What is it with libertarian economists who know a lot about economics but are pretty much clueless when it comes to constitutional law? There are myriad examples. But what provoked me to write this Guest Post was the great man Sinclair Davidson’s short post on the 18th, yesterday, where he ended some observations about free speech with a little riff on our lack of a bill of rights. I’ll quote the whole of Herr Davidson’s final paragraph:
The most interesting aspect of Mr Glasgow’s views on free speech is that he writes from New York State in the United States. His right to free speech is protected by the first amendment to the US Constitution, and the second amendment too. Here [in] Australia we have none of those rights.
This is pretty typical of a good many libertarian economists’ views on how constitutional law works – from Sinc all the way back to, and including, Hayek. It paints a sort of 18th century view of the common law type world. It sees the enumerated rights in a bill of rights as laying down obvious, clear lines with unelected judges delivering the outcomes that a programmed machine could. The only problem with all of this, with respect, is that it runs directly counter to what in the philosophy of science is known as ‘the facts’.
Here’s the thing about any bill of rights. It lays down a set of emotively attractive moral claims in the language of rights. It does it in a way that tempts the reader to think what’s on offer is some sort of absolute right, with no limits. And it finesses all the disagreement out there in society about where to draw very difficult and contentious and debatable line-drawing exercises. Of course in real life all sorts of limits (on freedom of religion, on free speech, on what counts as an unreasonable search, etc etc) will be imposed on the rights. It’s just that with a bill of rights nine or seven unelected ex-lawyers will be doing the deciding, rather than 150 elected legislatures. All you buy with a bill of rights – and I mean this literally – is rule by judges.
Take the right to free speech (and I’ll lay my cards on the table on this one and say that there isn’t a law prof in Australia who favours a wider scope for free speech than I, and certainly no one who’s argued and fought for it). But even in the US the judges have read in plenty of limits on free speech. No fighting words. No publishing details of how to make a weapon that would destroy the world. Obscenity limits. And lots more. Yes, there is more scope to speak your mind in the US than anywhere else on earth. I love that. But there are limits galore.
Now Sinclair’s implication was that if we in Australia bought a bill of rights we’d also get the whole US package of case law too. That’s a joke! Canada opted for (well, Trudeau did without any election on the matter or any referendum) a bill of rights. But the Canadian judges have accepted all sorts of limits on free speech. I mean this literally — there is more scope to speak your mind in Australia today (Sinc’s desired but absent bill of rights notwithstanding) than there is in Canada today. Canada’s national hate speech laws were challenged twice in the Canadian Supreme Court. They were upheld twice by the judges. It was the Canadian Parliament (pushed by Mark Steyn) that got rid of those at the national level, though plenty still exist provincially.
It is a dead certainty that our judges would follow Canada (and the European Court of Human Rights and South Africa’s Court, and New Zealand’s and the UK’s and everywhere except the US) rather than the US. Let me be blunt. Opt for a bill of rights and we will be worse off in free speech terms because the lawyerly class that gives us the top judges will almost always side with equality rights over free speech rights. We’re better off with politicians, for all their sins. If you want to apply the bracing acid of public choice thinking to politicos, how about having the good graces to do so too to top judges. (Start with Michael Kirby.) Put differently, Sinc is putting himself in the same camp in this country as George Williams and just about every left-of-centre legal academic. He’s betting he’s pegged the future conduct of top judges better than they have. (Sort of like his pick on Turnbull, I suppose.)
Here’s the thing. The US free speech jurisprudence was built up many, many decades ago when top judges adopted a sane approach to reading legal texts. Back then they took the words, they read them in the light of drafters’ and ratifiers’ intentions, and whatever fell outside their ambit was left to democracy. That is the core position of Justice Antonin Scalia, just deceased. But even in the US that is dying out. That’s why there’s a huge political battle over his replacement. Do you think any Obama chosen replacement will take a hard line on free speech in the context of, say, campaign finance laws? (If you do, I have some seaside land in Alice Springs I’d like to sell you.)
Most of the common law world’s top judges adopt what’s known as a ‘living tree’ or ‘living constitution’ approach to interpreting constitutions, including the bills of rights many contain. That means, plain and simple, that the words stay the same but their supposed meaning changes over time according to the perceptions a committee of ex-lawyers happens to have as regards to ‘changing social values’. They think they’ve got their fingers on the pulse of society. Call this what you will, but it’s not democratic and it’s not likely (in this day and age) to give you a vigorous pro-free speech outcome. It does deliver to the judges, though, a massive amount of social policy-making power.
Again, Hayek made this mistake too. He had a simplistic and wrong view of what today’s top judges do. He didn’t know his legal facts. If you want and prefer the values of your average lefty lawyer then by all means push for a bill of rights. No doubt they’ll make something up about how the document guarantees same sex marriage. But they won’t give you what I take Sinclair to want in the free speech realm.
Oh, last thing. When Sinc finishes the above quote by saying that ‘in Australia we have none of those rights’ he’s wrong there too. We have lots of rights that come from statute and from non-constitutional case law, just not enough and we’d all be better off with s.18C of one statute being repealed. But rights do NOT just come from a bill of rights. Can I be clearer about that? That sort of nonsense is what they teach six year olds back in my native Canada. The UK had more rights for more people through more of history than anywhere. They had no bill of rights. Heck, they didn’t even have (still don’t for that matter) a written constitution.