Now he compares the constitutional model of the United States and the uk. Please welcome good evening, when the french Political Writer visited the United States in the 1930s, 1830s, forgive me. One of the things that struck him most forcibly was the space occupied by employers in the public life of the nation. In his classic account of early american democracy they suggest is that lawyers task as exceeded of the old landed aristocracy. They share the habits and above all they shared contempt for popular opinion. The more we reflect on all that occurs in the United States the more we will find that the lawyers as a form the most powerful if not for the democratic element in the constitution. There isnt that something that doesnt resolve itself through a judicial question. There is only one other country that they could think of where it enjoyed a comfortable influence over Public Affairs and that country was written. A new addition for the day would probably make the same point. The twin scenes of these lectures would be the decline of politics and the rise of law to fill the void. I have argued it depends on their survivalone is by system of fundamental law which creates a class of professional politicians with an interest in softening extremes in order to broaden their electoral appeal. Representative politics is a very imperfect mechanism for achieving this. In the long run political constraints on the power of majorities are likely to be more receptive legal funds. Why do we believe in democracy . What are the proper limits of democraticwhat rights even against the will of the people. When the british argue about these questions as they often do they generally look to the United States sometimes is an aspiration, sometimes as a warning. In spite of a close similarity the american constitutional tradition is the polar opposite of the british one. At its most basic level the differences between two models of the state a legal model and a political one. The constitution of the United States is the archetypal legal constitution written by comparison has historically been for the political state. In britain as in many other countries including the United States we have witnessed a mounting height of hostility with representative politics over the last three or four decades. This has naturally been accompanied by a growing interest in the legal constitutional model especially among the judiciary. This is a good sign to be assessing and washington is a good base in which to do it. The legal model raises dilemmas in a democracy of which the United States has a longer and more varied experience than any other country in the world. The prime of any constitution is to provide a framework of political rules for making connective decisions. In its original form the constitution of the United States has almost nothing else in protection of rights came later with the amendments pushed together constitute the bill of rights. 12 years later came the decision of the Supreme Court which established the power of the Supreme Court establish acts of congress. By the beginning of the 19th century the United States constitution had acquired the three basic features which have come to be regarded as the hallmark of every legal constitution, first, a written code of rights which prevails before other law and secondly it is proof against political commitment except by some extraordinary procedure such as a super majority or a popular referendum. It confers on judges the power to enforce Constitutional Rights to strike down any act of the state including the legislation by comparison in britain at any rate the constitutional theory there are no constitutional limits on the power of the british parliament. There is no fundamental law which parliament cannot alter that will. Even the tree of the European Union which have prevailed over Domestic Legislation the past 46 years do so only by virtue of active parliament which can be repealed that will. We are almost the only country in the world of which this is true. The difference between the legal and political model almost all constitutions have some elementthe United States has a sophisticated doctrine of the separation of powers which reserves a large space of political judgment. In britain law has always had a place in the political constitution. Nonetheless, the conceptual difference between the legal and the political model remains a real one which exposes two different very to very different views of democracy. The attraction of the legal model is that it is based on the body of principal. Applied by those who perceptions could be persuaded by passion, prejudice, and those of politicians patronizing overtones are obvious. The legal model seeks to create and its at the kissed do not trust institutions to form opinions about them. For moral instability. They therefore favor power to judges who superior qualities and Public Opinion we the people are the opening words of the u. S. Constitution. But as James Madisons contributions to the federal papers show, the Founding Fathers regarded the people as a bigger threat to liberty than their governments. Madison looked for solution to the representative principal. He expected lawmakers to be wiser and more circumspect than their electors. For later generations, however, the representative principal has not been enough. Distrust of elected majorities and fear of majoritarian tyranny has always been the driving force behind the idea of entrenched Constitutional Rights. Now, it is probably true that the decisions of voters and their representatives are not morally pure. They are based on a variable mixture of wisdom and folly, prejudiced in understanding of idealism, pragmatism, and self interest. The real question is whether this impurity of motive is a good enough reason for constraining their choices by law. To answer that question