ARTICLES
EXPORTING U.S. COUNTER-INTERPRETATION:
REDEEMING CONSTITUTIONAL SUPREMACY IN
THE U.K.
JOSHUA BRAVER*
ABSTRACT
To solve the democratic deficit of U.S. style judicial review, the New Commonwealth Model of Judicial Review (NCM) gives legislatures the “final word” on
law by empowering them to override Supreme Court decisions. This model was
recently implemented in the United Kingdom, Canada, and New Zealand. I
argue that the United Kingdom has failed and the United States has succeeded in
the democratization of the interpretation of rights because the U.K.’s Human
Rights Act has intermediate status while the U.S. Constitution is supreme law.
Constitutional supremacy is the necessary condition for the democratization of
rights, which I call “counter-interpretation.” Counter-interpretation occurs when
the legislature interprets the constitution independently of and sometimes in
conflict with the Supreme Court. I illustrate the link between “counterinterpretation” and constitutional supremacy in the homeland of parliamentary
sovereignty, the United Kingdom. I show how during a brief period of de facto
constitutional supremacy in the United Kingdom, politicians independently and
in opposition to the courts interpreted the meaning of the controversial “right to
family life.” I conclude by arguing that the United Kingdom should abandon
parliamentary sovereignty, that the United States is a viable model for countries
seeking to produce counter-interpretation, and I put forth a new more democratic
model of judicial review.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. WHO’S THE JUDICIAL SUPREMACIST? MISLEADING BINARIES IN
NCM AND THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . . .
A. The New Commonwealth Model and the United Kingdom . . .
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* J.D., Yale Law School, 2011; Ph.D. Candidate, Yale University, Dept. of Political Science.
For helpful comments and conversations, I extend my deep thanks to Bruce Ackerman, Richard
Albert, Steven Calabresi, Blake Emerson, Joshua Geltzer, Jeremy Kessler, Kiel Brennan-Marquez,
David Luban, Cormac Mac Amhlaigh, Gerald Magliocca, Mark Tushnet, Travis Pantin, Robert
Post, Brian Richardson, Reva Siegel, Scott Stephenson, and Alec Stone Sweet. Thanks also to the
participants of the Young Comparativists Conference, the Northeastern Political Science Association Conference, and the Workshop on Comparative Law at the University of Milan. The Funding
for this project was provided by the Yale MacMillan Center. © 2016, Joshua Braver.
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III.
IV.
V.
VI.
VII.
VIII.
IX.
B. Exporting Our Distorted Self-Image: U.S. Judicial
Supremacy Abroad. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SUPREMACY: VALIDITY OR MEANING?. . . . . . . . . . . . . . . . . . . .
A. Validity: Judicial Enforcement of Law . . . . . . . . . . . . . . .
B. Meaning and Interpretation . . . . . . . . . . . . . . . . . . . . . .
HOW CONSTITUTIONAL MEANING SHAPES DISAGREEMENT . . . . .
A. Rights Misgivings . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. General Rights Disagreement . . . . . . . . . . . . . . . . . . . . .
C. Counter-Interpreting: A Common Set of Rights . . . . . . . . .
GENERAL RIGHTS DISAGREEMENT: THE HRA’S ILLEGITIMACY . .
CONSTITUTIONAL SUPREMACY AND COUNTER-INTERPRETATION. . .
A. Supreme or Intermediate?: The U.S. Constitution and the
HRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The HRA’s Intermediate Status Facilitates Judicial
Supremacy over Meaning of its Enumerated Rights . . . . . .
C. U.S. Constitutional Supremacy Facilitates
Counter-Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . .
U.S. AND U.K. CASE STUDIES . . . . . . . . . . . . . . . . . . . . . . . .
A. U.S. Counter-Interpretation: Religious Accommodation . . .
B. United Kingdom–The Right to Family Life . . . . . . . . . . . .
1. Counter-Interpretation Before the Coalition
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Counter-Interpretation During the Coalition
Agreement: New Executive Deportation Rules . .
3. As the Coalition and Supremacy Fades, so too
Does Counter-Interpretation . . . . . . . . . . . . . . . .
A NEW MODEL OF JUDICIAL REVIEW: EMPOWERING THE
LEGISLATURE OVER BOTH VALIDITY AND MEANING . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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INTRODUCTION
The U.S. Constitution is no longer the role model for liberal democracies. Ironically, even though judicial review has spread around the
world, the influence of the U.S. Constitution has waned. Experts
criticize that eighteenth century constitution and its jurisprudence as
outdated and obsolete.1 Foreign judges cite the U.S. Constitution less
frequently than those of Germany or Canada in constitutional cases,
1. Adam Liptak, “We the People” Loses Appeal With People Around the World, N.Y. TIMES (Feb. 6,
2012), http://www.nytimes.com/2012/02/07/us/we-the-people-loses-appeal-with-people-aroundthe-world.html.
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and new democracies are more likely to model their constitutions after
these other countries.2 Even one U.S. Supreme Court Justice agrees
with the emerging consensus: in a widely reported television interview,
Ruth Bader Ginsburg warned the Egyptians, “I would not look to the
United States Constitution if I were drafting a constitution in the year
2012.”3 As alternatives, she recommended the Canadian Charter of
Rights and Freedoms, the South African Constitution, or the European
Convention of Human Rights.4
Does the U.S. Constitution have any lessons left? Might its uniqueness prove to be a virtue rather than a vice? I answer yes. Popularity is
not merit. I focus on issues of legitimacy and constitutional theory,
which cannot be tallied. They demand careful normative analysis. In
the United States, citizens and the political branches have fought with
the courts over the meaning of the Constitution. Perhaps more than in
any other country in the world, U.S. citizens and political actors
interpret the Constitution independently of, and sometimes in opposition to, the Supreme Court. I call this uniquely U.S. phenomenon
counter-interpretation.5 Counter-interpretation democratizes and legitimizes the Constitution by giving all citizens an opportunity to interpret
it. It ensures that when the legislature disagrees with a court decision,
the legislature speaks through the Constitution rather than against it.6
2. See Heinz Klug, Model and Anti-Model: The United States Constitution and the “Rise of World
Constitutionalism”, 2000 WIS. L. REV. 597 (2000); David S. Law & Mila Versteeg, The Declining
Influence of the United States Constitution, 87 N.Y.U. L. REV. 762 (2012); Liptak, supra note 1.
3. The Middle East Media Research Institute TV Monitor Project, U.S. Supreme Court Justice
Ruth Bader Ginsburg to Egyptians: Look to the Constitutions of South Africa or Canada, Not to the U.S.
Constitution, MEMRI TV (Jan. 30, 2012), http://www.memritv.org/clip/en/3295.htm.
4. Id.
5. Thanks to Bruce Ackerman for suggesting the term “counter-interpretation.” Although
heavily influenced by both departmentalism and popular constitutionalism, counter-interpretation is distinct from both of them. Departmentalism is based on the separation of powers, but
counter-interpretation can occur in a parliamentary system. Departmentalism envisions legislative
and executive interpretation as a legal obligation that should occur routinely. See, e.g., AKHIL REED
AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 62-63 (2005); Michael Stokes Paulsen, The Most
Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 228-57 (1994). By contrast,
counter-interpretation focuses on meaning rather than on legal authorization and is episodic
because it is tied to political developments. See infra pp. 16, 26. Furthermore, popular constitutionalism is focused on the people “out-of-doors,” as in the mob or crowd, and struggles to articulate a
role for courts. Counter-interpretation focuses on institutions, such as courts and legislatures. See
Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92
CAL. L. REV. 1027, 1031-34 (2004).
6. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The
Case of the de facto ERA, 94 CAL. L. REV. 1323, 1327 (2006).
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It has the potential to shape conflict between the legislature and courts
into a productive dialogue over constitutional meaning.
I argue that constitutional supremacy is a necessary prerequisite to
counter-interpretation. We often think of constitutional supremacy as
undemocratic. It empowers unelected judges to strike down the legislation of the people’s representatives. This view on constitutional supremacy is particularly strong in Commonwealth countries, those
countries that through colonialism inherited their system of parliamentary sovereignty from the British. For centuries, they have clung to the
tenet that parliament is sovereign, and thus should have the final word
on the validity of law.7 This stance against constitutional supremacy has
had a pervasive influence on radical new experiments with judicial
review in the Commonwealth countries of the United Kingdom, Canada, and New Zealand. This “New Commonwealth Model of Constitutionalism” (NCM) claims to surpass and correct the deficiencies of U.S.
style judicial review by empowering the legislature to override decisions
of a country’s supreme court that a statute violates enumerated and
protected rights. Scholars generally understand NCM as an attempt to
strike a “middle ground” between the models of U.K. parliamentary
sovereignty and U.S. judicial supremacy, and in doing so achieve the
best of both worlds.8 Like judicial supremacy, it implements some form
of judicial review of legislation for violations of individual rights.
However, like legislative supremacy, NCM also empowers the legislature to have the final word over the validity of legislation.9 Furthermore, NCM rights have an intermediate status that is higher than a
statute, but lower than a supreme constitution.10 Each NCM country
implements the model in its own way.
7. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND: IN FOUR BOOKS 49,
160-61 (6th ed. 1899); A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 4
(8th ed. 1920) for canonical works on the British tradition of parliamentary sovereignty.
8. STEPHEN GARDBAUM, THE NEW COMMONWEALTH MODEL OF CONSTITUTIONALISM: THEORY AND
PRACTICE 25 (2013); Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J.
COMP. L. 707, 709, 742 (2001). See VERNON BOGDANOR, THE NEW BRITISH CONSTITUTION 59 (2009);
JANET HIEBERT & JAMES B. KELLY, PARLIAMENTARY BILLS OF RIGHTS: THE EXPERIENCES OF NEW ZEALAND
AND THE UNITED KINGDOM 1-5 (2015); AILEEN KAVANAGH, CONSTITUTIONAL REVIEW UNDER THE UK
HUMAN RIGHTS ACT 310 (2009); MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW
AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 24-28 (2008).
9. GARDBAUM, supra note 8, at 35-36.
10. Id. at 742. The status of Canada’s constitution is ambiguous. On the one hand, Section 52
(1) of the Constitution Act states that the Constitution of Canada is the “supreme law of Canada.”
Constitution Act, 1982, reprinted in R.S.C. 1985, app II, no. 44, Sched. B, Pt. VII, § 52(1) (Can.). Yet,
the section 33 notwithstanding clause is written and often interpreted as empowering Parliament
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This Article focuses on the United Kingdom, as compared to the
United States. In 1998, the U.K. Parliament passed the Human Rights
Act (HRA). This statute empowers judges to declare a statute incompatible with certain specified rights. However, despite the judge’s declaration of incompatibility, the law remains valid and judicially enforceable
unless Parliament decides to repeal it.11 Unlike the supremacy of U.S.
constitutional rights, HRA rights have only an intermediate status
because Parliament can violate HRA rights, and can also repeal the
HRA by majority vote.12
NCM is struggling to fulfill its promise, particularly in the United
Kingdom.13 U.K. judges have monopolized the interpretation of HRA
rights. Rather than counter-interpret, members of Parliament parrot
case law.14 Even worse, the HRA teeters on the brink of collapse.
During the 2010 and 2015 elections, the Conservative Party campaigned to repeal the HRA, and won both elections.15 The right wing
press regularly denounces the HRA as a “villain’s,” “parasite’s” or
“pervert’s charter.”16 Although the Labour Party passed the statute, it
to suspend or derogate from a constitutional right. Id. § 33. Parliament’s suspension power
suggests that it is supreme. Cf. Jeremy Waldron, Some Models of Dialogue Between Judges and
Legislatures, 23 SUP. CT. L. REV. (2d ser.) 7 (2004). For the purposes of this article, it’s sufficient to
note that leading scholars cluster Canada’s constitutional system as a variation of the same model
as the UK and New Zealand. See, e.g., GARDBAUM, supra note 8; TUSHNET, supra note 8, at 24-28. For
more on how my argument and constitutional supremacy relates to Canada specifically, infra note
259.
11. Human Rights Act 1998, c. 42, §§ 4, 4(6) (Eng.).
12. KAVANAGH, supra note 8, at 313-18.
13. The problem is that the parliament does not counter-interpret, i.e. independently
interpret the right. In Canada, the Section 33 legislative override is the main NCM feature, and “it
is undisputed that, as a descriptive matter, Section 33 has largely fallen into non-use.” GARDBAUM,
supra note 8, at 110; see infra note 233. In New Zealand, the Bill of Rights seems to have little
relevance to parliamentary debates as Parliament ignores its Attorney General’s Reports of
legislative compatibility with the New Zealand Bill of Rights. See Andrew Geddis, The Comparative
Irrelevance of the NZBORA to Legislative Practice, 23 N.Z. U. L. R. 465 (2009).
14. Infra note 159 and accompanying text (documenting the Parliament and Joint Committee of Human Rights method of evaluating the HRA compatibility of legislation based on
predictions of Court rulings).
15. See Benedict Brogan & Paul Waugh, Cameron “Will Scrap Human Rights Act” in Campaign for
Human Rights, DAILY MAIL (Dec. 8, 2008), http://www.dailymail.co.uk/news/article-1092716/
Cameron-calls-UK-Bill-Rights-Straw-reveals-plans-overhaul-Human-Rights-Act.html; Alan Travis, Conservatives Promise to Scrap Human Rights Act After Next Election, GUARDIAN (Sept. 30, 2013), http://www.
theguardian.com/law/2013/sep/30/conservitives-scrap-human-rights-act.
16. See generally Lieve Gies, A Villains’ Charter? The Press and the Human Rights Act, 7 CRIME
MEDIA CULTURE 167 (2011); Leo McKinstry, Human Rights Act Has Become the Villain’s Charter,
EXPRESS (Oct. 3, 2011), http://www.express.co.uk/comment/columnists/leo-mckinstry/275220/
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rarely defends it.17
By contrast, in the United States, the ostensible homeland of judicial
supremacy, an understanding of counter-interpretation is necessary to
fully grasp our most profound moments of constitutional and political
change.18 Why has counter-interpretation succeeded in the United
States, but failed in Commonwealth countries? Why do U.S. politicians
worship at the altar of the Constitution, while the U.K. Conservative
Party trashes the HRA? This Article argues that constitutional supremacy helps explain the difference.
In a battle over the meaning of a constitutional right, the odds are
stacked against the legislature. Rather than fight the court on its own
terrain, politicians seek to flee to other rhetorical planes where they
have the advantage, such as policy expertise or democratic accountability. Constitutional supremacy removes these options from the politician’s discursive arsenal. When the Constitution is supreme, every law
that conflicts with it is void.19 Policy problems and poll numbers are
irrelevant. The legislature may either counter-interpret or it may
remain silent; it either puts up or it shuts up.
In the United States, constitutional supremacy has pushed Congress
to fight judicial supremacy with counter-interpretation. We often conflate constitutional and judicial supremacy, mistakenly assuming that
because the Constitution is supreme, the judiciary must be its supreme
interpreter. Constitutional supremacy does not imply judicial supremacy. The former refers to the status of a constitution and the latter
concerns the identity of its official interpreter. A constitution is supreme when its provisions trump those of a statute, and when it is
entrenched against majoritarian repeal. A Supreme Constitution may
designate an official interpreter, or it may be silent on the issue; the
U.S. Constitution is silent. When Congress counter-interprets, it claims
Human-right-s-act-has-become-the-villain-s-charter; Graeme Wilson, Pervert’s Charter, THE SUN (Feb.
16, 2011), http://www.thesun.co.uk/sol/homepage/news/3416421/David-Cameron-is-underpressure-after-judges-rule-that-paedophiles-and-rapists-can-apply-to-have-their-names-removedfrom-the-Sex-Offenders-Register.html; Mail on Sunday Comment for the Daily Mail, Human Rights
is a Charter for Criminals and Parasites Our Anger is No Longer Enough, DAILY MAIL (July 15, 2012),
http://www.dailymail.co.uk/debate/article-2173666/Human-rights-charter-criminals-parasitesanger-longer-enough.html; Charlie Catchpole, Pervert Charter: Human Rights for Convicts But Hell for
People Like Jimmy Tarbuck and Rolf Harris, MIRROR (May 11, 2013), http://www.mirror.co.uk/news/
uk-news/pervert-charter-human-rights-convicts-1882623.
17. See infra pp. 21-23.
18. See infra pp. 9-13.
19. US. CONST. art. VI; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77 (1803).
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or implies that it is a co-equal interpreter of the Constitution.20
Constitutional supremacy has repeatedly forced U.S. politicians to
frame their objection to judicial decisions in the language of constitutional rights. In the United Kingdom, like all NCM countries, the
document codifying constitutional rights has only an intermediate
status. It is neither highest law nor is it an ordinary statute. Only
Parliament is supreme.21 That positivist supremacy entitles parliament
to argue its position in anyway it sees fit. As a result, Parliament has
chosen to denounce HRA rights in favor of traditional British civil
liberties22—with one notable exception.
This exception is a compelling case study for the link between
constitutional supremacy and counter-interpretation. In the 2010 elections, the Tories campaigned to repeal the HRA. However, the election
produced a hung parliament: no single party could form a majority.
The Tories garnered the most votes and formed a coalition with the
third place winners, the Liberal Democrats. The HRA is central to the
political identity of the Liberal Democrats. Its preservation is one of
the party’s key issues.23 Under the terms of the coalition agreement,
the Tories pledged “to seek to promote a better understanding of the
true scope of the obligations and liberties” of the HRA.24 Consequently, the Tories could no longer trample upon the HRA. Legally,
the Human Rights Act was a glorified statute; politically, it was supreme
law. Electoral politics had produced de facto constitutional supremacy.
The Tories faced a predicament: how could they denounce judicial
decisions without breaking the coalition agreement? This problem
came to a head after right wing newspapers alleged that several illegal
immigrants, jailed for horrific crimes, successfully sued to halt and
cancel their deportations because it would violate their HRA right to
family life. Usually, the applicants had either been married to or were
the parent of a U.K. citizen.25 The Tories solved their predicament
through counter-interpretation. They laid down new executive rules to
ensure deportation, but claimed these rules more accurately inter-
20. NEAL DEVINS & LOUIS FISHER, THE DEMOCRATIC CONSTITUTION (2004).
21. Gardbaum, supra note 8, at 742. Note that the constitutional status of the Canadian
Charter of Rights and Freedoms is ambiguous. See supra note 8.
22. See generally Danny Nicol, The Human Rights Act and the Politicians, 24 LEGAL STUD. 451
(2004).
23. See infra notes 247-48 and accompanying text.
24. HM GOVERNMENT, THE COALITION: OUR PROGRAMME FOR GOVERNMENT (2010), http://
webarchive.nationalarchives.gov.uk/20100919110641/http://programmeforgovernment.hmg.
gov.uk/files/2010/05/coalition-programme.pdf.
25. See infra notes 232-42 and accompanying text.
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preted the HRA than the judicial decisions.26 The Tories argued that
because the rules were the product of parliamentary deliberation about
the meaning of the right to family life, courts should give them
deference. However, by late February 2013, the coalition began to
crumble, along with the effort by conservatives not to antagonize the
Liberal Democrats over the HRA.27 Counter-interpretation took a fatal
hit as Tories looked ahead to the 2015 elections and again campaigned
to repeal the HRA.28 De facto constitutional supremacy crumbled. Very
quickly, the same conservatives who had counter-interpreted were now
again condemning and calling for a repeal of the HRA.29
The evidence of the link between counter-interpretation and constitutional supremacy is striking: in the United Kingdom, there was a
positive correlation between constitutional supremacy and counterinterpretation. And the United Kingdom is the difficult case among
NCM countries. In few other places in the world have constitutional
rights become the target of so much contempt by a mainstream
political party.30 I argue that constitutional supremacy is a necessary
condition for counter-interpretation. Under constitutional supremacy,
the legislature must frame their disagreements with the court as
concerning the meaning of a right rather than whether the right is
worth protecting.
****
This article proceeds as follows. Part II documents how NCM has
defined itself against a distorted image of U.S. judicial supremacy. This
misleading description of U.S. judicial review, once widely held in the
United States, has come under withering attack by the academic
community. Since NCM’s self-definition is based on a misunderstanding of the U.S. system, we must use different terms to understand and
revaluate NCM.
To begin this reevaluation, Part III distinguishes between power over
the validity of a law and the meaning of a constitutional right. Under
NCM, the legislature is supreme on issues of validity because it may
override a court’s decision to set aside a law. However, NCM cannot
answer whether Parliament is also the ultimate interpreter of the
meaning of the contested right and therefore cannot account for its
own failure.
26.
27.
28.
29.
30.
874
See infra note 264.
See infra notes 290 –96 and accompanying text.
Id.
See infra pp. 32-41.
