Bolch Institute | Judicial Review: A Conversation with Justice David Collins
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Bolch Institute | Judicial Review: A Conversation with Justice David Collins

October 12, 2019


[Professor Neil S. Siegel] –
Well, good afternoon, everyone. It is my great pleasure to
introduce Duke Law School’s Scholar in Residence, David Collins. He is, well, he is many things. He is a Scholar Judge which is in part why I appreciate him so much. He’s a former Solicitor-General of New Zealand for six years. He was appointed to the
High Court in New Zealand, which is the, sort of the upper level of what we would consider the lower court or the district courts in this country and I believe that was back in 2012. – [Justice Collins] Yeah. – And just recently in April, he was elevated to the Court of Appeal, which is like our General
Circuit Courts in this country, just below the New Zealand Supreme Court. He also has an impressive
academic background including, I’m very proud to say, a graduate of our law school. Was it a couple of years ago now? – [Justice Collins] Yeah. – Finished his LM degree, Master in Judicial Studies here at Duke. I also want to mention in honor of, really not apropos of anything you’re gonna talk about directly, but we are about to honor
the 100th anniversary of the 19th Amendment
in the United States. We’re approaching the centennial, and I ask you, do you know the first country in the history of the world to permit women to vote
in a democratic election? – [Audience] New Zealand. – I’ll give you a hint (laughing). (audience laughing) I’ll mention it now. It’s New Zealand. It’s one of many reasons
why I love your country, and David was a very gracious host when I spent some time there. And I’m very happy to have the
opportunity to reciprocate. He’s gonna talk to us
about judicial review. New Zealand does not have
a written Constitution. It does not have judicial
review for constitutionality, and part of what we’re trying
to do here at the law school is to train students to
be learned in the law but also to resist what the realists call the normative power of the actual. Don’t just simply assume that the way things are are the way they should be. People who change the
law and change the world are able to think outside
of the constraints that have been imposed upon them. And one reason a knowledge of history, a knowledge of comparative law, foreign legal experience is helpful is that we can not just
think about resisting the normative power of the actual. We can look at other
well-functioning democratic societies that don’t do things exactly like we do, and that can give us fodder for own illuminations as we
think about institutions that we have taken for granted
but maybe we ought not to. So without further ado,
David, thank you and welcome. – [Justice Collins]
Thank you so much, Neil. And as I’ve mentioned, just
it’s an extraordinary privilege and a pleasure to be back at Duke. It’s a wonderful law school
and a wonderful institution. And I feel extremely privileged
to be able to be here and to share some thoughts with you. As with yesterday’s address,
what I propose to do is speak for about 25 to 30
minutes and then leave time for questions and I hope rigorous debate. I thought of starting this speech by reflecting on three lawyers, all women, walking into a wine bar in New York. One a graduate of this fine law school, another a graduate of Cambridge University in United Kingdom, and the English lawyer talks about her practice
in judicial review, and the American lawyer talks about her practice in judicial review. And after a few moments they realize that neither understands what
the other is talking about. (audience chuckling) And it’s at that point, the New Zealander who pops up and says, “Listen,
you girls buy the wine, “and I’ll explain how we’ve
got to this position.” And that’s what I propose to do, explain how we’ve got to this position. Why is there such a difference in approach to judicial review in this country when compared with most
in the common law world? And the answer to that question involves a foray into constitutional history. And a very appropriate starting point is a case that is one
of the most intriguing in the annals of the English Common Law. If Chief Justice Marshall could have been transported back
in the TARDIS to 1610 to the Great Hall of Westminster, he would have witnessed a case that would have seemed jeeringly familiar. In that year, the Court of Common Pleas presided over by Chief
Justice Coke, spelled Coke, and four other judges heard an action for false imprisonment
brought by a Dr. Bonham. And his action was against the
Royal College of Physicians. Dr. Bonham had obtained
his medical doctorate from Cambridge University
and set about practicing his profession in the city of London. That provoked the ire of the
Royal College of Physicians, which had been granted
the charter by Henry VIII that gave them the
power to fine any person who practiced as a physician
in London and surrounding areas without a license from the college. Interestingly, the terms of that patent were confirmed by two statutes that had been passed by Parliament. Half of the fine was
payable to the college and half to the Sovereign. Those who defaulted in paying
the fine could be imprisoned, and that was the fate
that befell Dr. Bonham, who appeared before the
college for examination and was found to be deficient
in medical knowledge. But undeterred, he continued to practice, which resulted in him
being fined by the college and then imprisoned when
