Feb 12

🎧 Jonathan Sumption on the Limits of State Power

Jonathan Sumption and Yascha Mounk discuss the danger of eroding political norms

Yascha Mounk
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Jonathan Sumption, Lord Sumption is a British judge, author and historian. He is a former Justice of the United Kingdom Supreme Court and a frequent public commentator.

In this week’s conversation, Jonathan Sumption and Yascha Mounk discuss the prospects for democracy in the English-speaking world, the value of judicial oversight, and the power of strong political conventions.

This transcript has been condensed and lightly edited for clarity.

Yascha Mounk: You've written very interestingly about the state of democracy and the reasons we have to worry, from a historical perspective, about its future. Why should we be concerned about democracy, even in countries like the United Kingdom or the United States?

Jonathan, Lord Sumption: We should be concerned because it's in the oldest democracies that the greatest disillusionment with democracy has arisen, particularly the United States, but also very much in Europe, the United Kingdom, and France. We should be concerned because there's a general attitude that democracy is the default position for most societies; all historical experience contradicts this, and suggests that it's actually an extremely fragile system. I've no doubt that it's the best way of reflecting people's wishes in government policy. The problem is we don't agree about what government policies ought to be, and the temptation to resort to extra-political, extra-parliamentary or extra-congressional systems, in order to decide things is generally very great. 

Democracies depend on two things. They depend on an institutional framework, and they depend on a cultural background. It isn't usually the institutional framework that fails. That's still there. What fails is the cultural background, which is the desire of people to make it work, the desire of people to respect plurality of opinion, and to accept that sometimes they can't get their way, however important the issue and however right they think they are. In most countries which have lost their democratic status, the institutions are still there, there are still elections of a sort, there are still parliaments—but they are largely meaningless because the culture that sustained them disappeared.

Mounk: It strikes me that when I was in grad school and starting to learn about the subject, there was tremendous certainty about the future of democracy. Now the consensus seems to have flipped. 

Why do you think that, in all the time the American and British democracies have existed, it is at this point that we're seeing special stress on the institutions?

Sumption: I think there are a number of reasons, but the most important of them is risk aversion. This is, in one sense, a perfectly natural development of human societies once a larger number of people becomes involved in public affairs. But over the last century, people in the West have become progressively more risk averse. They have become progressively anxious that the state should protect them against risks which are not just sudden external, once-in-a-century catastrophes, but are very much part of the ordinary risks associated with any kind of life in which there is a reasonable degree of individual freedom. Financial risks, health risks, safety risks of one sort or another. We expect a high degree of protection from the state against these risks. 

The problem is that when you get up a fear of risks which are associated with ordinary life, and you look to the state to deal with that, the state will react in the only way it knows, which is by introducing coercion, in order to prevent you doing the things that give rise to the risk and prevent everyone else doing them as well. So you get a situation where the state suppresses part of life in order to suppress the taking of risks, which is actually inseparable from any kind of free activity in a democracy.

Mounk: Why do you feel that it is at this point that people prioritize security over liberty? To that extent, the famous phrase “Salus populi suprema lex” is a very old one.

Sumption: It's a great fallacy. It's an old phrase, it comes from Cicero. But it was false when Cicero uttered it, and it's false now. I think the reason why people look to the state for protection from relatively ordinary risks is that they can see what the state can do. Some generations ago, the main constraint on state power was the fact that the state was ignorant and powerless. The state's command of information now is absolutely unparalleled, and miles away from anything that earlier generations had experienced. So the state is immensely powerful; it can do many things that the state could not do in the time of our parents and grandparents. People look to this great power of the state and say, “Why shouldn't that be mobilized to protect us?” And the answer to that question is that it can be, but only at the expense of depriving us of the full range of things that a free person has traditionally been able to do.

Mounk: I continue to hear the argument that lockdowns aren’t just appropriate (which may be true under certain circumstances) but they actually increase liberty; that vaccine mandates are not a restriction of liberty, but that they actually expand it. Why do you disagree with that point of view?