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Part IV lays out how different distributions of authority over constitutional meaning shape conflict between the court and legislature. I
argue this conflict is only productive when the disagreement concerns
the meaning of the constitutional right rather than whether the right
itself is valid. In this type of disagreement, legislatures counterinterpret or object to the judiciary’s understanding of an enumerated
right.
Part V analyzes the shape of disagreement between the U.K.’s courts
and Parliament. I argue that the United Kingdom suffers from “general
rights disagreement”: all parties agree that rights are important, but
disagree over which ones are valid. This conflict constantly calls the
HRA’s legitimacy into question and cedes the meaning of the HRA to
courts.
Part VI and VII focus on constitutional supremacy. Part VI argues
that the distribution of costs and benefits lead legislatures to seek
alternative languages to counter-interpretation. Constitutional supremacy cuts off these alternatives, and hence is a necessary condition
for counter-interpretation.
To demonstrate the relationship between supremacy and counterinterpretation, Part VII analyzes recent conflicts between the courts
and legislatures in the United States and the United Kingdom. In the
United States, constitutional supremacy facilitated counter-interpretation in the fight between the U.S. Congress and the Supreme Court
over the Religious Freedom Restoration Act. In the United Kingdom, I
analyze recent conflicts between the court and Parliament over an
immigrant’s right to family life, and how de facto constitutional supremacy forced the Conservative Party to abandon their previous
denunciation of the HRA and engage in counter-interpretation. When
this de facto supremacy crumbled, the Conservatives quickly abandoned
counter-interpretation. The U.K. case study is a powerful demonstration of the connection between counter-interpretation and constitutional supremacy.
Part VIII ends by drawing on using the lessons from the case studies
to outline a new model for judicial review that combines the strengths
and addresses the weaknesses of both the NCM and U.S. form. This
model empowers the legislature over both the validity of law and the
meaning of constitutional rights.
Finally, the conclusion discusses three additional implications from
this study. First, the United States should be the model for countries
and comparative scholars interested in counter-interpretation and in
creating a healthier balance between law and politics, between the
power of courts and legislatures. Second, to rescue the HRA from
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repeal and instill it with legitimacy, the United Kingdom should
facilitate counter-interpretation by embracing constitutional supremacy of enumerated rights. Third, comparative scholars of constitutional design should focus on the connection between institutions and
constitutional discourse rather than treating them as unrelated
phenomena.
II.
WHO’S THE JUDICIAL SUPREMACIST? MISLEADING BINARIES IN NCM AND
THE UNITED STATES
NCM has defined itself in opposition to the United States: whereas
the United States suffers from judicial supremacy, NCM preserves
democracy.31 Yet, judicial supremacy is a misleading description of the
U.S. system, which would have been contested throughout much of our
history. It entered into the political imagination in the mid-twentieth
century as the result of a peculiar alignment of political interests. As
those interests have shifted, this description has come under withering
attack, especially in the academic community. Since NCM is based on a
misleading description, a more accurate picture of the United States
will illuminate neglected features of NCM. It will help show NCM’s
mistake of focusing exclusively on the validity of the parliament rather
than the meaning of a constitutional right.
A.
The New Commonwealth Model and the United Kingdom
Canada, New Zealand, and the United Kingdom are innovators of a
New Commonwealth Model (NCM) of judicial review.32 These coun-
31. See, e.g., Gardbaum, supra note 8, at 710, 719 (“[C]anada, New Zealand, and the United
Kingdom have . . . sought to create greater legal protection for fundamental
rights . . . [b]ut . . . these three have attempted to do so while deliberately refusing to embrace the
American model and, in particular, the final word it grants to the judiciary on what is the law of the
land.”); Janet L. Hiebert, New Constitutional Ideas: Can New Parliamentary Models Resist Judicial
Dominance When Interpreting Rights?, 82 TEX. L. REV. 1963, 1964 (2004) (“Inherent doubts about the
compatibility or desirability of the American model encouraged experimenting, borrowing, and
modifying new statutory and constitutional instruments . . . .”).
32. Stephen Gardbaum coined the term New Commonwealth Model of Judical Review.
Others have discussed judicial review in the UK, Canada, and New Zealand as a group and have
their own terms. See infra notes 141-145 and accompany text. I focus on Gardbaum for two reasons.
First and most importantly, Gardbaum’s work clearly follows the United Kingdom’s selfunderstanding that the goal of the new system of judicial review was to protect parliamentary
sovereignty or the final word on the validity of law, and I link this to the lack of counterinterpretation in the United Kingdom. See generally ALISON L. YOUNG, PARLIAMENTARY SOVEREIGNTY
AND THE HUMAN RIGHTS ACT (2009); BOGDANOR, supra note 8, at 57; KAVANAGH, supra note 8, at
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tries have formally empowered their parliaments to override Supreme
Court decisions, ensuring that Parliament has, as the most prominent
writer on the subject, Stephen Gardbaum, puts it, the “final word on
what the law of the land is.”33
Gardbaum argues that NCM is a “middle” ground that stands between the two traditional and polar models of judicial and legislative
supremacy.34 Before NCM, countries had to trade off between effective
rights enforcement and democratic accountability. Constitutional supremacy protects rights, but at the cost of hijacking deeply contested
and principled issues from the democratic process. Legislative supremacy, on the other hand, respects the people’s decision but at the
cost of individual rights.35 NCM provides the best of both worlds with
little cost. It “accommodate[s] and combine[s] the strengths of both
polar positions, whilst severing their weaknesses as inessential and
dispensable.”36 No longer are rights and democracy pitted against each
other. Judicial review ensures that rights are protected. However,
democracy is unimpaired because the legislature may override judicial
decisions.37 The legislature has the “final word on what the law of the
land is.”
Each NCM country preserved Parliament’s final word in a different
way.38 In the United Kingdom, Parliament implemented NCM through
passing a statute in 1998 called the Human Rights Act (HRA). The
310-338. Second, Gardbaum’s work has become the touchstone as his article first introduced the
subject in 2001 and his book is the most comprehensive work on the subject. See Ran Hirschl, How
Consequential is the Commonwealth Constitutional Model?, 11 INT’L J. CONST. L. 1086 (2013).
33. GARDBAUM, supra note 8, at 16. Although I cite Gardbaum for the idea of a final word, the
idea and phrase has deep roots. It has long been connected to the traditional idea of parliamentary sovereignty and was widely held by both initial studies of the HRA, by members of parliament
and by its designers. See infra note 64.
34. Gardbaum, supra note 8, at 709, 742, 744; see also GARDBAUM, supra note 8, at 33 (arguing
that NCM is a “new third option” that is “specifically an intermediate one in between the two
standard and traditional choices”).
35. GARDBAUM, supra note 8, at 62.
36. Id.
37. GARDBAUM, supra note 8, at 44-45.
38. Unlike in the United Kingdom, the Canadian Supreme Court may strike down a statue as
unconstitutional. However, under section 33 of the Charter of Rights and Freedoms, Parliament
may either prospectively or retrospectively suspend the provision for five years. Constitution Act,
1982, reprinted in R.S.C. 1985, app II, no. 44, Sched. B, Pt. VII, § 33 (Can.). Unique to NCM
countries, Canada’s constitution states that the Charter is supreme, but section 33 conflicts with
this idea. See supra note 10; infra note 304. In New Zealand, Courts may interpret provisions so that
they are in conformity with enumerated rights, but they may neither strike them down nor declare
them incompatible. New Zealand Bill of Rights Act 1990, s 6 (N.Z.).
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HRA incorporates the European Convention of Human Rights (ECHR)
into domestic law. The ECHR is a treaty, adopted by all forty-seven
members of the Council of Europe, including the United Kingdom.
Under the treaty, if all domestic remedies have been exhausted, U.K.
citizens may sue for violations of treaty rights in the European Court of
Human Rights located in Strasbourg.39 In the early 1990s, many in the
United Kingdom advocated for a new constitution with a bill of rights,
involving a lengthy and politically costly ratification process.40 Partly to
avoid these costs, the United Kingdom chose to simply borrow and
incorporate into domestic law nearly all the rights listed in the ECHR.41
The rights are binding on all public authorities, except for Parliament.
“So far as it is possible to do so,” judges must interpret statutes and
regulations as compatible with the HRA.42
Sometimes, judges cannot reconcile the statute and the HRA. When
this occurs, the central mechanism of the HRA activates. The judge
may declare that the statute is incompatible with the HRA.43 If the
challenge is to a regulation or executive action, that action is void.44
Statutes, as the product of the entire Parliament, hold the highest
status. Whereas executive regulations are “secondary law,” statues are
“primary law.” Statutes are sovereign and supreme.45 Judges may
declare a statute incompatible with the HRA.46 However, unlike a U.K.
declaration that a regulation is incompatible with the HRA, or a U.S.
court’s ruling of unconstitutionality, the judge’s declaration has no
39. Convention for the Protection of Human Rights and Fundamental Freedoms, art. 35,
Nov. 4, 1950, 213 U.N.T.S. 222.
40. See, e.g., RONALD DWORKIN, A BILL OF RIGHTS FOR BRITAIN (1990); ANTHONY LESTER ET AL., A
BRITISH BILL OF RIGHTS (1990). Charter 88 was one of the most prominent and early social
movements pushing for a British Bill of Rights. See MARK EVANS, CHARTER 88: A SUCCESSFUL
CHALLENGE TO THE BRITISH POLITICAL TRADITION? (1995). See ROBERT BLACKBURN, TOWARDS A
CONSTITUTIONAL BILL OF RIGHTS FOR THE UNITED KINGDOM: COMMENTARY AND DOCUMENTS 531-637
(1998) for excerpts of the most important proposals for a British Bill of Rights in the 1990s.
41. Excluded are Article 1 and Article 13. See SELECT COMMITTEE, BILL OF RIGHTS, 1978, HL
176 for discussion regarding avoiding the costs of a lengthy ratification debate.
42. Human Rights Act 1998, c. 42, § 3(1) (Eng.).
43. § 4.
44. § 6(1).
45. See COLIN TURPIN & ADAM TOMKINS, BRITISH GOVERNMENT AND THE CONSTITUTION 59
(2011).
46. § 4. From the date of the HRA came into force on October 2, 2000 until March 11, 2015,
UK Courts have made 29 declarations of incompatibility. See HUMAN RIGHTS JOINT COMMITTEE, 4
DECLARATIONS OF INCOMPATIBILITY BY UK COURTS (Mar. 11, 2015), http://www.publications.
parliament.uk/pa/jt201415/jtselect/jtrights/130/13006.htm.
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effect on the validity or judicial application of the statute.47 Judges must
continue to enforce the incompatible law. It is Parliament’s prerogative
to decide the effect of the incompatibility. It may amend or repeal the
statute, but it may also choose to ignore the judicial decision.
We might think of the traditional judicial power as consisting of two
components. The first is the power to review a statute for compatibility
with constitutional rights. The second is the power to act upon an
incompatibility by refusing to apply the statute. The Human Rights Act
decouples the two powers and gives judges only the first declaratory
power. By withholding from judges the power to refuse to apply
legislation, Parliament retains the final word.48 The United Kingdom’s
HRA is one example of how the NCM attempts to solve the problem of
judicial supremacy by empowering legislatures to disagree with a
country’s supreme court decisions that a law should be struck down
because it violates enumerated and protected rights.
B. Exporting Our Distorted Self-Image: U.S. Judicial Supremacy Abroad
By preserving Parliament’s final word, Commonwealth countries
believed they were learning from the mistakes of the United States. U.S.
judicial supremacy grants judges the final word over the validity of law.
This illegitimately blocks the democratic will. Citing Lochner v. New
York, Commonwealth progressives worried that judges impede radical
change because they are conservative and allied with the upper classes.49
Furthermore, judicial supremacy hijacks issues from the political process, preventing their resolution and exacerbating conflict.50 Instead,
the Supreme Court’s decision incited a vicious backlash and fueled the
rise of a new radical conservative movement.
The charge of judicial supremacy is deeply ironic and historically
contingent. The United States has a long tradition of counterinterpretation dating all the way to the birth of the Constitution.51 Few
denied the right of the court to decide individual cases on constitutional grounds, but many disputed their supremacy over interpretation
of the highest law. Thomas Jefferson, James Madison, Andrew Jackson,
47. § 4(6).
48. See infra note 92.
49. See Janet Hiebert, Compromise and the Notwithstanding Clause: Why the Dominant Narrative
Distorts Our Understanding, in CONTESTED CONSTITUTIONALISM: REFLECTIONS ON THE CANADIAN
CHARTER OF RIGHTS AND FREEDOMS 107 (James B. Kelly & Christopher P. Manfredi eds., 2009).
50. Interviews with members of the UK Joint Committee of Human Rights (July 5-10, 2012).
51. See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801
(1999).
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Abraham Lincoln, and Franklin Roosevelt all asserted the president’s
right to interpret the Constitution independently of and in conflict
with the courts.52 Prominent activists, such as Frederick Douglass and
Susan B. Anthony, denounced Supreme Court cases as invalid because
it violated the people’s understanding of its own highest law.53 Almost
all of the major political controversies facing the first Congress were
constitutional ones, such as the tariff, the national bank, free speech,
and the president’s foreign policy and removal powers.54 More recently, Congress has clashed with the court over the meaning of
freedom of religion and speech.55
For most of U.S. history, one political party would defend counterinterpretation and the other would challenge it with the rival idea of
judicial supremacy. Supremacists claimed the Court’s neutrality and
finality protected minorities, ensured the rule of law, and settled
conflict.56 Larry Kramer has argued that in American history, positions
on interpretive authority are part of an ongoing social conflict between
the aristocrats who support judicial supremacy and the people who
counter-interpret the Constitution for themselves.57
A closer reading of history reveals that the parties’ positions shift
depending on the composition of the Supreme Court. When a series of
rulings have clarified that the Court is allied with a movement’s
interests, that movement will likely embrace supremacy, and the opposing movement will denounce it.58 This played out in U.S. history until
the odd alignment of the 1960s, where both political parties temporar-
52. KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY,
SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY (2007).
53. See 2 HISTORY OF WOMAN SUFFRAGE 630-47 (Elizabeth Cady Stanton, Susan B. Anthony &
Matilda Joslyn Gage eds., photo reprint 1969) (1882); FREDERICK DOUGLASS & PHILIP SHELDON
FONER, FREDERICK DOUGLASS, COMMENT ON GERRIT SMITH’S ADDRESS (1849), reprinted in THE LIFE AND
WRITINGS OF FREDERICK DOUGLASS 374-79 (Philip S. Foner ed., 1950).
54. See CURRIE, supra note 51. DAVID P CURRIE, THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801-1829 (2001).
55. See City of Boerne v. Flores, 521 U.S. 507 (1997); see also United States v. Eichman, 496
U.S. 310 (1990).
56. See LARRY KRAMER, THE PEOPLE THEMSELVES 128-44, 170-206 (2005). For a modern day
defense of judicial supremacy, see Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997). Although I differ with Kramer on this point,
this article largely agrees and follows his account of the waxing and waning of what I call
counter-interpretation in U.S. history. Larry Kramer, Popular Constitutionalism, circa 2004, 92 CAL.
L. REV. 959 (2004).
57. KRAMER, supra note 56, at 247.
58. WHITTINGTON, supra note 52; Mark A. Graber, Popular Constitutionalism, Judicial Supremacy,
and the Complete Lincoln-Douglas Debates, 81 CHI.-KENT L. REV. 923, 925-26 (2006).
THE
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ily subscribed to judicial supremacy. It was this exceptional period of
judicial supremacy that influenced NCM countries’ perception of the
U.S. constitutional system.
A populist Democrat, Andrew Jackson refused to let the Marshall
Court have the last word on the constitutionality of a national bank. He
opposed the bank as a boon to elite interests at the expense of the
average working person. Even though the Supreme Court had unanimously ruled that the establishment of bank was a proper exercise of
Congressional power, Jackson vetoed the bill to renew the bank on
constitutional grounds.59
Yet two decades later, Jackson’s political party would embrace judicial supremacy to defend challenges to slavery. Jackson’s populist veto
of the bank was written in collaboration with his Attorney General,
Roger B. Taney, whom Jackson would later appoint to the Supreme
Court.60 Chief Justice Taney would later write the infamous Dred Scott
decision, stripping slaves of citizenship and Congress of the power to
prohibit slavery in the territories.61 It was Jackson’s party, the Democrats, who defended that decision as the last word on the slavery
controversy because the Court was the final interpreter on the meaning
of the Constitution.62 After gaining control of the Court, the counterinterpreters became judicial supremacists. And former Whigs, such as
Abraham Lincoln, who had long supported judicial supremacy for the
purposes of a strong centralized government, now asserted a right to
counter-interpret to limit the impact of Dred Scott.63 Post-reconstruction, conservatives supported judicial supremacy because the Court
opposed progressive change and protected property rights. Progressives and New Dealers, by contrast stood with legislatures and advocated judicial restraint.64 This alignment held until the 1960s.
With the rise of the Warren Court in the 1950s and 1960s, judicial
supremacy prevailed over counter-interpretation. A series of liberal
appointments upset the traditional alignment of conservatives with
judicial supremacy and progressives with popular constitutionalism.
59. See ROBERT V. REMINI, ANDREW JACKSON AND THE BANK WAR: A STUDY IN THE GROWTH OF
81-87 (1st ed. 1967); Veto Message from President Andrew Jackson to the U.S.
Senate (July 10, 1832) in 2 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS
1789-1897, at 576, 581-82 (James D. Richardson ed., 1897).
60. REMINI, supra note 59, at 81. Additional collaborators included post-master general Amos
Kendall, Secretary of the Navy Levi Woodbury, and private secretary Andrew J. Donelson.
61. See Dred Scott v. Sandford, 60 U.S. 393, 395 (1857).
62. Graber, supra note 58, at 925-26 (2006).
63. Id.
64. Id. at 939.
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The Warren court allied itself with movements for racial, political, and
economic equality. A new generation of liberal intellectuals, such as
Ronald Dworkin and Owen Fiss, became advocates of the Court’s
power.65 While their progressive predecessors had pleaded judicial
restraint, the new generation encouraged the Court to act boldly to
achieve justice.66 They provided the theoretical foundations for the
Court’s new claim that it was the “the ultimate interpreter of the
Constitution.”67 The Court cited Marbury for this novel proposition, but
that idea is nowhere in the case and before 1958 this statement had
never existed in case law.68
In response to democratic Supreme Court appointments, progressives had spun an ideological 360 degrees on judicial supremacy, but
the conservative reaction was more modest. They did not stake a claim
to counter-interpretation, but advocated judicial restraint. They continued to accept that the Court was the last word on constitutional
meaning, but they accused it of abusing its power. They called and
denounced this abuse as “judicial activism.”69 Like progressive Felix
Frankfurter a generation before, they implored the judiciary to restrain
itself. In fact, Justice Frankfurter was caught in the middle of this
generational change. Although he was an important progressive intellectual, a founder of the American Civil Liberties Union, and key
adviser to Franklin D. Roosevelt, who nominated him to the Supreme
Court, Frankfurter’s philosophy of judicial restraint meant that over
time he sided more and more with conservative justices.70
For the first time and for many years henceforth, judicial supremacy
was the reigning model for lawyers, the judiciary, academia, and
popular culture. It was not significantly challenged by public officials
until 1986 when President Reagan’s Attorney General, Edwin Meese,
gave a speech asserting each branch’s right to interpret the constitution.71 Progressives quickly denounced the speech72 as “an invitation to
65. KRAMER, supra note 56, at 229-32.
66. Id.
67. The idea first appears in Cooper v. Aaron, 358 U.S. 1, 18 (1958) (asserting that Marbury
“declared the basic principle that the federal judiciary is supreme in the exposition of the law of
the Constitution”). The specific quote, “ultimate interpreter of the Constitution” first appears in
Baker v. Carr, 369 U.S. 186, 211 (1962). It is again used in Powell v. McCormack, 395 U.S. 486, 521
(1962), and United States v. Nixon, 418 U.S. 683, 704 (1974).
68. KRAMER, supra note 56, at 221.
69. See Robin West, Progressive and Conservative Constitutionalism, 88 MICH. L. REV. 641, 648,
675-76 (1990).
70. H. N HIRSCH, THE ENIGMA OF FELIX FRANKFURTER 71-72, 99, 183 (1981).
71. See Edwin III Meese, Law of the Constitution, 61 TUL. L. REV. 979 (1986).
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lawlessness”73 and Laurence H. Tribe condemned it as “a grave threat
to the rule of law.”74 A response by Paul Brest, a prominent constitutional theorist at Stanford Law, in the New York Times was headlined
Meese, the Lawman, Calls for Anarchy.75 The Washington Post editorial
board called on Meese to reject any implication that the decisions of
the Supreme Court have “no general applicability and that citizens may
choose to ignore rulings as will.”76 In reaction to the public and
academic outcry, Meese quickly backed down and wrote an editorial in
the Washington Post watering down his statements.77 The backlash to
Meese speech and his semi-retraction is a testament to the consolidation of judicial supremacy in the second half of the twentieth century.
