime Minister Michael McCormack and the Health Minister Greg Hunt – to condemn those views and rebuke Kelly. But no rebuke came. Instead, McCormack had this to say:

“Facts are sometimes contentious and what you might think is right – somebody else might think is completely untrue – that is part of living in a democratic country… I don’t think we should have that sort of censorship in our society.”

Notice how familiar this type of response is becoming: when politicians or pundits are called out for expressing views that are misleading, offensive or wrong, there is a tendency to claim a free speech defense. Notice too that McCormack makes specific reference here to what living in a democratic country involves. It is of course true that democratic legitimacy is one of the functions of free speech, but does free speech include freedom to lie, confabulate, or spread misinformation? And how do these things affect democracy? Can we untangle freedom of speech, as a fundamentally necessary democratic principle, from demagoguery?

Let’s look in a bit more detail at McCormack’s statement, which is problematic for a number of reasons, but namely in invoking freedom of speech in defense of views which ought to be rejected because they are wrong, harmful, and generally indefensible. This is a sly move, given the high importance citizens of free, democratic countries place on the right to free speech. It is also a tactic which often has little to do with defending this important right and more to do with evading a subject or shutting down an argument – contra free speech.

As a point of logic, rebuking Kelly for proffering dangerous falsehoods is not censorship. If McCormack’s assertion is that Kelly is free to make these claims then, on that argument, McCormack is free to condemn them.

Furthermore, McCormack’s assertion that facts are contentious appears to imply an ‘everyone is entitled to their own opinion’ kind of defense, which bears a strong resemblance to the free speech defense. But it simply isn’t right. In matters of fact, for example matters of science, as opposed to matters of taste, you are not entitled to your opinion; you are entitled to what you can make a case for, and what you can support through reasoned argument, true premises, and solid inferences. You are not entitled to an opinion that is demonstrably false. Both logic and good faith hold you to a standard which requires you to recognize when a belief is indefensible. Democratic legitimacy depends as much on that as it does on freedom of speech.

Following McCormack’s comments, as public and medical professional pushback grew, no senior member of Kelly’s government – not the Federal Health Minister, nor the Prime Minister himself (now back from his holiday) would bring Kelly into line. Finally, it was Facebook whose moderators intervened and Kelly was required to remove one post proffering COVID-19 misinformation and conspiracy-style rhetoric. Kelly did so, saying: “I have since removed the post… under protest.” He then gave this ominous pronouncement: “We have entered a very dark time in human history when scientific debate and freedom of speech is being suppressed.”

Perhaps Kelly is right that we have ‘entered a dark time in human history’ (if the present can be said to be history) – but not for the reasons he thinks. When we see the right of free speech being used again and again to evade responsibility and excuse lies and falsehoods, it is time to take stock, and look closely at what is at stake in our fundamental beliefs about freedom, democracy, and truth.

One reason this use of the free speech defense is so pernicious, is that most people living in open, democratic societies will agree on the importance of free speech and hold it in high regard. This invocation of freedom of speech seems to trade on the hearer not noticing that something they value highly is being used to degrade other things of value.

International law recognizes and protects the right to freedom of speech which is enshrined into the UN Declaration of Human Rights, as stated in Article 19. The antithesis of freedom of speech is censorship. Censorship is the intolerance of opposing views. This happens, politically, where the establishment fears or dislikes opposition, or where governments want to suppress information about their activities.

Democratic legitimacy is one of the most important functions of free speech. And free speech is one of the most important mechanisms of democratic legitimacy. Real democratic engagement requires the free exchange of ideas, where forms of dissent are not censored, and where differing or opposing views can be aired, discussed, and considered. In this way the citizenry can be engaged, well-informed, and part of the political process.

Even though the argument from democratic legitimacy holds free speech in high regard, very few people take an absolutist position on freedom of speech. Free speech does not imply a free-for-all. Therefore, protection of free speech always involves judgments on when and why speech might justifiably be regulated or curtailed. The answer to the question of what kind of speech causes harm and is justifiably restricted hinges on the extent to which freedom of speech is valued in itself. In liberal societies its intrinsic value is usually held to be high. If freedom of speech is curtailed, its limits will be decided around the protection of other, countervailing values, like human dignity and equality. In this sense there is a (sometimes unacknowledged) weighing-up of the value of freedom of speech relative to other values. If freedom of speech is, in itself, very highly valued, then other values may be subordinated. It is upon this scale that the right to freedom of speech is, for some, synonymous with the right to give offense.

