Symposium: Sweeping Away the Idols: A Review of Brian Christopher Jones’s Constitutional Idolatry and Democracy

Sanford Levinson

University of Texas Law School

Brian Christopher Jones’s Constitutional Idolatry and Democracy is a significant book. Unfortunately, because it is prohibitively expensive, it is unlikely to gain the readership it deserves. One can only hope that the publisher, Edward Elgar, will soon release an affordable paperback version. This would make the book available to a far wider audience of scholars and students who would truly benefit from encountering Jones’s brisk, and often passionate, arguments.

What is most important about the book is suggested by its subtitle: Challenging the Infatuation with Writtenness. When I received a copy of Constitutional Idolatry and Democracy and realized that Brian Christopher Jones had been kind enough to draw on my book Constitutional Faith, I assumed only that he joined me in criticizing the kind of “constitutional idolatry” present in the United States, at least concerning the national Constitution—and not, certainly, manifested for the fifty state constitutions that are also present in the U.S. I strongly believe the “veneration” directed at the U.S. Constitution has become almost a “clear and present danger”; it blinds Americans to the possibility that certain features of the 1787 Constitution contribute to the current dysfunctionality in the United States.

Indeed, it is tendentious to refer to the United States as a “constitutional democracy” at all, since that requires overlooking several so-called “counter-majoritarian” features of the American system. That word is used most often with regard to the American practice of judicial review. But it is also essential to look at such aspects the American system as the egregiously malapportioned United States Senate, which gives equal voting power to Wyoming and California, even though the latter has almost 70 times the population of the former. Or one can consider that even bills that can surmount the considerable obstacles blocking joint passage by both the House of Representatives and the Senate are subject to being killed by a presidential veto, which can be overridden only if two-thirds of the members of each house agree. It should occasion no surprise that presidents win approximately 95% of all veto contests with the Congress, effectively turning the United States into a “tricameral” legislative system. Presumably, by now, everyone is familiar with the electoral college, which twice in the past two decades has placed in the Oval Office candidates who lost the popular vote but eked out extremely narrow victories in enough states to provide the key number of 270 electoral votes. It is important to know that one need not even get a majority of the votes within a state to gain a rich harvest of electoral votes; it is enough to come in “first past the post.” Finally, there is Article V of the U.S. Constitution, which, as a practical matter, makes it next to impossible to amend the Constitution, given supermajority requirements. Both congressional proposal and then state ratification require supermajorities—2/3 of each House of Congress and then ¾ of the states. Why anyone would “venerate” such a system is an increasing mystery to me.

Jones certainly does agree that an almost thoughtless veneration is antagonistic to democracy. This is especially true if we give a “republican” twist to the notion of “democracy” by defining it as the ability of contemporaries both to engage in what Alexander Hamilton in Federalist 1 called “reflection and choice” about how to engage in self-government and then to translate such choices into adopted public policies.

However, as the subtitle suggests, Jones is far more than a critic of American-style “veneration.” Instead, he is a vociferous skeptic of the world-wide conventional wisdom that what is important, even essential, is to reduce a country’s constitution to a canonical text that can then be enforced by judges. This is the best book that I am aware of that offers a full-throated defense of what might be deemed the “holdouts” against this conventional wisdom, i.e. the United Kingdom, New Zealand, and Israel, none of which has such a written constitution. Westminster-style parliamentarianism, which couples maximum governmental power with maximal accountability to an electorate that can vote out of power those who would profess to lead them, is, for Jones, far better than modern written constitutionalism. That would be true even if written constitutions are more subject to scrutiny and needed amendments than is the American national constitution. (As a matter of fact, American state constititutions are often amended and even, with some frequency, replaced, via state constitutional conventions, with significantly updated constitutions.).