NCM was forged during this aberrant period of U.S. consensus over
judicial supremacy. The model accepted the new U.S. self-definition
and defined itself in response. In 1982, five years before Meese’s
speech, Pierre Trudeau, the Prime Minister of Canada, proposed the
creation of individual constitutional rights for his country entitled,
“The Charter of Rights and Freedoms.” The proposal was controversial,
and the provinces and the federal government fought bitterly.78 However, both accepted the premise that the proposed charter would
imitate the American practice of judicial supremacy.79
Educated at Harvard, Trudeau cited the U.S. Constitution as evidence that judicial supremacy was necessary to protect individual
rights.80 His opponents, such as the Prime Minister of Saskatchewan,
argued that as the U.S. Supreme Court showed in Lochner, judicial
review would impede progressive legislation.81 The two sides compromised in the final Charter. The Charter’s rights are judicially enforce-
72. See Stuart Taylor Jr., Liberties Union Denounces Meese, N.Y. TIMES (Oct. 24, 1986), http://www.
nytimes.com/1986/10/24/us/liberties-union-denounces-meese.html (“Some constitutional experts, especially Liberals, said Mr. Meese was undermining the rule of law.”).
73. Id.
74. Id.
75. Paul Brest, Meese the Lawman Calls for Anarchy, N.Y. TIMES (Nov. 2, 1986), http://www.
nytimes.com/1986/11/02/opinion/meese-the-lawman-calls-for-anarchy.html.
76. Editorial, Why Give That Speech?, WASH. POST, Oct. 29, 1986, at A18.
77. Edwin Meese III, The Tulane Speech: What I Meant, WASH. POST, Nov. 13, 1986, at A21.
78. See ROY ROMANOW ET AL., CANADA . . . NOTWITHSTANDING: THE MAKING OF THE CONSTITUTION 1976-1982 216-63 (2007).
79. Hiebert, supra note 49, at 110-13; see PETER H RUSSELL, CONSTITUTIONAL ODYSSEY: CAN
CANADIANS BECOME A SOVEREIGN PEOPLE 121-23 (2004).
80. See PIERRE ELLIOT TRUDEAU, THE CONSTITUTION AND THE PEOPLE OF CANADA 80, 82, 84
(1969).
81. Hiebert, supra note 49, at 110-13.
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able, but Parliament has the right to legislate notwithstanding the
charter. The notwithstanding clause was a compromise between two
starkly opposed sides, and neither were fully satisfied with the end
result.82 Yet, it became the basis for a new distinctive vision that allowed
for judicial review without the problems of U.S. judicial supremacy.
New Zealand in 1990, and the United Kingdom in 1998, followed suit
by granting limited forms of judicial review, but reserved for parliament substantial power over the final validity of law.83
While Commonwealth countries were defining themselves against
the judicial supremacy of the U.S. Constitution, the United States was
starting to redefine the their understanding of interpretive authority.
This redefinition was mostly limited to the single sphere of academia,
but occasionally spilled into politics. While popular and professional
culture still enshrined the courts, conservative and liberal law professors began experimenting with constitutional interpretation outside
the courts.84
Law professors reacted to the changing ideological composition of
the courts. Under Reagan, conservatives flirted with the idea of counterinterpretation to empower the president to fight back against liberal
courts. It was a direct reaction to the Court’s abortion decisions. Meese
gave his speech right at this time. However, countervailing forces
undercut the conservative move away from counter-interpretation.
Reagan pursued an aggressive policy of training, recruiting, and appointing a new generation of conservative judges that were far more conservative than their older counterparts.85 From Nixon’s victory in 1968
onward, Republicans have won the majority of presidential elections86
and following their campaign pledges, have appointed conservative
judges on appellate courts and on the Supreme Court. Ruling after
ruling narrowed or overturned Warren Court precedents. Despite
conservatives’ previous calls for judicial restraint, a new generation of
judges began to strike down progressive legislation on guns, domestic
82. Id.
83. Gardbaum, supra note 8, at 719.
84. See, e.g., JOHN AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL DEMOCRACY (1984);
SANFORD LEVINSON, CONSTITUTIONAL FAITH (1988); see also Paul Brest, Congress as Constitutional
Decisionmaker and Its Power to Counter Judicial Doctrine, 21 GA. L. REV. 57 (1986); Robert Cover, The
Supreme Court, 1982 Term, 97 HARV. L. REV. 4 (1983); Louis Fisher, Constitutional Interpretation by
Members of Congress, 63 N.C. L. REV. 707 (1984); Paulsen, supra note 5.
85. Steven M. Teles, Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political
Investment, 23 STUD. IN AM. POL. DEV. 61, 72-78 (2009).
86. From 1968 to the 2012 presidential elections, Republicans have won seven presidential
elections, and the Democrats have won five.
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violence, and affirmative action.87 Conservative interests now aligned
with the Court, and its rulings shook liberals’ faith in judicial supremacy. The time was ripening for a new alignment of the parties on
the issue of judicial authority.88
Then the conservative revolution in jurisprudence stalled: the Senate
refused to confirm Reagan nominee and staunch conservative Robert
Bork to the Supreme Court, and his replacement was a moderate who
salvaged liberal precedent.89 Judicial doctrine was frozen at a transitional moment in between liberal and progressive political change. In
academia, at least, both sides flirted with some form of independent
interpretation. The new generation of liberal academics, staring into
the abyss of the Rehnquist/Roberts counterrevolution, had embraced
counter-interpretation,90 but the embrace did not spread beyond the
university. Because the strategy of conservative appointments had not
yet succeeded in overturning key liberal precedents, conservatives
continued to be sympathetic to counter-interpretation and skeptical of
the Court. As early as 1994, one academic credibly asked, “Are we are
all departmentalists now? Will nobody defend judicial supremacy anymore?”91 Under a variety of names, counter-interpretation has now
been explored in hundreds of law review articles and books from a wide
variety of viewpoints.
However, this literature has had a limited impact in the new Commonwealth countries. NCM aims to empower the parliament to interpret
the constitution, but the model has not taken into account U.S. claims
that counter-interpretation has existed for over a hundred years in the
homeland of ostensible judicial supremacy. This reflects the limited
domain of popular constitutionalism in the United States. It has not
traveled outside academia and back into popular discourse. Furthermore, it can take many years for academic literature to cross national
boundaries, especially outside academic circles. Since these countries
take their cue from popular press and policy makers, the impression of
the United States is still one of judicial supremacy. Even more impor-
87. See District of Columbia v. Heller, 554 U.S. 570 (2008); see also United States v. Morrison,
529 U.S. 598 (2000); see also Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
88. See Graber, supra note 58, at 946-50.
89. Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164 (1988); Robert
Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, 115 Yale L.J.
Pocket Part 38, 41, 49 (2006).
90. See BRUCE A. ACKERMAN, WE THE PEOPLE (1993); Kramer, supra note 56; LEVINSON, supra
note 84; Post & Siegel, supra note 5; WHITTINGTON, supra note 52.
91. Michael Stokes Paulsen, Protestantism and Comparative Competence: A Reply to Professors
Levinson and Eisgruber, 83 GEO. L.J. 385 (1994).
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tantly, these countries self-conceptions are now tied up in distinguishing themselves from U.S. judicial supremacy. If they truly understood
U.S. judicial review, how must they reimagine themselves?
The aim of this Article is to put the New Commonwealth literature
into conversation with the U.S. literature on popular constitutionalism
and departmentalism. Each has much to learn from the other.
III.
SUPREMACY: VALIDITY OR MEANING?
NCM countries have formally empowered their parliaments to override decisions by their highest courts, ensuring that Parliament has the
“final word on what the law of the land is.”92 This final word on law is
peculiarly under-theorized. What does the “final word on the law”
signify? More specifically, what is its relationship to authority over the
meaning and interpretation of a constitutional right?
The final word concerns the narrow issue of validity or judicial
enforcement of a law. Against the legislature’s wishes, can judges
decline to enforce a statute? NCM’s focus on enforcement reflects its
long-held positivist tradition of parliamentary sovereignty. The problem is that positivism’s focus on supremacy over enforcement obscures,
and cannot address, the equally important issue of supremacy over
constitutional meaning. Is Parliament supreme over both validity and
meaning? When Parliament disagrees with a court decision, what kind
of dialogue can NCM facilitate? While validity concerns the formal
authorization to take a specific action, meaning is an informal concept
that refuses to be bound by authorization. To understand the failure of
NCM in practice, I will turn away from validity and turn to meaning to
ask whether and why Parliament interprets constitutional meaning.
A.
Validity: Judicial Enforcement of Law
U.K. scholars and politicians commonly argue that the Human
Rights Act reserves the “final say” or “final word” on the law to
Parliament.93 The concept of the “final word” refers to the validity of a
92. GARDBAUM, supra note 8, at 31; see JEFFREY GOLDSWORTHY, PARLIAMENTARY SOVEREIGNTY:
CONTEMPORARY DEBATES 12 (2010); KAVANAGH, supra note 8, at 322; Richard Bellamy, Political
Constitutionalism and the Human Rights Act, 9 INT’L J. CONST. L. 86, 99 (2011); Francesca Klug,
Judicial Deference Under the Human Rights Act, 2 EUR. HUM. RTS. L. REV. 125, 127 (2003).
93. Supra note 92.
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statute, specifically whether a judge will enforce it.94 The phrase is key
to understanding the precise scope of the model,95 and is heavily tied
to a positivist theory of law and parliamentary sovereignty. Parliamentary sovereignty is the foundational concept of constitutionalism in the
United Kingdom. It holds that Parliament may create or repeal any law
whatsoever, and that no other body has the right to overturn a law of
Parliament. Thus, the “final word” is a reference to parliamentary
sovereignty. The Human Rights Act was explicitly designed to protect
this thousand-year-old tradition. Recall that under it, judicial declarations of incompatibility do not invalidate a statute, and that the HRA
itself may be explicitly repealed by Parliament.
The British Constitutional tradition and its concept of parliamentary
sovereignty is deeply tied to a positivist notion of law. The two greatest
theorists of Parliamentary sovereignty were the British positivists John
Austin and A.V. Dicey.96 As Austin explains, positivism is a descriptive
theory of law. Laws are commands of the sovereign backed by the threat
of force. The sovereign is the sole source of the laws because of his or
her ability to command obedience and his freedom from the commands of any other. His or her status is the result of habit and custom.
One discovers the source of law by observing behavior, the behavior of
obedience. No normative concepts, such as freedom or democracy, are
relevant.97
A.V. Dicey, in the canonical text of British constitutional law, adapted
the theory of positivist sovereignty to courts. Dicey distinguished himself from Austin’s broader “political”98 approach to positivism and
instead wrote from the narrower perspective “of a trained lawyer.”99
Both approaches focus on obedience to Parliament. But whereas in
Austin’s political positivism all political actors’ compliance is relevant,
Dicey was particularly concerned with the courts’ obedience to Parlia-
94. See GARDBAUM, supra note 8, at 28 (“[T]his train of thought misses the specific and
relevant finality issue. This is who has the final word on the validity and continuing operation of
the particular existing law at issue in the litigation . . . .”).
95. Notably, the phrase “final word” occurs thirteen times in Gardbaum’s groundbreaking
article. Gardbaum, supra note 8, at 709, 719, 732, 740, 746, 748-50, 752, 755, 756, 760.
96. See JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (1995); DICEY, supra note 7.
97. AUSTIN, supra note 96, at 209-10; see SCOTT SHAPIRO, LEGALITY 53-54 (2013).
98. DICEY, supra note 7, at 29 (stating that “The language therefore of Austin is as correct in
regard to ‘political’ sovereignty as it is erroneous in regard to what we may term ‘legal’
sovereignty.”).
99. Id. at cxxxv (distinguishing a constitutional law professor, as a trained lawyer, from a legal
historian).
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ment. He defined law as “any rule which will be enforced by courts.”100
In this narrow context, parliamentary sovereignty “may thus be described: Any Act of Parliament, or any part of an Act of Parliament,
which makes a new law, or repeals or modifies an existing law will be
obeyed by the Courts.”101
Followers of the Diceyan orthodoxy emphasized that from a legal
point of view Parliament’s sovereignty is descriptive and contingent.
Changing habits or even revolutions may change the identity of the
sovereign. Its status is a “political fact for which no purely legal
explanation can be given.”102 Courts merely recognize these historical
and sociological facts “for the relationship between the courts of law
and Parliament is first and foremost a political reality.”103 British
constitutional history is cited to vindicate this positivist logic. In 1649,
the Roundheads executed Charles I, and the courts began to execute
Parliament’s laws. However, after the counterrevolution and restoration of the crown in 1660, the courts again looked to the crown and his
laws as sovereign. Less than thirty years later, the Glorious Revolution
shifted the courts allegiance back to a Parliament, but now one that
included not just the House of Lords and Commons, but the King as
well.104
According to Diceyans, following the Glorious Revolution, the courts
did not seek to justify or engage with the normative content of the
different sovereigns. It did not root its rulings in any of the justification
for the claims to sovereignty, such as divine right, popular sovereignty,
or the mixed regime.105 For these reasons, the British themselves have
often mocked or celebrated their constitutional tradition for lacking
the richness of its American, French, and German counterparts.106 At
root, Diceyan parliamentary sovereignty is a thin, positivist doctrine
referring to Parliament’s customary and total power over the validity of
law. As I argue in the next Part, it offers few resources to justify why
Parliament should have such a power, including whether it is exercising it as an interpreter of individual’s rights.
100. Id. at 4; see also id. at cxlvi (“His proper function is to show what are the legal rules (i.e.
rules recognized by the Courts) . . .”
101. Id. at 4.
102. H. W. R. Wade, The Basis of Legal Sovereignty, 13 CAMBRIDGE L.J. 172, 189 (1955).
103. Id. at 188.
104. Id.
105. Id.
106. See BOGDANOR, supra note 8, at 42; see also MARTIN LOUGHLIN, THE BRITISH CONSTITUTION:
A VERY SHORT INTRODUCTION 36-39 (2013); see also M. J. C. VILE, CONSTITUTIONALISM AND THE
SEPARATION OF POWERS 120-23 (1998).
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B.
Meaning and Interpretation
The HRA seeks to preserve the British tradition of parliamentary
sovereignty, but the positivist tradition’s normative silence fails to set
the necessary constructive framework for disagreements between the
court and legislature in NCM. Parliament is the final word on validity of
law, but is it also supreme over the constitution’s meaning? When
Parliament overrides a court’s ruling, is it interpreting the constitutional right? If so what is the status of this interpretation? As I discuss in
the next Part, the answer to the questions of meaning will illuminate
the basis for disagreement between the legislature and the judiciary.
This will shape the conflict’s language of legitimacy, which in turn will
shape public understandings and participation. The answers go to the
heart of a country’s “constitutional culture.”107
Validity is a formal concept. It refers to whether a court has the
power to set aside a statute. As Gardbaum states, “[T]he specific and
relevant finality issue . . . is who has the final legal word on the validity
and continuing operation of the particular existing law at issue in the
litigation.”108 Similarly, Francesca Klug, perhaps the most important
adviser to the government on the design of the HRA, writes that the
central issue “concern[s] whether an elected parliament or unelected
courts should have the final say in determining what the law should be
in a democracy.”109 The power is formal because it refers to a legal
authorization to take a specific action.
By contrast, meaning is a trickier and more elusive concept. Although constitutions may authorize an ultimate interpreter, that authorization can easily be disobeyed. Meaning resists confinement. It does
not require and defies authorization. It multiplies in all directions.
How can the court stop individuals from interpreting the constitution
in their own way?110
Sanford Levinson calls this phenomenon “Protestant Constitutionalism.” Although the Catholic Church was the official interpreter of the
Bible, Protestants asserted a right to independently interpret it; similarly, U.S. citizens and politicians defy the court’s claim to be the
official interpreter of the constitution.111 Despite the court and the
professional culture’s total acceptance of the pre-Reconstruction Con-
107.
108.
109.
110.
111.
2016]
Siegel, supra note 6, at 1325.
GARDBAUM, supra note 8, at 28.
Klug, supra note 92, at 126.
See Cover, supra note 84, at 4. What I call meaning is similar to Cover’s nomos.
LEVINSON, supra note 84, at 27.
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stitution’s sanctioning of slavery, Frederick Douglass continued to
believe that the document was primarily about freedom. Susan B.
Anthony voted despite clear evidence that the pre-19th Amendment
Constitution gave no protection against state laws forbidding female
suffrage. At her trial, she gave a stirring final statement asserting that
no matter what the judge’s decision, regardless of whether she was
thrown in jail, she had a right to interpret the constitution for herself.112
In the U.S. judicial system, powers over validity and interpretation
are intimately intertwined. To strike down or apply a statute, judges
interpret the Constitution. The court’s interpretation of the constitution justifies its decision on enforcement. Meaning and validity go
hand in hand. However, when the U.S. Supreme Court declares itself to
be the “ultimate interpreter” of the Constitution, they are fooling
themselves. They alone wield a mighty power to strike down a statute
because it conflicts with an interpretation. However, this power over
validity may or may not convince citizens to stop acting on their own
convictions of constitutional meaning.113
Unlike the U.S. Constitution, the NCM divides meaning and validity.
In the United Kingdom, judges interpret the HRA, but that act of
interpretation has no bearing on the validity of the law. Even when a
court declares a statute as incompatible with the HRA, the court must
nonetheless continue to apply the law. Parliament retains supremacy
over validity because it decides whether or not the violation of an HRA
right is sufficient reason to repeal or alter the offending statute.
NCM has redistributed power over validity from the judiciary to
Parliament, but what about meaning? Has it empowered or encouraged Parliament to counter-interpret and form their own opinion
about the meaning of the codified rights? Gardbaum presents judges as
the “ultimate arbiters” of constitutional meaning in NCM. Democratic
accountability and rights protection are the two “constitutional goods”
or “foundational values of modern liberal democratic polities.”114
Traditionally, each good is allocated to a different institution: legislatures are democratically accountable, and judges protect rights. The
models differ based upon which good and institution they prioritize:
judicial supremacy sides with rights protection and legislative su-
112. See id. at 31-32, 76-77; HISTORY OF WOMAN SUFFRAGE, supra note 53, at 630-47.
113. See Robert C. Post, Who’s Afraid of Jurispathic Courts: Violence and Public Reason in Nomos
and Narrative, 17 YALE J.L. & HUMAN. 9 (2005); Robert Post & Reva Siegel, Roe Rage: Democratic
Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373, 403 (2007).
114. Stephen Gardbaum, Reassessing the New Commonwealth Model of Constitutionalism, 8 INT’L J.
CONST. L. 167, 171 (2010). See GARDBAUM, supra note 8, at 21-24.
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premacy sides with accountability.115 NCM, however, maximizes both
constitutional goods by redistributing power over the law’s validity
without redistributing the basic role of the legislatures and courts.
NCM carries over the traditional models’ role-differentiation. Legislatures are still aggregators of the people’s preferences, and courts are
still the rights-protecting institution.116
And since it is solely the courts that protect rights, judges are still the
“ultimate arbiters” of constitutional meaning. NCM redistributes power
over a law’s validity so that Parliament has the final word on whether a
statute is void and whether a court will continue to apply it. Yet, it keeps
the same distribution of power over constitutional meaning. As Gardbaum states about the HRA, “It effectively splits the power of judicial
review into two separate functions— determining whether there is a
conflict between a Convention right and a statute, and invalidating the
latter if there is—and granting only the first to the courts while leaving
the second to Parliament.”117 On constitutional meaning, the HRA and
NCM still denote a system of judicial supremacy.
Gardbaum’s model is purely formal: it refers solely to an explicit and
legally granted power over validity. Ultimately, for Gardbaum the
power’s existence, regardless of how or if it is used, is sufficient to
“create a normative difference” between the United States and NCM.118
I move beyond the formal and explore how the NCM has worked out in
practice. To understand its failure, we must consider not just validity,
but also take into account meaning. I conclude that counter-interpretation is necessary to enable the judiciary and legislature to have productive and legitimate disagreements.
IV.
HOW CONSTITUTIONAL MEANING SHAPES DISAGREEMENT
The distribution of authority over constitutional meaning shapes the
disagreement between the legislature and the judiciary. I discuss three
different types of disagreement between the judiciary and the legislature. In the first two, “rights misgivings” and “general rights disagreement,” the judiciary is supreme over the meaning of the constitution.
For different reasons, both these types of disagreement are problematic. The goal should be, through “counter-interpretation,” both the
legislature and judiciary interpret the right sometimes, but their inter-
115.
116.
117.
118.
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GARDBAUM, supra note 8, at 171.
Gardbaum, supra note 8, at 744.
Gardbaum, supra note 8, at 738.
GARDBAUM, supra note 8, at 36.
