‘Divided by a common language: British and American perspectives on Constitutional Law’
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‘Divided by a common language: British and American perspectives on Constitutional Law’

October 12, 2019


Good evening ladies and gentlement. I’m David
Feldman. I am the Director of the Centre for Public Law in the University, and it is my
great pleasure to welcome you on behalf of the Faculty of Law and the Centre for Public
Law to this the seventeenth Sir David Williams Lecture. The Sir David Williams lectures were founded
in 2001 to mark Sir David’s contribution to the field of public law. David was and remains
an inspiration to generations of us academic lawyers and students. Loved equally for his
wisdow, his humour, and his kindness to people, especially younger and less experienced people.
He was of those people who always left us feeling jollier than he found us, as well
as better informed. His circle of friends was worldwide, and to be one of David’s friends
was and is still, to be a friend of his family, and it is a huge pleasure this evening to
welcome Lady Sally Williams and members of the Williams family, whose committment to
and support of the Faculty has always been wonderful. The lecture series is made possible by very
generous gifts. First, from Mr John Nolan, and then kindly augmented by Mr Michael Russ.
Two of the many Americans who respected, liked and admired David, and Sally. We are very
grateful to them for their support, and we are sorry that neither of them is able to
be with us this evening. Sir David had a remarkable career. Proud Welshman.
Grammar school boy from Carmarthen. First in History and Law from Cambridge, Emmanuel
College. Then, like our lecturer this evening Sir Rabinder Singh, he benefited from a Harkness
Fellowship which allowed him to study at Harvard and again like Sir Rabinder, at Berkeley.
He started his career as a lecturer in Law, again like Sir Rabinder, at the University
of Nottingham. In his research he was a pioneer in development of a particular brand of historically
informed socio-legal study of Public Law in the UK. He was a pioneer in the study of Environmental
Law, and gave valuable public service as a member of the Clean Air Council, the Royal
Commission on Environmental Pollution, and the Commission on Energy and the Environment. In Administrative Law, he was a member of
the Justice All Souls review of Administrative Law, which had a considerable influence on
the development of the application for judicial review. And he was a founder member, and this
reflects his internationalism, a founder member of the European Group of Public Law, now the
European Public Law Organisation, based in Athens, whose Director Spiridon Flogaitis,
it is a pleasure to see back with us this evening. Another field of which David was a pioneer
was in promoting opportunities for people from non-traditional backgrounds to come and
study in Cambridge. And as Lady Williams pointed out to me today, he took a chance in admitting
to Cambridge to study for the LLM a young Susan Kiefel – an Australian who originally
left school at the age of 15 and found work as a receptionist in a lawyers office, and
came in due course to study for the Cambridge LLM. David would have been absolutely thrilled
last month to see her take up position of Chief Justice of the High Court of Australia. David’s academic eminence lead him in due
course to be elected as Rouse Ball Professor of English Law, and then he moved into University
management, and became path-breaking President of Wolfson College. The last of the old-style
Vice-Chancellors of the University of Cambridge, and then the first of the new-style full-time
Vice-Chancellors of the University. The University earlier this academic year,
recognised his significance in our history by naming the building, this building, the
Faculty of Law, in his honour. And this is the first of these lectures to have been held
in the The David Williams Building as such. He has also been memorialised in the new Sir
David Willliams Professorship of Public Law, thanks to generous donations from Mr David
Lee, and Robinson College. We are very glad that the first holder of the Chair – Professor
Christopher Forsyth – is with us tonight. David would have been delighted both by our
lecturer tonight – Sir Rabinder Singh – and by his choice of subject. Sir Rabinder attended
Bristol Grammar School, then studied Law at Trinity College, Cambridge. Continued his
studies – I mentioned earlier – on a Harkness Fellowship, at the University California at
Berkeley. Returning here, he became Lecturer in Law at the University of Nottingham, before
going into practice at the Bar in 1989. In the same year, by coincidence, he married
Alison Bagent, now Lady Singh, who coincidentally was one of my colleagues at the University
of Bristol Faculty of Law. And it is interesting, although inconsequential to note, that the
Law Faculty at Bristol, is only just across the road from Bristol Grammar School where
Sir Rabinder had studied as a boy. And it’s a delight to see Alison, who is also a Cambridge
graduate, here this evening. As Sir Rabinder quickly became a leading figure
at the Public Law bar, whilst also contributing to the academic literature. His first book
‘The Future of Human Rights in the United Kingdom’ was published in 1997, shortly before
the enactment of the Human Rights Act 1998. In 2000 he became one of the founding members
of a new set of chambers – Matrix Chambers – established to specialise in among other
things, Public Law and human rights. After taking silk in 2002, he served as Deputy High
Court Judge, and Recorder, before being appointed to the High Court bench in 2011, devoting
a good deal of his time to sitting in the Administrative Court, as well as being for
four year presiding Judge of the South Eastern Circuit, and since 2016, a member of the Investigatory
Powers Tribunal, and now Administrative Court Liaison Judge for the Midland, Wales and Western
Circuits. Also, in 2015 and 2016, he was a member of
the UK delegation to the United Kingdom/United States Legal Exchange. The UK end being lead
by Lord Mance, who is here tonight, and we welcome, and Lady Justice Arden who I think
unfortunately couldn’t be. And this gave further oportunities for Sir Rabinder to see at first
hand the contrasts and commonalities between the United States and the United Kingdom in
their constitutional thinking. It is thus particularly appropriate that Sir Rabinder
has agreed to deliver the 2017 Sir David Williams Lecture, on the subject “Divided by a common
language: British and American perspectives on constitutional law”. Sir Rabinder. Professor Feldman, thank you for that kind
introduction. It is a great honour and pleasure to be asked to deliver this year’s Sir David
Williams lecture, particularly in the presence of Lady Sally and other members of Sir David’s
family. The first time that I saw Sir David was on
my first day of lectures as an 18 year old undergraduate, when he gave the first lecture
I attended on constitutional law at the lecture theatre at Mill Lane. At that time, according
to our timetable, he was known as Mr D. G. T. Williams. From that moment on his qualities
became quickly apparent. He was not only a wise teacher but also a modest man. In my
second year I had the privilege of being lectured by Sir David on administrative law. Towards
the end of my undergraduate career here, I also had the benefit of advice from him as
to the future. In particular he was one of those teachers who encouraged me to go to
the USA. I followed in his footsteps in the sense that, like him, I was a Harkness Fellow
and, like him, I studied at the University of California. I have therefore taken as my
subject for this year’s lecture what I think would have been one of Sir David’s interests:
that is a comparison between American and British perspectives on constitutional law.
