Recently published: The Age of Foolishness: A Doubter’s Guide to Constitutionalism in a Modern Democracy, by James Allan (Academica Press 2022). Here is the (understated) book description from the publisher:
The Age of Foolishness is a doubter’s guide to current lawyerly thinking about all things related to constitutionalism in a democracy. This book offers a thorough-going skeptical critique of the views that dominate our legal caste, including in law schools and among judges, and place too much weight on judges to resolve important social policy disputes and too little on democratic politics. The author argues that politics matters in a way that our legal orthodoxy often downplays.
At Law & Liberty, Geoffrey Sigalet (University of British Columbia-Okanagan, Political Science) has this length and mostly positive review: The Constitutional Heresy of James Allan. From the introduction:
Allan’s scholarship, including his latest book The Age of Foolishness: A Doubter’s Guide to Constitutionalism in a Modern Democracy, offers a trenchant critique of modern constitutional orthodoxy. It is interesting partly because it agrees with left critics of orthodox constitutionalism about the superiority of pure Westminster parliamentary supremacy, while arguing that old-school originalist constitutionalism is the second-best option, or the only realistic option for those polities that have entrenched constitutional rights. Unlike many critics of judicial activism and bills of rights, he is also an unrepentant fan of constitutional federalism. And while many critics of judicial activism on the right subscribe to natural law style thinking about rights, Allan is a thoroughly Humean and consequentialist skeptic about moral “right answers” to controversial rights questions.
This adds up to an unusual set of views that should intrigue readers from very different perspectives. The limits of Allan’s arguments are partly imposed by his own controversialist approach to challenging constitutional orthodoxy. His arguments seem to justify direct democracy rather than representative democracy, and his consequentialist theory would profit from more serious engagement with empirical scholarship on democratic institutions. Even so, there is much to value in the questions it raises. The humour is a bonus.
From Canada to Oz
Allan is one of the English-speaking world’s most reliable academic skeptics when it comes to questioning the orthodoxy established by the post-war spread of human rights discourse, constitutionalism, and judicial power. In the wake of the Second World War, much of the world adopted American-style constitutional bills of rights and increased judicial power, and even Westminster constitutions such as New Zealand and the United Kingdom adopted statutory bills of rights. Canada is perhaps the most Americanized Commonwealth constitution, having adopted an entrenched bill of rights in 1982, while Australia is the last bastion of the Commonwealth world lacking even a federal statutory bill of rights (although two Australian states do have such statutes, and Australia is more American than Canada in other ways, such as its elected upper house). Allan is a Canadian ex-pat who fled Canadian de facto judicial supremacy for the brumby constitutionalism of Oz.
Allan argues that Canada’s experience with an entrenched bill of rights and judicial review shows off the democratic dangers of judicial review, whereas Australia is a much more democratic place for lacking a federal bill of rights of any kind. In both his scholarship and his entertaining political columns for the Australian edition of The Spectator, Allan is keen to explain to Australians how the judicialization of politics has threatened democracy across the world. He’s also eager to point out how even in Australia, where there is no federal bill of rights, the courts have to some extent invaded political affairs by reading “implied” rights into the structural features of the Australian Constitution, notably the right to vote (for prisoners) and freedom of political communication.
His argument moves from the most abstract questions about the relationship between morality and law to a “thin” consequentialist account of the value of democracy, and then moves on to why the orthodox constitutional commitment to entrenched bills of rights and judicial review undermines that value. He also makes the case that constitutional federalism does not undermine the majoritarian value of democracy. The book concludes with Allan’s thoughts on constitutional interpretation, where he sides with old school “original intent” originalism, alongside Richard Kay, Larry Alexander, and Stanley Fish, against the newer (no longer quite so new) “original public meaning” originalism of Larry Solum, Jeffrey Goldsworthy, Keith Whittington, Stephen Sachs, and Will Baude (he doesn’t engage Sachs and Baude but he should). He is also interested in parrying living constitutionalist arguments from scholars like Heidi Hurd. He does not engage with the new brand of common good constitutionalism advocated by Adrian Vermeule, but that would be an interesting test of his arguments.
And in conclusion:
Overall, Allan’s work succeeds as a challenge or provocation to modern constitutional orthodoxy. It succeeds because it highlights many points on which the orthodox view has a story that fails to match reality or suffers from internal conflicts. It also succeeds because mirth is a great weapon against censorious orthodoxy, and Allan’s titles alone can make those who disagree with him smile. “Dick the Butcher” has a lesson for lawyers, even if it’s a little tender for a lawyer like Allan to point it out. Allan’s success is partly limited by his controversialist methods. He may not resolve the questions and puzzles he raises, but neither does the orthodoxy of our age. He inverts the advice attributed to Bismarck about laws and sausages: it is better to know who is grinding what and why. Every citizen a butcher.
Posted at 6:26 AM