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pretations conflict. This disagreement legitimizes the constitution and
has the potential to lead to a productive dialogue about the correct
interpretation of the right. I will argue that the United States enjoys the
benefits of constitutional rights disagreement, while the United Kingdom suffers from general rights disagreement.
A.
Rights Misgivings
Parliament has “rights misgivings” when it disagrees with the very
idea of rights, and hence argues that its statute should trump all
rights.”119 Furthermore, since Parliament aims to banish or at least
trump the right, Parliament has no need to interpret it. This point of
view is well represented in political theory, although the reasons vary
greatly. Communitarians worry that rights corrode community values
and responsibilities. Theorists who focus on freedom, influenced by
Foucault, worry that rights posit a liberal subject that limits our full
human potential.120 Pure majoritarians assert that rights violate the
democratic will of the people.121
Some have argued that the Conservative Party is against rights, that it
has rights misgivings. The broad rights-misgiving interpretation is
historically inaccurate, politically unpalatable, and normatively illegitimate. We live in an age of rights. Long before the HRA or even the U.S.
Constitution, England prided itself as the founder of rights and liberties.122 It is the common language of legitimacy for all mainstream
political actors. Today, no serious politician would dare to explicitly
advocate violating rights because they would grievously offend their
constituents. Rather, politicians wrap their actions in the language of
rights. As discussed below, this is even the case in NCM countries, such
as the United Kingdom. In the parliamentary debates over the passage
of the HRA, proponents argued that the law would strengthen Parliament’s participation in the interpretation and enforcement of rights. It
would give “Parliament itself a leading role in protecting rights which
119. Waldron, supra note 10, at 17.
120. See generally WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY
(1995).
121. This view should be distinguished from U.S. conservative criticism of judicial activism.
Generally, conservatives believe in rights but assert that their number and breadth is strictly
limited. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989).
122. See ELIZABETH WICKS, THE EVOLUTION OF A CONSTITUTION: EIGHT KEY MOMENTS IN BRITISH
CONSTITUTIONAL HISTORY (2006).
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are at the heart of a parliamentary democracy.”123 Jack Straw, the
government minister who guided the HRA through Parliament, stated
that “Parliament and the judiciary must engage in a serious dialogue
about the operation and development of the rights in the bill . . .”124
In normative theory, there are few supporters of brute majoritarianism for its own sake. Majority tyranny was the central preoccupation of
the first generation of liberal theorists to wrestle with modern democracy. Each theorist devised a different solution: Federalists expanded
the republic, separated power, and multiplied checks and balances to
filter and stymy majorities125; Alexis De Tocqueville diluted democracy
with drops of aristocracy126; and John Stuart Mill sought to educate the
people.127 Even for the strongest supporters of majority rule, such as
Rousseau, majority rule is not the true meaning of democracy, but
rather a means to a greater end, such as justice or autonomy.128 Rights
misgivings is neither normatively desirable nor descriptively accurate.
B.
General Rights Disagreement
In general rights disagreement, both the court and parliament value
rights, but disagree over which ones are valid. One may value a set that
emphasizes equality whereas the other places a higher value on freedom. General rights disagreement is inherently unproductive and
unstable. It is unproductive because the opponents’ separate languages
prevent meaningful dialogue or compromise. It is unstable because
both institutions are incentivized to tear at the legitimacy of the other’s
set of rights. Each disagreement challenges the legitimacy of the
protected and codified constitutional right. As we shall see in Part V, in
the United Kingdom, general rights disagreements had contributed to
the public’s indifference to or hatred of the HRA.
123. JACK STRAW & PAUL BOATENG, LABOUR PARTY WHITE PAPER: BRINGING RIGHTS HOME,
LABOUR’S PLAN TO INCORPORATE THE ECHR INTO UK LAW (Dec. 1996) (white papers are policy
documents produced by the government that set out proposals for future legislation).
124. 24 June 2008, Parl Deb HC (6th ser.) (2008) 1141 (U.K.).
125. See THE FEDERALIST NOS. 70, 78, 79 (Alexander Hamilton), NOS. 10, 47, 48, 51 (James
Madison).
126. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (J.P. Mayer ed., George Lawrence trans.,
Harper Perennial Modern Classics 2006).
127. JOHN STUART MILL, ON LIBERTY (Paragon Books 2013).
128. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT: AND OTHER LATER POLITICAL WRITINGS
(Victor Gourevitch ed., Cambridge Univ. Press 1996).
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C.
Counter-Interpreting: A Common Set of Rights
Although general rights disagreement and rights misgivings differ
on justification, they both relinquish authority over the meaning of the
codified rights to the courts. Parliament is simply silent on the meaning
of the codified rights. After all, it opposes them. Why would you
interpret that which you intend to defeat? There is little chance of
productive dialogue between Parliament and courts because they are
speaking in different languages. Neither one can challenge nor hold
the other accountable for their point of view. This cacophony leaves
the public without a common basis to evaluate or participate in the
arguments.
The third framework, counter-interpretation, generates a greater
possibility of productive dialogue because all participants speak in the
same language. Participants accept the same constitutional rights as
legitimate, but disagree on their meaning. Rather than a general rights
disagreement, counter-interpretation is a constitutional rights disagreement. Here, constitutional legitimacy and dialogue is possible because
there is a shared foundation to build upon.
In the U.S. literature, counter-interpretation is widely believed to be
a highly desirable end.129 First, counter-interpretation provides a common language to harness and reduce conflict.130 Reva Siegel has
explored counter-interpretation in a wide range of social conflicts in
the United States, including women’s suffrage, abortion, the Equal
Rights Amendment, originalism, and the Second Amendment.131 In
those examples, social groups begin diametrically opposed, but as they
frame their arguments in constitutional terms to appeal to the public,
the distance between their positions diminishes. Each group “incorporate[s], at least in part, the claims of the other.”132 The process of
constitutional contestation ended in a result that would have not
satisfied either original party, but nonetheless muted the conflict. It
129. See, e.g., DEVINS & FISHER, supra note 20; Post & Siegel, supra note 5; Keith Whittington,
EXTRAJUDICIAL CONSTITUTIONAL INTERPRETATION: THREE OBJECTIONS AND RESPONSES, 80 N.C. L. REV.
773 (2002).
130. JEFFERSON POWELL, A COMMUNITY BUILT ON WORDS: THE CONSTITUTION IN HISTORY AND
POLITICS (2005); Reva Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122
HARV. L. REV. 191 (2008).
131. Robert Post & Reva Siegel, supra note 113; Siegel, supra note 6; Reva Siegel, supra note
130; Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism and the Family, 115
HARV. L. REV. 947 (2002).
132. Siegel, supra note 130, at 243.
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was a “form of consensus without securing agreement.”133 The claim is
not that constitutional rights disagreement will solve all conflict, only
that it can help dampen and constrain many of them.
Additionally, counter-interpretation shores up the legitimacy of the
Constitution. Opposition to the constitutional status quo does not have
to take the form of challenges to the constitution itself. Rather,
challenges to the constitutional order are transmogrified into the
language of the constitutional order. When the challenger invokes the
Constitution, that challenge legitimizes the Constitution. Indeed, each
challenge to the constitutional status quo is a legitimation of the
Constitution. It ensures that parties engaged in a dispute “speak
through the Constitution rather than against it.”134
Lastly, counter-interpretation creates the possibility of a productive
dialogue between courts and legislatures. Neither branch grasps the
Constitution purely: each filters it through their institutional perspective, creating distinct advantages and disadvantages for interpretation. I
will briefly focus on the advantage of legislatures because they are less
well-known. Legislatures are superior fact finders to courts135 and are
less constrained in drawing the necessary and arbitrary lines that laws
require.136 In addition, although the judge’s remedy should tightly fit
the applicant’s injury, legislatures can regulate comprehensively.137
Though judges’ lifetime tenure removes them from lowly partisan
bickering, it also hinders them from keeping in contact with public
needs, interest, and constitutional understandings.138 Finally, in the
context of the proportionality method to review rights practiced in
Canada and Europe, the legislature is best equipped to evaluate how
far it is necessary to impinge the constitutional right to achieve the
policy goal.139 If both the courts and the legislature participate in
constitutional interpretation, then they can build on the strengths and
133. Id. at 244.
134. POWELL, supra note 130, at 16-17, 212-13; Siegel, supra note 6, at 1327.
135. Archibald Cox, The Role of Congress in Constitutional Determinations, 40 U. CIN. L. REV. 199
(1971).
136. See Robert A. Burt, Miranda and Title II: A Morganatic Marriage, 1969 SUP. CT. REV. 81
(1969).
137. Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric
Restrictions on Section Five Power, 78 IND. L.J. 1 (2003).
138. Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power:
Policentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J. 1943 (2003).
139. Hiebert, supra note 31, at 1972-75. While the U.S. Supreme Court uses different tiers of
scrutiny to assess violations of rights, much of Western Europe and the Commonwealth system use
“proportionality”, a multi-step, balancing method to assess whether the violation was propor-
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compensate for the weaknesses of the other’s institutional capabilities.
Stephen Gardbaum and others’ positivist models are the most accurate reflection of the HRA’s goal to Parliament’s final word on the
validity of law.140 However, rival theories proliferate. Tellingly, in
almost all of them, some form of counter-interpretation or disagreement over a common set of rights is the dominant descriptive and
normative model for judicial review in Commonwealth countries.141
Nonetheless, as the authors of these theories increasingly recognize,
NCM countries have not matched the aspirations of the normative
models. Descriptively, these theories have fallen short: Parliament has
refused to independently interpret the right. Their authors have begun
to diagnose NCM’s failure, but none reach the heart of the problem.
For Mark Tushnet, the flaw is structural and inherent to the very design
of the model.142 The implication is that no solution is possible and
judicial supremacy is inevitable. Janet Hiebert also focuses on structural
problems, but on ones outside the design of the model, such as
disciplined political parties and government dominance over Parliament.143 Both of these phenomena have deep and entrenched structural causes, and neither is likely to cease anytime soon.
Less bleak is Hiebert’s diagnosis that that the problem is a politicallegal culture which regards judges as the sole accurate interpreter of
meaning of constitutional rights.144 In fact, for Hiebert, the United
States is at fault for propagating this myth.145 The solution then is to
change the legal culture.
tional. See Alec Stone Sweet, Proportionality Balancing and Global Constitutionalism, 47 COLUM. J.
TRANSNAT’L L. 72 (2008).
140. See supra notes 94-102 and accompanying text.
141. See TUSHNET, supra note 8, at 23-25; Hiebert, supra note 31, at 1972-75. Perceptive UK
authors that I believe share the idea of constitutional rights disagreement include Richard
Bellamy and Alison Young. However, we differ in focus. Neither author discusses the illegitimacy
of the HRA in public discourse. Bellamy’s article is purposefully normative and does not engage at
all with actual Parliamentary and judicial practice. Richard Bellamy, supra note 92, at 88. Young
has a tempered optimism about the HRA in practice and like Hiebert believes that parliamentary
interpretation of HRA rights has not reached its full potential in because of misconceptions by the
actors’ of the role of deference and dialogue. Alison Young, Is Dialogue working under the Human
Rights Act 1998, 4 PUBLIC LAW 773 (2011). See YOUNG, supra note 32.
142. TUSHNET, supra note 8, at 43-79.
143. Janet Hiebert, Governing Under the Human Rights Act: The Limits of Wishful Thinking, 1 PUB.
L. 43-44 (2012).
144. See Hiebert, supra note 31.
145. Id. at 1986 (“The reason for caution does not arise out of any inherent conceptual
shortcomings with this model, but from the strong influence of American ideas.); Janet Hiebert,
Interpreting a Bill of rights: The Importance of Legislative Rights Review, 35 B.J. POL. S. 235, 244-45
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The general method for cultural change is education. This diagnosis
risks degenerating into an arrogant proclamation of intellectual superiority: the problem is that our opponents and the public are not as
enlightened as we are about interpretive plurality. It lulls us into
believing that our opponents are merely misinformed or delusional. It
is convenient because it removes the burden of searching for problems
that require controversial institutional change.
My diagnosis and solution is primarily structural. I take culture as a
given: almost everywhere the public believes that constitutional law is
the task of judges. Legislatures are routinely mocked and distrusted by
their constituents, and judges enjoy far more of the public trust.
However, sometimes the public has persistent, passionate, and deep
disagreement with the judiciary over the meaning of constitutional
rights.146 The question is how to alter the structure of the HRA to shift
incentives so that in those occasional cases the legislature can effectively act upon those disagreements so that its interpretation will
become final.
Rights Misgivings and General Disagreement are dangerous discourses. Counter-interpretation has the potential to legitimize the set
of enumerated rights and enrich inter-institutional and public debate
about their content. As we will see in the next Part, the lack of
counter-interpretation and the presence of general disagreement threatens the survival of the HRA.
V.
GENERAL RIGHTS DISAGREEMENT: THE HRA’S ILLEGITIMACY
The United Kingdom suffers from general rights disagreement,
draining the HRA of much of its legitimacy. The Court and Parliament
are concerned with two different sets of rights. The Court enforces
rights of the HRA because only they are justiciable. Per the HRA, courts
have an obligation to hear suits alleging a violation of these human
rights and declare a judgment. Other rights are not the concern of the
courts.
By contrast, many members of Parliament, especially its Conservative
members, are skeptical about the HRA. Conservatives celebrate rights,
but disagree with the judiciary about their content. These Conservatives celebrate England as the cradle of classical civil liberties. Whereas
convention rights are alien and socialist, civil liberties are British and
(2005) (“For many, the influence of American ideas about protecting rights renders the concept
of legislative rights review unusual or irrelevant.”).
146. See infra pp. 25-26.
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liberal.147 Negative civil liberties restrain the state, but positive rights
impose cumbersome and costly obligations upon it.148 They are undeserving entitlements for the dredges of society.149 The success of these
new-fangled human rights comes at the expense of England’s greatest
heritage. As David Cameron stated, before he became Prime Minister,
“In many ways the Government has a choice between this country’s
ancient rights of habeas corpus and the right not to be detained without
trial; between Magna Carta and the ECHR.”150
General rights disagreement is an unstable and cacophonous framework. It is unstable because it continuously puts the enumerated right’s
legitimacy into question. Rather than contesting interpretations, the
conversation concerns overriding, amending, or scrapping the current
set of enumerated rights. Opponents are incentivized to denounce the
entire document.
The opponents of the HRA demonize its rights, and as a result it has
lost all legitimacy. Right wing newspapers condemn the HRA as a
pervert and terrorists’ charter and as the “world’s worst law.”151 Every
few weeks they publish a new outlandish story of how the HRA has
subverted justice. One story claimed that the HRA gave prisoners a
right to pornography.152 The Conservative Party’s candidate for Justice
Secretary complained that police could not issue pictures of fugitives
because it violates their right to privacy.153 Dozens of articles and
speeches report incidents where authorities could not deport an illegal
immigrant who committed vicious crimes because it would violate his
or her HRA right to a family life.154 In one, the family was allegedly the
147. In truth, HRA protects classical liberal rights. The HRA adapts the rights of the
European Convention of Human Rights, initially drawn up by a conservative government under
Winston Churchill. JESSE NORMAN & PETER OSBORNE, CHURCHILL’S LEGACY: THE CONSERVATIVE CASE
FOR THE HUMAN RIGHTS ACT 9, 18-23 (2009).
148. See DOMINIC RAAB, THE ASSAULT ON LIBERTY: WHAT WENT WRONG WITH RIGHTS (2009);
Nicol, supra note 22.
149. See supra note 16; see infra notes 151-53 and accompanying text.
150. Nicol, supra note 22, at 465 (quoting David Cameron).
151. Ed West, Clamping is an Infringement of Our Human Rights, THE TELEGRAPH (July 9, 2009),
http://blogs.telegraph.co.uk/news/edwest/100002682/clamping-is-an-infringement-of-ourhuman-rights.
152. See David Bamber, Prisoners win their claim that Hardcore Porn is a Human Right, THE
TELEGRAPH (Nov. 10, 2002), http://www.telegraph.co.uk/news/uknews/1412742/Prisoners-wintheir-claim-that-hardcore-porn-is-a-human-right.html.
153. Tories Slammed Over Attack on Derbyshire Police During Party Conference, DERBY TELEGRAPH
(Oct. 8, 2008), http://legacy.thisisderbyshire.co.uk/Tories-slammed-attack-Derbyshire-police/
story-11568223-detail/story.html.
154. See infra notes 233-42 and accompanying text.
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immigrant’s cat.155 Although some of these stories are not without
merit, many of them are riddled with distortions and exaggerations.156
Since at least 2006, plans have abounded for repealing the act.157 In
2011, a government-designated commission was created to design a
new bill of rights, but it was unable to reach substantial agreement.158
In 2014, the Justice Minister pledged to introduce a bill to replace the
Human Rights Act, but none ever materialized.159 In their 2015 party
platform, the Conservative Party pledged to “scrap the Human Rights
Act.”160 Even though the Conservatives won a majority in the 2015
Parliamentary election, most commentators believe that it will be
unable to pass a repeal due to technical legal obstacles, such as the
devolution agreement with Scotland and the Good Friday accords with
Ireland.161 After the release of each plan, human rights activists and
lawyers responded with equal fury accusing the conservatives of lacking
good faith, basic legal understanding, and even at times of xenophobia.162 The polarized debate has reached an impasse, but is likely to
continue without any solution in sight.
No doubt, similar struggles occur in the United States. However, in
the United States, each side accuses the other of subverting the
Constitution. In the United Kingdom, the struggle is over whether the
HRA itself has any value.
Neither education nor rebranding could legitimize the HRA. The
misinformation did not create, but reflects the legitimacy deficit. It is a
fundamental problem of constitutional design. The question is how to
155. See infra note 253 and accompany text.
156. Afua Hirsch, Bad Press: Human Rights Myths Exposed, GUARDIAN (July 2, 2009), http://www.
theguardian.com/humanrightsandwrongs/bad-press.
157. See, e.g., Will Woodward, Cameron Promises U.K. Bill of Rights to Replace Human Rights Act,
GUARDIAN (June 25, 2006), http://www.theguardian.com/politics/2006/jun/26/uk.humanrights.
158. Philippe Sands & Helena Kenney, In Defence of Rights, LONDON REV. OF BOOKS, Jan. 3,
2013, at 19.
159. Joshua Rozenberg, Why Human Rights Reform Could Trip Up Michael Gove, GUARDIAN (May
11, 2015), http://www.theguardian.com/commentisfree/2015/may/11/human-rights-reformmichael-gove-justice-secretary.
160. THE CONSERVATIVE PARTY, THE CONSERVATIVE PARTY MANIFESTO 2015 60 (2015), https://
s3-eu-west-1.amazonaws.com/manifesto2015/ConservativeManifesto2015.pdf.
161. Jack Kent, The Seven Hurdles for Repeal of the Human Rights Act, JACK OF KENT BLOG (May
15, 2015), http://jackofkent.com/2015/05/the-seven-hurdles-for-repeal-of-the-human-rightsact/.
162. See, e.g., Shami Chakrabarti, At Its Best, The Government’s Plan to Scrap the Human
Rights Act is Empty Pandering to Xenophobia, INDEPENDENT (May 13, 2015), http://www.
independent.co.uk/voices/comment/government-plan-to-scrap-the-human-rights-act-is-just-aconfidence-trick-10248460.html.
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make all parties, especially those who oppose initial passage of rights,
invest in the common document. Constitutional supremacy forces all
parties to interpret rather than oppose the document. This mutual
interpretation instills the document with legitimacy in public opinion.
VI.
CONSTITUTIONAL SUPREMACY AND COUNTER-INTERPRETATION
Constitutional Supremacy encourages counter-interpretation. Legislatures’ limited time, insufficient expertise, and unprincipled reputation
direct them away from counter-interpretation. The HRA’s intermediate status caters to Parliament’s natural aversion to fighting with the
courts about the meaning of enumerated and protected rights. Rather
than counter-interpret, Parliament may always choose to ignore or
override the HRA’s enumerated rights. This has facilitated the English
courts’ rise as the ultimate interpreter of the HRA and has led the
Conservatives to campaign to repeal it. It has given rise to general rights
disagreement. Constitutional supremacy restructures the incentives by
removing the option of general rights disagreement. It forces legislatures to articulate its disagreement with the courts as one about the
meaning of the enumerated rights.
A.
Supreme or Intermediate?: The U.S. Constitution and the HRA
While the U.S. Constitution is supreme, the HRA has only an
intermediate status. In the United States, the Constitution is the
“supreme law of the land.”163 Since it is the highest law, whenever a law
conflicts with a constitutional right, it is void.164 This supremacy is
grounded in the people’s sovereignty. The people are the ultimate
source of authority, and they ratified the Constitution.165 Through
Article V and other informal means, they may also amend or overturn
the Constitution.166 In the United Kingdom’s traditional parliamentary
system, the statute is supreme. Because the statute is a supreme legal
instrument, the executive and the courts must abide by it, and cannot
overturn it. The statute is grounded in Parliament’s sovereignty. Hence,
Parliament may repeal the old statute, even if only by implication. In
any conflict between two statutes, the subsequent statute is superior,
163. U.S. CONST. art. VI.
164. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77 (1803).