A quick internet search of “free speech quotes” is instructive here, serving up such ideas as: “free speech is meaningless unless it tolerates the speech that we hate,” from Henry Hyde; “Free speech is meant to protect unpopular speech. Popular speech by definition, needs no protection,” from Neil Boortz; and “Freedom of Speech includes the freedom to offend,” courtesy of Brad Thor. Add to these offerings, the infamous contribution of Senator George Brandis, Australia’s erstwhile attorney general, who, in 2014 while making an argument for winding back Australia’s anti-racial discrimination laws, put it to the parliament that ”People do have a right to be bigots, you know.”

All this illustrates which values go down in ranking when free speech goes up. If we take freedom of speech to protect or our right to be bigots, that points to something we value. That is, it suggests, we value our right to be bigots more than we value equality or human dignity; that we would prefer to be allowed to vilify than to protect people from vilification.

Perhaps we will decide that we do have a right, by virtue of to the right to freedom of speech, to be bigots. If that is so, it certainly sheds light on the ethical problems that can arise from constructing our basic moral bearings around defending our rights at the expense of other ways of thinking about what is important in our moral lives. Perhaps we might orient our ethical thinking more towards questions about what we owe one another morally rather than what we can lay claim to. We might, for example, ask ourselves whether, rather than uncritically digging in about our rights, it would be better to reflect on our values in this space.

It comes back to the question of why freedom of speech is so important. If free speech, according to the democratic legitimacy argument, is so important because it allows us to better hold power to account, allows citizens to make informed decisions and engage in reasoned, open debate, then it does not make sense to defend or promote speech which itself undermines these goals — speech like Craig Kelly’s COVID-19 misinformation posts, or any picking from the multiverse of conspiracy theories currently working their way into the marrow of certain sections of society. Americans have recently experienced the very hard consequences of lies and misinformation on democratic society in the twin crises of the January 6 insurrection and the runaway COVID-19 pandemic.

In conclusion, we don’t seem to be paying close enough attention to the way that freedom of speech is being used to justify lies and to push back against demands for accountability from the powerful and privileged. If we can untangle freedom of speech as a fundamentally necessary democratic principle from demagoguery, we must do so by directing more critical attention to how it is invoked and what is at stake when freedom of speech is taken to mean freedom to lie or to further a pernicious ideology. Yes, freedom of speech is fundamentally important, and we should protect it because of its central role in the democratic process. At the same time, truth matters and lies have real consequences. When we stand up for freedom of speech, we should be thinking broadly in terms of why it is valuable, what role it serves, and what our responsibilities are in respect of each other. A broader discussion about our values will serve us better than a narrow focus on rights, no matter what they cost us.

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The Moral Need for Public Conversation about Rights in a Pandemic World

photograph of protester holding sign reading: "Freedom from Tyranny Don't Tread on Me" in front of State building

The COVID-19 pandemic has created several problems that pit sacrifices for the collective good against individual resistance on the basis of upholding some perceived “right.” For example, should people be expected to wear masks? Are people obligated to follow social distancing guidelines? Is a lockdown justified? Are we obligated to get vaccinated once it is possible? But, what do we mean by “rights” in these cases? And, how has an understanding of political philosophy (or lack thereof) helped or harmed social attempts to manage these problems?

Resistance to social-distancing and mask-wearing is controversial. Those who have been most vocal in their resistance have acknowledged the pushback they get. It is no surprise why either: failure to wear masks, failure to socially distance, failure to isolate, and failure to eventually get vaccinated make the problem of the pandemic worse for everyone else and will likely prolong its effects. Consider the issue of following social-distancing guidelines. A party of about 25 people this month led to over 350 people having to quarantine after the party became a super-spreader event. The less effort that people put into following public health recommendations, the easier it becomes for the virus to spread and the worse the rest of us are for it. Now polling suggests that only 58% of Americans plan to get vaccinated, and if there is great resistance to vaccination then the problem will only be prolonged further.

There are a myriad of possible reasons for not following these guidelines (and in some cases laws), but one that is often cited is that the guidelines are a violation of individual freedoms or rights. Several of the protests, rallies, and calls for “liberation” from lockdowns and mask mandates have justified their actions on the basis that such measures violate fundamental freedoms and rights. For example, MLB player Aubrey Huff declared in June that requiring people to wear a mask is “unconstitutional to enforce,” and as The Washington Post reports, “many say that they have a ‘constitutional right’ not to wear masks and mask mandates are forms of totalitarian rule.” In Brazil, President Jair Bolsonaro declared that he would refuse to get vaccinated, citing his rights. Even in Canada the provincial government of Alberta, currently one of the worst hotspots in the country, has resisted mandates on the basis that it could infringe on constitutional rights. Premier Kenny recently pointed to Canada’s Charter of Rights and Freedoms as a reason they are avoiding greater restrictions.