In some ways, what is most fundamental to his argument is deep skepticism about the virtues of judicial empowerment. This, in turn, leads him to offer a full-throated endorsement and even “reassertion of faith” in “politics and statutory law” (p. 181). He is at the other end of the spectrum from, say, Ronald Dworkin’s disdain for politics as featuring indefensible compromises and treating courts as unique “forums of principle” that should be accorded an exceptional role in recognizing and enforcing our ostensibly deeply held principles (which, for Dworkin, of course, need not have been explicitly written down). Thus the book concludes with a literal dismissal of “legal constitutionalism” and “increasingly legalistic societies” (p. 191) that place inordinate power in a mandarin class of legal elites instead of engaging in the genuine self-governance that democracy entails. Instead, Jones quotes Jonathan Sumption’s reminder, in his aptly titled Trials of the State: Law and the Decline of Politics, that “the habits, traditions and attitudes of human communities are far more important than law. Indeed, they are the foundation of law” (id.). Sumption’s book was published in 2019, but it is highly reminiscent of perhaps the major theme of Montesquieu’s The Spirit of the Laws. That is, for Montesquieu social “mores” are ultimately far more important than legal enactments. Whether writing of imperialist conquerors or what might be termed “internal social reformers,” Montesquieu suggests that both will come to grief if they place too much faith in the law to overcome what Sumption calls “the habits, traditions and attitudes” of human communities. Indeed, the very notion of “community” requires attentiveness to inchoate culture and behaviors.

There is no reason to believe, on the basis of this book, that Jones is a Burkean or Oakeshottian conservative who thinks that “habits and traditions” must be sacrosanct. Rather, he can easily be read as saying that meaningful reform, if it is desirable, must come through persuading one’s fellow citizens and ultimately gaining their support at the ballot box. (He could easily have cited much literature that suggests that judges are far more inclined to be enemies of progressive reform than genuine enablers.). Gerald Rosenberg famously suggested in his well-known book The Hollow Hope that it may even be delusional to believe that lawyers and judges alone can bring about significant reforms without sufficient political support. But even if judicial decrees can sometimes be more efficacious than Rosenberg might assert, there remains the question about their democratic provenance. Like Jeremy Waldron, another critic of judicial empowerment, Jones is trying to restore a genuine faith in the possibility of democratic self-governance that, almost by definition, minimizes the role of judges save as faithful enforcers of statutes that themselves have democratic legitimacy.

No doubt readers of this review can rehearse the well-known arguments brought to bear against such critics. Does Jones really accept with relative equanimity the possibility of “tyranny of the majority” (or, what may be even worse, as in the United States, the tyranny of well-entrenched economic elites who can prevent a serious attack on their prerogatives)? And is it relevant that New Zealand and Israel are completely unitary in governmental structure? One might have said that in the “old days” about Great Britain. But the devolution that has taken place over the past several decades allows for the possibility of viewing that country as “quasi-federal” instead of uncomplicatedly unitary, even assuming that Scotland (or, perhaps, even Northern Ireland) does not secede from the post-Brexit Great Britain-as-England. Oliver Wendell Holmes might well have agreed with much of Jones’s application of what Holmes called “cynical acid” to common nostrums about the importance of written constitutions. Nonetheless, Holmes wrote that while eliminating judicial review of congressional legislation might be perfectly acceptable, it did not follow that one should be equally permissive about the ability of states within the federal system to escape judicial oversight. Given American federalism's history and its association with protecting white supremacy, I am inclined to agree; I suspect that “nationalists” within federal systems would be reluctant to give up judicial review.

The real point is that one does not have to agree with all of Jones’s arguments to appreciate its bracing style and willingness to attack much unexamined conventional wisdom. I can’t imagine a better book to discuss in a seminar, whether of students or senior academics. Even if one continues to endorse the importance of written constitutions, then, as J.S. Mill suggested, that endorsement will only benefit from having to confront Jones’s strong and well-argued criticisms of what is far too often simply accepted as conventional wisdom.

Sanford Levinson is W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government at the University of Texas Law School.

Suggested Citation: Sanford Levinson, “Sweeping Away the Idols: A Review of Brian Christopher Jones’s Constitutional Idolatry and Democracy” IACL-IADC Blog (7 January 2021) https://blog-iacl-aidc.org/cili/2021/1/7/sweeping-away-the-idols