Inevitably these reflections will be selective, since the topic is so vast that it could easily
take many years of study. In this lecture I will focus on four topics.
First, by way of introduction, I will outline some of the key differences between the constitutions
of the US and the UK. Secondly, I will look at some history relating to the drafting of
the US Constitution and the American Bill of Rights. Thirdly, I will look, by way of
example, at a particular right: the right to freedom of speech. Fourthly, I will consider
the process for appointment of judges in the two countries. The United States and the United Kingdom clearly
have many things in common. Both our countries are stable democracies and have been for a
long time. The franchise was extended beyond a privileged elite at different times in their
histories but both became full democracies, with universal suffrage, around the same time
just under a hundred years ago. Both countries have a longstanding commitment to the rule
of law. Both countries have a commitment to the protection of civil liberties. Accordingly,
although the language used in the two countries may sometimes differ, we recognise that both
are countries in which the people have the power to choose their own government at regular
elections; the government is subject to the law; and individual liberty is protected by
the law, if necessary by resort to the courts. Let me turn to some of the main differences
between the two constitutions. First, as is well known, the US has a written constitution,
which is set out in a short document and which can be carried around by citizens, whereas
the UK does not. In the recent case concerning the invocation of Article 50 of the Treaty
on European Union (the Brexit case), Lord Neuberger put it this way: “Unlike most countries, the United Kingdom
does not have a constitution in the sense of a single coherent code of fundamental law
which prevails over all other sources of law. Our constitutional arrangements have developed
over time in a pragmatic as much as in a principled way, through a combination
of statutes, events, conventions, academic writings and judicial decisions. Reflecting
its development and its contents, the UK constitution was described by the constitutional scholar,
Professor A V Dicey, as ‘the most flexible polity in existence’
– Introduction to the Study of the Law of the Constitution (8th ed, 1915), p 87.” As that quotation makes clear, unlike the
constitution of the US, our own constitution (i) is not codified in a single document;
(ii) is to be found in the ordinary law of the land rather than a fundamental law; and
(iii) is flexible because it can be changed in the same way that other laws can be, rather
than requiring a special procedure for amendment. The second main difference is that the US
is a republic whereas the UK is a monarchy. But it has been a constitutional monarchy
for many centuries, since the Glorious Revolution of 1688. It became clear, after the Great
Reform Act of 1832, limited though that measure was, that the monarch would no longer be able
to insist on a government being formed which did not have the confidence of the House of
Commons. In the century which followed, the UK became a representative democracy. The third main difference between the constitutions
of the two countries is that, although we both use the term “separation of powers”,
and Montesquieu famously misunderstood the English constitution in this regard, the US
draws a sharp distinction between the executive branch and the legislature. The President
is elected separately from members of the two houses of Congress. In contrast, in the
UK the Prime Minister is not directly elected but is usually the leader of the political
party which can command a majority in the House of Commons. And all ministers are expected
by convention to be a member of one or other of the Houses of Parliament, at least after
their appointment if not before. Although the legislative power of the United
States is expressly vested by the Constitution in Congress, it is clear that the President
enjoys some rule-making power in the form of Executive Orders. To be clear – this is
not delegated legislation, although that concept exists in the US as it does in the UK. Executive
Orders are not rules made under powers delegated by Congress but are inherent in the executive
function, which is assigned by the Constitution to the President. The concept of Executive
Orders has assumed particular prominence in recent weeks, as Donald Trump has issued a
number of such orders on becoming President last month. It is only rarely that the US
Supreme Court has held that an Executive Order was outside the President’s powers on the
ground that it violated the doctrine of separation of powers and purported to enact what was
in substance legislation, which is a matter exclusively for Congress. The most famous
example of that was in 1952, when the Court struck down President Truman’s Executive Order
which had seized the country’s steel mills at a time of industrial dispute. In the UK there is very limited scope for
the executive to make rules which are tantamount to legislation unless there has been delegated
power to do so given by Parliament, although there are some areas of the Royal Prerogative
where there remains a residual legislative power. In the Brexit case, Lord Neuberger
said, at para 44: “In the early 17th century Case of Proclamations
(1610) 12 Co Rep 74, Sir Edward Coke CJ said that ‘the King by his proclamation or other
ways cannot change any part of the common law, or statute law, or the customs of the
realm’. Although this statement may have been controversial at the time, it had become firmly
established by the end of that century.” I turn to the fourth main difference between
the two countries. Although we rightly regard both countries as democracies, the UK still
has one part of its legislature which is not elected: the House of Lords. In contrast the
US Senate comprises two senators each, who are elected by the voters of each state, however
large or small. However, it should be noted that this is a relatively recent development
in American history. The original Constitution, in section 3, stipulated that the senators
should be chosen by the legislature of each state. This was altered by the 17th Amendment,
which was ratified in 1913, during a time known in American history as the Progressive
