Skip to content
Crossbencher.

Essay · Crossbencher ·

The court and the ballot box

Protecting rights and preserving democratic consent are both worth doing. Neither removes the difficult choices about where power belongs.

Unsplash

Rights need protection from a hostile majority. Governments also need to answer to the people who elect them. Both principles matter, which is why the argument about courts and democracy is harder than either side usually admits.

A majority can turn against a minority very quickly, especially after an atrocity or during a national panic. There is a good reason to make fundamental protections difficult to remove. If a right can disappear whenever an ordinary majority finds it inconvenient, the people who most need it can't rely on it.

But democratic consent matters too. When voters believe that the decisions they care about have been placed beyond their influence, it isn't irrational for them to ask what their vote is worth. Telling them that a court has settled the matter doesn't answer the question of who should have been entitled to settle it.

Which decisions belong where?

Neither concern makes the other disappear. Treating every objection to a court as an attack on human rights ignores legitimate questions about accountability. Treating every ruling against a government as an affront to democracy ignores why limits on government exist.

The useful argument concerns the particular power being exercised. Which rights should be especially difficult to change? How much discretion should judges have when interpreting them? What should Parliament be able to do in response? And how can people change the settlement if they stop consenting to it?

Those questions require more than choosing between the words "rights" and "sovereignty". A person can value both and still disagree with where the current boundary falls.

Think about the next government too

It is tempting to judge a constitutional rule by whether it produces the result we want today. That is a poor way to decide how much power anyone should have. A majority that wants fewer restrictions now may need those restrictions when its opponents take office. A court whose judgement we welcome today may later interpret the same powers in ways we dislike.

The difficult task is to protect people from abuses of majority power while preserving a meaningful way for the public to govern itself. There isn't a slogan that removes the need to make that choice. We would have a more useful argument if both sides admitted what could be lost by getting it wrong.

The court and the ballot box · Crossbencher