Classical liberalism and bills of rights

Andrew Carr asks why, as a classical liberal, I do not support a bill of rights. My political identity survey last year found that among classical liberals only about a third supported a bill of rights, so on this I am not an outlier.

The apparent incongruity is that classical liberals support individual freedom, but oppose a measure that could protect freedom from ‘big government’ or the ‘tyranny of the majority’.

Part of the answer is that virtually all classical liberals believe in democracy as well. Though much has been made of the ‘tensions’ between liberalism and democracy, which obviously can occur, there are also many parallels.

Both give significant weight to the preferences and knowledge of ordinary individual citizens, who ajudicate on the choices offered to them – by parties and candidates in the political sphere, by firms in the economic sphere, and by varying traditions and associations in the cultural sphere. Both liberalism and democracy are systems of peaceful evolutionary change, offering opportunities for people dissatisfied with the status quo to change it by persuasion and without resort to violence. Consistent with this commitment to peaceful change, both liberalism and democracy tend towards compromise. Bargaining is integral to both democratic politics and markets; in the cultural sphere liberalism supports live-and-let-live tolerance.

In a democratic system, classical liberals will tend to be more sceptical than social democrats and the median voter of actual and proposed regulation by the state. But I don’t think this is inconsistent with believing that classical liberal freedoms should be achieved within the persuasion-based, evolutionary and open democratic system. Even within a pro-freedom perspective individual rights and freedoms can conflict – let alone all the conflicts with other values that people hold – and there is little reason to believe (as many opponents of bills of rights have argued) that courts will do a better job of deciding on the trade-offs than democratic politics.

As Andrew C suggests in his comment, a distinction can be drawn between an in-principle opposition to constitutionalising some rights and a tactical judgment that the bill of rights we would end up with would not support the classical liberal conception of individual freedom. I think this does help explain the lack of enthusiasm for bills of rights among classical liberals, even where they might support constitutionalising a limited list of rights or freedoms. Aided by the various UN treaties, the concept of ‘human rights’ has expanded way beyond what classical liberals have ever supported, to make them the basis for big rather than small government.

Obviously the more constitutional ‘human rights’ there are, the more powerful the courts become and the more issues are removed from the persuasion-based, evolutionary and open democratic system. As I argued last week, I don’t think this would be a healthy development for Australian politics. It would be bad for the judiciary as well, turning them into direct political players rather than trustworthy independent umpires. The political attacks on the High Court during the 1990s would become a normal part of public life.

I accept that there are reasonable arguments for constitutional constraints on government within the classical liberal tradition. But all things considered, I am not at this stage persuaded that a bill of rights would solve more problems than it would create.

24 Responses to “Classical liberalism and bills of rights

  • 1
    LibertarianLach
    April 26th, 2010 19:41

    I oppose inserting specific rights into the constitution or legislation because it then becomes interpreted as the extent of all rights. A better solution is to outline specific rights that are given up for the creation of a state and the rest are out of bounds to the government.

  • 2
    Andrew Norton
    April 26th, 2010 19:56

    LL – I’m not sure how big an issue that is. Bills and charters typically have clauses like this from the US Bill of Rights:

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Or this from Victoria’s charter:

    “A right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the Constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.”

    Did you have a particular example in mind?

    Legislation is full of specific rights, albeit typically not of the ‘human rights’ variety. Because these are usually precise the courts can usually interpret fairly easily, and to the extent they get it wrong the parliament can amend the law. It’s broad and vague rights that cannot be easily amended that cause the problems.

  • 3
    LibertarianLach
    April 26th, 2010 21:52

    Yeah for sure, broadly speaking the US constitution is great at protecting individual rights: would happily trade theirs for ours. I worry any document put forward here would be lacking in the area of implying persons are born with all rights and some are taken from them for statehood. Also as far as i’m aware in this country we are talking about a legislative instrument not a referendum so fat lot of good that will do when it gets repealed by simple parliamentary majority of the future.

  • 4
    Charles Richardson
    April 26th, 2010 22:07

    Hi Andrew -
    Another reason could be that lots of people aren’t very good at labelling their political philosophy: specifically, that “classical liberal” has become in some circles just a slightly trendier way of saying “conservative”. (No, I’m not including you in that.)

  • 5
    Andrew Norton
    April 27th, 2010 05:38

    Charles -In my political identity survey self-identifying classical liberals typically supported the most obvious classical liberal position on a range of economic and social issues, though there were often non-trivial minorities supporting more conservative or more social democratic positions.