era. Since then US senators have been directly elected by the people. The fifth main difference lies in the concept
of federalism, a fundamental feature of the US Constitution, which necessarily means that
the powers of the national or “federal” government are limited. Recent developments in the UK
have led to devolution to the constituent nations of the UK, in particular to Scotland;
to a lesser extent to Wales; and in a different way to Northern Ireland (which had its own
“Home Rule” from 1920 until direct rule was imposed in 1972). Devolution was, of course,
a subject close to Sir David Williams’ heart. These developments, important though they
are, have still not introduced a federal structure to the distribution of powers in the UK. First,
England – the largest part of the union – remains without its own Parliament, although recent
changes have been introduced to the procedures of the House of Commons in relation to legislation
that affects only England (“English Votes for English Laws” as it is sometimes called).4
Secondly, a fundamental feature of our constitution remains the supremacy of the Westminster Parliament.
The US Congress has no such supremacy even in theory. I will now turn to some history. Although
the Revolutionary War, as it tends to be called in America, or the American War of Independence,
as it tends to be called in this country, marked an obvious rupture in the constitutional
arrangements for what had until then been English colonies in North America, it is important
to note that, at the time, the founders of the American Republic believed that they were
(in the words of Gordon Wood): “Englishmen with a strong sense that they were heirs of
the English tradition of freedom.” There had been, and continued to be even after the war,
considerable movement between America and Britain, both physical travel of people; and
metaphorical travel in the sense of exchange of ideas. As Jonathan Clark puts it in his
study of political discourse in the Anglo-American world between 1660 and 1832: “The Revolution
of 1776 was slow to happen because Englishmen on both sides of the Atlantic were locked
into the belief that they were already living in a libertarian polity.” Clark goes on to
suggest that: “From the middle of the eighteenth century in both England and America, it began
to be re-emphasised that William I had corrupted the Saxon constitution by imposing the ‘Norman
Yoke’; that its restoration had been alternatively the work of the barons who drafted Magna Carta;
or of sixteenth century Protestant reformers; or of Civil War heroes; or of Glorious Revolution
patricians; or, most radical of all, that it remained to be accomplished.” Clark attributes this view in particular to
a Welsh Dissenting minister who, as it happens, was also called David Williams, who lived
from 1738 to 1816 and who was a “[f]riend of Benjamin Franklin, libertine and would-be
liturgical reformer.” Even the most obvious difference between the
new republic and the “Mother country” from which it had just broken away, namely its
written constitution, was not necessarily perceived at the time to represent such a
great change from what had happened in the past. Many of the colonies had been established
by Crown Charters. As Wood puts it: “The whole of the colonial past was littered with such
charters and other written documents of various sorts to which the colonial assemblies repeatedly
appealed in their squabbles with Royal power.” This was regarded as a continuation of an
earlier English tradition, of putting rights down in a written document: the best known
of these of course was the Magna Carta. It is perhaps no surprise that Magna Carta is
still revered today, arguably more in the United States than it is in this country. Nonetheless, despite their common origins,
there can be no doubt that the two countries quickly diverged in a radical way. Over the
two centuries after the American colonies had become independent, the principal concern
in Britain became how to make Parliament more democratic and therefore more representative
of the people. Parliament was perceived as the guarantor of the liberties of the people
and the principal threat to those liberties was perceived to come from the Crown. The
fundamental doctrine of constitutional law in this country became the doctrine of Parliamentary
Sovereignty, particularly as set out by Blackstone in the 18th century and Dicey in the 19th.
In contrast, in the American colonies even before independence and more particularly,
after 1787, in what became known as the United States, the idea took hold that there should
be a higher form of law, set out in a written constitution, which would be the fundamental
law of the land and to which even legislatures would be subject. In fact many Americans believed
that they were drawing on an earlier tradition in England, illustrated by Dr Bonham’s case,
suggested that even an Act of Parliament might be held to be void by the courts if it were
“against common right and reason, or repugnant, or impossible to be performed.” As is well known, there was no express provision
set out in the Constitution of 1787 itself to provide for the judicial review, let alone
nullification or striking down, of Acts of Congress. The doctrine which Americans call
“judicial review”, in other words the power of the courts to review the constitutionality
of Acts of Congress, was only made explicit by a decision of the US Supreme Court: Marbury
v Madison. Although the doctrine of judicial review was
never expressly set out in the Constitution of the United States, it has become an accepted
and fundamental feature of that constitution. It has never been seriously attempted to repeal
that doctrine, for example by constitutional amendment. For good or ill, therefore, the
power of the courts, in particular that of the US Supreme Court, to strike down even
Acts of the elected Congress for their inconsistency with the Constitution, has become embedded
in American life and culture. Of course we have no such concept in this
country. We still have no fundamental law in the sense of the written constitution which
Americans have. Even what are sometimes described as “constitutional statutes”, such as the
European Communities Act 1972 and the Human Rights Act 1998, are still ordinary Acts of
the Westminster Parliament. They were not enacted by any special procedure being required.