Sumption: Well, people who say that are presumably talking about freedom from disease as being the advantage of lockdowns. Let's assume that lockdowns work—there's a big argument about that. What they're really saying is that lockdowns are justified in a democracy, because the majority are well served by an arrangement which minimizes their chances of getting seriously ill or dying from COVID-19. What is implicit in that is that there is no moral limit to what the state can do in order to make people feel more secure—in this case, from an infectious disease. I believe that there are moral limits. I'm using the word morality in a very broad sense. But I believe, first of all, that there are some areas of human existence which are, inescapably, our own private domain. 

One example is whether we are going to get vaccinated and admit a particular drug into our bodies. The choice that I've made is that I want that. But I think that it's a choice which rationally can be made the other way. I cite that simply as an example of one area which seems to me to be inescapably outside the domain of state action. But I basically do not accept that it is a sufficient justification for a highly intrusive, dictatorial regime. It depends on the degree of restriction. Compulsory vaccination, compulsory lockdowns—effectively house arrest—seem to me to be at the most extreme end of deprivation of liberty. And we should not simply look at those in the same way as we look at speed limits or stopping at red traffic lights. 

This is, I think, a very fundamental issue. The problem here, the problem with COVID generally (it's a very good example of what we're talking about in more general terms) is that human beings have had to live with disease for a very long time. This disease is not outside the range of experience that humanity has had for many centuries. The more you ask the state for protection against minor risks, the greater the danger. That may sound ironic, but once upon a time, it was considered that the state, even in a democracy, could assume despotic powers; for example, in wartime—war being, at least for Western societies, a rare instance of the breakdown of normal civilization. We move beyond that to a situation where people expect the state to provide security against much more minor and much more frequent risks. The more minor the risks that we are not prepared to tolerate, the more frequent the intervention of the state is going to become and, I fear, the more permanent it's going to be. Because, harking back to what I said about the culture that sustains any democracy, these cultural factors are essentially self-restraint by politicians and by people—a consciousness that there are many things that can be done, which shouldn't be done. Once you cross that threshold, once you say, “Okay, well, let's do it,” then the spell has been broken, the magic has gone, and the self-restraint which was previously the basis for democratic existence has vanished. You've thereby made it a great deal more likely that this problem is going to come back next time that there is some, quite possibly, rather minor crisis.

Mounk: And what should governments do in those situations?

I am very tempted by your arguments as somebody who's deeply committed to philosophical liberalism, that many governments have, perhaps, overstepped the bounds of legitimate authority at various moments in the pandemic. But of course, the other argument is that if government said, “Look, in a democracy, we just can't protect you from a deadly disease and our hands are just tied,” that may actually also favor the rise of somebody who says, “If this system can't keep you safe, give all the power to me, and I will.”

Sumption: That's absolutely true. But what it means is that one is looking at restraint, at a respect for certain cultural norms, not just on the part of governments and presidents, but on the part of the people in general. There will always be people (one hopes that they will usually be a minority) who do think exactly in the way that you describe. The problem arises when a very large proportion of the population starts to think in that way. I think some aspects of the last five years of the history of the United States tend to bear this out. You can have all the checks and balances in the world, but the combination of a large sector of the population that wants a different approach, and a ruler who is prepared to give it to them, can be devastating.

Mounk: Tell me more about how you interpret the last five years of the United States. Because a different interpretation would be that the reason why Trump ultimately did have to leave office is not the political culture of the United States so much as its institutional setup.

Sumption: What the experience of Trump's presidency seems to suggest is that there are many perfectly legal ways in which you can suddenly subvert the democratic framework. You can make, for example, the Environmental Protection Act largely meaningless, by exercising purely administrative powers entirely lawfully. You can displace offices so that all the existing employees resign, because you've moved the headquarters to somewhere out in the sticks where they don't live. And then you can exercise your presidential powers to appoint not perhaps the top officials, who may need congressional approval, but the raft of people below them. You just appoint people who don't believe in environmental protection. That's just one example of the way in which a President of the United States, like the president of many other countries that have an executive presidency, can effectively circumvent the checks and balances by the exercise of the purely administrative powers that any government has got to have in order to perform government of any sort. That's the danger. And the world, of course, is absolutely full of countries where democracy and freedom have been subverted entirely legally, in a system where the legal basis of the constitution ought to make that impossible. But the fact is, so long as governments have, as they must have, basic powers to administer, a government that really doesn't believe in the system is perfectly capable of getting around it.

