Author Interview: Constitutional Idolatry and Democracy

Brian Christopher Jones

University of Sheffield School of Law

Tell us a little bit about the book

This book explores the fascinating subject of constitutional idolatry and its effects on democracy. Situated around whether the UK should draft a single written constitution, the book argues that constitutions have been drastically and persistently over-sold throughout the years, and that their wider importance and effects are not nearly as significant as advocates maintain. Analysing a number of issues in relation to constitutional performance, such as whether these documents can educate the citizenry, invigorate voter turnout, or deliver ‘We the People’ sovereignty, I find written constitutions consistently failing to meet expectations. The text also examines how constitutional idolatry may frustrate and distort constitutional change, and can lead to strong forms of constitutional paternalism emerging within the state, mostly focused around the judiciary. Ultimately, the book concludes that idolising written constitutions is a hollow endeavour that will fail to produce better democratic outcomes or help solve increasingly complicated societal problems.

What inspired you to take up this project? 

Michael Klarman’s 2010 Constitution Day lecture on constitutional worship really struck a chord, especially regarding the way things were then playing out in the American context. At the time, with the swift rise of the Tea Party after Barack Obama’s ascent to the presidency, idolatry was rampant in the American setting. Klarman’s lecture also steered me to other remarkable writers like Sanford Levinson and Jack Balkin. Levinson’s classic account, Constitutional Faith, provides a focused and penetrating insight into the subject of constitutional veneration within the United States, and some of Balkin’s work methodically expands on the subject.  

But looking at the issue from a wider perspective, and in the comparative constitutional law literature especially, there just wasn’t much out there. This is true even though written constitutionalism has exploded around the world, as the number of such documents, and also the length and detail in written constitutions, have continued to expand over the years. Even academic journals and blogs devoted to the subject of comparative constitutional law haven’t really covered the idea in much depth. Thus in some sense I wanted to call attention to the subject for a wider constitutional law audience. I also wanted to look at the subject from a different perspective than previous writers had, and also explore constitutional forms in more depth as well. That’s why the book takes a more British perspective on constitutional worship. After all, if Britain is really thinking about penning a written constitution, then discussion over the possible effects of doing so must go beyond convenience versus inconvenience, and transparency versus opacity.

Whose work was influential on you throughout the project? 

A number of writers significantly influenced me throughout the project, not least those mentioned above. However, I’ll point out four others here that I found myself continually going back to: Sotirios Barber, Robert Dahl, Linda Colley and Robin West.   

Barber’s critical reflections on the American context certainly influenced my wider critique of constitutional forms, and how veneration may influence democracy. His excellent book, Constitutional Failure, provided more depth to America’s problems than Klarman’s 2010 lecture, and especially as regards how this may be affecting citizens (FYI, a nice complement to Barber’s book is Louis Michael Seidman’s On Constitutional Disobedience). Robert Dahl’s influential work on democracy still contains many insights that I don’t think have been properly addressed in the legal sphere. Additionally, his observations on the history of democracy, and what could potentially threaten its operation in contemporary times, still contains significant resonance.  

Two other writers deserve special mention. Linda Colley’s pioneering scholarship, and especially her writings on British history, helped immensely. I’m especially in awe of her writing style, which is delightful to read, and animates history in a unique and lively way. Another inspiration during the project was Robin West, who has an equally engaging writing style. Her essay on ‘Ennobling Politics’ aligned with many of my views on the current state of constitutional democracy. When I couldn’t figure out what to say or how to express something, I would often find myself going back to read West or using a quote from her material.  

What challenges did you face in writing the book? 

The biggest personal challenges were writing in the midst of starting a new job, and just after the birth of my second child. Two amazing and life-changing events, but two extremely disruptive ones. Of course, major events such as these help put things in perspective, which is always important when working on large-scale projects.  

Not to be outdone, three other remarkably significant (and ongoing) events occurred when I was writing the book, which made it exceptionally difficult to complete, and which I still think about and assess to this day. The events were: the UK’s decision to leave the EU and the Brexit process that followed, which has tested the strength of the UK constitution; the election of Donald Trump in America, which continues to test the US Constitution in many ways; and the coronavirus pandemic, which is challenging constitutional democracies around the globe. When I began writing the manuscript, the most extreme forms of constitutional worship were mostly associated with the political right in the United States: that changed when Donald Trump officially became the Republican presidential nominee in 2016. The left now looks to the US Constitution as a bulwark against Trumpism. In post-referendum UK a wide range of scholars, journalists and others—positively alarmed by how the decision to leave the EU came about—began advocating for a single written constitution more forcefully. No doubt many of these arguments will continue, especially as the coronavirus pandemic continues to affect constitutional democracies around the globe.

What do you hope to see as the book’s contribution to academic discourse and constitutional or public law more broadly? 

I hope that the book makes people critically evaluate some of the claims out there regarding constitutions and their possible effects. I’m highly sceptical of the idea that an increasingly sophisticated society automatically leads to an increasingly legalistic society. A strong argument could be made that our over-focus on legalising a large segment of politics has deprived the political realm of much-needed attention. In many long-standing constitutional democracies, a large number of citizens have simply lost faith in politics. What are the implications for law? I don’t think that we’ve properly assessed what the loss of faith in politics has done for law, and whether law can be a reasonable substitute. No doubt many jurisdictions are attempting to make this substitute work, but many of the solutions seem haphazard and awkward. And even if law is a reasonable substitute for some elements, where does the idea of ‘more law and less politics’ end? Legal scholars have not done so well at addressing these questions, and my hope is that this book goes towards rejuvenating that conversation.  

What’s next?

At the moment I’m finishing up an edited collection with Hart Publishing: Democracy and Rule of Law in China’s Shadow. It’s got an excellent collection of authors, including a good balance of well-established writers and up-and-coming scholars. The book examines some legal and political developments in Taiwan, Hong Kong, China and Singapore. Some of the topics include: the undemocratic features of Taiwan’s Constitution; Hong Kong’s oath-taking controversies; the backlash against ‘foreign’ judges in Hong Kong; same-sex marriage developments in Taiwan; and a number of other worthwhile and interesting topics. Outside of this, there’s a chance that something idolatry-focused could develop. A number of scholars had committed to hold a forum on constitutional idolatry at this year’s ICON-S Conference, so I imagine that we’ll try to organise something more informal over the next year, before ICON-S resumes. With everything going on, however, it seems that leaving some flexibility in our writing schedules would be beneficial. After all, in the UK we thought Brexit was the biggest thing to hit public law in our lifetimes … and then along came the coronavirus pandemic!  

Dr Brian Christopher Jones is a Lecturer in Law at the University of Sheffield, School of Law.