In principle, they can be repealed by another ordinary Act of Parliament. Nevertheless, so long as the European Communities
Act remains in force, we have had something similar to the American doctrine of judicial
review whenever an issue has arisen which fell within the scope of European Community
(now European Union) law. To that extent it has been possible for, indeed the duty of,
courts in this country to disapply even provisions in an Act of the Westminster Parliament if
and to the extent that they are incompatible with a provision of European Union law which
has direct affect. This of course is now subject to the decision of the people of this country
to leave the European Union in 10 For the early history of the American tradition drawing
on Dr Bonham’s case, in particular in the colonies before the Revolutionary war, see
B. Schwarz, A History of the Supreme Court (1993, OUP), pp.3-11. 11 5 US (1 Cranch) 137
(1803). the referendum on 23 June 2016. However, as
I have said, unless and until the Westminster Parliament repeals the European Communities
Act 1972, the duty of the courts of this country remains clear. Indeed, in the Miller case
the Supreme Court has held that even the start of the process of leaving, by invoking Article
50, must be authorised by Act of Parliament rather than being a matter for the Royal Prerogative.
A bill to obtain that authority for the government is currently before Parliament. So far as the protection of human rights is
concerned, as is well known, the structure which was adopted by the Human Rights Act
is somewhat different. Parliament was careful not to give the courts the power to strike
down Acts of Parliament on the ground that they are incompatible with human rights. However,
Parliament did place what is in substance responsibility for judicial review of Acts
of Parliament with the courts by enacting the Human Rights Act. In particular Parliament
gave the higher courts (that is, in England and Wales, the High Court and above) the power
to make a declaration of incompatibility in respect of primary legislation. This power
has been exercised, although not on a large number of occasions, since 2000, when the
Human Rights Act came into full force. About 20 declarations of incompatibility have been
made. Conor Gearty has described this novel kind of court order in characteristically
provocative terms: “They are grand announcements of judicial distaste but no more than that
– shouts of antipathy dressed up as legal remedies but without the usual enforceability
that we take for granted comes with victory in court.” Perhaps most importantly this power was exercised
by the House of Lords in the Belmarsh case: A v Secretary of State for the Home Department
(2004). In that case the House of Lords made a declaration that Part 4 of the Anti-terrorism,
Crime and Security Act 2001 was incompatible with fundamental rights as set out in Sch.1
to the Human Rights Act, in particular the right to personal liberty in Article 5 and
the right to equality in the enjoyment of other Convention rights in Article 14. Although
a controversial decision, it is notable that the response of both the Government of the
day and Parliament was to accept that declaration of incompatibility. The incompatible provisions
of primary legislation were repealed by Parliament. This is despite the fact that a declaration
of incompatibility is expressly not made binding. The American Bill of Rights, which comprises
the first 10 amendments to the US Constitution, has much in it that we would recognise, even
if the language now seems a little archaic. Freedom of speech, freedom of religion, the
right to a fair trial and the right to property are all there. This is hardly surprising,
since the founders were drawing on what they perceived to be their heritage from the English
common law. They were also in some instances drawing on the express language of the English
Bill of Rights of 1689, for example the prohibition on “cruel and unusual punishments” in the
Eighth Amendment. Although at one time, in the 1970s, it appeared that this might be
interpreted in such a way as to prohibit the death penalty, that has not occurred. In contrast
the UK has now accepted the abolition of the death penalty in all circumstances, including
wartime, by ratifying the 13th Protocol to the European Convention on Human Rights. There
are some rights in the American Bill of Rights that have no counterpart at all in our understanding
of fundamental rights, in particular the right to bear arms in the Second Amendment. The American Bill of Rights originally applied
only to the federal government and not to the states. This should not come as any surprise.
After all the original structure of the constitution of 1787 was one in which the several states,
which had recently become independent from Great Britain, convened in order to create
what they called “a more perfect union”, following the unsatisfactory experience of the Articles
of Confederation of 1781. The founders of the American republic, who had met in Philadelphia
in 1787, generally speaking regarded the Federal Government as at best a necessary evil. Some
indeed feared that it might become as tyrannical as the British Government was perceived to
have been in the years leading up to the War of Independence. Consideration was given to
enacting a Bill of Rights at the Philadelphia convention. However, the delegates decided
not to proceed in that way at that time. One of the founders of the American republic,
Alexander Hamilton, was opposed to the idea of a bill of rights. As Carol Berkin puts
it in her recent history of the drafting process: “Hamilton insisted that [it] was redundant
in a Lockean republic. Guarantees of rights, he declared, might be valuable as stipulations
between kings and their subjects. But in a constitution ‘founded upon the power of the
people, and executed by their immediate representatives and servants – the people surrender nothing,
and as they retain everything they have no need of particular reservations.'” Nevertheless it soon became apparent to the
supporters of the new federal government that, in order to assist in the ratification process,
it was going to be necessary to introduce amendments to the Constitution by enacting
what became the Bill of Rights. This was what James Madison then achieved and the first
10 amendments were ratified by 1791. Some had a concern that setting out certain rights
expressly in a bill of rights might be taken to imply that they were the only rights which
people have. That would have been contrary to the natural rights theory in which they
believed as heirs to John Locke. It was for this reason that the final two amendments
were included in the Bill of Rights. They are relatively unknown provisions and are
rarely referred to in the jurisprudence of the Supreme Court. The Ninth Amendment states:
“The enumeration, in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.” The Tenth Amendment states: “The powers not
delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved
to the states respectively, or to the people.” As a major example of the way in which American
constitutional law protects fundamental rights, I now intend to consider the right to freedom
of speech. This is one of the rights contained in the First Amendment. That amendment has
attained an almost mythical status not only in American law but in American culture. Even
the fact that it is numbered the First Amendment has had some significance attached to it.