he refused to pay the fine. The case which came before
the Court of Common Pleas involved the Chief Justice
focusing upon two issues, and he was joined by two other justices, Justices Daniel and Warburton. Those two issues were these, whether the college possessed
the powers it claimed over unlicensed practitioners
and whether the college, if it possessed those powers, had actually exercised those powers lawfully. And it was the first of these two issues that the Chief Justice reasoned by focusing upon the fact that the fines imposed by the college resulted in the college acting not just as a judge but also a party in its own cause contrary to a maxim of common law. In undertaking this part of his judgment, Chief Justice Coke wrote
the following sentence, which became the focal
point of his judgment. The sentence is as
follows, “And it appears “in our books that on many cases “the common law will
control acts of Parliament “and sometimes a judge
deemed to be utterly void. “For when an act of Parliament
is against common right “or reason or repugnant or
impossible to be performed, “the common law will
control it and to judge “such an act to be void.” Now, there is a very respectable
body of legal history scholarship that calls into question the accuracy of Chief
Justice Coke’s statement that there were authorities
that supported his doctrine. What is clear is that the Chief Justice was laying down a gauntlet to both the Crown and to Parliament
by striking down the charter and statutes relied upon by
the Royal College of Physicians when it took the steps it did, which led to Dr. Bonham’s imprisonment. Chief Justice Coke
reasoned that the statutes and charter relied upon by the
Royal College of Physicians were null and void because they offended common right, reason, or were repugnant. Now, there’s a great deal that could be written about what
Chief Justice Coke meant by common right, reason, and repugnant. His use of the adjective repugnant is particularly intriguing
because it emerges in Chief Justice Marshall’s
opinion in Marbury and Madison. Probably all that was meant was, by repugnant, was contrary to common law. For prison purposes,
it’s sufficient to note that unlike some who
followed in his footsteps Chief Justice Coke did
not refer to Magna Carta as a justification for declaring
the statute null and void. And nor could he refer to any other constitutional documents at that time. In declaring null and void
the patent and the statutes that authorized the Royal
College of Physicians to fine Dr. Bonham and
retain half the proceeds, Chief Justice Coke’s doctrine anticipated by almost two centuries an essential aspect of the
power of judicial review set up in Chief Justice
Marshall’s judgment in Marbury and Madison, namely the power of the Supreme Court to declare void unconstitutional statutes,
albeit on the basis that, in that case, section
13 of the Judiciary Act violated Article III of the Constitution. Chief Justice Coke’s star
began to wane in 1616 when he was suspended from his then office as Chief Justice of the
King’s Bench Division and in a rather pointed way,
directed by King James I to quote “correct his law
reports” close quotes. In those days, some judges
wrote their own law reports, and it’s fair to say
that Chief Justice Coke had become rather out of
favor with King James I. We can move very quickly through the next tumultuous phase of British
constitutional history by just simply noting three key events. First, the prosecution,
conviction, and execution of Charles I in 1649 for his conduct in the Second Civil War
in which it was alleged he had effectively
declared war on Parliament. Second, England’s flirtation
with Republicanism was soon followed by the
restoration of Charles II in 1660. And then third, the events
of the Glorious Revolution, which saw James II flee to France, the election of the English
Convention Parliament in 1689, and the ascension of William
and Mary to the throne who accepted that it was their duty to uphold the laws made by Parliament. Thereafter, Parliament passed the Bill of Rights Act of
1689, which established the supremacy of Parliament to sit and make provision for
the settlement of the laws and liberties of the United Kingdom. Fragments of Dr. Bonham’s
case could be found in subsequent judgments,
which I won’t go into. But from the time of
the Glorious Revolution, Parliament has reigned supreme in England and in most common law jurisdictions that have inherited the Westminster model of Parliamentary doctrine, democracy. As a result, the English
version of judicial review began to emerge against the background that Parliament is paramount. Now, I’ll just spend a few moments briefly describing the English
version of judicial review. Following the transition from government by monarchy to Parliamentary supremacy, the Courts of the King’s Bench Division assumed a greater control
over the interaction between agents of government
and the citizens of England. The judges of the King’s Bench made use of the ancient writs of mandamus,
certiorari, prohibition, as well as the traditional
remedy of damages to assist those who wished to dispute the legality of administrative decisions and actions on the part
of those in authority. During the course of the 19th century, England saw a significant migration of administrative powers to
elected local authorities, and this corresponded with the court’s developing the doctrine of ultra vires and principals of natural justice. The development of a central government through the departments of state began to occur in the later