165. U.S. CONST. pmbl.; GORDON S. WOOD, THE CREATION OF
1776 – 87 (1998).
166. ACKERMAN, supra note 90, at 3-33.
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even if the conflict is incidental.167
The HRA intended to preserve parliamentary sovereignty and thus
refused to grant supremacy to the HRA. It gave it an “intermediate
status.” Like a supreme constitution, the HRA is above the ordinary
statute. Hence, Parliament cannot repeal the HRA by implication, and
when possible, judges must interpret a statute in conformity with the
HRA. When conformity is impossible, judges may declare a statute
incompatible. Nonetheless, the HRA lacks supremacy. In a conflict
between an HRA right and a statute, passed later in time, the latter will
prevail. A judicial declaration does not invalidate the statute, and the
judiciary must continue enforcing it. Parliament decides whether to
ignore or comply with the court. Lastly, Parliament may choose to
repeal the HRA at any time by a majority vote.168
B. The HRA’s Intermediate Status Facilitates Judicial Supremacy over
Meaning of its Enumerated Rights
Intermediate status caters to legislatures’ aversion to counterinterpretation. When a legislature disagrees with a supreme court’s
constitutional ruling, the costs of counter-interpretation are substantial. The odds are stacked against a legislature. First, the court has
superior focus and expertise. A legislator must divide his attention over
a wide array of policy areas. Constitutional interpretation is but one of
those areas and usually a minor one. As a representative, he or she must
not only concern himself with what he thinks is best, but also with his
constituents’ ideas and needs. By contrast, law is the court’s only area of
interest and expertise, and U.S. and U.K. Supreme Court justices enjoy
tenure for life. Additionally, the public trusts and likes the courts more
than the “bums” in the legislature.169 This trust partly reflects knowledge of the court’s superior expertise. It also reflects the public’s belief
that the court is the “ultimate arbiter of the Constitution.”170 They
believe that as a matter of constitutional right, the court’s interpreta-
167. DICEY, supra note 7, at 37-196; TURPIN & TOMKINS, supra note 45, at 58-79.
168. This repeal must an explicit, not implicit one. Gardbaum, supra note 8, at 742; see
GARDBAUM, supra note 8, at 35-36.
169. Traditionally, approval for the Supreme Court has been consistently high, but since July
2012 it has slid significantly, but still remains far above Congress. Lindsey Cook, SCOTUS-Hating
Candidates Should Look in the Mirror to See What Americans Really Hate, U.S. NEWS & WORLD REPORT
(Oct. 2, 2015, 2:19 PM), http://www.usnews.com/news/blogs/data-mine/2015/10/02/supremecourt-disapproval-hits-new-high-gallup-polling-shows. See Confidence in Institutions, GALLUP (2015),
http://www.gallup.com/poll/1597/confidence-institutions.aspx.
170. Cf. Kramer, supra note 56, at 963.
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tion trumps the legislature’s. However, the reasons go even deeper. To
the public, legislatures lack what the court embodies—principled
decision-making. A legislature is labile and fickle, while the Court is
firm and enduring. Legislatures are a site of low politics, of pervasive
“dealmaking, horse-trading, log-rolling, interest-pandering and porkbarreling.”171 Insulated from politics, the court’s decisions are rooted
in law. For these reasons, the court must protect the public against the
legislature’s irrationality. Left unchecked, the legislature will violate
individual rights. For these reasons, in a battle over constitutional
meaning, the public is likely to trust the courts.
Given these conditions, a legislature has little incentive to argue with
a court about constitutional principles. It prefers to exit from the
discourse of counter-interpretation and move the argument to other
rhetorical planes where it enjoys a greater advantage. With its superior
policy expertise, a legislature could argue that the law is necessary to
address a serious policy concern. As an elected branch, it could claim
that its will should trump that of the un-elected court. This raises
concerns that rights will become the domain of the judiciary and not be
subject to legislative and public input.172 The judiciary may become
supreme over the meaning of the constitution.
The HRA’s intermediate supremacy does nothing to remove these
roadblocks to legislative counter-interpretation. The legislature always
has the option to avoid engaging in counter-interpretation by invoking
its sovereign right to overrule the court. The independence and
objectivity of the judiciary is prized even higher in the United Kingdom
than it is in the United States.173 Under these conditions, Parliament is
171. JEREMY WALDRON, THE DIGNITY OF LEGISLATION 2 (1999).
172. Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the
Countermajoritarian Difficulty, 94 MICH. L. REV. 245 (1995).
173. For example, according to traditional constitutional convention, members of the
executive could not criticize a court decision as wrong as reflecting improper motives. Even today,
Parliament’s rules forbid its members from casting “reflecting on the conduct or motives of a
judge or upon judges generally” unless discussion is based on a substantive motion on which a vote
could be taken. The sub judice rule bars members from referring to civil or criminal cases in which
proceedings are active in the United Kingdom Courts. Some commentators have called criticism
of the HRA as violations of the judiciary’s independence. SELECT COMMITTEE ON CONSTITUTION,
SIXTH REPORT, 2006-7, H.L. 151, at Appendix 4 ¶¶ 34-58 (U.K.). The independence of the judiciary
and criticisms of its politicization is also used to justify the nominating system where in previous
judges choose future ones. See Alexander Horne, Is There a Case for Greater Legislative Involvement in
the Judicial Appointment Process, U.K. CONSTITUTIONAL LAW ASS’N. (Mar. 27, 2014), https://
ukconstitutionallaw.org/2014/03/27/alexander-horne-is-there-a-case-for-greater-legislativeinvolvement-in-the-judicial-appointments-process/.
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unlikely to engage in counter-interpretation. As the sovereign source of
law, it may choose the discourse that maximizes its advantage over the
judiciary in the court of public opinion. It attacks the Court as an
impediment to the people’s will and a savager of England’s constitutional heritage.
Section 19 of the HRA also exemplifies how the HRA’s intermediate
supremacy discourages counter-interpretation. The section requires
ministers to certify whether their proposed legislation is compatible
with the HRA. A certification of incompatibility in no way hinders the
introduction of legislation. Indeed, in one case, Parliament introduced
and passed legislation that a minister had certified as incompatible.
The option to introduce incompatible legislation means that there is
no obligation on Parliament to contest the judiciary’s understanding of
the HRA. In fact, until 2010, the Cabinet Office Guidelines provided
that a bill should only be deemed compatible if “it is more likely than
not that the provisions of the bill will stand up to challenge . . . before
the domestic courts.”174 Similarly, when a judge declares a statute
incompatible with the HRA, Parliament can choose to ignore the
ruling.
In practice, Parliament has either parroted the judiciary’s interpretation of or denounced the HRA. Parliament’s Joint Committee of
Human Rights and the relevant executive departments evaluate the
compatibility of legislation with the HRA based on a prediction of how
the U.K. courts would rule.175 Furthermore, with one aberrant exception, in response to every judicial declaration of incompatibility, Parliament has chosen to amend the statute.176
Parliament has carried over the traditional allocation of sovereignty
to Parliament and interpretive supremacy to judges. The HRA preserves sovereignty by giving Parliament “the last word over the validity
of law.”177 However, Parliament refuses to engage in interpretation of
HRA rights, instead ceding the meaning of the HRA to judges.
The HRA’s intermediate status has encouraged judicial supremacy.
174. CABINET OFFICE, HUMAN RIGHTS ACT 1998: GUIDANCE FOR DEPARTMENTS: FIRST EDITION,
2000, ¶ 36 (U.K.). The current version has removed that criteria. See CABINET OFFICE, GUIDE TO
MAKING LEGISLATION, 2010 (U.K.).
175. Hiebert, supra note 143, at 35; Francesca Klug & Helen Wildbore, Breaking New Ground:
The Joint Committee on Human Rights and the Role of Parliament in Human Rights Compliance, EUR. HUM.
RTS. L. REV. 231, 243 (2007).
176. HIEBERT & KELLY, supra note 8, at 174. The exception is prisoner’s rights and is
entangled with ambivalence about the European Court of Human Rights, not the UK Supreme
Court. Cf. infra p. 40.
177. Supra Part III.
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The HRA’s intermediate status was intended to empower Parliament
to think principally about constitutional rights, but ironically it has
had the exact opposite effect. It has empowered the judiciary to
dominate HRA discourse, while leading Parliament to rail against the
validity of the HRA itself on the basis of other rights. This general rights
disagreement and intermediate supremacy go hand in hand.
C.
U.S. Constitutional Supremacy Facilitates Counter-Interpretation
The HRA’s intermediate status gives Parliament the choice between
general rights disagreement and counter-interpretation. Constitutional supremacy precludes general rights disagreement by cutting off
the possibilities of other arguments. Because the enumerated rights are
part of the highest law, all statutes must meet its requirements. If the
legislature wishes to directly confront the court, it is forced to counterinterpret the Constitution to win in the arena of public opinion.
In the United States, constitutional supremacy has forced Congress
to engage in independent interpretation over a wide range of issues.
Battles between the U.S. Supreme Court and Congress over constitutional meaning are a reoccurring feature of American political history.178 By battle, I refer to when Congress counter-interprets and
passes a statute in reaction to, and in defiance of, a Supreme Court
decision. This defiance forces the Court to either stand its ground by
striking down the new statute or to acquiesce by reversing or distinguishing its previous ruling. These battles date back to the very beginning of
the republic.179
The frequency of these battles should not be exaggerated. Full-scale
conflict between Congress and the Court does not occur every year or
even every decade.180 Usually, neither institution has much to gain
178. STEPHEN M. ENGEL, AMERICAN POLITICIANS CONFRONT
THE
COURT: OPPOSITION POLITICS
AND CHANGING RESPONSES TO JUDICIAL POWER (2011); WHITTINGTON, supra note 52. See, e.g., LUCAS A.
POWE JR., THE WARREN COURT AND AMERICAN POLITICS (2000); WILLIAM G. ROSS, A MUTED FURY:
PROGRESSIVES AND LABOR UNIONS CONFRONT THE COURTS, 1890-1937 (1993); JEFF SHESOL, SUPREME
POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT (2010).
179. Perhaps the first struggle occurred as a result of the Republican victory over the
Federalists in the election of 1800. See Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803); Sanford
Levinson & Jack M. Balkin, What Are the Facts of Marbury v. Madison?, 20 CONST. COMMENT. 255
(2003).
180. In June 1968, Congress included in Omnibus legislation a provision that effectively tried
to reverse the Miranda ruling. The Executive refused to enforce it and more than thirty years later,
the Supreme Court struck down the ruling. Dickerson v. United States, 530 U.S. 428 (2000). See
Kent Roach, Dialogue or Defiance: Legislative Reversals of Supreme Court Decisions in Canada and the
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from heads-on conflict with the other. Most of the decisions of the
Supreme Court meet little opposition. The Court chooses cases and
modulates rulings to minimize outrage. Even if a Congressman disagrees with a case, it may not be worth it to expend time and political
capital opposing it. Furthermore, oftentimes Congress can comply with
the court’s ruling while still achieving its policy objective.181
Nonetheless, conflict does occur when the conditions are ripe.
Sometimes, conflict cannot be avoided because no fix is available that
can satisfy both the Court and Congress. Or perhaps a change is
available, but Congress’ response is also symbolic. Furthermore, the
Court’s ruling must galvanize rather than split public and congressional supporters of the bill. The statute in question must have broad
public support and be backed by a broad coalition that helps the statute
surmount the numerous and formidable obstacles in the system of U.S.
lawmaking.182
During the New Deal, the Court rejected Franklin Roosevelt’s most
significant legislation, precipitating the court-packing controversy.183
In the late twentieth century, the Court struck down legislation that
had symbolic significance to the American public, such as flag-burning
prohibitions and the Religious Freedom Restoration Act’s application
to the states. Acting on behalf of their constituents, Congress passed
new laws defying the Court’s interpretation of the Constitution.184
What would have happened if Congress had the United Kingdom’s
option of ignoring or overriding the Constitution? Would Congress still
have spent countless hours counter-interpreting? One can only speculate, but my answer is no. This is particularly true during the Progressive era and the New Deal. At that time, progressives and new dealers
were building a case against the Constitution as an antiquated document that blocked the efficient national government action needed to
United States, 4 INT’L J. CONST. L. 347, 351-56 (2006). In 1990, the Supreme Court struck down
Congress attempt to reverse the ruling that bans on flag burning violates the First Amendment.
United States v. Eichman, 496 U.S. 310 (1990). In 1997, the Supreme Court struck down the RFRA
statute, which attempted to reverse the Court’s decision on the level of review for Free Exercise
claims. City of Boerne v. Flores, 521 U.S. 507 (1997). See infra pp. 33-35.
181. See J. MITCHELL PICKERILL, CONSTITUTIONAL DELIBERATION IN CONGRESS 31-62 (2004).
182. Two recent controversies fit these conditions. The first is the conflict over whether
Congress may prohibit flag burning. This was an either/or proposition with no room for
compromise, tremendous symbolic importance, and overwhelming public support. See ROBERT
JUSTIN GOLDSTEIN, FLAG BURNING AND FREE SPEECH 108-72 (2000); SEE infra note 180. The second is
the Religious Freedom Restoration, discussed at length in this paper, infra pp. 48-57.
183. See SHESOL, supra note 178.
184. TUSHNET, supra note 8, at 120-27.
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regulate the modern economy and win world wars.185 In the face of
these extraordinary pressures, rather than engage in costly and lengthy
debate in a time of national emergency about the meaning of the
Commerce Clause, Congress might have likely just ignored the Court.
Even in times of crisis, constitutional supremacy facilitated counterinterpretation in the United States.
VII.
U.S. AND U.K. CASE STUDIES
I have argued that constitutional supremacy facilitates counterinterpretation. This Part lays out two case studies to illustrate this
proposition. I begin with a U.S. battle between Congress and the
Supreme Court over the meaning of the Free Exercise Clause. Shaped
by a system of constitutional supremacy, Congress challenged the
Court’s interpretation of the right. Under Section 5 of the Fourteenth
Amendment, it counter-interpreted the Free Exercise Clause by passing a new statute, the Religious Freedom Restoration Act (RFRA), that
defied the Court’s cramped reading of religious liberty. This example
stands as a model of counter-interpretation. However, ultimately, the
Court’s power over the validity of law greatly hampered Congress’
effort to cement its counter-interpretation in law.
The second case study demonstrates how counter-interpretation
waxes and wanes with the rise and fall of de-facto constitutional
supremacy. I focus on the battle between the U.K. Home Secretary and
the courts over the meaning of the HRA’s right to family life that
protects illegal immigrants against deportation if they have established
a family life in the host country. A coalition agreement between the
Conservative enemies and Liberal allies of the HRA temporarily and
de-facto raised the intermediate statute to supreme status. Unable to
attack the validity of the HRA, Conservatives shifted tactics to contesting its meaning. To express their rage at judicial decisions that prevented deportation, Conservatives counter-interpreted the right to
family life. Yet, as soon as the coalition frayed and de-facto constitutional supremacy faded, Conservatives shifted back to their previous
attempts to scrap the HRA. In the United Kingdom, the existence of
counter-interpretation correlated with the presence and absence of
de-facto constitutional supremacy.
185. See IRA KATZNELSON, FEAR ITSELF: THE NEW DEAL
ROSS, supra note 178.
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A. U.S. Counter-Interpretation: Religious Accommodation
The Religious Freedom Restoration Act (RFRA) is an example of
counter-interpretation under conditions of constitutional supremacy.
Congress and the judiciary disagreed over the meaning of the Free
Exercise clause. In the 1963 case of Sherbert v. Verner, the Supreme
Court held that laws that burden religious freedom must be justified by
a compelling state interest.186 This is the strictest test in American
constitutional law, so strict that the test is often called “strict in theory,
but fatal in fact.”187 In practice, however, the Court applied the new test
for religious accommodation leniently, cabining it almost completely
to laws relating to unemployment benefits, the same issue addressed in
Sherbert.188
Nevertheless, the Supreme Court’s effective reversal of Sherbert in
1990 caused widespread public outcry. In Employment Division, Department of Human Resources of Oregon v. Smith, a private drug rehabilitation
clinic fired two Native Americans employees for their religious use of
peyote.189 Since the cause of termination was work-related misconduct,
the employees were unable to collect unemployment benefits. They
sued claiming that the denial of benefits violated the Free Exercise
Clause of the First Amendment.190 This case fell squarely within the
Court’s well-established precedent. The Court had repeatedly reversed
the denial of unemployment benefits when the employee lost his or her
job as a consequence of religious observation.191 Not this time, though.
The decision by Justice Scalia ruled against the Native American
employees. He feared that since every neutral law had the potential to
burden religious practice, the requirement of a compelling governmental interest rendered many important laws presumptively invalid, “courting anarchy.”192 He concluded, “[T]he right of free exercise does not
relieve an individual of the obligation to comply with a ‘valid and
neutral law of general applicability on the ground that the law pro-
186. Sherbert v. Verner, 374 U.S. 398 (1963).
187. See, e.g., Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict
Scrutiny in the Federal Courts, 59 VAND. L. REV. 793 (2006).
188. The exception is Wisconsin v. Yoder, 406 U.S. 205 (1972), which held that laws requiring
compulsory education past eighth grade violated the religious freedom of Amish families.
189. Emp. Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 874 (1990).
190. Id. at 874.
191. See Frazee v. Ill. Dept. of Emp’t Sec., 489 U.S. 829 (1989); Thomas v. Review Bd. of Ind. Emp.
Sec. Div., 450 U.S. 707 (1981); Sherbert, 374 U.S. 398.
192. Smith, 494 U.S. at 888.
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scribes . . . conduct that his religion prescribes . . . .’”193
The backlash to the decision was immediate and furious. Both civil
liberties groups and religious conservatives reacted with shock, anger,
and disgust. They united against it and predicted a parade of horribles
resulting from the decision, such as unauthorized autopsies and communion prohibition for youth.194 A coalition of liberal and conservative law professors petitioned the Supreme Court for a rehearing, but
the Court denied it.195 Congress quickly became involved.
Backed by a large diverse group of religious and public interest
organizations, including the National Association of Evangelicals and
the American Civil Liberties Union (ACLU), in July of 1990, Representative Stephen Solarz introduced the Religious Freedom Restoration
Act (RFRA) in the House of Representatives.196 The ensuing debate
within Congress is a rich example of counter-interpretation over religious freedom and the powers of Congress. Although members differed on the details, almost all agreed that Smith was wrongly decided
and that burdens on religion should be strictly scrutinized. The most
succinct statement of Congress’ final counter-interpretation is contained in the statute itself:
(a) Findings - The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its
protection in the First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious
exercise as surely as laws intended to interfere with
religious exercise;
(3) governments should not substantially burden religious
exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990)
the Supreme Court virtually eliminated the requirement that the government justify burdens on religious
exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal
court rulings is a workable test for striking sensible
193. Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 255 n.3 (1982)).
194. See Robert F. Drinan & Jennifer I. Huffman, The Religious Freedom Restoration Act: A
Legislative History, 10 J.L. & RELIGION 531, 532 (1993).
195. Smith, 494 U.S. 872, reh’g denied, 496 U.S. 913 (1990).
196. H.R. 5377, 101st Cong. (1990).
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balances between religious liberty and competing prior
governmental interests.
(b) Purposes - The purposes of this chapter are—
(1) to restore the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin
v. Yoder, 406 U.S. 205 (1972) and to guarantee its
application in all cases where free exercise of religion
is substantially burdened; and
(2) to provide a claim or defense to persons whose religious
exercise is substantially burdened by government.197
In the Court’s narrow construction, free exercise only prohibited
laws that intentionally targeted religion. In Congress’ counterinterpretation, any law that burdened religion was suspect and must be
justified by a compelling governmental interest. Congress ordered the
Court to comply with its broader interpretation, to reverse Smith, and
“restore the compelling interest test as set forth in Sherbert v. Verner.”198
Congress designed RFRA to apply to both the states and the federal
government. Congress claimed it had the power to apply RFRA against
the states under Section 5 of the Fourteenth Amendment.199 Before
the Fourteenth Amendment, the Free Exercise Clause and other
constitutional rights applied only against the federal government. The
Fourteenth Amendment incorporated many constitutional rights, including the Free Exercise Clause, so that they applied against the states
as well.200 But who would interpret and apply the newly incorporated
rights? Traditionally, the answer might be the judiciary. However, the
Reconstruction and Republican Congress greatly distrusted the judiciary as too sympathetic to state interests. Hence, Congress gave itself
an important role in interpreting constitutional rights. Section 5 of the
Fourteenth Amendment states, “Congress shall have power to enforce,
by appropriate legislation, the provisions of this article.” The Court had
repeatedly and dramatically ruled in favor of slave owners and against
laws limiting slavery’s expansion, most infamously in Dred Scott.201 Since
197. Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4 (1994).