i think that we have to ask ourselves why we believe in the vote at all. There are surely two main reasons. In the first place all governmental authority, which is not based simply on force, requires some sort of legitimacy. If a Political Community is to have any longterm stability, then people have to have a reason for obeying laws that they do not like, other than the threat of coercion. We the people is the Emotional Foundation of democracy in britain as well as the United States even if the british do not have a document that says so. The second reason why we believe in counting votes is that it it reflects our sense of social and political equality. Thomas jefferson wrote in one of his letters to the german scientist Alexander Von Humboldt that the law of the majority is the fundamental law of every society of individuals of equal rights. The critical words in that sentence are the last ones, of equal rights. The interests and the opinions of citizens conflict. We cannot have all have our own way. What we can expect is that the decisionmaking process will treat our various interests and opinions with equal consideration and respect. That is achieved by giving all of us an equal share in decisionmaking, even if as individual voters are influence on the outcome is minimal. A constitution which was not based on democratic choice but on some embedded schema values, such as liberalism, human rights , islamic political theology, or the dictatorship of the proletariat, would not achieve this. It would privilege the citizens who happens to agree with these values. That might not matter if values in question were universally or almost universally accepted. But you do not need to entrench values in the constitution if they are already universally accepted. You only need to entrench them if they are controversial and therefore liable to be discarded if people are allowed a free choice in the matter. That suggests that the essence of democracy is not more rectitude, but participation. The proper function of a constitution is to determine how we participate in the decisionmaking processes of the state and not to determine what the outcome should be. Whether voters act from good or bad votives is really not the point. We cannot make constitution for some imaginary world in which people are without prejudices or in different to their own interests. All that a political system can really aspire to do is to provide a method of decision making, which has the best chance of accommodating disagreements between citizens as they actually are. That calls for political process in which every citizen can engage whose results, however imperfect, are likely to be acceptable to the widest possible range of interest and opinions. This is arguably a more important priority for Political Community then finding the right answers to its moral dilemmas, even assuming that there are right answers are that we can finally hit on them. The problem about the legal bottle is that it is marginalized the political process. When a judge identifies something as a constitutional or human or a fundamental right, he saying that it is derived from a higher law than the ordinary decisionmaking processes of the state. He is declaring that its existence and extent are not to be determined by political choice. Yet very many judicial decisions about fundamental rights are themselves political choices only made by a smaller and unrepresentative body of people. In an american context, perhaps most interesting example is the due process law of the 14th amendment. It provides among other things among other things that no state shall deprive any person of liberty without due process of law. Successive decisions of the u. S. Supreme court have made this the functional equivalent of article 8 of the European Convention on human rights and fundamental freedoms. That protects private life. Both provisions have been interpreted as potentially embracing any interference with the personal autonomy of individuals within limits. All mandatory rules of law interfere with the personal autonomy of the individuals. That is what they are therefore. If the limits to the right of liberty are to be fixed as a matter of principle by judges, then the answer must necessarily depend upon the judgment about which interferences with personal autonomy are acceptable and which are not. Half a century ago, this problem was energetically debated in the u. S. Supreme court in a celebrated case concerning contraception. The court held by a majority that there was a constitutional right of privacy, which the connecticut statute violated. But this right was nowhere mentioned in the constitution and confusion about its exact basis is obvious from the diversity of opinion among the justices. Some of them thought that a right of privacy existed because it was analogous to other rights specifically mentioned in the constitution. Some thought that the right was to be derived from the collective values of the people as the courts perceived them to be. One thought that it was enough to say that a right of privacy was implicit in the whole concept of liberty. The dissenters said there was no such right because the only basis on which it could be said to exist was that enough justices thought that it was a good idea. I think that the dissenters had the point. When a judge is asked to decide the question as broad as this, the issue is not really whether the right exists, but whether it ought to exist. Yet that is surely a question for lawmakers, not judges. Over the century and a half since it was added to the constitution, the due process clause has been the basis of some of the most liberal as well as some of the most progressive decisions of the federal courts, according to the changing outlook of judges of the day. As is well known, during the so called lochner era of the 1890s and 1930s, the