In fact, as it happens, in the original draft Bill of Rights, the rights which are now contained
in the First Amendment were to have been in a clause numbered four. Madison’s original
proposal would have made textual amendments to the main body of the Constitution. It was
only later that it was decided to set out the amendments separately, in effect as an
addendum to the Constitution. Even in the version which was eventually passed by both
Houses of Congress and sent to the states for ratification, freedom of speech was mentioned
in the third proposed amendment. Since the first was never ratified and the second had
to wait another 200 years before it was ratified in 1992, the famous clause concerning freedom
of speech and religion became the First Amendment. The second point to make about the express
language of the First Amendment is that, on its face, it applies only to the federal government
and not to the states. In fact, if read literally, it applies only to one branch even of the
federal government, namely Congress. So far as relevant it provides that Congress shall
make no law abridging the freedom of speech. There was in Madison’s original proposal an
amendment, in the then clause 5, which would have included a prohibition on violation of
“the freedom of the press” against the states but this was not enacted in the final version
of the Bill of Rights. The jurisprudence of the US Supreme Court
only established that the right to freedom of speech applied to the states indirectly
in the early part of the 20th century. This was achieved through the “due process” clause
of the Fourteenth Amendment, which prohibits the states from depriving any person of life,
liberty or property without due process of law. The Fourteenth Amendment was one of the
amendments passed after the American Civil War in the late 1860s. To a lawyer in this
country it might seem surprising at first sight that a clause which appears to deal
with “due process” has been interpreted by the US Supreme Court to include substantive
guarantees as well. However, in American law it is now well established that this is the
case. Americans refer to this doctrine as “substantive due process.” This is the vehicle
by which the Bill of Rights has been held to bind the states as well as the federal overnment. Despite the rhetoric which surrounds the First
Amendment, and indeed the Bill of Rights more generally, it took a long time for the Supreme
Court to establish the modern principles on freedom of speech. As Eric Foner puts it:
“Today, the liberties enshrined in the Bill of Rights are central to Americans’ conception
of freedom. This has not always been the case; indeed, at many moments in our history, from
the suppression of abolitionist meetings in the 1830s to the Red Scare after World War
I and the depredations of McCarthyism during the Cold War, individual rights have been
seriously curtailed – often in the name of freedom. The growth of civil liberties in
this country is not a story of linear progress or simply a series of Supreme Court decisions,
but a highly uneven and bitterly contested part of the story of American freedom.” Samuel Walker, in his history of the American
Civil Liberties Union, suggests that: “There was no tradition of free speech before World
War I, in either legal doctrine or public tolerance for unpopular views. The glittering
phrases of the First Amendment were an empty promise to the labor movement,
immigrants, unorthodox religious sects, and political radicals. Intolerance began with
the first English settlers who attempted to suppress religious heresy. The Puritans may
have come to the new world seeking religious freedom for themselves, but they had no intention
of granting it to others in their own communities. Through the end of the nineteenth century,
American society was a set of ‘island communities’, each a ‘closed enclave’, intolerant of the
ideas or behavior it disliked.” Indeed, Walker suggests that in the 19th century
“the courts scarcely functioned in many frontier communities. The majority imposed swift and
certain justice through vigilante action.” There is a well-established distinction in
American constitutional law between the restriction of the “content” of speech and the regulation
of the time, place, and manner of the exercise of the right to freedom of speech. It is conventionally
thought that regulation of time, place and manner is permissible as long as it is reasonable. When it comes to the content of speech, the
generally received wisdom is that Americans will not tolerate any restriction of what
they can say at all. However, this has never been the law. Historically the way in which
the US Supreme Court addressed the problem was by recognising that there were certain
categories of speech which were outside the protection of the First Amendment. Traditionally
obscenity was such a category, although in practice today this will hardly apply in the
case of adults. Child pornography is an entirely different matter. Another famous category
of unprotected speech relates to what Americans call “fighting words.” Even defamation, although
the doctrines have been different in our two countries, is not protected speech under the
First Amendment. It has also long been recognised in American law that the state is entitled
to criminalise incitement to commit criminal acts. However, as a result of what was originally
called the “clear and present danger” test, it has been established that there has to
be a close nexus between the words used and the likelihood of a criminal offence in fact
occurring. The problems with which both our countries
are grappling today are not new ones. A hundred years ago, shortly after the First World War
and the Russian Revolution, America had to address the question of what, if any, restrictions
could be placed on “extremist” speech. At that time the fear was of violent revolution
along the lines of what had just happened in Russia. One of the most famous such cases was Whitney
v California (1927). Anita Whitney was a member of the Socialist Party who was arrested after
giving a speech called “The Negro Question”, in which she protested about race riots and
lynching. She was convicted under a California law which prohibited “criminal syndicalism.”
