Supreme Court of the United Kingdom

Miguel Schor mschor at suffolk.edu
Tue Apr 28 05:19:39 PDT 2009


  I think you will find it helpful to disentangle
  parliamentary government from legislative
  supremacy.  Prior to WWII, those two were generally
  married and the classic example was Westminster. 
  Westminster was unusual in that it has an unwritten
  constitutional tradition.  There is no reason,
  though, why a polity cannot have parliamentary
  government, legislative supremacy, and a written
  constitution.  Legislative supremacy came under
  pressure after WWII starting most notably with
  Germany.  Germany established that a polity could
  combine parliamentary government with a strong
  constitutional court and other nations have followed
  suit.  The last set of polities to join this
  constitutional "revolution" (for good or for ill)
  are the UK and those democracies it directly
  influenced.  Canada was the first of those
  democracies to constitutionalize and entrench rights
  with the Charter in 1982.  The UK followed suit with
  the Human Rights Act in 1998.  Is parliamentary or
  legislative supremacy dead in the UK?  That is the
  thrust of your question, I believe, and the answer
  is, it depends, :).   There is a general scholarly
  consensus that the UK, New Zealand, and Canada
  sought to thread the needle between constitutional
  and legislative supremacy.  The success of these
  experiments is open for debate.  There is excellent
  literature on this topic that you might want to look
  at by, among others, Stephen Gardbaum, Tom Ginsburg,
  Ran Hirschl, and Mark Tushnet.  You might also be
  interested in an article I wrote that critically
  examines the literature in this area entitled
  "Mapping Comparative Judicial Review," which you can
  download from SSRN.  The point is that the tension
  you posit between legislative and constitutional
  supremacy may be ameliorated by a number of
  mechanisms; the two need not be as diametrically
  opposed as you suggest in your post.   You might
  want to think about the following three points.  (1)
  Constitutional, or supreme courts, need not have the
  final word on constitutional meaning.  The USSC has
  long confused constitutional supremacy with its own
  supremacy to  interpret the Constitution but we need
  not conflate the two.  Good democrats should resist
  this arrogation of power.  (2) Courts should be
  subject to greater democratic checks than is the US
  Supreme Court; our constitutional design is unsound
  in this regard.  I am no fan of original intent but
  I think we should stick to it when it comes to
  lifetime tenure.  (3) Constitutions need not be as
  difficult to amend as ours (and probably shouldn't
  be).  Article V is not the least of the
  constitutional defects we have inherited from the
  framers. 

Miguel Schor
Associate Professor of Law
Suffolk University Law School
120 Tremont St.
Boston, MA 02108
617-305-6244
SSRN Webpage http://ssrn.com/author=469730


  ---- Original message ----

    Date: Mon, 27 Apr 2009 17:14:00 -0700 (PDT)
    From: Sean Wilson <whoooo26505 at yahoo.com>
    Subject: Supreme Court of the United Kingdom
    To: LAWCOURT-L at tulane.edu
    Cc: conlawprof at lists.ucla.edu

    The British have created a Supreme Court that's
    going to start business in October of this year.
    Prior to this time, the Law Lords in Parliament
    were the highest judges. One assumes that if the
    Law Lords had ever seriously "misbehaved," that
    Parliament could police that. After all, as far as
    organization goes, the Lords are just
    a committee in the House of Lords and the
    legislative apparatus is supreme in parliamentary
    systems.
     
    Question: when a parliamentary system creates
    a supreme court, does that create a constitutional
    system even if there is no written constitution?
    Because I am confused now. Let's say the British
    Supreme Court starts declaring a parliamentary
    statute not to be obedient with "right reason" or
    "natural law" or "the law of nations" -- or starts
    saying things like "rights statutes are read
    liberally, but not statutes that derogate them,"
    etc. If they are truly their own institution that
    has the last say, what's to stop the creation of a
    higher form of legality in the British system --
    something thought to be higher than the statute?
     
    Let me put it this way: how is a Court supposed to
    judge a statute if it doesn't have a constitution?
    In other words, if the British people consider
    "the constitution" to be the most important
    statutes and prevailing fundamental principles in
    the body politic, the Court over time will simply
    declare those things and  -- wallah -- you have
    your "constitution law."  In other words, you have
    a legal system with two levels of extreme
    legality. You have, in short, a parliamentary
    frame using an American engine.
     
    I know some may say that Parliament could pull the
    plug by revoking jurisdiction, cutting spending,
    abolishing the Court or whatever. But we have
    those things too (except for abolishing).
    Let's assume that the Court behaves strategically
    and incrementally grows its authority over time
    such that the British legal system develops a
    "constitutional common law" for overturning
    statutes.
     
    Is it still a "parliamentary system" in the
    language game?
     
    It seems to me a parliamentary systems are not
    allowed to create Supreme Courts, they can only
    create administrative law judges. If they violate
    that, they become constitutional systems.
     
    Thoughts?            
     

    Dr. Sean Wilson, Esq.

    Assistant Professor

    Wright State University

    New Website: http://seanwilson.org

    Daily Visitors:
    http://seanwilson.org/homepagelucy.html

    SSRN papers: http://ssrn.com/author=596860

    Find Wilson!: http://twitter.com/seanwilsonorg

     

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