court struck down as unconstitutional some 150 pieces of employee protection legislation under the due process clause. They did this on the grounds that liberty requires absolute freedom of contract, subject only to limited considerations of public policy. Among the laws that they struck down state laws limiting hours of work in the interests of health, guaranteeing the right to join unions, and outlawing child labor. Moving to the opposite extreme, the due process clause was also the basis of the decision in roe and wade in 1973 the u. S. Supreme court derived a right of the abortion. It was from the newly discovered constitutional right of privacy and autonomy. The same reasoning, in a sense, lay behind the courts decision more recently about samesex marriage in 2015. In both cases the Supreme Courts decisions were unnecessarily based on the perception of the justices. This is what liberty now requires, yet it seems likely that if the same issues had come for the first time before the court as it is now constituted, the result would have been different, although nothing would have been changed apart from the outlook of individual justices. One can draw two lessons from the broad range of outcomes, which at different times in American History have been justified under the due process clause. One is that on politically controversial issues the decisions of judges almost always involve a large element of political valued judgment. The case for or against labor regulations is a question of economic and social policy. The case for or against abortion is a question of social and moral values. What liberty requires and how far it should go are fundamentally political questions. The other lesson is that judicial decisions on issues like these are not necessarily wiser or morally superior to the judgments of the legislature. Much of the employee protection legislation struck down by the federal courts in the lochner era had been on the statute books in britain since the middle of the 19th century it had got there but ordinary legislation and by Political Action. The justification commonly put forward for treating such matters as constitutional issues is that it protects minorities against majority tyranny. But what constitutes majoritarian tyranny . It very much depends on how you defined your majority and what you regard as tyranny, except perhaps in classics nation cases with the ends meaning principles is to treat those cases like. There are no legal standards by which these questions can be answered. The only available standards are political ones. There is also, although i perhaps hesitate to make the point here, a wider issue, namely whether it is wise to make the law in this way. I recognize that partisan divisions and institutional blockages in congress have made controversial legislative change difficult to achieve in the United States. I recognize that encourages those who look for a judicial revolution of major social issues. But the chief function of any political system is to accommodate different sorts of interested opinion among citizens. Resolving these differences by judicial decision contributes nothing to that end. On the contrary, characterizing something as a constitutional right removes the issue from the arena of political debate and transfers it to judges. In the United States it does this irreversibly unless the Supreme Court changes its mind or over constitution. Personally im in favor of regulation right of abortion, but i question whether it can be properly treated as a fundamental right. Abortion was once highly controversial in britain. After extensive parliamentary debate it was introduced by ordinary legislation in 1967 within carefully defined limits and subject to the framework of regulation. The same pattern was followed in europe were all but one state have now legislated for a regulated right of abortion. As a result abortion remains controversial. I suspect, although i cannot prove it, but one reason why abortion remains so controversial in the United States is that it was introduced judicially, i. E. , by a method which relegated the wider political debate to americans. Instead the debate is concentrated by the candidness of the Supreme Court with results that were apparent in the undignified party and procedures in the most recent confirmation hearings. Is inaugural addressed, first inaugural address in 1861, Abraham Lincoln drew attention to the implications of filling gaps in the constitution by judicial decision. His words are very well known. The cat ended the citizen, he said, must convince that if the policy of the government on by the questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court. The people will have reason to be their own having to that extent drastically resigned the government into the hands of that evident tribunal. Lincoln had in mind the notorious Supreme Court decision from dred scott which had held that africanamericans were not to be treated differently. But he was also making a broader point, which was about that the nation cannot help to accommodate divisions among its people unless its citizens actively participate in the process of finding Political Solutions to common problems. Law has its own impeaching claim to legitimacy, but it is really to substitute for politics. Im certainly not saying that there are no rights which should be constitutionally protected in this democracy. But i think that one lesson which britain can learn from the u. S. Experience is that one must be very careful about which rights one regards as a fundamental as to be beyond democratic choice. I suggested in a previous lecture that in democracy there are only two kinds of rights that are truly fundamental in that sense. There are rights to a basic measure of security for life, liberty, and property without which life is reduced to crude contests in th