Mounk: In a populist Olympics, Trump would not take the gold medal; he wouldn't even take fourth or fifth place. But he came in without a very clear idea of what he wanted to do, without a very devoted team. And, if he had had eight or 12 years, things may have ended up looking very, very different.

Sumption: If he had a second term, he would not even have to worry about the prospect of the next election after four years. I think that there are many respects in which it could have been worse, and in which the United States system of checks and balances did in the end work. But there are many respects in which it didn't, and that is a problem, I think, not just for the United States, but for just about any system. In my country, in the United Kingdom, the government has persistently sought to ignore conventions that make the system work, and has on occasions got away with it.

Mounk: What are some of those examples, and how worried are you about those? I still have a little bit of trouble interpreting somebody like Boris Johnson. On the one hand, he does not seem to me to be in any way as extreme as Donald Trump. I think he is, in many ways, somebody who has so much grown up as part of the British establishment and grown up within the British institutions, but he certainly has no intention of destroying them. And yet, when I look on the other end of the ledger, something like his decision to prorogue parliament, in order to stop it from interfering with his executive actions, does seem like a pretty extreme step. 

Sumption: I think you are quite right to say that Boris Johnson's instincts include a number of basic liberal instincts, which should not cause people to be afraid in the way that some of them would have been afraid of more extreme ideas of Donald Trump. So he is clearly not a Donald Trump. At the same time, when he wants to do something he is completely indifferent to constitutional principle. The only question that he asks is, “Will it help me get my way, will I get away with it?” We have had a recent example which is quite interesting, partly because it demonstrates the resilience of even a system of unwritten constitutional practice. 

Boris Johnson whipped his MPs through the House of Commons in support of a motion not to apply the ordinary disciplinary rules to somebody who had engaged in improper lobbying. He got the vote through, but he provoked by doing so. This was contrary to the convention that you do not interfere with the ordinary workings of the disciplinary system within the House of Commons, except on a cross-party basis. You don't make it a party issue, because if you do make it a party issue then the majority party (which at the moment is Johnson’s Conservative Party) can essentially do what it likes with Parliament. Johnson ignored that. He got away with it for 24 hours. There was then such a loud volume of protests, including from his own supporters, that he was compelled to turn 180 degrees round, revoke the resolution, start again and abandon the attempt to save this particular individual. 

That's an instance in which Johnson was prevented by unwritten cultural norms from doing what he wanted to do. But it is relatively easy, particularly in a country where very large numbers of the government's powers are delegated powers (you don't need further parliamentary assent before they're exercised). It's relatively easy to ignore Parliament if you set your mind to it. And I think that starting with the Brexit crisis between 2016 and 2019, there has been a general feeling by those who believed in Brexit, that the result of the referendum basically legitimized absolutely anything that you might wish to do, in order to get Brexit through on the terms that the government wanted to. 

And that inaugurated a period of some three years in which the governments of both Theresa May and Boris Johnson essentially abused the very strong position that the executive has—in the House of Commons, in this country—to get through policies that did not have the support of the majority in the House of Commons. That has created a mentality in which the government has got used to the idea. Now, it's fair to say that many of the more outrageous acts of Boris Johnson were, in fact, the result of the influence of one of his advisors, Dominic Cummings, who was a person with utter contempt for democratic norms, including the centrality of the House of Commons, which he thought was undesirable. He basically believed in a more populist, more presidential style in which the government should not be amenable to particularly tight control of the House of Commons. The problem we have in this country is that we don't have a written constitution. We are a monarchy. We were once an absolute monarchy, and in theory, the powers of absolute monarchy are for the most part still there.

Mounk: Some countries in Latin America have so many veto points on the use of power that one of the roads towards democratic instability might be that they become so blocked up that the population is clamoring for a strong man. It seems to me that Britain is on the other end of the scale; it has very few veto powers for democracy. And it means that in principle, a Prime Minister who is elected, or perhaps even one who takes over by gaining the leadership of a political party without having stood in a popular election before, could take extremely authoritarian steps without any inbuilt institutional opposition. 