198. 42 U.S.C. §§ 2000bb.
199. Boerne v. Flores, 521 U.S. 507, 516-17 (1997).
200. The exact extent of incorporation is heavily contested in the scholarship. For one
prominent take, see Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J.
1193 (1992).
201. Dred Scott v. Sandford, 60 U.S. 393 (1856).
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Congress lacked faith in the Supreme Court, it empowered itself,
through Section 5, to interpret and enforce the Fourteenth Amendment against the states.202
In City of Boerne v. Flores, the Court struck down RFRA as beyond the
scope of Congress’ powers under Section 5 of the Fourteenth Amendment.203 The Court veers back and forth between recognizing that
Congress is counter-interpreting, and accusing Congress of trying to
invent a new right. The court is unsure whether it is in the midst of
general or constitutional rights disagreement. On the general constitutional rights disagreement side, the Court repeatedly accuses Congress
of “changing what the right is”204 and trying to “effectively circumvent
the difficult and detailed amendment process contained in Article
V.”205 The Court suggests that if it accepted RFRA, what the Court
would be “enforcing would no longer in any meaningful sense, the
provisions of the 14th Amendment.”206 The rhetoric of “changing” and
“amending” the Constitution suggests that Congress is trying to create a
new right, separate and apart from the Free Exercise Clause.207
Yet, the Court also recognizes that Congress was not seeking to
change the Free Exercise Clause, but correct what it considered to be a
misinterpretation of it. The Court acknowledged that “many criticized
the Court’s reasoning, and this disagreement resulted in the passage of
RFRA.”208 However, Congress had usurped the judicial role by crossing
the line from enforcement to interpretation. RFRA “alters the meaning
of the Free Exercise clause” and “cannot be said to be enforcing the
Clause.”209 After recognizing the phenomenon of counter-interpretation, the Court denies Congress’ right to practice it. Interpretation
belongs to the Court alone, and Congress may only pass statutes to
enforce the Court’s understanding of the Constitution.
The Court then invented a new test for determining whether a law
fell within Congress’ authority under Section 5: “There must be a
congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end.”210 Accordingly, the
202. Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores,
111 HARV. L. REV. 153, 182-83 (1997).
203. Flores, 521 U.S. at 507.
204. Id. at 519.
205. Id. at 529.
206. Id. at 519 (internal quotation marks omitted).
207. Cf. McConnell, supra note 202, at 173.
208. Flores, 521 U.S. at 515.
209. Id. at 519.
210. Id. at 520.
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Court found that RFRA “is so out of proportion to the supposed
remedial or preventive object that it cannot be understood as responsive to, or designed to prevent unconstitutional behavior.”211
Did the court win? No. The story is more complicated than that for
three reasons. First, Boerne held that RFRA was unconstitutional as
applied to the states, not the federal government. Seven years later, the
Court confirmed that RFRA was constitutional when applied to federal
law.212 Like in Smith, the case involved the religious use of drugs.
However, this time it was the federal government, not a state government, who had interfered with the free exercise of religion. A Christian
spiritist sect based in Brazil takes the hallucinogenic drug hoasca as
part of its religious practice. The federal government intercepted a
shipment of the drug from Brazil to an American branch of the
religion.213 The Court applied RFRA’s strict scrutiny test, and ruled
that the church had a right to the intercepted shipment.214 The Court
reiterated its reluctance expressed in Smith to strictly scrutinizing
neutral laws, but ultimately bowed to the powers of Congress:
We have no cause to pretend that the task assigned by Congress
to the courts under RFRA is an easy one. Indeed, the very sort of
difficulties highlighted by the Government here were cited by
this Court in deciding that the approach later mandated by
Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. See Smith, 494 U.S.,
at 885– 890, 110 S.Ct. 1595. But Congress has determined that
courts should strike sensible balances, pursuant to a compelling
interest test that requires the Government to address the particular practice at issue.215
Years later, the Court again revisited RFRA in the case of Burwell v.
Hobby Lobby. It ruled that RFRA can exempt “closely held” stock
corporations from requirements to provide coverage for contraception
under the Patient Protection and Affordable Care act.216
211.
212.
213.
214.
215.
216.
2016]
Id. at 509.
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).
Id. at 425.
Id. at 439.
Id. at 439.
Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014).
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Second, eighteen states passed their own RFRA laws requiring state
courts to strictly scrutinize neutral laws that burden religion.217 Another eleven state supreme courts have interpreted their own state
constitutions to require the application of strict scrutiny.218 In these
twenty-nine states, RFRA is still very much alive.
Lastly, Congress passed new legislation. Soon after Boerne, the House
held hearings to express its outrage at the decision.219 Again, a broad
coalition collaborated on a bill to fight the Supreme Court decision
and to restore the compelling interest test under a bill entitled The
Religious Liberty Protection Act.220 However, this time the effort
stumbled. The ACLU noted that recent circuit court decisions had
considered whether landlords had the right to discriminate against
tenants, such as homosexuals and unmarried couples, based upon
their religious beliefs.221 They and other civil rights groups feared that
the new bill would encourage or force the judiciary to accept discrimination as a valid exercise of religious belief.222 Religious groups did
little to dispel the impression, and refused to alter the legislation to
address the concern.223 The Coalition fractured. The bill passed the
House, but it stalled in the Senate.
A compromise was reached, and Congress passed the Religious Land
Use and Institutionalized Persons Act (RLUIPA) of 2000. The Act again
sought to restore the compelling interest test for state legislation, but
limited its scope to two areas: land use and the religious practice of
institutionalized persons, such as prisoners and the mentally ill.224
217. Eugene Volokh, 1A. What Is the Religious Freedom Restoration Act?, VOLOKH CONSPIRACY
(Dec. 2, 2013), http://www.volokh.com/2013/12/02/1a-religious-freedom-restoration-act.
218. Id.
219. See Protecting Religious Freedom After Boerne v. Flores: Hearing Before the Subcomm. on the
Constitution of the H. Comm. on the Judiciary, 105th Cong. (1997); Protecting Religious Freedom after
Boerne v. Flores (Part II): Hearing Before the Subcomm. on the Constitution of the H. Comm. on the
Judiciary, 105th Cong. (1998).
220. Religious Liberty Protection Act of 1998, H.R. 4019, 105th Cong. (1998).
221. Laura W. Murphy, Christopher E. Anders, & Terri A. Schroeder, Letter to the House on the
Religious Liberty Protection Act and the Impact on Civil Rights Laws, ACLU (May 5, 1999), https://www.
aclu.org/religion-belief/letter-house-religious-liberty-protection-act-and-impact-civil-rights-laws.
222. Id.
223. See Effect of the Religious Liberty Protection Act on State and Local Civil Rights Laws, ACLU
(Jan. 25, 1999), https://www.aclu.org/religion-belief/effect-religious-liberty-protection-act-stateand-local-civil-rights-laws (noting that “[s]everal witnesses during hearings before the House and
Senate Judiciary Committees specifically stated their belief that RLPA could and should be used as
a defense to civil rights claims based on gender, religion, sexual orientation, and marital status.”).
224. Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc
(2000).
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Although Congress strongly disagreed with the Court’s interpretation of Section 5, it wanted a constitutional justification that would
ensure the Court would apply the statute. This time, in a nod to the
Boerne’s new test of congruence and proportionality, it compiled evidence that land use regulations were often discriminatory, both on
their face, and, as applied, against religious institutions.225 In the area
of land regulation, Congress also claimed authority based on the
spending226 and commerce clauses.227
The Supreme Court has ruled that RLUIPA’s provisions regarding
institutionalized persons are constitutional.228 However, the Court has
not addressed the land use regulations, the issue that was at the heart of
Boerne. There is no indication it ever plans to address the issue, and
lower courts have ruled it constitutional.
The RFRA battle inspired a nation-wide dialogue over the meaning
of the Free Exercise Clause. It also exemplifies Congress’ power with
respect to meaning and validity. Unlike in the United Kingdom,
Congress reinterpreted the meaning of a constitutional right. It refused to cede the meaning of the Free Exercise Clause to the Court.229
On the validity side, Congress put the Court on the defensive by
marshaling public opinion and repeatedly passing statutes that defy the
court. This strategy mostly succeeded in its goal of forcing courts to
strictly scrutinize neutral laws that burden a religious practice.
However, Congress’ method was informal and clumsy. Congress
tried to wear the Court down through repeatedly passing statutes to
defy it. In other areas, the Court has withstood the heat and repeatedly
225. See Protecting Religious Freedom after Boerne v. Flores (Part II): Hearing Before the Subcomm.
on the Constitution of the H. Comm. on the Judiciary, supra note 218; Protecting Religious Freedom
After Boerne v. Flores (Part III): Hearing Before the Subcomm. on the Constitution of the H. Comm. on the
Judiciary, 105th Cong. (1998); Protecting Religious Freedom After Boerne v. Flores: Hearing Before the
Subcomm. on the Constitution of the H. Comm. on the Judiciary (statement of Rep. Canady), supra note
218. For an evaluation of this evidence, see Marci A. Hamilton, Federalism and the Public Good:
The True Story Behind the Religious Land Use and Institutionalized Persons Act, 78 IND. L.J. 311, 345-52
(2003).
226. Religious Land Use and Institutionalized Persons Act, § 2(a)(2)(A) (stating that the
statute applies when “the substantial burden is imposed in a program or activity that receives
Federal financial assistance, even if the burden results from a rule of general applicability”).
227. Id. § 2(a)(2)(B) (stating that the statute applies when the substantial burden affects, or
removal of that substantial burden would affect, commerce with foreign nations, among the
several States, or with Indian tribes, even if the burden results from a rule of general applicability.
228. Cutter v. Wilkinson, 544 U.S. 709 (2005).
229. See 42 U.S.C. §§ 2000bb-2000bb-4.
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struck down the laws.230 Sometimes, the Court has successfully waited
for the controversy to die down before acting.231 And the Court still
managed to greatly eviscerate Congress’ power under section 5.232
RFRA and other conflicts shows us we should not underestimate
Congress’ power to fight back on the meaning of the Constitution, but
that as a formal matter, the Supreme Court still has the final power over
the validity of law.
B.
United Kingdom–The Right to Family Life
Comparisons between countries are always of limited value
because of the many confounding variables. The U.S. has constitutional supremacy, but it has many other features that may explain
counter-interpretation. What is fascinating about the United Kingdom’s conflict over the Right to Family Life is that it provides comparison within a country over time of the alternating effects of the presence
and absence of constitutional supremacy.
In the United Kingdom, through a quirk of coalition politics, there is
strong evidence that constitutional supremacy is a necessary condition
for the counter-interpretation of the Human Rights Act. In May 2010,
to appease their new Liberal Democratic coalition partners, the Conservatives agreed to scale back threats to repeal or derogate from the
Human Rights Act. Coalition policy and discourse was premised on the
idea that compliance with the Human Rights Act was mandatory.
Politics granted what law had not. By law, Parliament could repeal or
ignore the HRA; it had an intermediate status subordinate to Parliament’s supremacy. However, coalition politics forced the government
to treat the HRA as supreme and binding on all parties.
We can view the changes in counter-interpretation in the United
Kingdom before de facto constitutional supremacy, during it, and after
it fades. Before de facto constitutional supremacy, conservatives never
counter-interpreted and campaigned to repeal the HRA. During de
facto constitutional supremacy, Conservative counter-interpretation
was robust. As the coalition weakened so too did counter-interpretation, leaving the Conservative Party confused over how best to fight
230. See supra note 180 (discussing the Court’s victories over Miranda warnings and flag
burning).
231. Id. (discussing the Court’s 30 year wait before responding to Congress’ statute attacking
the requirement of a Miranda warning during police interrogations.).
232. See Bd. of Tr. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (striking down Title I of
the Americans with Disabilities Act as beyond Congress’ powers under section 5 of the 14th
Amendment).
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back against the judiciary and what stance to take towards the HRA.
Counter-Interpretation was positively correlated with de facto constitutional supremacy.
1.
Counter-Interpretation Before the Coalition Agreement
In the 2010 election, the Conservative Party campaigned to “scrap”
the Human Rights Act.233 Perhaps the most heated HRA issue driving
the repeal involved illegal immigration. As in the United States, conservatives are concerned that immigration strains public services and
dilutes national identity. The issue has become intertwined with the
HRA’s right to family life. The coverage has a consistent motif. Conservatives highlight cases where an illegal immigrant has committed a
horrendous criminal act and is subject to deportation. Yet, the courts
halt the deportation proceedings because they would violate the immigrant’s right to family life, which is protected by the HRA. The
applicant has established roots and ties in the United Kingdom, usually
marriage and children. Article after article harp on particularly atrocious cases.234
The tragic death of Amy Huston received the most attention from
the press and public. On November 24, 2003, twelve-year-old Amy
Houston was walking to a buy a new album. Ibrahim, an illegal
immigrant from Northern Iraq, accidentally ran Amy over with his car,
and then fled.235 By 2006, Ibrahim had been convicted on more than
twenty charges, including burglary, theft, cannabis possession, and for
driving dangerously without a license.236 After a complicated series of
appeals, on December 18, 2010, the Upper Tribunal of the
233. See Benedict Brogan, Cameron ‘will scrap Human Rights Act’, DAILY MAIL (Dec. 9, 2008),
http://www.dailymail.co.uk/news/article-1092716/Cameron-calls-UK-Bill-Rights-Straw-revealsplans-overhaul-Human-Rights-Act.html.
234. See, e.g., Fury over rights law for rapist, DAILY EXPRESS (Apr. 16, 2010) http://www.express.
co.uk/news/uk/169586/Fury-over-rights-law-for-rapist; David Barrett, Killer of Gurkha’s son wins
right to stay in Britain, DAILY TELEGRAPH (Jan. 16, 2011), http://www.telegraph.co.uk/news/uknews/
law-and-order/8261865/Killer-of-Gurkhas-son-wins-right-to-stay-in-Britain.html; Andy Whelan, Escaped murderer of the Honduran president’s nephew can’t be deported from UK - because of his human rights,
DAILY MAIL (Oct. 13, 2012), http://www.dailymail.co.uk/news/article-2217404/Escaped-murdererHonduran-presidents-nephew-deported); Tom Whitehead, Nigerian rapist: criminals who evade
deportation, DAILY TELEGRAPH (Sept. 21, 2011), http://www.telegraph.co.uk/news/uknews/
immigration/8777637/Nigerian-rapist-criminals-who-evade-deportation.html.
235. Andrew Gilligan & Michael Howie, End the Human Rights farce: Amy died. He got a slapped
wrist, DAILY TELEGRAPH (May 1, 2011), http://www.telegraph.co.uk/news/uknews/crime/8485717/
End-the-Human-Rights-farce-Amy-died.-He-got-a-slapped-wrist.html.
236. Id.
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Immigration and Asylum Chamber ruled that Ibrahim could not be
deported because under the HRA, he had established a right to family
life.237 Between the six years of the accident and the final court case,
Ibrahim had married a British citizen and fathered two children.238
Throughout the appeals process, conservative newspapers railed
against the HRA.239 The right wing Daily Telegraph ridiculed the ruling
as making a “mockery of the Human Rights Act.”240 A later article
investigating the background of the ruling was entitled, “End the
Human Rights Farce: Amy died. He got a slapped wrist.”241 After the
initial ruling, David Cameron, then a candidate for Prime Minister,
wrote to the father of Amy Houston to express his sympathy, his
outrage, and he pledged to repeal the Act.242 After the court’s final
ruling in December of 2010, Cameron, now Prime Minister, furiously
condemned the decision as “a sickening day for justice.”243 Amy
Houston’s case is only one of the many right to family life rulings that
conservative newspapers have targeted.244
In the 2010 elections, the Conservative Party invoking these stories to
justify its campaign pledge to scrap the Human Rights Act.245 The 2010
Parliamentary elections produced a hung Parliament: none of the
parties earned the 326 seats necessary to command a majority. Six days
after the election, the Conservatives formed a coalition government
with the Liberal Democrats, the first coalition since Churchill’s war
237. Court of Appeal rejects ‘hit-and-run’ deportation bid, BBC (Apr. 8, 2011), http://www.bbc.co.
uk/news/uk-england-13015824.
238. Id.
239. See, e.g., Father’s fight to deport hit-and-run driver fails, DAILY TELEGRAPH (Mar. 5, 2011),
http://infoweb.newsbank.com/resources/doc/nb/news/135D75B78C440B90?p⫽AWNB; Jack
Doyle & Jaya Narain, Asylum seeker who left girl, 12, to die after hit-and-run can stay in UK . . . thanks to
the Human Rights Act David Cameron promised her father he’d scrap, DAILY MAIL (Dec. 17, 2010),
http://www.dailymail.co.uk/news/article-1339142/Asylum-seeker-Aso-Mohammed-Ibrahim-letgirl-12-die-stay-UK.html; Tim Shipman, Cameron’s fury over the killer who can’t be deported due to
Human Rights Act, DAILY MAIL (Dec. 19, 2010), http://www.dailymail.co.uk/news/article-1339643/
Camerons-fury-killer-deported-Human-Rights-Act.html (last visited Jan. 28, 2014); Tom Whitehead, What about my family rights, says father of girl killed by asylum seeker, DAILY TELEGRAPH (Apr. 9,
2011) http://infoweb.newsbank.com/resources/doc/nb/news/1368FBAD68BBEAE0?p⫽AWNB.
240. Simon Heffer, Dave should keep his promise to Amy’s father, DAILY TELEGRAPH (Dec. 18,
2010), http://infoweb.newsbank.com/resources/doc/nb/news/1344164E627D1230?p⫽AWNB.
241. Gilligan & Howie, supra note 234.
242. Tracy McVeigh, Asylum decision on hit-and-run driver embarrasses PM, GUARDIAN (Dec. 18,
2010), http://www.theguardian.com/uk/2010/dec/19/asylum-ruling-fury-rights-cameron.
243. Id.
244. See supra note 16.
245. See supra note 15 and accompanying text.
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ministry during the Second World War seventy years before.246 Although the differences between the Liberal Democrats and Labour are
substantial, the Liberal Democrats’ differences with Conservatives are
even wider. Many voters condemned the Liberal Democrats for abandoning their principles to gain power.247
The Liberal Democrats had long defined themselves as the party of
constitutional rights.248 Very early into the Coalition, Nick Clegg
warned that “any government would tamper with the HRA at its
peril.”249 Eight days after the Coalition formed, the Conservative Party
confirmed that it was reconsidering its manifesto pledge to scrap the
HRA. About a week after that, the coalition published their final
agreement to guide co-governance.250
In the agreement, Conservatives agreed to retract their pledge to
repeal the HRA and replace it with a new U.K. Bill of Rights.251 Instead
of legislation, a commission would investigate a U.K. Bill of Rights.
Most importantly, that commission’s terms of reference limited it to
building on rather than scaling back the rights under the HRA. The
commission could only strengthen, not water down, HRA rights.252
This compromise represented a larger understanding between the
two parties. The HRA is a major part of the Liberal Democratic agenda.
The HRA is important to Conservatives, but is also balanced against a
variety of other priorities. To govern with the Liberal Democrats, the
Conservatives (at least in government) would have to scale back their
attacks on the HRA. When controversy arose, their response could no
longer consist in a promise or effort to repeal the Act. They would have
246. In fact, the Churchill coalition was fundamentally different than the 2010 coalition. The
last peacetime coalition before 2010 was in 1931. See VERNON BOGDANOR, THE COALITION AND THE
CONSTITUTION 61-63 (2011).
247. Brian Brady & Matt Chorley, Clegg sold out to get power, say voters, INDEPENDENT (Sept. 18,
2010), http://www.independent.co.uk/news/uk/politics/clegg-sold-out-to-get-power-say-voters2083293.html.
248. See, e.g., Allegra Stratton, Nick Clegg: I will refuse to let human rights laws be weakened,
GUARDIAN (Aug. 25, 2011), http://www.theguardian.com/politics/2011/aug/25/nick-clegghuman-rights-laws.
249. Andrew Sparrow & Patrick Wintour, Coalition reconsidering Tory plan to scrap Human Rights
Act, GUARDIAN (May 19, 2010), http://www.theguardian.com/politics/2010/may/19/theresa-maycoalition-human-rights-act-scrap.
250. HM GOVERNMENT, supra note 24.
251. Id.; see also James Chapman & Tim Shipman, Human rights cave-in: Cameron pledged to scrap
Act . . . now Clegg champions it under ANOTHER coalition compromise, DAILY MAIL (May 20, 2010),
http://www.dailymail.co.uk/news/article-1279544/Nick-Clegg-champions-Human-Rights-ActDavid-Cameron-pledged-scrap.html.