half of the 19th century. As this executive system
of government evolved, the rules of administrative review that had applied to local
body decision makers were extended to central government. During the 20th century, political and administrative power continued to consolidate in the hands
of central government. The Executive, headed
by the Prime Minister and Ministers of State,
assumed greater authority at a time when the power of Parliament to assert control over
administrative decision makers became largely confined to important but broad, impressed,
and supplied decisions and the occasional select
committee inquisition. The Second World War
shown an understandable concentration of power in
the hands of the Executive. This phenomena continued, however, well into the second
half of the 20th century. Sir William Wade, one of England’s leading constitutional lawyers, remarked that this was a period
of neglect of principal as Parliament continued to bestow blank check powers upon ministers. A turning point occurred in 1963 with the decision of the House of Lords in Ridge against Baldwin, which revived the principals of natural justice. It was later said by Lord Debloth that this decision made possible the rapid development in England of a rational and comprehensive system of administrative law based
upon the concept of ultra vires. Today in England and other Westminster styled common law jurisdictions, judicial review refers to the procedure whereby the high courts, those with an unhindered jurisdiction, are empowered to review the lawfulness of
administrative decisions, actions, or omissions in relation to the exercise of public functions. The court’s jurisdiction in a claim for judicial review is supervisory. As a consequence, judicial review should not be completed
with appellate functions. The court’s task is to determine the lawfulness of decisions or actions rather than repair the decision in issue or to substitute its decision for one that the decision
maker ought to have made. The distinction between lawfulness of an administrative decision and the substantive merits
may not always be clear. Often the substantive
merits of the decision will have to be looked
at in order to ascertain if the decision should be set aside on the grounds of being unreasonable or whether the failure
to take a particular step in the decision making process would have made any difference. Judicial review can extend
to inferior legislation such as regulations and local body bylaws and ordinances that breach the statutes from which they are derived. Judicial review cannot, however, be used as a mechanism to challenge the lawfulness of legislation
passed by Parliament. I would be remiss to conclude this overview of the English
version of judicial review without referring to the
statutory power of courts in some jurisdictions to issue declarations of incompatibility
or inconsistency. To understand this concept, it’s important to appreciate that in 1982 Canada adopted a charter of rights and freedoms. New Zealand followed with
its Bill of Rights in 1990. The New Zealand Bill of
Rights is an ordinary statute, although it carries great
constitutional significance, but it is not superior law. The United Kingdom adopted
its Human Rights Act in 1998, a statute that was in many respects modeled on the New Zealand
Bill of Rights Act. And two Australian states,
Victoria and Queensland, and the Australian Capital Territory have adopted similar legislation. The United Kingdom, the
Australian statutes, and soon the New Zealand
Bill of Rights Act permit the high courts
of those jurisdictions to issues declarations of
inconsistency or incompatibility. This means that the higher courts in those jurisdictions
can declare legislation to be incompatible or inconsistent with the Bills of Rights of their, those particular jurisdictions. And in the case of England and Wales, incompatible with the human, the European Convention on Human Rights. A statute that has been declared to be incompatible with a Bill of Right may be amended or appealed to bring it into line with the Bill of Rights, but such changes still require
Parliamentary approval. The declarations of
inconsistency or incompatibility process to which I’ve just referred at best is considered as a willingness by Parliament in the
respective jurisdictions to relinquish its supremacy but
only to a very small degree. The power that Parliaments
in some commonwealth jurisdictions have granted to the courts to issue declarations of incompatibility or inconsistency clearly falls well short of the American
version of judicial review. I now want to just
reflect for a little bit on the impact of Chief Justice
Coke’s doctrine in America. The impact of his decision can be seen in some decisions from colonial
courts in this country. Historians regard the Massachusetts case of Givens and Brown as the first clear example of an act of legislature being invalidated by the
judiciary in America. And Chief Justice Coke’s influence was also evident in Paxton’s case in which his doctrine
was cited as authority for the proposition that
if an act of Parliament was contrary to Magna Carta
and the natural rights it gave them, then it was null and void. In Robin against Hardaway,
Chief Justice Coke was cited in support of the proposition that a Virginia statute that purported to reduce to slavery several persons of Indian descent was contrary to the laws of nature and God and therefore void. Blackstone was cited for