One solution to this would be to say, “We should do what the United States did, which is to build up one extra veto power in the form of a really strong judiciary, a supreme court.” But you're quite skeptical of that, as I understand it. You don't think that the role of courts should be expanded. Why is that not the answer to this problem?

Sumption: Well, traditionally, in the United Kingdom, the answer has been that the absence of these checks and balances is compensated for by very powerful political conventions. Those conventions exist as a matter of political culture. And they are pretty fragile. They can be destroyed, if the cultural atmosphere changes, as to some extent it is doing as we speak. Now, an alternative to that is to have a powerful judiciary. 

I think we've got to distinguish between the judiciary as a constitutional arbiter and the judiciary, as an interpreter, and very frequently a maker, of laws. And the judiciary is traditionally not very good at acting as a constitutional arbiter, essentially because all democracies, even a highly legal one like the United States, ultimately depend on a culture—a shared political culture on both sides of the argument. It is actually very difficult for the judiciary to act as a constitutional arbiter. In general, what has gone wrong is not that any laws have been broken. Conventions about how governmental powers ought to be exercised have become weak, and failed to stop behavior that most liberal democrats would regard as outrageous. That's not a situation in which the courts can very easily intervene. 

The United States has a written constitution which confers considerable powers on the judiciary, even greater powers than our judiciary possesses. The price that the United States pays for its system of checks and balances is, first of all, a judiciary which in large respects makes the laws. Because the Constitution contains very broad points of principle, rather than detailed rules, the judiciary is able essentially to invent rights that might not have been democratically chosen, and to make them apply across the entire United States, when some states might quite legitimately have deferred. It is able to make them everlasting, because once something's declared to be a constitutional right, that, for practical purposes, is it—until the crack of doom, that is, unless the Supreme Court changes its mind. 

Now, these are quite serious disadvantages. I agree that our system has pretty serious disadvantages as well, but I think that there is no such thing as a perfect constitution, and I don't think that more legal intervention is going to make it perfect. The other problem checks and balances in the US system have is an almost total immobility of the legislature when it comes to anything remotely controversial. The conventions, and indeed, the standing orders and rules of Congress, essentially make it very difficult for even a majority party to get its legislation through in the face of determined opposition, particularly if the culture of bipartisanship—in the few areas where it did exist—is destroyed by an attitude that it doesn't matter what the conventions are. “The only thing that we care about is getting our way.” That has increasingly been the mentality within Congress.

Mounk: What does this say for the likely future of democracy? If you're saying that the power of government has to be constrained by this very strong form of norms and conventions, and those norms and conventions are increasingly weakening, there would be a few possible answers. 

One is to codify the conventions: Let's turn what used to be based on norms into positive law and appoint somebody like a court to defend them. The second alternative would seem to be to strengthen those norms. And in that case, the third option is simply that the outcome is increasing abuses of executive power and an increasing weakening of the system. Am I missing an option?

Sumption: No, I think that those are the options. I think they all have considerable disadvantages. I think it's extremely difficult to codify conventions, because conventions are essentially not detailed rules of the sort you can codify. They are conventions about the general approach that we should adopt to a particular kind of problem. This sort of thing is incredibly difficult to codify. And I think that it would be useless to try, because you would end up by closing every stable door from which the horse had ever bolted. You can't imagine every problem that is going to arise. That's why you need conventions, and why it's necessary that the conventions should be reasonably flexible. You also have to face the fact that some conventions become redundant or undesirable for one reason or another. They may have been appropriate a hundred years ago, but not now. And the system has in it the potential for change without legislation. So I think that legislating to codify it would be a backward step. It would deprive the conventions of the flexibility that they need to have. A convention is, after all, not a rule; it is a principle which cannot be broken, save at very high political cost. And that depends on the political cost being there, because people believe that the convention ought to be observed. When they stop believing that, you are sunk. 

The implication of your question is that I think that there is no solution to this problem. And that is what I think. I don't think there's a solution to this problem. I think every constitution in the world, whether they are highly legal constitutions like the United States, or highly conventional constitutions like that of the United Kingdom, all have it in common that they can't work without a culture that wants to make them work—without a culture that accepts that you can't always have your way. 