She was convicted of assisting in organising an association to advocate terrorism. Although
the US Supreme Court upheld that conviction, Justice Brandeis concurred rather than dissented.
However, his concurring judgment is usually regarded as being tantamount to a dissenting
one. It has also been described by his recent biographer, Jeffrey Rosen, as “a kind of constitutional
poetry.” In Whitney Brandeis said: “Those who won our
independence believed that the final end of the state was to make men free to develop
their faculties, and that in its government the deliberative forces should prevail over
the arbitrary. They valued liberty both as an end and as a means. They believed liberty
to be the secret of happiness and courage to be the secret of liberty. They believed
that freedom to think as you will and to speak as you think are means indispensable to the
discovery and spread of political truth; that without free speech and assembly discussion
would be futile; that with them, discussion affords ordinarily adequate protection against
the dissemination of noxious doctrine; that the greatest menace to freedom is an inert
people; that public discussion is a political duty; and that this should be a fundamental
principle of the American government.” As Rosen observes, Brandeis clearly had in
mind the words of President Jefferson in his first inaugural address in 1801: “That though
the will of the majority is in all cases to prevail, that will to be rightful must be
reasonable; that the minority possess their equal rights, which equal law must protect,
and to violate would be oppression.” Brandeis echoed those words when he said that: “Recognising
the occasional tyrannies of governing majorities, they [i.e. the Founders] amended the Constitution
so that free speech and assembly should be guaranteed.” In A v Secretary of State for the Home Department
Lady Hale expressly quoted the same passage from Jefferson’s inaugural and said, at para.
237: “Democracy values each person equally. In most respects, this means that the will
of the majority must prevail. But valuing each person equally also means that the will
of the majority cannot prevail if it is inconsistent with the equal rights of minorities.” In fact,
as we have seen, Anita Whitney’s conviction was upheld by the Supreme Court and Brandeis’
opinion was a concurring one, even if it reads like a dissent. A month after the court’s
decision, the Governor of California pardoned her, saying that freedom of speech is the
“indispensable birthright of every free American.” She was soon to be back
before the courts, for violating a state statute which made it a crime to display a red flag.
In 1931 the US Supreme Court held that that law was “repugnant to the guaranty of liberty
contained in the Fourteenth Amendment.” In the last 25 years the US Supreme Court
has come to recognise that there are no categories of speech which are in principle unprotected
by the First Amendment. On the other hand, the Court has also come to recognise that
it may be possible in principle for the state to regulate even the content of speech where
a law is narrowly tailored to serve a compelling state interest. This is sometimes called “strict
scrutiny.” In this way, although Americans would not necessarily use the same terminology
as we use in Europe, there is in practice a doctrine similar to our own principle of
proportionality. Accordingly, I would suggest that, although at first sight the experiences
of the US and the UK appear to be very different in the context of freedom of expression, in
fact there are many similarities too. A major exception to this is in relation to the concept
of “hate speech.” The US Supreme Court has taken a fundamentally different approach to
“hate speech” from that taken in many other democratic societies, including the United
Kingdom: see its decision in RAV v City of St Paul, Minnesota. Whereas, like many countries, we have laws
which prohibit (for example) incitement to racial hatred, such laws have not survived
scrutiny in the US. Although the law in the United Kingdom has not had, until relatively
recently, a positive right to freedom of expression, the
values underlying it were embedded in the culture of this country and in the common
law for many centuries. In particular the marketplace of ideas theory can be found in
the writings of John Stuart Mill in the 19th century. They were clearly influential on
the jurisprudence of the US Supreme Court in the early part of the 20th century, e.g.
Abrams v United States (1919). More recently, it is clear that the flow of
ideas has also come in the other direction: American law has influenced our law, even
before the Human Rights Act came into force. Most notable was the decision of the House
of Lords in R v Secretary of State for the Home Department, ex parte Simms (1999). Lord
Steyn said: “Freedom of expression is, of course, intrinsically important: it is valued
for its own sake. But it is well recognised that it is also instrumentally important.
It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals
in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), ‘the
best test of truth is the power of the thought to get itself accepted in the competition
of the market’: Abrams v United States (1919) 250 US 616, 630 per Holmes J (dissenting).
Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information
and ideas informs political debate. It is a safety valve: people are more ready to accept
decisions that go against them if they can in principle seek to influence them. It acts
as a brake on the abuse of power by public officials. It facilitates the exposure of
errors in the government and administration of justice of the country…” Another example of American “constitutional
poetry” can be found in a freedom of religion case: West Virginia State Board of Education
v Barnette. At page 642 Jackson J said: “If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be orthodox
in politics, nationalism, religion or other matters of opinion, or force citizens to confess
by word or act their faith therein.” Note even the use of alliteration in that
passage. That case concerned whether the state could compel school children to salute the
American flag. Although that practice is often thought to be one of the most fundamental
features of American culture, the US Supreme Court held that Jehovah’s witnesses could
not be compelled to do so. It is also notable that the decision, which reversed the court’s
own earlier decision of just three years before, was made at the height of the Second World
War. It perhaps provided an indication of what Americans thought they were fighting
for against the totalitarian regimes, in particular Nazi Germany. As the Divisional Court (of which I was a
member) said, after citing these authorities, in R (BBC) v Secretary of State for Justice:
“History has taught us that, in fields as diverse as politics, religion, science and
the law, what starts as a heresy may well end up as the orthodoxy.” Furthermore, as the European Court of Human
Rights has often said in its jurisprudence on Article 10, freedom of expression constitutes
one of the essential foundations of a democratic society. Accordingly “it is applicable not
only to information or ideas that are favourably received or regarded as inoffensive or as
a matter of indifference, but also to those that offend, shock or disturb the state or
any sector of the population.” The jurisprudence of the European Court has
frequently stressed that the hallmarks of a democratic society are not simply that the
will of the majority must prevail. Rather a democratic society is characterised by pluralism,
tolerance and broad-mindedness. In this context I would recall again what was said by the
Divisional Court in the BBC case, at paragraph 49: “these words, which appear in many of
the articles of the Convention, are not superfluous. The framers of the Convention, arising as
it did out of the ashes of European conflict in the 1930’s and 1940’s, recognised that
not everything that the state asserts to be necessary will be acceptable in a democratic
society.” As I said at the outset of this lecture, both
the United States and the United Kingdom have mature legal systems, with a strong tradition
of judicial independence and respect for the rule of law. In this context, judicial independence
is a particular aspect of the separation of powers. It is often thought that in the US judges
are elected. In fact the picture is much more complicated. There is an important distinction
between the federal judiciary and judges in each of the states. It is in the nature of
American federalism that there will be different systems for the appointment of judges in each
state. The federal judiciary are not elected at all.
The Constitution created the Supreme Court, although its composition was not spelt out
in the Constitution itself and has been affected by Congressional legislation since 1789. Over
time the number of judges on the Supreme Court has been increased to its current number of
nine, including the Chief Justice. The power to appoint judges to the Supreme Court is
vested by the Constitution in the President, with the “advice and consent” of the Senate.
A similar appointment process is used for the District Bench and the US Court of Appeals,
which is divided into various circuits, covering the vast geographical area of the United States’
territory. Presidential appointments, in particular to
the Supreme Court, can be the subject of intense public debate. There are confirmation hearings
before the US Senate. Some see this as an unfortunate introduction of partisanship into
what should be an independent process; others regard it as an important, democratic check
on what is otherwise the great power vested in the Supreme Court. Although judicial interpretations
of the Constitution can be reversed by constitutional amendment, the system for amendment of the
Constitution was deliberately made difficult by the Founders, and in practice, it is rare
for a decision of the US Supreme Court to be overturned in this manner. That means that
the prospect of having well-established judicial decisions of that court overturned can be
the subject of intense political controversy: in particular the decision of the US Supreme
Court in Roe v Wade (1973), which decided that the Constitution confers the right to
choose to have an abortion. Since February last year there has been a
vacancy on the US Supreme Court, arising from the death of Justice Scalia. President Obama
nominated Merrick Garland for the appointment but the Senate declined to consider the nomination
before the outcome of the Presidential election was known in November. At the end of January
this year the new President, Donald Trump, nominated another judge to fill the same vacancy:
Neil Gorsuch. It will now be for the US Senate to decide whether to confirm that appointment. So far as state courts are concerned, the
practice relating to judicial appointments varies enormously. Originally each of the
13 states after the War of Independence selected its judges through either executive or legislative
appointment. There were at that time no elections for the state judiciary. However, in the first
half of the 19th century there was a democratic movement associated with the presidency of
Andrew Jackson, often referred to as “Jacksonian democracy.” As it has been put by Rachel Paine
Caufield: “states began to move away from appointive selection methods in the mid-eighteen
hundreds with the rise of Jacksonian democracy and its emphasis on democratic accountability,
individual equality, and direct voter participation in governmental decision-making.” By the time
of the American Civil War the vast majority of states had changed their method of judicial
selection to direct election by the voters. However, a contrary trend began to emerge
in the first half of the 20th century. This was initially associated with the Progressive
era. A movement began for what Americans call a “merit system.” The first state to adopt
the merit system was Missouri in 1940. Since then a large number of states have adopted
such a system, in particular for the highest court in each state. In fact 24 of the states
and the District of Columbia have adopted some form of merit system, “making it the
most prevalent system of judicial selection in use in the United States today.” As Brian
Fitzpatrick explains, although there are differences among these various systems, they have two
common features. First, with regard to initial selection, judges are not elected but are
appointed by the Governor of the state, from a list of names submitted by a nominating
commission. Secondly, at some point after appointment in most of the systems, state
