Friday, February 24, 2012

Cosmic Constitutional Theory in the UK?

Ken Kersch

In my previous post, I had wondered whether (as Mark Graber suggested) “What Judge Wilkinson calls cosmic constitutional theory is the near inevitable consequence of political and constitutional change.” In my post, I had suggested (as hypothesis, not conviction) that such theory might be the inevitable consequence of the exercise by high courts of robust judicial review powers. But, if that is the case, then why – so far as I knew – were we getting very little cosmic theory from abroad, where high courts have been exercising judicial review powers under written constitutions now for over sixty years.

As it turns out, there is a relevant article in the new London Review of Books (23 February 2012) by Stephen Sedley focusing on a lecture entitled “Judicial and Political Decision-Making – The Uncertain Boundary” delivered this fall at Lincoln’s Inn by the Jonathan Sumption, QC, the newly confirmed appointee to the UK Supreme Court.  In this lecture, the soon-to-be Justice Sumption indulges in some U.S.- like cosmic theorizing about the supposed opposition between judges following law vs. judges doing politics. Again, in an idiom that American constitutional theorists will find familiar, Sumption expresses concern for the future of self-government under activist, policymaking courts, when judges substitute their own policy preferences for those of the people’s elected representatives. Sumption references the grand constitutional theory debates taking place in the United States, duly noting the positions of the American originalists, and their opponents.

Sedley, a former judge, takes issue with Sumption’s argument at many points. But, on the question I had posed here about the prevalence and purchase of American-style cosmic constitutional theory abroad, Sedley (who at one point describes judging as “our unreflective and atheoretical profession”) seems truly taken aback by the sudden appearance of grand constitutional theory on his home turf.

An interesting instance….