    Two observations:

    1) Labels are probably a ‘best fit’ on a range of issues; an individual might agree with classical liberals more than other ideological groups and so identify without necessarily buying the full ideological package;

    2) In each country, its particular political history shapes each ideological tradition. Australian was never greatly influenced by the Lockean rights tradition that has been persistently important in the US. Here, liberalism took on a more utilitarian flavour, leaving it more open to the idea of trade-offs. And the long liberal-conservative party political alliance has meant that liberals listen to conservatives more than they might otherwise.

  • 6
    Rebecca_23
    April 27th, 2010 17:51

    All agreed.
    On another note, it is good to see the government has recognised climate change for the ‘tosh’ that it is. With the ‘greatest moral challenge of our time’ now on the back burner and with the policy to keep foreign money out of Aussie property, almost thinking i’m gettin some traction out there! Good stuff.

  • 7
    The Right and the Bill of Rights | Chasing the Norm
    April 28th, 2010 08:40

    [...] Norton helpfully tries to explain this apparent contradiction in a good post over at his blog: In a democratic system, classical liberals will tend to be more sceptical than social democrats [...]

  • 8
    Jack Strocchi
    April 29th, 2010 18:52

    Andrew Norton said:

    Though much has been made of the ‘tensions’ between liberalism and democracy, which obviously can occur, there are also many parallels.,,,Both liberalism and democracy are systems of peaceful evolutionary change,

    Both give significant weight to the preferences and knowledge of ordinary individual citizens, who ajudicate on the choices offered to them – by parties and candidates in the political sphere, by firms in the economic sphere, and by varying traditions and associations in the cultural sphere.

    All true. There is an organic relationship between liberalism and democracy. Liberalism is the general theory of individual free choice. Whilst democracy is the particular application of this theory to institutional fair choice.

    Its conceptually clearer to see liberalism as a governance philosophy that aims aims to reconcile the liberty of individual autonomies with the legality of institutional authority.

    Liberalism therefore obliges (state & corporate) agencies to be accountable to the preferences of (household) principals:

    - politics within the firm*: intra-firm democracy
    - economics between firms*: inter-firm catallaxy

    So it is not surprising that the original philosophers of liberalism, such as Locke, Jefferson & Mill, were driven to accept and embrace liberal democracy. Which is simply an attempt to reconcile free minority rights (between the firm) with fair majority rule (within the firm).

    * “the firm” is here understood in neutral governance theory as simply an accountable organization

  • 9
    Jack Strocchi
    April 29th, 2010 19:21

    Andrew Norton said:

    My political identity survey last year found that among classical liberals only about a third supported a bill of rights, so on this I am not an outlier.

    The apparent incongruity is that classical liberals support individual freedom, but oppose a measure that could protect freedom from ‘big government’ or the ‘tyranny of the majority’.

    Under conditions of post-modernism more traditional modernist liberals tend to support populist majority rule as against elitist minority rights.

    Traditional liberals supported (constitutional) individual rights under conditions of modernism. This was when the main threat to individual freedom came from established authorities – such as the tribe, Church and Monarchy – which often had majority support. (Hence “tyranny of majority”.)

    Nowadays we are in the post-modern era when constraints on freedom are likely to come from organized special interests, elite minorities. In this case the general cause of freedom is probably better served by the well-informed and alert citizenry, the popular majority.

    So its no accident that modernist liberals are wary of constitutionalised rights. Especially when most of these “rights” tend to be shopping lists of substantive policies rather than formal processes.

  • 10
    Jack Strocchi
    April 29th, 2010 19:35

    To descend from the Olympian heights of abstract political theory to the grubby reality of political practice: post-modern liberals have beenpolitically driving charter of individual rights because they have lost the democratic political battle in two key policy areas, both relating to colored people:

    - indigenous rights: the Intervention
    - asylum seekers: border protection

    All post-modern liberal elites regard the general populus with barely concealed contempt. Look at the terms of contempt they use when describing them: redneck, bogan, not to mention the stock standard “racistsexisthomophobe”.

    So having failed to win by fair means the post-modern liberals now try foul, resorting to un-elected judges to do an end-run around the democratic political system.

    The push for a Charter of Rights is a confession of political failure.

  • 11
    Jack Strocchi
    April 29th, 2010 19:59

    Sorry to flood the thread but one more point:

    Post-modern liberals have got the relationship between rights and peoples almost back to front. Individual rights emerge as a consequence of the evolution of institutional rules.

