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.