the camp availing view. The court in that particular case was able to avoid
determining if the statute was null and void when it was realized that the act in question had actually been repealed 67 years previously. It makes you wonder what the lawyers were thinking about (laughing). (audience laughing) Arguably, Chief Justice Coke’s doctrine also influenced the Superior
Court of Rhode Island in Trevett and Wheeden, although there are conflicting accounts as to exactly what was decided in that case. According to some contemporary reports, three judges declared null and void a Rhode Island statute that authorized paper money as legal tender. This irritated the General
Assembly of Rhode Island, which summoned the judges
to explain themselves. They provided an explanation that appeared to appease the General Assembly. In the final case I’ll refer to before focusing on Marbury and Madison is the decision from South Carolina in which a boundary dispute
between two families had been settled by an act of the South Carolina legislature in 1712. In Bowman against Middleton, it was held that the statute was
contrary to common right and Magna Carta and therefore void. Chief Justice Coke’s doctrine neatly complemented Vattel’s influential analysis in the Law of Nations, which led to written constitutions being guarded by the colonial courts of this country. The adoption of state constitutions with their inbuilt checks
on legislative powers meant that the courts of this country really, really needed to seek recourse to Coke’s doctrine when developing the American version of judicial review. Prior to the Constitutional Convention, courts in at least seven
of the 13 colonial states had invalidated statutes on the grounds that they violated states’ constitutions. Although there does
not appear to have been any reference to Coke’s name in the debates at the
Constitutional Convention, there were a number of
references to the powers of the judiciary to determine the constitutionality of
laws made by Congress. James Madison, for example, said, “A law violating a Constitution “established by the people themselves “would be considered by the
judges as null and void.” These references in all likelihood were the product of the
experiences of the colonial states or of early iterations
of the American version of judicial review and not any direct reference to Chief
Justice Coke’s doctrine. It would be very presumptuous of me to lecture at any length
about Marbury and Madison, and I shall not do so. I’ll confine myself to
the following few points, the first of which is quite trite. First, although his judgment references Blackstone and other English authorities, there is no mention of Dr. Bonham’s case or Chief Justice Coke’s doctrine in the judgment of Chief Justice Marshall. Second, as all know, the Constitution did not expressly confer a power of judicial review upon the judiciary. That power is implied. Third, there is more
than just a little irony in the fact that Chief Justice Marshall did not recuse himself from sitting in Marbury against Madison. It will be recalled that underpinning Chief Justice Coke’s
doctrine was his concern that the Royal College of Physicians should not be both the judge and party in its own cause when it fined Dr. Bonham. Similarly, Chief Justice Marshall had more than just a mild interest in the events that led to Marbury commencing his application
and mandamus against Madison. Students of Marbury
and Madison will recall that the then Mr. John Marshall was the Secretary of State
when the judicial commissions for the Midnight Judges were assigned by Adams in the final
days of his presidency. And it was John Marshall’s responsibility to ensure that the
commissions were delivered. In fact, that task was
assigned by John Marshall to his younger brother James, who managed to deliver most of the commissions before Jefferson was
sworn in as President. One commission that was not delivered was that made out in favor of Marbury, and it was the failure of
the outgoing administration to deliver his commission that led to the application for mandamus. Had the Marshall brothers delivered all of the commissions before
Jefferson became President, the action and mandamus could
never have been initiated. Thus not for John
Marshall’s own admissions, the dispute in Marbury and
Madison would never have arisen. Now, it may not be accurate to describe the decision of Chief Marshall to sit in Marbury and Madison as one in which he was acting in his
own, judging his own cause. Nevertheless, his conflict of interest was clear, and would have at least today create an expectation that he would recuse himself from sitting in the case that was to provide the vehicle for the American version
of judicial review. The fact that Chief Justice Marshall appeared determined to sit
in Marbury against Madison underscores the suggestion
that, and I’m quoting from one well known authority, “that politics were not
far from Marshall’s mind “when he composed Marbury v. Madison.” The fourth and the final point I wish to make about Marbury and Madison concerns the considerate steps that the Chief Justice was
prepared to take in 1805 after Congress had
impeached Judge Pickering. It will be recalled that
following the demise of Judge Pickering,
the guns of impeachment were immediately trained
upon Justice Chase, a very partisan Federalist and
a member of the Supreme Court that had sat with Chief Justice Marshall in Marbury against Madison. Chief Justice Marshall was understandably very concerned at the prospect of Justice Chase being impeached, a move that would have been likely to also then trigger the