    So Nature conserves peoples. Culture construct rights.

    Post-modern liberals have got the relationship between nature and culture exactly back to front. They believe that rights are “naturally conserved” whilst race is “culturally constructed”.

    Of course, once rights are “naturally” constitutionalised into the body politics DNA it then becomes the responsibility of authorities to force nurture to fit the new template.

    Lather, rinse and repeat until the End of History.

  • 12
    UNIVERSAL AFFIRMATION OF HUMAN RIGHTS « DUCKPOND
    April 29th, 2010 21:17

    [...] Andrew Norton argues that a Bill of Rights would create more problems than it solves, although he does not propose a workable solution to the problems that a Charter of Rights can address and does address in Victoria. Is he in favor of revoking the Victorian Charter of Rights? It seems odd that a classical, Bentamite, individualistic liberal. [...]

  • 13
    Andrew Carr
    May 2nd, 2010 12:12

    Jack – A bill of rights would have to be advocated and implemented by an elected government, and then passed by a referendum by majority of voters across a majority of states.

    Thats a lot more democratic than the current situation where (just to use your examples of the NT intervention/boat people) the government looks at a few opinion polls and adjusts its policies, while most people will ignore these issues when they come to vote on poll day.

    Classical liberals wanted a government of laws not of man, Australia is at best a democracy of manners, meaning our individual freedoms are at the whim of the prime ministers views. We have some of the least veto points on legislation of any democratic country, hence the abuses both sides of politics get away with.

  • 14
    Jack Strocchi
    May 3rd, 2010 08:17

    Andrew Carr@#13 said:

    Jack – A bill of rights would have to be advocated and implemented by an elected government, and then passed by a referendum by majority of voters across a majority of states.

    Thats a lot more democratic than the current situation where (just to use your examples of the NT intervention/boat people) the government looks at a few opinion polls and adjusts its policies, while most people will ignore these issues when they come to vote on poll day.

    No its not democratic. The Bill of Rights is an attempt to constitutionalise some spurious wish-list of rights through the back door, the product of a momentary majority in the legislative branch. Which then gets hand-passed back to the unelected judicative branch by anyone who can muster the funds for a legal challenge.

    You are wrong about the federal parliament deciding immigration and indigenous policy by “looking at a few opinion polls”. Howard’s changes were not a spur of the moment focus group driven, but the result of a long simmering dissatisfaction with the liberal status-quo. Liberal “rights-based” policies has been tried and failed over a long period of time.

    You are also wrong about “most people…ignoring these issues when they come to vote on poll day”. Democratic politics effects policy through the median marginal voter, who finally decided they had had enough of liberal failure and voted for a “corporal” solution. That is populism.

    The whole Bill of Rights agenda is an un-Australian attempt to Americanize our political system. Typical of post-modern liberals they always want to undermine the legislative branch – the Peoples House – by promoting the other branchs at its expense:

    – the executive: through a President
    - the judicative: through a Bill of Rights

    Like, what is so great about the US political system these days that we are so eager to copy it? Seems to me that they take forever and a day to get anything worthwhile done.

    A AUS Bill of Rights would just be another road block in the way of governments trying to get things done, as if we dont have enough already.

    Its fine to worry about the justice of minority rights. But there is an injustice to majority rule if the people’s will is constantly thwarted.

    Look how easily Howard dealt with the gun control issue. Done and dusted. The US is still fiddling about with this problem.

    And the remote indigenous issue: finally heading in the right direction. The US is always going back and forth on civil rights.

    And the GST: sorted, finally. The US has a massive deficit because it lacks a proper indirect tax.

    Asylum Seekers: it was sorted until the Left-liberals go their hands on it, then boats started to flow and founder. Now Curtin is re-opened. Congratulations Left-liberals!

    And now the ETS is a political football. Imagine if there was a Bill of Rights which entitled everyone to own a big gas guzzling car if they wanted. I’m sure that right would get some support.

    Rights are much more solidly founded if they are implicitly conserved from some organic tradition. Rather than explicitly constructed after a mechanical fashion.

    More generally its way past time to talk about civil rights. And its about time to talk about civic duties.

  • 15
    Jack Strocchi
    May 3rd, 2010 08:43

    A Bill of Rights is super-imposing yet another judicative social decision making process on top of our existing legislative one, which has worked pretty well for a thousand years or so.