Of course, the question really is whether people do have a right to not wear a mask or do have a right to violate public health regulations. As many Canadian legal experts have pointed out, Kenny’s reasoning is faulty. Canadian rights and freedoms are inherently subject to “reasonable limits” by the constitution as can be justified in a “free and democratic society,” but American constitutional rights are slightly more absolute in character. Still, where is the protected right to not wear a mask or to violate public health standards? Many would argue that they are covered by the first amendment, but short of a court ruling on this matter, it is hard to argue that one has that right at all. If I were a legal positivist, for example, I might suggest that the only “rights” that one has are ones that are determined by court rulings. Therefore, in keeping with the positivist slogan that ‘law is law,’ until courts rule on the constitutionality of something like a mask mandate, one cannot claim they have a right to not wear one. On the other hand, one may take a more natural law view and proclaim that such rights are not for courts to say we have them, they are inherent and inalienable.

Regardless of whatever right is actually protected by whatever court, people will continue to resist if they ‘feel’ it within whatever perceived ‘folk’ conception of rights they have. Thus, this is not merely a public health issue or a legal issue, but a philosophical issue in the truest sense. What justification do people have for proclaiming that they have a certain right? For example, if someone who rejects the mandated wearing of masks because it violates their rights, do they perceive these rights as inherent or conventional? Also, how are generally understood constitutional rights translated into perceived rights to take certain actions in specific situations like not wearing a mask? A common aphorism about rights holds that one’s right to wave one’s fist ends at the tip of another person’s nose may be used to justify resistance to health measures. But, what about when the concern isn’t a fist touching your nose, but the particles you expel into the air? Whose nose takes priority, everyone else in public or the people who refuse to wear a mask?

Through all of the problems of masks and public health mandates, the central question is what should be the relationship between society and the individual and to what extent does the individual have to make a sacrifice? These kinds of questions will only become more significant over time. Many governments may need to raise taxes to pay for pandemic-related spending. The public may be expected to practice further sacrifice and restraint in the future in the face of climate change. If so, then for the sake of the public democratic conversation alone, it would not hurt if people were more familiar with the philosophical justifications they think they have for resisting efforts to effect the common good. Perhaps civics education and the practice of being a good citizen should include a background in political philosophy?

One really good reason to consider this is that traditional ‘folk’ understandings of rights are often based on historical notions that do not fit the modern highly-connected world. Despite what many may think, even philosophers like Locke, who was influential in formulating such rights, believed that rights do not eliminate obligations to others.  The action of one individual can have such far reaching consequences (such as one house party leading to hundreds of infections and possible deaths) in a way that was not possible when the concept of rights in a liberal democracy were formulated. A more public conversation about how we collectively ought to understand our rights and obligations in the 21st century could alleviate political confusion and delayed action. Another good reason is it would make it more obvious when people assert some right arbitrarily. One does not get to claim a right merely because they feel they have one, nor can they legitimately claim “I exempt myself” without reason.

On the other hand, traditional political philosophy can also confuse and obstruct the kinds of interactions that take place between an individual and society. Perhaps the problem is retreating behind political philosophies which have become political dogmas. Instead of thinking about the individual and the state as ontologically separate things which are opposed, we may instead consider the scientific reasons why the public is so skeptical and so unwilling to work for the common good. If we treat society and individuality as a process of securing capability and responsibility, then the moral lesson might be to not make this a rights issue at all. Perhaps the problem we face is how to secure public cohesion so that more people are willing to do their part even if they have a right not to.

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Individualism in the Time of COVID: The Rights and Wrongs of Face Masks

photograph of large crowd walking through strip mall

There are many ways of understanding individualism. On one understanding, it is equivalent to selfishness or egoism. Those who refuse to wear masks have been labelled, perhaps rightly, as individualists in this sense. Yet some anti-maskers claim to be exercising their rights in refusing to wear a mask. In doing so, they appeal to a more profound understanding of individualism in which we are each owed protection against intrusions by the government or other persons. In the words of philosopher Philippa Foot, rights protect a “kind of moral space, a space which others are not allowed to invade.”  That moral space includes a literal area around our person as a zone of privacy. Philosopher Judith Jarvis Thomson argues “if we have fairly stringent rights over our property, we have very much more stringent rights over our own person.” Here ‘stringent’ means that it would take more to override those rights: what provides sufficient reason to do something that violates your property rights might not provide sufficient reason to override your rights over your person.

If our rights over our person are more stringent than our rights over our property, then it would seem to follow that we should have stringent rights over what we wear. Of course, there are laws regarding what we wear, such as public decency laws, but these are, to most of us, unobtrusive. Most of us aren’t inclined to stroll naked through the local shopping mall, and so laws forbidding that activity don’t strike us as an imposition on our rights. Norms regarding such matters are moreover reasonably stable. So, it should be understandable even to those who disagree with anti-maskers that it could feel like an intrusion for the government to dictate our wearing something like a mask over our faces: as some anti-maskers label it, they feel “muzzled.” But is there a moral right not to wear a mask?