impeachment of Marshall, himself, and trigger the demise of the court. On the eve of the Senate vote
in Justice Chase’s trial, Chief Justice Marshall wrote
to the embattled judge. A copy of that letter is
set up in a number of texts. The one that I have obtained it from is Justice Robert Jackson’s wonderful book, “The Struggle For Judicial Supremacy.” The relevant part of the letter reads, “I think the modern
doctrine of impeachment “should yield to an appellate jurisdiction “in the legislature. “A reversal of those legal opinions “deemed unsound by the legislature “would certainly better comport “with the boldness of our character “then would a removal of a judge “who has rendered them
unknowing of his fault.” As it transpired, Chief Justice Marshall’s suggestion to appease the
President and Congress was unnecessary as the Senate
acquitted Justice Chase. But as Professor Bruce Eckerman notes, “Marshall was prepared to allow Congress “to overrule the court’s
constitutional interpretation “in exchange for immunity
from political impeachment.” Since Chase escaped conviction, the Chief Justice was
not obliged to publicly retreat from Marbury. But if it had been otherwise, his proposal for a legislative override of legal opinions deemed
unsound by the legislature might well have served as the basis of a constitutional compromise supposing that Marshall had somehow
avoided impeachment himself. It is striking how
quickly the Chief Justice was willing to contemplate surrendering the key feature of Marbury against Madison in an effort to save Justice Chase and no doubt the rest of the court. They were undoubtedly
very turbulent times, and the Chief Justice was justified in being concerned about the reprisals that he and the court
were facing from Jefferson and the Republican
Democratic administration. Chief Justice Marshall’s proposed strategy to avoid Justice Chase’s demise may simply have reflected
a desperate measure by a Chief Justice facing
very desperate times. At another level, it may reflect an insight into the Chief
Justice’s appreciation that constitutional
democracy did not hinge upon the American version
of judicial review. The Chief Justice knew,
perhaps better than most, that since the Glorious Revolution England had demonstrated how
sound democratic government could be achieved through
constitutional arrangements that recognized Parliamentary sovereignty. Chief Justice Marshall
no doubt appreciated that an alternative approach to that which he lay out in
Marbury against Madison was to allow Congress, itself, to judge the constitutionality
of its enactments. As noted by Professor
Tribe, “Under such a system, “courts would not ignore the Constitution, “rather they would simply treat “the legislature’s interpretation “as definitive and thus lead to Congress “the task of resolving apparent conflicts “between statute and the Constitution.” Perhaps Chief Justice Marshall knew that his new American
brand of judicial review was radically different
from the constitutional arrangements that were
proving quite satisfactory in England and that a compromise that saw America adopt a form of Parliamentary sovereignty
would not be a bad thing if it ensured his and
the court’s survival. We, of course, will now never know what might have happened if
Chase had been convicted, and if Marshall’s behind
the scenes willingness to acknowledge an American form of Parliamentary supremacy
had been pursued. What can be said is that during the period of America’s greatest struggle between its three branches of
government, the Chief Justice was willing to contemplate surrendering his newly devised American
concept of judicial review in favor of a form of
legislative supremacy. In the final session, I would just like to summarize reasons why the American version of judicial review appears
to have flourished. From its questionable beginnings, the American version of judicial review became a firmly ensconced
feature and indeed a bulwark of American
constitutional arrangements. A reason why Marbury and
Madison was accepted in 1803 relates to the Chief
Justice’s political mastery. In his opinion, the Chief Justice first appeased his Federalist colleagues by making it very clear
that Jefferson and Madison should have delivered to Marbury the judicial commission that
he was lawfully entitled. The Chief Justice then adroitly avoided the risk of an order of
mandamus being ignored by addressing the
constitutionality of those parts of six in 13 of the Judiciary Act relied up on by Marbury when he commenced his action for mandamus
in the Supreme Court. Thus, superficially at least, both sides of the political divide
could point to success in the Chief Justice’s opinion. As a consequence, Marbury against Madison was, and I’m quoting here
from Professor Siegel’s wonderful text, “that Marbury and Madison “was more ignored than attacked
when it was handed down.” A second reason why judicial review was able to survive in its initial years was that it was not utilized again to invalidate an act
of Congress until 1857. So, by remaining below the parapets and away from political attack, the American version of judicial review was able to consolidate. A third reason why judicial review was accepted in its initial years was that Jefferson and his administration could see the advantages in allowing the Chief Justice’s
doctrine to go unchallenged, provided, of course,