    We are becoming a society addicted to process over progress.

    Its already hard enough for the government to get things done – look at the torturous process of the ETS! [smacks hand into forehead with frustrated disbelief]

    Imagine trying to get something of comparable complexity through with every single interest group mounting a legal challenge on the basis of some spurious right being violated.

    Liberals are constantly invoking the spectre of Big Brother as a rhetorical device to spook people into accepting a Bill of Rights. But there is virtually no chance that governments will revoke the formal rights to free association and expression that the people already have under both Constitutional, common and and commonwealth law.

  • 16
    jtfsoon
    May 3rd, 2010 09:05

    Yes Jack America’s founding fathers were ‘post modern liberals’. Give us a break.

    The simple politically incorrect truth is that democracy is only a means towards an end – the peaceful transfer of power. And we want power over the State to change hands occasionally so its operators don’t get too lazy. Other than that, there is no inherent merit behind majority rule as opposed to a constitutional liberal polity (which could also be consistent with something like the old Habsburg monarchy if such things were still feasible).

  • 17
    Jack Strocchi
    May 3rd, 2010 10:00

    jtfsoon@#17 said:

    Yes Jack America’s founding fathers were ‘post modern liberals’. Give us a break.

    The agenda of modernist liberals, such as the US’s founding fathers, is totally different from that of post-modernist liberals, such as those on parade at Larvatus Prodeo.

    Modernist liberals were after formal guarantees of negative liberty. Post-modernist liberals want substantive allocations of positive liberty.

    Modernist liberals were trying to secure Enlightenment individual rights in the confrontation with the ancien regime: Monarchical regent, Established religion and the folk lore of race. These were genuine threats to liberty which required both a constitution limiting institutional authority and a Bill of Rights guaranteeing individual autonomy.

    Do we have the British Crown threatening to send red-coats into the streets? Is the Catholic Church about to revive the Inquisition? Are townsfolk launching pogroms with pitchfork’s brandished and torches held aloft?

    We have achieved the modernist liberal project, certainly for white males by the mid twentieth century. And over the sixties through eighties the Enlightenment project was completed with the emancipation of indigenes, colored immigrants, women and gays.

    Since then the pursuit of rights has gone past the point of diminishing returns, reaching the limits of liberty so to speak. This is obvious in the tendency to over-litigate, the general bureaucratic obsession with process and the general political demand that quotas be handed out for special interest groups.

  • 18
    jtfsoon
    May 3rd, 2010 10:07

    Jack

    I agree with the negative liberty vs positive liberty distinction. Problem is that your substantive criticisms of Bill of Rights aren’t on the basis of this distinction but simply on the basis that it’s anti-democratic

  • 19
    Jack Strocchi
    May 3rd, 2010 10:07

    Shorter Strocchi: post-modernist liberals are using the high regard that most people have for the (modernist liberal) US Bill of Rights as a Trojan horse to smuggle in their undemocratic social agenda.

  • 20
    Jack Strocchi
    May 3rd, 2010 11:12

    jtfsoon@#16 said:

    Other than that, there is no inherent merit behind majority rule as opposed to a constitutional liberal polity (which could also be consistent with something like the old Habsburg monarchy if such things were still feasible).

    Modernist liberals have traditionally believed there “is inherent merit behind majority rule”, properly limited by a constitution and common law protecting minority rights. Remember “no taxation without representation”?

    On an institutional level, the corporate law of accountability that requires agents to be responsible to the preferences of their principals applies to both statist and capitalist corporations.

    On an ideological level, the modernist liberal is invariably drawn to accept and embrace democracy as the embodiment of Enlightenment principles. This is because of his simultaneous commitment to both liberty between individual autonomies and equity within institutional authority.

    As I argued above,

    There is an organic relationship between liberalism and democracy. Liberalism is the general theory of individual free choice. Whilst democracy is the particular application [of liberal principles to the problem] of institutional fair choice.

    Its conceptually clearer to see liberalism as a governance philosophy that aims aims to reconcile the liberty of individual autonomies with the legality of institutional authority.

    I emphasise the egality in legality since this draws attention to general Rule of Law requirement for fair (ie equal) treatment of citizens. Which is fundamental for disputes within the “firm”, of which the state is simple a large example. The term equity refers to an individuals “fair share” of the firm.