252. HM GOVERNMENT, supra note 24, at 11.
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to figure out new ways to express their outrage and alter the constitutional policy. Legally, the Human Rights Act was still a statute. Politically, it was supreme law . . . at least for the time being.
2.
Counter-Interpretation During the Coalition Agreement:
New Executive Deportation Rules
De-facto constitutional supremacy facilitated Conservatives’ counterinterpretation of the right to family life. On October 4th, 2011,
controversy around the right to family life erupted again in response to
a speech that the Home Secretary, Theresa May, gave at the annual
Conservative Party Conference.253 As the head of the Home Department, May is charged with implementing policies on immigration,
crime, and counter-terrorism. May’s speech announced new policies to
cut crime and reduce immigration.254 She worried, however, that
judges would undercut her new immigration policies; specifically, she
was concerned they would use the right to family life to block the
deportation of foreign criminals. She cited a variety of provocative
examples:
We all know the stories about the Human Rights Act. The
violent drug dealer who cannot be sent home because his
daughter—for whom he pays no maintenance—lives here. The
robber who cannot be removed because he has a girlfriend.
The illegal immigrant who cannot be deported because—and I
am not making this up—he had a pet cat.255
The comment about the pet cat captured the headlines and caused a
minor scandal256 or “catgate.”257 A fellow cabinet member ridiculed
253. See, e.g., Wesley Johnson, Theresa May’s Immigrant Cat Claim is Rejected, INDEPENDENT (Oct. 4,
2011), http://www.independent.co.uk/news/uk/politics/theresa-mays-immigrant-cat-claim-rejected2365464.html; James Welch, Theresa May’s Twisted Tale of a Bolivian Cat, GUARDIAN (Oct. 4, 2011),
http://www.theguardian.com/commentisfree/2011/oct/04/theresa-may-cat-human-rights-act.
254. Theresa May, Theresa May Speech in Full, POLITICS.CO.UK (Oct. 4, 2011), http://www.politics.
co.uk/comment-analysis/2011/10/04/theresa-may-speech-in-full.
255. Id.
256. See, e.g., Johnson, supra note 253; Welch, supra note 253.
257. See, e.g., Jack Doyle, Nick Fagge, & Jason Groves, Theresa May Cat Claim: Truth about
Tory ‘Cat-Gate’ Row, DAILY MAIL (Oct. 6, 2011), http://www.dailymail.co.uk/news/article-2045794/
Theresa-May-cat-claim-Truth-Tory-cat-gate-row.html; Johnson, supra note 201; Adam Wagner,
Catgate: Another Myth Used to Trash Human Rights, GUARDIAN LEGAL NETWORK (Oct. 4, 2011),
http://www.theguardian.com/law/2011/oct/04/theresa-may-wrong-cat-deportation.
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the remark,258 and newspapers verified that the claim was inaccurate.259
More importantly, in her speech May equivocated on whether she
would repeal the HRA or counter-interpret it. Immediately after the cat
comment, she embraced the repeal option: “This is why I remain of the
view that The Human Rights Act needs to go. The government’s
commission is looking at a new British Bill of Rights.”260 Yet, she then
pivoted, announcing that the new immigration rules would “ensure
that the misinterpretation of Article Eight of the ECHR—the right to a
family life—no longer prevents the deportation of people who shouldn’t
be here.”261 The problem, according to May, is not Article 8 itself, but
the “British courts” who have interpreted “the right to a family life as an
almost absolute right.”262 However, she noted that the draftsmen
intended and the wording indicates that the right is limited: “The
meaning of Article Eight should no longer be perverted.”263 May said
that she would promulgate new executive immigration rules that
reflect the correct interpretation of Article Eight so that when foreign
nationals “should be removed, they will be removed.”264 May’s speech
was ambivalent about the HRA, alternating—sometimes within the
same paragraph—from calling for its repeal to validating it through an
act of counter-interpretation.
Theresa May made good on her promise to act. On June 19th, 2012,
May laid a resolution before the House of Commons to endorse the
new immigration rules:
That this House supports the Government in recognizing that
the right to respect for family or private life in Article 8 of the
European Convention on Human Rights is a qualified right and
agrees that the conditions for migrants to enter or remain in
the UK on the basis of their family or private life should be
those contained in the Immigration Rules.265
258. Nigel Morris, Fur Flies Between Ken Clarke and Theresa May as Cat Tale Starts Immigration
Row, INDEPENDENT (Oct.5, 2011), http://www.independent.co.uk/news/uk/politics/fur-fliesbetween-ken-clarke-and-theresa-may-as-cat-tale-starts-immigration-row-2365629.html.
259. See, e.g., Welch, supra note 253.
260. May, supra note 254.
261. Id. (emphasis added).
262. Id.
263. Id.
264. Id.
265. 546 Parl Deb HC 760 (6th ser.) (2012).
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Unlike the equivocation of her Conservative Party Conference speech,
this time May squarely embraced counter-interpretation. At the Conservative Party Conference, her immediate audience had been Conservative activists and politicians. Now, she was addressing both Conservatives
and Liberal Democrats in Parliament, and shifted to counterinterpretation.
May explained that the “problem” was “that Parliament had never
before been given the opportunity to set out” the meaning of Article
8.266 Judges have had to decide the meaning “in each and every
individual case, and without the benefit of the views of Parliament.”
The new immigration rules take “into account Article 8” and “the
relevant case law.”267 It is “in complete compliance with the ECHR, and
in full compliance with the law.”268 May emphasized that she “uphold[s] the principles of human rights, and this is in no way contrary to
those principles or to the convention.”269 She emphasized that according to the ECHR and the HRA, the right to family life is a limited one. It
must be balanced against the prevention of crime and the United
Kingdom’s economic well-being.270 If Parliament endorsed the motion, judges would shift from evaluating the proportionality of each
case to evaluating the proportionality of the new immigration rule.271
Although all Conservative members supported the bill, their emphasis varied. Most agreed with May that the resolution corrected judges’
misinterpretation of Article 8.272 However, one prominent Conservative MP, a former shadow Attorney General and spokesman on Constitutional affairs, rejected counter-interpretation:
I am much encouraged by the line the Home Secretary is taking
on all this . . . To bolster the assumption that lie behind what
she is saying in defense of the sovereignty of this Parliament,
does she want to put the words “notwithstanding the Human
Right Act 1998” in front of the legislation so that courts are
under no misapprehension about what they do?273
266.
267.
268.
269.
270.
271.
272.
273.
920
Id. at 763.
Id.
Id. at 760.
Id. at 761.
546 Parl Deb HC, supra note 265, at 760.
Id. at 763.
Id. at 761, 766.
Id. at 763.
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Inserting the words “notwithstanding” implies that the rules violate the
HRA rather than interpret them.274 This is the exact opposite of
counter-interpretation, and May politely declined the suggestion.275
A few months after May’s speech to the House of Commons, in
Izuazu, the Upper Tribunal of the Immigration and Asylum Chamber,
refused to defer to the new immigration rules’ interpretation of the
right to family life because “the rules are those of the Secretary of State
not Parliament.”276 Though Parliament and its statutes are supreme,
the executive and its rules are subordinate. Unlike a statute, May’s rules
had not passed through both houses of Parliament. Therefore, Parliament was unable to rigorously scrutinize them. “Only the parliamentary process for” a statute “permits a clause by clause discussion of the
measures, with opportunity for amendment and revision.”277
Two-and-a-half weeks after Izuazu, on February 16, 2012, Theresa
May condemned the decision in an editorial in the right wing Daily
Mail and promised to meet the court’s criticisms by introducing a
statute to ensure “that foreign nationals who commit serious crimes
shall, except in extraordinary circumstances, be deported.”278 This was
another act of counter-interpretation. She lamented that “some judges
evidently do not regard a debate in Parliament on new immigration
rules, followed by the unanimous adoption of those rules, as evidence
that Parliament actually wants to see those new rules implemented.”279
She did not mention Izuazu by name, but quoted from the decision.280
May reaffirmed that the rules correctly interpreted Article 8:
This is not a dispute about respect for human rights, which I
certainly agree is an essential part of any decent legal system. It
is about how to balance rights against each other: in particular,
the individual’s right to family life, the right of the individual to
274. Id.
275. Id.
276. Secretary of State for the Home Department v. Izuazu, [2013] AC 45 (UKUT) (U.K.).
277. Id.
278. Theresa May, It’s MY Job to Deport Foreigners who Commit Serious Crime - and I’ll fight Any
Judge who Stands in my Way, Says Home Secretary, DAILY MAIL (Feb. 16, 2013), http://www.dailymail.
co.uk/debate/article-2279828/Its-MY-job-deport-foreigners-commit-crime—Ill-fight-judge-standsway-says-Home-Secretary.html.
279. Id.
280. “[O]ne immigration judge recently stated that ‘the procedure adopted in relation to
the introduction of the new rules provided a weak from of Parliamentary Scrutiny.’” Id. (quoting
Izuazu, supra note 276).
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be free from violent crime, and the right of society to protect
itself against foreign criminals.281
The problem, according to May, was not human rights or Article 8,
but a minority of U.K. judges who believed that it is “they, rather than
Parliament, who are entitled to decide how to balance the foreigner’s
right to family life against our nation’s right to protect itself.”282 May
asserted that the judges had damaged the “notion of human rights”
and its prestige among the public, as “in the popular imagination,
‘human rights’ are wrongly, but perhaps understandably becoming
synonymous with legal dodges that allow criminals to escape proper
punishment and to continue to prey on the public.”283 Though judges
may be able to evade executive immigration rules, May promised that
Parliament would pass a statute that would rein them in.284 May fought
against the court with counter-interpretation.
The human rights establishment refused to take May seriously. In the
influential Human Rights blog, Mark Elliott condemned May as “an
illustration of the willingness of certain politicians and some sections of
the media to collude in spectacularly ill-informed trashing of human
rights law and the judges who administer it.”285 On the same blog,
Adam Wagner worried that the counter-interpretation would “corrode
the independence of judges” and “undermine[] the rule of law.”286
In an important subsequent decision, MF (Nigeria) v Secretary of State
for the Home Department,287 the U.K. Court of Appeal again thwarted
May. The court differed with the “form but not the substance” of the
lower court decision and the Izuazu approach.288 Rather than directly
clash with Theresa May, the Court of Appeal, somewhat implausibly,
interpreted the immigration rules to conform to and confirm its
281. Id.
282. Id.
283. Id.
284. Id.
285. Mark Elliott, A Human Rights Reality Check for the Home Secretary, UK HUMAN RIGHTS BLOG
(Feb. 18, 2013), http://ukhumanrightsblog.com/2013/02/18/a-human-rights-reality-check-forthe-home-secretary-dr-mark-elliott/.
286. Adam Wagner, Why the Home Secretary’s Attack on Human Rights Judges is like a Bakewell Tart,
UK HUMAN RIGHTS BLOG (Feb. 17, 2013), http://ukhumanrightsblog.com/2013/02/17/why-thehome-secretarys-attacks-on-human-rights-judges-is-like-a-bakewell-tart/.
287. MF (Nigeria) v. Secretary of State for the Home Department [2013] EWCA (Civ). 1192
[50] (U.K.).
288. Id.
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pre-existing Article 8 jurisprudence.289 According to the court, May did
not want to bend judges to her will, but rather she would accommodate
the well-established case law. On the surface the court agreed with May,
but for practical and immediate purposes the court had almost completely refused to change its approach to Article 8.290 In Theresa May’s
tug of war with the courts over deportation, de-facto constitutional
supremacy shifted her position from advocating the repeal of the HRA
to contesting the courts’ interpretation of its meaning. One of the
greatest enemies of the HRA now invoked it in acts of counterinterpretation.
3.
As the Coalition and Supremacy Fades, so too Does
Counter-Interpretation
Yet, counter-interpretation would not long endure. By the new year
of 2013, ties between the Liberal Democrats and Conservatives were
near a breaking point. Both sides felt betrayed by the other for not
showing full support over key issues.291 The breakdown of the Coalition
would lead to the collapse of Conservative counter-interpretation.
In the midst of this strain, on February 28th, 2013, a special election
was held in Eastleigh. The incumbent MP, a Liberal Democrat, had
resigned after conceding that he had fixed traffic tickets.292 Before the
first election of the incumbent, the seat had traditionally been a
conservative stronghold.293 Conservatives had targeted the constituency as a potential gain for the party.294 The race risked exacerbating
289. Id. ¶¶ 37-50.
290. Id.; see Omar Shibi, ‘Form not Substance’: Deport rules do not change the law, FREE MOVEMENT
(Oct. 22, 2013), http://www.freemovement.org.uk/2013/10/22/form-not-substance-deport-rulesdo-not-change-the-law/.
291. See, e.g., Nicholas Watt, House of Lords Reform Halted After Largest Tory Rebellion of the
Parliament, GUARDIAN (July 10, 2012), http://www.theguardian.com/politics/2012/jul/10/houseof-lords-reform-halted; Juliette Jowit, Nick Clegg blocks boundary changes after Lords Reform Retreat,
GUARDIAN (Aug. 6, 2012), http://www.theguardian.com/politics/2012/aug/06/nick-clegg-blocksboundary-changes.
292. Sandra Laville, Chris Huhne Resigns Over Criminal Charge in Speeding Case, GUARDIAN (Feb.
3, 2012), http://www.theguardian.com/politics/2012/feb/03/chris-huhne-expected-resigncharges-speeding.
293. James Chapman, Coalition Partners go to War Over Hune’s Seat, DAILY MAIL (Feb. 4, 2013),
http://www.dailymail.co.uk/news/article-2273509/Coalition-partners-war-Chris-Huhnes-seatCameron-orders-party-kill-battle-marginal-constituency.html.
294. The Conservative Party: The Eastleigh Delusion, ECONOMIST (Mar. 1, 2013), http://www.
economist.com/blogs/blighty/2013/03/conservative-party.
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tensions within the coalition.295 The Liberal Democrats won the seat. It
was a dramatic and painful loss for the Conservatives whose candidate
came in third behind the U.K. Independent Party (UKIP), a radically
right wing populist party. It was UKIP’s best electoral performance to
date.296
Many Conservative backbenchers interpreted the election as a warning that their party should not compromise its values to retain the
coalition. UKIP’s victory signaled to them that the Conservative Party
must move right to retain its core supporters, by taking tough stances
on crime, immigration, and Europe.297 It also stirred up the beginnings
of competition over the party leadership. Anticipating that Cameron
might lose the next election, MPs began to position themselves to
replace him.298
Less than a week after the by-election, there was a small flurry of
prominent Conservative MP proposals to scale back the HRA and the
ECHR.299 The Sunday Telegraph reported that the Justice Secretary
295. Patrick Wintour, Eastleigh Byelection: Tories Show Three Point Lead Over Lib Dems, GUARDIAN
(Feb. 7, 2013), http://www.theguardian.com/politics/2013/feb/08/eastleigh-byelection-torieslib-dems (arguing that “fight for Chris Huhne’s Seat,” could be microcosm of general election
battle as coalition partners assert their differences”); The Weirdness of Eastleigh, ECONOMIST (Feb. 23,
2013), http://www.economist.com/news/britain/21572192-voters-small-town-south-england-coulddetermine-britains-political.
296. Peter Kellner, Ukip’s Eastleigh Surge Will Scare the Tories— but it Won’t Prove Fatal, GUARDIAN
COMMENT NETWORK (Mar. 1, 2013), http://www.theguardian.com/commentisfree/2013/mar/01/
ukip-eastleigh-surge-scare-tories-not-fatal.
297. Patrick Hennessy, David Cameron Answers Critics: I will not Lurch to the Right, TELEGRAPH
(Mar. 2, 2013), http://www.telegraph.co.uk/news/politics/david-cameron/9904880/DavidCameron-answers-critics-I-will-not-lurch-to-the-Right.html; Nicholas Watt, Tories put David Cameron
on Notice After Eastleigh Byelection Drubbing, GUARDIAN (Mar. 1, 2013), http://www.theguardian.com/
politics/2013/mar/01/tories-david-cameron-eastleigh-byelection; See The Eastleigh Delusion, supra
note 294; Robert Winnett, Eastleigh by-election leaves the Tories at a Crossroads, TELEGRAPH (Mar. 1,
2013), http://www.telegraph.co.uk/news/politics/9901612/Eastleigh-by-election-leaves-the-Toriesat-a-crossroads.html.
298. James Forsyth, The Next Tory Leadership Battle is Boris Johnson vs. Theresa May—and it’s
already started, SPECTATOR (Aug. 3, 2013), http://www.spectator.co.uk/features/8979591/the-nexttory-leadership-battle-is-boris-johnson-vs-theresa-may-and-its-already-started; Nicholas Watt, Theresa May Eyes Tory Leadership as a ‘Realist’, GUARDIAN (Mar. 10, 2013), http://www.theguardian.com/
politics/2013/mar/10/theresa-may-eyes-conservative-leadership-realist.
299. David Barrett, Politicians Launch Bid to Stop Foreign Criminals from Abusing Human Rights
Laws, TELEGRAPH (Mar. 9, 2013), http://www.telegraph.co.uk/news/uknews/immigration/9919885/
Politicians-launch-bid-to-stop-foreign-criminals-from-abusing-human-rights-laws.html; James Forsyth, Theresa May and Chris Grayling Signal Bold New Tory Direction on the ECHR, SPECTATOR
COFFEEHOUSE BLOG (March 2, 2013), http://blogs.spectator.co.uk/coffeehouse/2013/03/theresamay-and-chris-grayling-signal-bold-new-tory-direction-on-the-echr/.
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“‘cannot conceive of a situation’ where a Conservative majority administration would not repeal Labour’s [HRA].”300 Despite having called
for counter-interpretation a few weeks before, Theresa May returned to
her call to scrap the Human Rights Act. She proposed including in the
manifesto a pledge to withdraw from the European Court of Human
Rights altogether.301 This was widely viewed as part of an attempt to
position herself as the future leader of the Conservative Party.302 As the
coalition’s unity waned, the HRA was no longer treated as supreme.
Rather than counter-interpreting the HRA, Conservatives began to call
for an exit from it.
Yet, constitutional supremacy still lingered on and so too with it some
gasps of counter-interpretation. On October 22nd, 2013, May made
good on her promise to introduce a statute codifying her severe
interpretation of Article 8’s right to family life of the HRA and
demanded that judges defer to it.303 As in the immigration rules, the
bill set guidelines for when illegal immigrations that have committed a
crime should be deported. It interpreted Article 8’s requirement of the
public interest to require that in the case of a foreign criminal who has
not been sentenced to a period of imprisonment of four years or more,
the person should be deported unless either of two conditions are met:
1.
The person concerned has been lawfully resident in the
United Kingdom for most of his life; is socially and culturally integrated in the United Kingdom, and there would be
very significant obstacles to his integration into the country
to which he would be deported.
2. The person concerned has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting
parental relationship with a qualifying child, and the effect
of deportation on the partner or child would be unduly
harsh.304
The codification was but one of many measures in the bill designed
to reduce illegal immigration, so it received limited attention by May
and Parliament. Again, May counter-interpreted. In the House of
300. Hennessy, supra note 297.
301. Theresa May: Tories to consider leaving European Convention on Human Rights, BBC NEWS
(March 9, 2013), http://www.bbc.com/news/uk-politics-21726612.
302. See id.
303. 569 Parl Deb HC 156 (6th ser.) (2013).
304. Id.
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Commons debate on the bill, May condemned judges who had ignored
Parliament’s opinion, as embodied in the previous immigration rules,
on the balance between the right to family life and the public interest,
stating “[t]his Bill will require the courts to put the public interest at
the heart of their decisions.”305
Notably, unlike her previous 2011 immigration rules speech in the
House of Commons and her February editorial in the Daily Mail, May
did not explicitly affirm the value of Article 8, human rights, or the
judiciary. This may simply reflect the fact that this time May had limited
time to address HRA in a bill that addressed many aspects of immigration. Alternatively, the waning of constitutional supremacy may have
freed May from paying tribute to what she truly and often had opposed.
The bill and its provisions on Article 8 became law on May 14, 2014,
and it remains to be seen whether judges will enforce May’s approach
to Article 8.
As the 2015 elections drew closer, Conservatives abandoned all
counter-interpretation and pledged in their party manifesto to scrap
the Human Rights Act.306 This time, against almost all predictions,
Conservatives won a clear majority in Parliament.307 Time will tell if
they will follow through on their promise to repeal the HRA.
One objection to my narrative of U.K. counter-interpretation might
be that it downplays the role of the European Court of Human Rights,
which is the real cause of the vitriol directed against the HRA.308 The
HRA incorporated the European Convention of Human rights into
domestic law so that U.K. courts may review statutes for compatibility
with those rights. This did not change the jurisdiction of the European
Court of Human Rights, which continues to review the United Kingdom’s cases. This power is tied to a vision of larger European project of
integration.309 I have argued that parliamentary supremacy incentivizes
parliament to attack the HRA. However, the attacks may arguably
reflect long-standing political backlash at the European Court of
Human Rights and the project of European integration.