judges must come before the public in a referendum (albeit an uncontested one), through which
voters can remove a judge from the bench. Even in those states where there is no election
for the initial appointment of a state judge, and for this purpose I will confine myself
to the highest court in the state, the general practice tends to be that a judge must then
face a “retention” election. I will describe the practice in the state with which I am
most familiar, that is California. According to the constitution of the State of California,
judges for the Supreme Court must be nominated by the Governor and confirmed by the Commission
on Judicial Appointments, which consists of the Chief Justice, the Attorney General, and
the Presiding Justice of the Court of Appeals. Since 1979 it has been required that the State
Bar commission on judicial nominees’ evaluation should conduct a thorough investigation of
the background and qualifications of prospective nominees. However, the Governor is not bound
by that commission’s recommendations. Once appointed, judges must stand for retention
at the time of the next gubernatorial election after their appointment. Appellate judges
serve twelve year terms. Although, in many states, judicial retention elections are low
key affairs, in the state of California they have often been controversial. I remember
that, while I was a student in California in 1986, there was a well organised campaign
against some members of the state Supreme Court, including the Chief Justice, Rose Elizabeth
Bird. The particular reason why they were unpopular with many electors was their perceived
antipathy to use of the death penalty. A total of $11.5 million was spent on campaigning
both for and against the judges, setting what was at that time a record for spending in
a judicial election. They were voted off the state Supreme Court. In this country, of course, we have no election
for judges, not even what the Americans call a “retention” election. There was a time,
around the turn of the 19th and 20th centuries, when Lord Halsbury was Lord Chancellor in
the Salisbury governments, when party affiliation does appear to have played a part in judicial
appointments. However, that has long since passed. In any event, today we have the Judicial
Appointments Commission (in England and Wales). That commission was created by Parliament
in the Constitutional Reform Act 2005, with the express purpose of placing it at arm’s
length from the government of the day. There are similar appointment bodies in Scotland
and Northern Ireland. When it comes to the Supreme Court of the UK, appointees are selected
by a panel which includes representatives of the JAC and its counterparts in the other
parts of the UK. The sole criterion for judicial appointments is merit: that is now a statutory
requirement in the 2005 Act. In the past it was not uncommon for judges
in this country to have had party political careers. Some of our best judges had such
a background:36 for example, Lord Reid, who served with great distinction on our highest
court, the House of Lords, between 1949 and 1975, had been a Conservative MP. Another
Law Lord, Lord Simon of Glaisdale, was appointed straight to become President of the old Probate,
Admiralty and Divorce Division of the High Court in 1962. Before his appointment he was
a Conservative MP and Solicitor General in Harold Macmillan’s government. There was until
well into the 20th century a practice by which, if the post of Lord Chief Justice became vacant,
the Attorney General of the day had the right of first refusal upon it. Sir Rufus Isaacs became Lord Reading CJ in
that way, having been a Liberal MP and a member of the Asquith Government. Indeed our modern
sensibilities about the separation of powers may be quite recent. While Lord Reading was
a serving Chief Justice, he was also appointed to be this country’s ambassador to the United
States. The last such appointment was that of Lord Hewart CJ, who had been a Conservative
MP and Attorney General in the National government of the 1930’s. In the United States, one former President
became Chief Justice of the US Supreme Court (William Howard Taft). One of the most successful
Chief Justices in American history, Earl Warren, had been a Republican Governor of California
and only just lost out to Eisenhower for the Republican nomination for the presidency in
1952. It is often reported that, when President Eisenhower left the White House, he was asked
whether he had made any mistakes during his presidency. He replied “only two: and they
are both sitting on the Supreme Court.” He was thinking of Chief Justice Warren and Justice
Brennan. There can be no doubt that some great American
judges have previously held high political office. For example Justice Robert Jackson
had been Attorney General in the administration of President Franklin Roosevelt and served
with great distinction both on the US Supreme Court and as the Chief Prosecutor at the Nueremberg
War Crimes Tribunal after the Second World War. More recently, one of the current justices
of the Supreme Court, Elena Kegan, was Solicitor General in President Obama’s administration,
having previously been Dean of Harvard law school. In this country also we have experience of
such appointments, indeed quite recently. Lord Mackay of Clashfern was a highly regarded
Lord Chancellor and Law Lord, having previously been Lord Advocate in Margaret Thatcher’s
government. More recently still, Lord Rodger of Earlsferry was a highly regarded Law Lord
and then Justice of the Supreme Court, having previously been Lord Advocate in the John
Major administration. Indeed some commentators would suggest that it can be desirable for
the senior judiciary to include at least some judges who have previous experience of government
and the legislature, in the light of the important constitutional questions which judges sometimes
have to decide. This does not compromise the principle of independence, provided there
is a separation of powers at the time when they are serving judges. Judges must relinquish
any links they may have had with a political party on their appointment to the bench. I would like to end with a few concluding
remarks. Clearly the United States and the United Kingdom have a long and shared commitment
to constitutionalism. However, the structural differences between the two constitutional
systems mean that it is difficult to prune principles from one legal system and simply
transplant them to the very different soil of the other. Sometimes we use the same phrases,
such as “separation of powers” and “due process” but these can be false friends, as their meaning
may be quite different in the two countries. Having said that, the two systems have clearly
influenced each other too and continue to do so, as in the field of freedom of speech.
Looking at the jurisprudence of the US can be helpful in providing useful insights into
the way in which a problem is analysed, even if the answer would not necessarily be the
same. It can also, quite simply, be enjoyable for the “constitutional poetry” one can find
there.

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  1. Nice, you ought to have covered U.S. federalism as well, that's where the bulk of litigation occurs.

  2. Cambridge Law Faculty,

    Thank you very much!

    This Constitucional Law lecture was incredible.

    “The Law is not a pure theory, but a living force.”
    Rudolf Von Ihering

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