    The principle of legality implies a simultaneous requirement for both liberty between firms and “egality” within firms. Indulge me in another bout of self-quotation:

    Liberalism therefore obliges (state & corporate) agencies to be accountable to the preferences of (household) principals:
    - politics within the firm: intra-firm democracy
    - economics between firms: inter-firm catallaxy

    So for liberals, democracy is not just an ornamental after-thought, it is organic to the constitution of liberty.

    And of course, in historical practice, everywhere that liberalism (minority individual rights) triumphed one found that democracy (majority institutional rule) was not long in following. Indeed they were usually more or less concurrent, as several minorities won their emancipation in liberal civil society they obtained the franchise in the democratic state.

  • 21
    Jack Strocchi
    May 3rd, 2010 11:13

    jtfsoon@#18 said:

    Problem is that your substantive criticisms of Bill of Rights aren’t on the basis of this distinction but simply on the basis that it’s anti-democratic.

    Well I can oppose something for more than one reason, can’t I? In general the notion of rights should be reserved for formal negative liberty. Entitlements are a better term for substantive positive liberties.

    I am, generally speaking, a conservative populist. So I think the constitution and common law are there to guarantee minorities rights to negative liberty, which they more or less do. Whilst the commonwealth’s statutes are there to authorise the majority’s entitlement to positive liberties.

    The post-modernist liberal Bill of Rights is wrong on grounds of both policy and process.

    It is bad policy because it is an attempt to constitutionalise entitlements which are, by there nature, inherently controversial.

    And it is bad process because it is undemocratic, giving priority to the judicative over the legislative branch in cases where there is conflict over the interpretation of the Rights Charter.

  • 22
    jtfsoon
    May 3rd, 2010 12:10

    Jack

    JS Mill favoured a restricted franchise. As did most ‘modernist liberal’ forefathers. As did the people who said ‘no taxation with representation’.

    Liberalism has always favoured restrictions on the principle of majority rule. You concede that yourself when you note that it’s democracy ‘properly limited by a constitution’ which they favour.

    So no, democracy as such isn’t valued for its own sake.

  • 23
    Jack Strocchi
    May 3rd, 2010 12:52

    a href=”jtfsoon@#22 said:

    liberalism has always favoured restrictions on the prnciple of majority rule. You concede that yourself when you note that it’s democracy ‘properly limited by a constitution’ which they favour. So no, democracy as such isn’t valued for its own sake.

    I never argued that modernist liberals were in always in favour of immediate extension of the universal franchise together with untrammeled powers granted to the state.

    Most modernist liberals “valued democracy for its own sake” primarily because they were utilitarians. “Each to count for one and none for more than one.” Democracy is obviously the most appropriate public choice mechanism to embody the utilitarian ethical principle.

    Even the modernist liberals who weren’t utilitarian realized that the state’s rule of law had to have the consent of the governed to get maximum legitimacy: “no taxation without representation” is simply the political expression of the liberal principal-agent relationship.

    And the fact that modernist liberals clearly favoured granting limited forms of popular franchise meant they must have been in some sense pre-disposed to democracy. Otherwise they would have been better off promoting some form of enlightened despotism of the kind favoured by Plato and his multitude of philosophical disciples.

    Most of the modernist liberals, although political revolutionaries, generally appealed to a notion of social evolution when envisaging further extensions of the franchise – “where freedom broadens slowly down from precedent to precedent” (Wordsworth).

    This was based on the common sense principle that political decision making powers should only be authorised to those competent to make them. At a minimum this requires adult literacy and some reasonable minimum standard of living. That all takes time.

    Thus the Founding Fathers and Mill favoured extending the franchise over time. Washington thought that Native Indians should get the vote once they assimilated. Mill argued that women should get the vote as their education improved.

    And most modernist liberals construed liberal democratic state as one in which the constitution guaranteed majority rule whilst protecting minority rights, particularly to due process and formal freedoms. This was to prevent the “tyranny of the majority”. But they were equally worried about the “tyranny of the minority” as expressed by Kings and Popes.

    Now majority rule and minority rights are not always in concordance. The utilitarian balance between them may shift depending on evolutionary circumstance.

    I dont think that a Bill of Rights as envisaged by post-modern liberals would be very helpful in striking the right balance.

  • 24
    Blogging on classical liberalism – 5/22/2010 | Classy-cal Liberalism
    May 23rd, 2010 05:08

    [...] Very good thoughts from self-proclaimed “classical liberal” Andrew Norton.  The post is an interesting [...]