And the only solution, I think, is to recover—it will take time, and it won't necessarily happen at all—the respect for democratic norms in the people's attitudes. Because for as long as people have the attitude that all that counts is whether you're going to get away with it, we are, frankly, in constitutional terms, sunk. It's not an optimistic message, but I'm not optimistic.

Mounk: What advice would you give to the justices on the United States Supreme Court? When I look back at the last 60 or 70 years of American political debates, at virtually every turn, on virtually all of the most important social, cultural, political questions—from abortion to the death penalty, from universal health care to political donations—it was ultimately the Supreme Court which decided and settled those issues. 

One of the things I worry about, actually, is that the over-involvement of the court in many questions of public policy makes it all the less likely that it will be able to stand up to a truly dangerous autocrat in the moments when it really counts, because it will have squandered a lot of its legitimacy. 

Sumption: I think that’s absolutely true. The United States Supreme Court absolutely exemplifies many of the problems of a highly judicial constitution. Part of the reason why it has been very interventionist is the relative immobility of Congress in the face of controversial issues. But the reason why we have a right-wing majority and an increasingly political approach to constitutional decisions in the United States is precisely the interventions that happened from the Supreme Court at a time when the court was very much more liberal. Because what has happened is that increasingly, in American presidential elections, —and to some extent, Congressional elections as well—the issue has become who should have the right to appoint justices of the Supreme Court. The identity of the justices of the Supreme Court has itself become a political issue. A lot of people are more inclined, for example, to vote Republican because they want Republican justices on the court. And, of course, liberals want somebody who will appoint liberal justices in the Supreme Court. So this has directly contributed to the perpetuation of a highly politicized court and has resulted in presidents—Republican presidents particularly because they have the biggest opportunities to appoint justices in recent years—stuffing the court with people who are going to be there for a very long time, who are selected precisely because they are relatively young, have no retirement age, and no limits on their terms, so that the judicial afterlife of a president can be ten, twenty, or thirty years after he was voted out. I think that's a very serious problem. 

And it's a serious problem, because on many of these intensely important and controversial moral issues like abortion, for example, you have got the Court essentially legislating. Roe v. Wade was a legislative decision. I know that justices of the court deny this. Justice Stephen Breyer recently wrote a book in which he said, “No, it's not a political decision. It is a decision which is informed by a legal mentality.” I have a huge amount of respect for Stephen Breyer, but I simply don't think that that's a realistic description of the way in which the court answers questions as broad as rights of privacy, from which the right of abortion is derived. I don't see what guidance the law can provide. The only guidance available is the personal preferences—essentially, personal, moral and political preferences—of individual justices. Which is why in most of these issues, we tot up the justices on either side and ask who they are. Everybody knows who the justices of the Court are in the United States. Hardly anybody knows who the Justices of the Supreme Court in the UK are, and I find the latter an altogether more reassuring state of affairs.

Mounk: To what extent can there be mutual learning—to what extent should the United States learn from the role of the court in Britain—and to what extent is that a wrong way of posing the question?

Sumption: Well, I certainly don't think that any country should ignore the constitutional arrangements of other countries. When there are issues about how one's own constitution functions, it seems to me natural and valuable to study alternatives, including alternatives that have usually been tried somewhere. In this country, we tend more often to look to the United States, partly as an example, and partly as a warning, simply because of the common language and to some degree, the common historical traditions. 

The United States exemplifies both the advantages and the disadvantages of a judicially enforced written constitution. I do not think that it could be transplanted to the United Kingdom. I do think that some aspects of it could be, but American experience suggests that that would be unwise. I will refer to the immobility of Congress in the legislature. But of course, there is an extreme immobility in the Supreme Court as well. The Citizens United decision, which dealt with the constitutionality of restricting political donations—the problem about that is that, because this is a constitutional right, it's going to exist forever unless the Supreme Court changes its mind. There's no way around this. So decisions of that kind of issue, by a court interpreting a constitution, are basically graven in brass for the rest of the history of that society, unless there is some real legal cataclysm. That seems to me to be a highly unsatisfactory state of affairs.

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