Jefferson and his party could control who exercised the new powers of judicial review. This they were able to do in circumstances that were similar to those that benefited Franklin, President Franklin Roosevelt after his failed court packing plan. Jefferson was first able to replace Justice Moore with Justice Johnson and then replace Justice Patterson with Justice Livingston. And then, he made his
third appointment in 1807 when he appointed Justice
Todd to the court. By 1811 Justices Cushing
and Chase had passed away, and we find Justices Story and Duvall being appointed to the Supreme Court. By that stage, only Chief Justice Marshall and Justice Washington survived
from the Federalist era. Judicial review also
provided an opportunity for the federal government to assert its authority over states. Thus, we see in Martin
against Hunter’s Lease the Supreme Court used judicial review to assert its authority over
the Virginia Supreme Court’s interpretation of federal law. From early on, judicial review was seen by the federal government as a mechanism for increasing its powers at
the expense of the states. Judicial review also
flourished in the United States because for the most part those entrusted with the powers to strike
down congressional statutes on the grounds that they
offended the Constitution have generally done so differentially, knowing that their decisions
had to be respected. And finally, the history of
judicial review in America has been sprinkled with landmark cases that have seen protection
given through judicial review to the constitutional
rights of individuals. Brown against the Board
of Education, Obergefell, epitomized decisions that have reinforced, for Americans, the great
value that can be derived from this country’s
version of judicial review. In conclusion, can I just say that the Stuart monarchs who proceeded the Glorious Revolution were despotic and inflicted a great deal of tyranny upon England during their reign. Their assaults upon
freedoms of individuals, including religious freedoms, and their inability to
reach accommodations with successive Parliaments led ultimately to the passing of the
Bill of Rights Act of 1689 which ensured Parliamentary
supremacy in England and the rest of the common
law world at that time. That measure meant that Coke’s doctrine could never gain any traction in England. As a consequence, the English
version of judicial review has to be viewed in the context of the paramountcy of Parliament in the United Kingdom and
most common law jurisdictions. For this reason, judicial review as it is known in the United Kingdom and most other common law jurisdictions is a vastly different concept from the American version
of judicial review. The technicalness of
Chief Justice Marshall ensured that the American
version of judicial review was able to gain traction in this country. It has grown in a way that I’m sure not even the Chief Justice
could have anticipated. Although it is, as I have mentioned, very interesting to show that its creator contemplated cutting the new concept off at its roots not
long after it had begun. Nevertheless, despite its
very questionable beginnings, the American version of judicial review has indeed flourished and
is now an integral component of America’s constitutional arrangements. So, when you next have a glass of wine with a colleague from England, and you start talking
about judicial review and listen to them talking
about judicial review, you may now understand why
they are not the same concepts. I’m very happy to take questions and to engage in any
debate or anything further. (audience applauding) – [Professor Siegel] Questions? – There must be some questions. – [Professor Siegel] Alright,
I’ll get it started again. – Yeah, okay (laughing). – [Professor Siegel] So,
yesterday, one theme of your talk was members of Congress behaving badly. And I’m wondering what
you think of the idea of in this country at this time entrusting those members of Congress with the constitutional
authority to overrule U.S. Supreme Court decisions
on constitutional grounds? – I don’t think it would be a, a terribly bad idea because ultimately they’re gonna be answerable
to the electorate. And if they behave in a way which is contrary to the wishes of the electorate, then ultimately they’ll pay
the price at the ballot box. So, I personally don’t regard that as being an outrageous possibility. – [Professor Siegel] One
concern is that there’ll be very little distance between
their partisan calculations and their constitutional judgments. – That’s true. – [Audience Member] Another concern is voting in elections is not gonna protect the most vulnerable among us who could be on the receiving end of
the government’s actions. – Yeah, yep, both of which are concerns, but it’s fascinating that
those sorts of concerns just don’t bear up in other
cognant, liberal democracies. – [Professor Siegel] And
that raises a question for me about these comparisons. – Yeah. – [Professor Siegel]
Right, because you have a very different tradition. – Yeah. – [Professor Siegel]
Now, one of the concerns about judicial review here is that is has made members
of Congress less scrupulous about their constitutional
responsibilities. They just outsource that to the courts. – Right. – [Professor Siegel]
But this is the system we’ve had now for centuries. – Yeah. – [Professor Siegel] And
if we just change it now, it doesn’t mean what might be best for New Zealand or
England might not be best – For you.
– [Professor Siegel] For us. – Yeah.
– [Professor Siegel] Right. When they vote on the constitutionality of the Affordable Care Act in Congress, I mean, it’s entirely partisan. – Yeah.