305. Id. at 162.
306. See Travis, supra note 15.
307. Steven Swinford, Peter Dominiczak, & Barney Henderson, David Cameron wins majority
for Conservatives in Election 2015 victory, TELEGRAPH (May 8, 2015), http://www.telegraph.co.uk/
news/general-election-2015/11588781/who-won.html.
308. Cf. Jon Henly, Why is the European court of human rights hated by the UK right?, GUARDIAN
(Dec. 22, 2013), http://www.theguardian.com/law/2013/dec/22/britain-european-court-humanrights.
309. Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe, 1 J. GLOBAL CONSTITUTIONALISM 53 (2012).
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This objection is powerful, but not damning. I have three responses.
First, the example I used did not directly involve the European Court.
The Court never intervened in the dispute, and Court’s case law did
not settle the issue.310 Unlike, for example, backlash against the
European Court’s striking down limits prisoners’ right to vote, in these
criminal deportation cases, the right wing papers and politicians attacked their own domestic courts and the HRA, not the European
Court and Convention of Human Rights. The problems of Europe are
scarcely mentioned in the speeches and debate on criminal deportation.311 Second, the United Kingdom’s domestic courts adjudicate the
vast majority of convention rights cases, not the European Court.
Lastly, the objection may actually support my thesis. Theresa May is a
vociferous opponent of European integration. It is another obstacle
and potential political cost to her embracing the HRA. Yet, the European connection did not stop May from engaging in counterinterpretation.
VIII.
A NEW MODEL OF JUDICIAL REVIEW: EMPOWERING THE LEGISLATURE
OVER BOTH VALIDITY AND MEANING
An ideal system would empower the legislative over the validity of law
based on its principled interpretations of the meaning of a constitutional right. Although U.S. constitutional supremacy and counterinterpretation offers important insights and correctives to the NCM
model, U.S. judicial review is far from perfect. Counter-interpretation
is not an end in and of itself. The goal of counter-interpretation and
the best interpretation of the goal of NCM are to empower legislatures,
after extensive deliberation, to embody their counter-interpretation in
law. Neither the United Kingdom nor the United States has achieved
this goal. Each country has one element that the other is missing
because neither possesses power over both validity and meaning. The
U.K. Parliament’s supremacy over validity gives it the power to enforce
its meaning upon courts, but Parliament has mostly refused to engage
310. For an analysis of how ECHR may be compatible with May’s proposal see Immigration Bill:
Article 8 and Public Interest, UNITED KINGDOM IMMIGRATION LAW BLOG (Oct. 15 2013), https://
asadakhan.wordpress.com/2013/10/15/immigration-bill-article-8-and-public-interest; Mark Elliott, The Immigration Act 2014: A Sequel to the Prisoner-Voting Saga, PUBLIC LAW FOR EVERYONE (May
23, 2014), http://publiclawforeveryone.com/2014/05/23/the-immigration-act-2014-a-sequel-tothe-prisoner-voting-saga.
311. For an analysis of the rhetoric when in conflict with the European Court of Human
Rights, see Danny Nicol, Legitimacy of the Commons debate on Prisoner Voting, 2 PUB. L. 681 (2011).
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in counter-interpretation.312 By contrast, counter-interpretation thrives
in the United States, but the Supreme Court may veto Congress’ interpretation. In an ideal system, the legislature would both counterinterpret and also wield the power over validity. The legislature would
have the power to cement its counter-interpretation in law.
In the United Kingdom, this ideal system was almost realized. After
the U.K courts struck down Theresa May’s executive rules, she promised to retaliate with a statute that counter-interpreted the right to
family life.313 Because Parliament wields power over validity, the court
would have been powerless to stop it. Perhaps it would have declared
the new statute incompatible with the HRA, but it would have still been
obliged to enforce Parliament’s interpretation of the right to family
life. However, before this potential could be realized, the coalition fell
apart. Theresa May stopped counter-interpreting and the emphasis of
the Conservative Party has shifted back to denouncing the HRA.
Political scientists and theorists in the United States have shown that
the Supreme Court’s power over constitutional meaning and validity
has often been exaggerated.314 The Court is not the “ultimate arbiter”
of constitutional meaning.315 No single actor can control the meaning
of a text, not even its author.316 The idea of judicial “finality” over
meaning obscures that actors in government and civil society will
continue to push their own, and resist the Court’s, interpretation of the
Constitution.317 And although the Court’s power over validity is considerable, it is limited by subject matter. Many issues of executive power
and over the separation of powers are non-justiciable and will never
likely be reviewed by a court.318 Moreover, Congress may be able to
force the Court to overrule itself through marshaling public pressure
and appointments of new judges.
Nonetheless, the Court still rules on most issues of individual constitutional rights and many crucial ones of constitutional structure. Public
312. Responding to Human Rights Judgments, MINISTRY OF JUSTICE (Oct. 2013), https://www.gov.
uk/government/uploads/system/uploads/attachment_data/file/252680/human-rights-judgments2012-13.pdf.
313. May, supra note 278.
314. Robert Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy Maker,
6 J. PUB. L. 279 (1957); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL
CHANGE (Benjamin I. Paige ed., 2d ed. 2008); Siegel, supra note 6.
315. Contra Cooper v. Aaron, 358 U.S. 1, 18 (1958).
316. See generally ROLAND BARTHES, IMAGE-MUSIC-TEXT (1978).
317. Siegel, supra note 6, at 1327.
318. David Strauss, Presidential Interpretation of the Constitution, 15 CARDOZO L. REV. 113, 115-16
(1993).
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pressure may not change the Court’s mind, and the appointments
process is a clumsy, cumbersome, and difficult method to overturn a
judicial decision. If the Court has jurisdiction over an issue, the Court’s
formal supremacy over validity is usually decisive. No interpretation can
become national law without the Court’s blessing.
In U.S. judicial review, there is an intimate connection between
power over the validity of law and power over its constitutional meaning. In Part III, I distinguished these two powers and showed that,
though the U.K. Parliament has power over the validity of law, it has
mostly relinquished power over meaning to the courts through refusing to counter-interpret. In the United Kingdom, the two powers of
meaning and validity are torn asunder. Neither Parliament nor courts
wield them both. In the United States, the Supreme Court justifies its
power over the validity of law in the name of the Constitution. Because
the goal of many civil society actors is to enshrine their constitutional
vision in or to gain the protection of, national law, they must adjust and
adapt to the meanings that the Supreme Court provides. Additionally,
the Court’s stamp of approval is necessary to legitimate individual
constitutional visions for the entire nation.319 The Court can never stop
its interpretations from proliferating, but it can severely cripple them
by refusing to apply them.320
This power is evident in the battle over RFRA. If Congress had
managed to pass another comprehensive statute, the Court may have
struck it down again. Indeed, several years earlier the Court had
repeatedly struck down Congress’ attempts to ban flag burning.321
Congress may be able to exert informal pressure through marshaling
public opinion, but as a formal matter it is powerless to stop a court
from refusing to apply a law on constitutional grounds. Indeed, the
Court’s power over validity is so great that it even overturned Section 5
of the Fourteenth Amendment’s power to command the Court to
enforce Congress’s interpretation of the Constitution.
Even when Congress has seriously deliberated on a constitutional
issue, repeatedly passed legislation that defies the Court, and enjoyed
public support in its offense, the Supreme Court has still often stood it
ground and struck down the law.322 The Supreme Court often wins
because it has the final word over the validity of law. Congress may be
319. Cf. Post, supra note 113, at 13-16.
320. See Cover, supra note 84, at 40-44.
321. See supra note 182.
322. See City of Boerne v. Flores, 521 U.S. 507 (1997); see also United States v. Eichmann, 496
U.S. 310 (1990).
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able to salvage parts of the law, but oftentimes important parts are lost,
and with it Congress’ counter-interpretation. The United Kingdom has
the opposite problem: Parliament has the formal power of the final
word over the meaning of the constitution, but it refuses to exercise it
by counter-interpreting.
How do you achieve the best of both worlds? How do you give the
legislature power over constitutional meaning like in the United Kingdom, but also ensure that it has the will of the United States to exercise
it on behalf of enumerated rights? Like in NCM countries, all legislatures should have power to override Supreme Court decisions. However, the rights in play must also be supreme and entrenched to ensure
that an override is an act of counter-interpretation. A constitution
should declare that it is supreme over the legislature, and it should be
protected against majoritarian repeal. Its semi-permanency will deter
actors from repeal attempts and redirect their energies towards
counter-interpretation.323
Once we understand counter-interpretation as a distinct goal, we
may deliberately design institutions to inject constitutional values into
the legislative process and empower legislatures to embody their counter-interpretation in law.324 These institutions should force the legislature to bear the political brunt of and justify its disagreement with the
court.
IX.
CONCLUSION
NCM mistakenly focused on legal validity at the expense of meaning
and constitutional supremacy. This focus on validity leaves unanswered
questions about the justification and meaning of Parliament’s disagreement with the judiciary. Is Parliament violating the constitutional right
323. Canada might be seen as evidence of constitutional supremacy without counterinterpretation. Like the US, Canada’s Constitution declares itself supreme and requires a
supermajority to amend, but the national Parliament has refused exercise its override powers. Part
of this is due to Quebec’s abuse of the provision, which has largely discredited it throughout
Canada. More fundamentally though, the problem is that the override power in Section 33 is
designed and written to express derogation from rather than interpretation of the Charter. On
the design front, it acts prospectively, before a court interprets the constitution. On writing,
Section 33 gives Parliament the power to “declare an Act of Parliament” shall operate “notwithstanding a provision included in section 2 or sections 7 to 15” of the Charter.
324. Note that this is different than the political rights review discussed by Gardbaum. In
those cases, Parliament has not engaged in independent interpretation, but parroted case law.
That system has encouraged judicialization, not counter-interpretation. See GARDBAUM supra note
8, at 79-83.
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or interpreting it, and what justifies its choice? In the United Kingdom,
Parliament has understood itself to have the power to override HRA
rights, not counter-interpret them. This is the natural result of the set
of incentives legislatures face to avoid counter-interpretation. Facing
off against a formidable and well-respected court, the cost of independent interpretation for a legislature is high. It feels more confident
lambasting the courts for striking down the democratic will or for
ruining a needed policy than contesting the meaning of a constitutional right. To force the legislature to counter-interpret, constitutional rights must be supreme. The supremacy of the U.S. Constitution
has forced Congress to challenge the Supreme Court’s interpretations.
By contrast, the intermediate status of NCM has undermined the U.K.
Parliament’s engagement with the Human Rights Act. Parliament has
ceded the meaning of the HRA to the courts. Having distinguished
between validity, meaning, and constitutional supremacy, we can better
design a system that would empower Parliament to interpret the
constitution and cement those interpretations in law.
This study has three additional implications. First, current explanations for and proposed solutions to the HRA legitimacy deficit are
misguided. HRA supporters argue that the right-wing press sabotaged
the HRA by deliberately spreading distortions and lies.325 If only
citizens knew the truth about the contents of the HRA and the court
decisions, the public would support it.326 The non-profit, Liberty, has
promoted a “Common Values Campaign” that seeks to correct popular
misconceptions and even integrate materials about the HRA in the
classroom.327 This explanation depicts Conservative opponents as irrational and backward. HRA supporters have beseeched Parliament and
have themselves started an education campaign to restore the legitimacy of the HRA.
Distortions are a stubborn fact of politics. Whether it is the “death
panels” during the passage of the Affordable Care Act in the United
States, or cats as family in the United Kingdom’s deportations, this
constant is neither resolvable nor is it sufficient to explain the failure of
the HRA. HRA supporters are also wrong to dismiss their opponents as
irrational. Although Conservatives’ claims are often sensational and
misleading, they are rooted in deep disagreement with the judiciary
325. See Terry Kirby, The Human Rights Act, 10 years on, GUARDIAN (July 2, 2009), http://www.
theguardian.com/humanrightsandwrongs/human-rights-act (last visited Feb 1, 2014).
326. Id.
327. Common Values Campaign, LIBERTY CENTRAL, https://www.liberty-human-rights.org.uk/
campaigns/common-values/index.php (last visited Mar. 29, 2016).
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about the meaning of fundamental rights. In the future, supporters of a
constitution need to focus on creating the right incentives for all
participants to engage in interpretation, namely constitutional
supremacy.
Some supporters of the HRA joined with Conservatives to support a
new U.K. Bill of Rights. However, even though this new venture had
elicited thousands of pages of testimony and proposals, no important
party has explored the idea of demoting Parliament and raising up a set
of enumerated rights as supreme. As discussed earlier, the Coalition
agreement between Liberal Democrats and Conservatives gave birth to
a Commission on a new Bill of Rights, whose remit limited it to making
recommendations that build on rather than diminish the current set of
rights in the HRA.328 The Commission, which had nine members, was
balanced between Conservatives and Liberal Democrats, between supporters and skeptics of the current system.329
The majority report, signed onto by seven of the nine members,
called for the creation of a new U.K. Bill of Rights.330 The Commission
acknowledged that the “strongest” objection was that the “U.K. already
had a bill of rights in the form of the HRA.”331 The primary, indeed the
almost sole justification for a new Bill of Rights, was the HRA’s
legitimacy deficit: “A majority of members believe that the present
position is unlikely to be a stable one. Some of the voices both for and
against the current structures are now so strident, and public debate so
polarized, that there is a strong argument for a fresh beginning.”332 A
“fresh beginning” would facilitate a new “public ownership” of domestic constitutional rights.333 In their report, the dissenting members
mocked the report as a “re-branding exercise.”334
328. Supra Part VII.B.1.
329. The commission has four members from the Conservative Party who are skeptical of the
HRA and three Liberal Democrats who support it. Two of the member’s views are unknown. One
is a former member of the European Court of Justice and the chairman is civil servant as chair
whose views are unknown. Alan Travis & Patrick Wintour, Deadlock likely on commission pondering a
British Bill of Rights, GUARDIAN (Mar. 18, 2011), http://www.theguardian.com/law/2011/mar/18/
deadlock-bill-of-rights-commission; Liora Lazarus, Composition of the UK Bill of Rights Commission,
UK CONSTITUTIONAL LAW BLOG (Apr. 2011, 12:57 PM), http://ukconstitutionallaw.org/2011/04/
24/lthe-composition-of-the-uk-bill-of-rights-commission.
330. A UK Bill of Rights The Choice Before Us Volume 1, COMMISSION ON A UK BILL OF RIGHTS (Dec.
2012), http://www.justice.gov.uk/downloads/about/cbr/uk-bill-rights-vol-1.pdf.
331. Id. at 26.
332. Id. at 30.
333. Id. at 30.
334. Id. at 229.
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The report is a minimal and uneasy compromise among the members. Indeed, one member quit months before its release, two refused
to join, and eight others wrote separate papers that total more pages
than the lengthy majority report. Nonetheless, despite these intense
and pervasive disagreements, all members agreed that the institutional
design of the HRA is satisfactory and requires only minor adjustments.
Likewise, when the Commission solicited opinions about the structure
and effect of the declarations of incompatibility, the majority of respondents wanted to keep the status quo.335 Additionally, in an Oxford
seminar held by the Committee to hear professors’ and activists’
opinions on “parliamentary sovereignty,” participants only briefly raised
the idea that “parliamentary supremacy was itself problematic,” and
then implied that constitutional supremacy was too “major” a “shift
in the constitutional balance of powers.”336 Ultimately, the consensus
of the Commission was that the HRA “strikes a sensible balance
between, on the one hand, the ultimate sovereignty of the U.K.
Parliament and, on the other, the duty of courts to declare and enforce
the law.”337 The report itself does not even contemplate the possibility
of enshrining a set of rights as supreme.
That task is taken up in a separate individual report by Martin Howe,
which explicitly rejects the “supremacy of the written Constitution.”338
He rejects the idea of declaring rights supreme over Parliament and
entrenching those rights against repeals by a future Parliament because
it is undemocratic for one Parliament to bind the will of another.
Rather than “erecting legal barriers,” the force of a Bill of Rights would
(and should) largely arise from the degree of political respect it earns
and enjoys rather than from attempts to give it special legal force.”339
James Madison took the exact opposite stand, arguing that “political
respect” was the result of prejudice accumulated rather than merit
earned. Admittedly, in Federalist 49, Madison is discussing the frequency of constitutional amendments, not the number of votes necessary for one. Nonetheless, it is relevant for our purposes because
entrenchment discourages the frequent appeals that Madison feared
and that characterize contemporary English politics. Madison states
335. Id. at 21.
336. Seminar on Parliamentary Sovereignty and a New UK Bill of Rights Seminar Oxford All Souls
College, COMMISSION ON A BILL OF RIGHTS (Mar. 21, 2012), http://www.justice.gov.uk/downloads/
about/cbr/all-souls-seminar.pdf.
337. A UK Bill of Rights The Choice Before Us Volume 1, supra note 330.
338. Id. at 220.
339. Id.
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that the ideal of “political respect” might work well “in a nation of
philosophers” where “a reverence for the laws would be sufficiently
inculcated by the voice of an enlightened reason.”340 In the real world,
however, respect, or, in Madison’s words, “veneration,” is a result of
prejudice built by endurance through time. According to Madison,
citizens respect a constitution not because it is the best, but because it is
“ancient.”341 “Frequent appeals” to change the Constitution “deprive
the government of that veneration which times bestows on every thing
and without which perhaps the wisest and free governments would not
possess the requisite stability.”342
The second implication of this comparative study is its potential to
help identify the institutional conditions necessary for counterinterpretation. Too often, scholars, including Gardbaum, treat constitutional culture and design as “two distinct and perennially different
issues.”343 This distinction has relegated counter-interpretation to the
idea of culture, an irreducible variable that cannot be reproduced
elsewhere. NCM and other countries are stuck without any possible
solutions to fix their ailing constitutional system. However, though
culture is one important variable, it is not everything. Counterinterpretation is intimately connected to institutional design. By
comparing different constitutional designs, we can better grasp what
encourages legislatures to engage in counter-interpretation. I have not
identified all the conditions necessary for independent interpretation,
but have identified constitutional supremacy as one. Future comparative scholarship should seek to identify others.
Third, the United States should be the model for scholars and
countries interested in counter-interpretation. Counter-interpretation
was the goal of the NCM,344 but the Commonwealth countries mistakenly defined themselves against the United States. This misidentification was the result of the mistaken self-image of the United States, of an
aberrant period in U.S. history where all spheres and political actors
accepted judicial supremacy. It has taken three decades of constitutional scholarship and dramatic political change for the United States
to begin to recover its lost heritage of counter-interpretation. It is time
340. THE FEDERALIST NO. 49, at 340 (James Madison) (Jacob Cooke ed., McGraw-Hill College
1982).
341. Id.
342. Id.
343. Stephen Gardbaum, How Successful and Distinctive is the Human Rights Act? An Expatriate
Comparatist’s Assessment, 74 MOD. L. REV. 195 (2011).
344. See supra Part II; Francesca Klug, supra note 92, at 127.
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for that U.S. scholarship to move beyond its domestic boundaries. If a
country wants to alter its constitutional system to encourage counterinterpretation, it should study the United States.
Of course, constitutional supremacy is the norm in most constitutional democracies. Is this Article only relevant to NCM countries then?
Is constitutional supremacy relevant to the rest of the liberal democracies around the world? Furthermore, does not the existence of these
countries call into question the causal relationship between constitutional supremacy and counter-interpretation? Why are they not counterinterpreting as well?
Constitutional supremacy is only a first step; it is a necessary, but not
a sufficient condition. Renewed study and comparison with the United
States would show how a variety of institutional variables affect counterinterpretation, including proportionality, separation of powers, federalism, and abstract review. I can only briefly speculate here, using the last
of the aforementioned list. In his groundbreaking study, Alec Stone
Sweet showed how abstract review, with a low reference requirement,
leads to high levels of “judicialization.”345 With the power of abstract
review, a constitutional court is likely to rule on every important piece
of legislation, and the scope of its review and the remedial powers are
broad. In anticipation of the court’s rulings, legislatures conduct
constitutional debates on the legislation. This is not counter-interpretation, but its opposite—“government by judges.” In this perversion, the
legislature has become the agent of the judges.346 By contrast, because
the U.S. Supreme Court only rules in concrete cases and controversies,
and its jurisdiction is limited, judicialization is not as likely and extensive a phenomenon.
There are no simple fixes or easy answers in constitutional design,
especially in its relationship to constitutional discourse and legitimacy.
No single variable ensures success. But Theresa May’s brief flirtation
with counter-interpretation is testament to the great power of constitutional supremacy. The United Kingdom ignores the lesson and the U.S.
example at its peril.
345. ALEC STONE SWEET, GOVERNING WITH JUDGES CONSTITUTIONAL POLITICS IN EUROPE (2000).
346. Id.
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