First, we have to ask, in virtue of what do we have any rights at all? This is a difficult philosophical question that has exercised philosophers and legal theorists, resulting in some of the most challenging works in those disciplines. But there are some simple ideas at play that have an intuitive appeal and are easily grasped. The first basic idea is that there is an intrinsic value to each individual. We are not valuable only because of our usefulness to others, but just in virtue of something like our humanity, rationality, or having been created by God. Here accounts diverge, and challenging issues arise. Suffice to say that whatever account is given, at least anyone considering the question of whether to wear a mask certainly has this sort of value.

The second basic idea is that this intrinsic value demands consideration or respect in our thinking and action that takes the form of rights. The individual has a value such that their life cannot be disposed of because it inconveniences me: individuals aren’t fungible and have a certain inviolability. Philosopher Ronald Dworkin put it this way: “rights trump utility.” This means that rights prevent us from doing things to an individual (such as killing them) on the grounds that doing those things would promote overall happiness. There is vagueness to this idea that philosophers and legal theorists work hard to dispel: how much utility does a right trump? Can we kill one to save five? If not, then ten, or one hundred? Again, we need not settle this question to answer the question regarding masks.

Third basic idea: when I violate someone’s rights deliberately, I do wrong. Often this idea will receive a great deal of nuance, delimiting the nature of the wrongdoing and exceptions that may arise in various circumstances. The important point is that rights define a moral space within which I can make choices, even choices that lower my expected utility or that of others, provided that I am not violating their rights in doing so. So the moral space defines a domain of autonomy for individual decision-making and choice but not an unlimited one. To see that it cannot be unlimited requires only a moment’s reflection. If we both claim to have rights in this sense, we must recognize each other’s inviolability at the risk of these claims being meaningless. Instead, we must realize that the assertion of rights imposes obligations on us: we must limit the exercise of our autonomy, taking other bearers of rights into account. Our claim to an unimpeded pursuit of happiness must recognize the claim of others to the same, and so my pursuit of happiness must be framed in a way that takes them into account. The kind of individualism that supports rights claims is grounded in the recognition of the value of the individual and imposes obligations that others take that value into account as they act. This is why anti-maskers are acting inconsistently with the ideas they claim to act on. The notion of rights that they invoke seems to have come uprooted from the moral ideas that ground it and become a merely legal notion. It is possibly a nod to constitutional rights, but one that fails to account for why those constitutional rights were a good idea from a moral point of view.

Those who refuse to wear masks on the grounds of exercising rights seem to have decided that their minor discomfort outweighs the lives of others in wearing a mask. Imagine that I have an exceedingly comfortable shirt, but for whatever reason, it kills one out of every thousand people who look at it. Presumably, I have a moral obligation not to wear that shirt anywhere but away from the view of all onlookers. Others would be within their rights to force me not to wear that shirt or to take on the discomfort of wearing it covered, assuming it won’t have its fatal effect when concealed. I cannot object to these requirements by saying, “but my shirt is so comfortable!” or “covering my shirt makes it less comfortable!” because these questions are put out of consideration by the rights of others. If each of our minor discomforts provides grounds for subjecting others to risk of serious illness and death, then, effectively, none of us have any moral rights. The French theologian and mathematician Blaise Pascal put it concisely: “Respect means: inconvenience yourself.”

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Healthier Climate: A Constitutional Right?

"Climate change?!" by Eric Wüstenhagen licensed under CC BY 2.0 (via Flickr).

Rachel Carson’s 1962 book Silent Spring contains the earliest written suggestion that a healthy environment should be a constitutional right. Carson’s assertion was specific to the warning against indiscriminate pesticide use and the spreading of disinformation by chemical companies. Silent Spring led to a national ban on the chemical DDT and the creation of the U.S. Environmental Protection Agency. Today, the debate over whether or not a healthy environment should be viewed as a fundamental right is pushing new boundaries by taking on a graver, more nebulous issue: global climate change. The right to a healthy, stable climate is not enumerated in the Constitution and currently does not exist, but what if it must for the well-being of future generations? U.S. Courts of the past have seen fit to grant numerous rights unwritten by the founders of our nation and, as Duke Law describes, “from the very beginning, American judges have been prepared to enforce constitutional rights that cannot fairly be said to derive from any enumerated textual guarantee.” Should such a broad, yet seemingly vital, right to a life-sustaining environment (atmosphere included) be enforced by our nation’s courts?

Continue reading “Healthier Climate: A Constitutional Right?”