– [Professor Siegel] Right. So, it’s, it’s. – [Justice Collins] But that’s true of all Westminster-style democracies. The voting in Parliament
is totally partisan. So, the fact that it’s, that politicians act in a partisan way is not a a uniquely American phenomena. That bit is very, very common. But I accept that there are traditions and approaches that are different in cognate jurisdictions. So, I accept that without hesitation. And I’m not for a moment suggesting America should abandon its
concept of judicial review. It’s worked. It’s worked very well. It’s one of the endearing
features about America that does really seem to work well. But I don’t think we need it (laughing). Art? – [Audience Member] Judge, I’m intrigued you’ve reminded me
about the Bill of Rights and the Acts of Supremacy. – Yeah. – [Audience Member] At that time was there any press or
other recorded concern by the common lawyers that that would have the effect of
neutering Dr. Bonham’s case? – Not that I’m aware of. The reality is that Chief Justice Coke was regarded as a bit
of an eccentric outlier. – [Audience Member] Out of control, yeah. – In English legal history. I mean, he was an extraordinary judge and developed many doctrines. This, I find it quite fascinating that he justifies his concept by saying that history
books are full of cases that justify what I’m about to say. Not very many people, well, not very many people have gone
looking, but those who have gone looking haven’t found any (laughing). – [Audience Member] Paul
Hagen always tells the story that is apparently true. When he died, his wife said, “We shall never see his like again. “Praise be to God.” (everyone laughing) Nobody was sure how to interpret that. – Any questions? Yes. – [Audience Member] So,
in the United States, like, the Constitution
seems to play a role of moderating some of
the political tendencies even of the courts where they
can use it as a touchstone, and then they are able to, basically, it sort of reels in the political risks of putting normal human beings into power, a position of power to make a decision. But do the Bill of Rights statutes have a similar effect in New Zealand? Or how does the court
sort of self-moderate for political tendencies of individuals? – I don’t think that
the Bill of Rights Acts of the United Kingdom, New Zealand, certainly not from Australia. I’m not so sure about Canada. I just put Canada to one side. I don’t they’ve had the
moderating influence that some thought that they might have. I think life has just gone on as normal. And it certainly provided a whole different source of litigation. Don’t get me wrong. But in terms of moderating the influences of the Executive or the Legislative, I don’t think it’s made much, had much of an impact
along those lines at all. Yeah, as I say, life has just gone on much the same as it always did. But true, they are just ordinary
statutes, those statutes. As I say, they are of
constitutional significance, but they are just ordinary statutes. Yes? – [Audience Member] Do you think that the, I know in the U.K. it’s a
coalition-building system so. – Yep. – [Audience Member] It’s
not necessarily two parties. I’m not sure about New Zealand. – We have a coalition as well. – [Audience Member] So, do you think that that also impacts the way that you have to get a majority and that wouldn’t just be a single party who’s in power to overturn a? – You’d like to think so,
wouldn’t you? (laughing) I don’t think we should draw too many conclusions about what’s happening in the British Parliament at the moment. But I do think constitutional arrangements that involve minority
governments being formed through coalition arrangements do have quite a profound influence on them moderating policies at times. But to really cover a broader spectrum of the population wishes
through a coalition arrangement. That does modify the types of bills that can pass through a Parliament. Yeah, oh, I don’t what to
think of England (laughing). Yes? – [Audience Member] The Electoral College plays a major role in the
distribution of political power in the United States.
– Yeah, yeah. – [Audience Member] But
in commonwealth countries it doesn’t exist.
– Exactly. – [Audience Member] But
there are other parallels to how political power may
be, you know, distributed not in a direct represented,
in a way of direct democracy in those countries where, you know, districts are protected or
their political influence is enhanced through sort
of undemocratic means. – Most, in most commonwealth countries, electoral decisions, where
electoral boundaries are, struck through independent commission. So, the drawing of the electoral maps is all done independently of politicians. Of course, membership on the commission is ultimately determined by politicians. So, there is, there is not the, risk of the dilution of
democratic powers of the people through gerrymandering and curbing of electoral existed voting, for example. None of that seems to happen
outside of the United States. Whether that’s, well, they were, you know, they were, that’s a product of both the Electoral College
system but also Federalism. There’s so much power given to the states about how electorates,
elections are to be conducted. Yeah, I think that that’s
a fair observation. But I was gonna talk about
what’s happening in England. I can’t resist. But I said it in Neil’s class, in the last session, where he
was talking about staining. And the American approach to standing is, again, something that
is completely different from the rest of the common law world. And as I mentioned to Neil afterwards, last week the Supreme
Court of the United Kingdom delivered one of its most significant constitutional decisions. The plaintiff in the English proceeding was Gina Miller, a
businesswoman, nothing more. A businesswoman with an interest in trying to take on
constitutional issues. The proceeding in Scotland was commenced by individual members of
Parliament, just a group of them. And it all comes together in the Supreme Court of England and Wales in circumstances where, from what I could pick up this morning, there simply just wouldn’t be the standing to bring such a proceeding
in this country. There’s a another, there’s
another talk for another day. (audience chuckling) Yes? – [Audience Member] I
think it’s really difficult for an American, for
at least this American, to conceive of a Constitution
that is not written down. – Yeah. – [Audience Member] And
I wonder if you could address that and address the benefits of having it written down versus
not having it written down. ‘Cause I think, you
know, as he pointed out write it as a touchstone. It’s nice to have it there. I mean, I took common law
from Professor Siegel, and he used to say, “You
can stare at the words “all day long, and it wouldn’t
tell you what I means.” Right? And I think sometimes this country gets really caught up in language too of the document that’s written out. So, I’d be curious to hear. – So, there are three
countries that don’t have a, a central Constitution. The United Kingdom, New
Zealand, and Israel. And I personally quite like not having a centralized codified Constitution because I place a lot
in store on conventions and the good government through
development of conventions, which can be made flexible
to the circumstances of the day, of the
requirements of the day. Now, it’s extremely important
that those conventions are not abused and not trampled over, which I think is, often does happen when there is a Constitution sitting behind those, or in front
of those conventions, which people say justifies
the erosion of a convention. And yesterday’s talk was really an example of that, I
think, is that what happened in 2016 was at the very least
a breach of a convention supposedly justified on
constitutional theories. So, now I’m probably an outlier. There’s quite a strong
movement afoot in New Zealand to get a written Constitution. Two of my colleagues who
Neil knows published a book. They’ve drafted a Constitution. They’re going all gung-ho to
have a written Constitution. And they both think that I’m an oddball for not agreeing with them (chuckling). But, as I say, and if you’d
asked me 20 years ago, I would’ve said, yes, we’ve gotta have a written Constitution. I suspect it was my experiences
as Solicitor-General and realizing just how you
can make good government work lawfully through the adherence to good conventions actually does work, but it requires a lot
of goodwill, I think. And, thankfully, our country
is replete with goodwill, politically and judicially
and in the Executive. You’re most welcome to come (laughing). – [Audience Member] Great. – Blair, have I oversold it? (laughing) – [Blair] No, I don’t think so. – I’m quite serious when I say that because I, somebody
pointed out the other day at the LLM group that I spoke to that I served as Solicitor-General under two different administrations, and that was not difficult. There’s just not an issue. I knew the Prime Minister who was responsible for my
appointment as Solicitor-General. I knew her well, respected her a lot. I had no hesitation in
telling her when she was wrong and didn’t know the
incoming Prime Minister two years later, but got
to know him very well. And had nothing but respect
and admiration for him. I like to think it works both ways. (laughing) You’re speechless. – [Audience Member] I
just said that’s crazy. That really is hard to imagine. – Yeah. – [Audience Member] We’re talking about five and a half million people? – Five. – [Professor Siegel] Five
million people, right? – Yeah. – [Professor Siegel]
And we’re talking about, relative to this country, a
very homogeneous population with its own history of
conflict with an indigenous population, not that it’s
entirely homogenous but. – Yeah. – [Professor Siegel] But both parties, the liberal and conservative parties, would fit comfortably
within the Democratic party in this country, right? So, I mean, the more I
listen to you, David, the more I think that there are advantages and disadvantages
to written Constitutions and judicial review for constitutionality. And there is an all
things considered judgment in the face of a lot of uncertainty. And it’s not at all clear to me that the right answer for New Zealand is the right answer for the United States. – Yeah, absolutely. – [Professor Siegel] We are
huge, and we are heterogeneous. And we have a history of
treating very vulnerable people terribly, not just
the indigenous population. I think we get to speak
more than we otherwise would with judicial review here. I think we’re less racist
than we otherwise would be. All right, I think criminal defendants have more rights, for better or for worse. On the other hand, you know, money is awash in politics in
ways that it wouldn’t be if not for the Supreme Court. I mean, there are advantages
and disadvantages, but, I mean, New Zealand, I mean, how many people in North Carolina? Is it like 11 million? It wouldn’t a bit. So, that goodwill, those
conventions, require that you view yourself as
part of the common enterprise. You view yourselves as, you
know, we’re competitors, but we’re also friends. – Yeah. – [Professor Siegel] And we’re gonna win. We’re gonna win now and lose then, and we’re gonna continue on together. Whereas here, on the other hand, maybe judicial review and
a written Constitution has crowded out a lot
of these conventions, which is what you’re concerned about. And maybe it’s make members of Congress more partisan than they
otherwise would be. I just find it, I find it paralyzing to try and think it through in any kind of general or theoretical way. – Yeah. But it’s good that we can talk about it. (everyone laughing) Well, thank you very, very much. I’ve much appreciated the
opportunity to speak to you. – [Audience] Thank you. (audience applauding)

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