In this short book, Allan Hutchinson—one of Canada's foremost public law thinkers—revisits the age-old tension between constitutionalism and democracy in light of the rise of populism and what has been termed by concerned liberal constitutionalists as “democratic backsliding” and “constitutional retrogression.” The immediate trigger is what Hutchinson sees as the North American manifestations of these trends (for example, the presidency of Donald Trump and the premiership of Doug Ford) and, in particular, the call by proponents of liberal constitutionalism for stricter constitutional checks and balances to effectively counter, or at least tame, populism. Hutchinson argues that it is our democratic institutions—not our constitutional ones—that need strengthening. Along the way, he pokes some significant holes in the facade of self-righteousness that often characterizes canonical liberal constitutional theory.
In the first two-thirds of the book, Hutchinson analyzes the undemocratic features of US and Canadian constitutions by considering the elitist history of their drafting, the “skewed and selective” values enshrined in constitutions (54), and the formal (for example, Article V) and informal (for example, judicial interpretation) routes to constitutional change. These factors have left the United States and Canada with an enduring commitment to strong (yet thin, normatively and empirically speaking) constitutionalism over strong democracy. He takes aim at today's “elite democracy” (anticipated by de Tocqueville), noting the populist backlash that has arisen from disaffection with the moneyed few controlling democratic processes.
Hutchinson opens his text by arguing that Canada and the United States have a historical preference for strong constitutionalism over weak democracy, wherein society tends to defer to a “legal elite”; judges reign supreme through constitutional interpretation. In fact, argues Hutchinson, constitutions should be working for democracy, instead of democracy serving as an offshoot of constitutions (4). The underlying question driving Hutchinson's critique of constitutionalism revolves around the so-called counter-majoritarian difficulty embedded in judicial review. Boiled down, we may ask why non-elected judicial bureaucrats hold the final say on contested political decisions (32–33). Hutchinson rejects the conventional justifications of the judiciary's “benevolent dictatorship” and, in the final third of the book, maps pathways toward promoting greater popular participation in democracy. His gamut of thought-provoking proposals (which this brief review cannot address or do justice to) includes democratizing courts (ch. 8) and bolstering democratizing institutions beyond courts (ch. 9). One of his most interesting proposals to move us further down the road toward democratic constitutions (ch. 10) involves constitutional forums or conventions, specifically revising constitutional content, reformatting amendment procedures, and creating constitutional juries. Hutchinson ends by reminding us of the need for a strong democracy by, for and of the people. This would require a dismantling of today's elitist democracies, a recognition that judicial review is inherently political, and a grappling with the failures of the legislative and executive branches to live up to their democratic duties.
A bow to Milan Kundera's novel The Book of Laughter and Forgetting enlivens Hutchinson's narrative: we may “laugh” at constitutionalist assertions that courts are apolitical/impartial and unveil the institutional “forgetfulness” of the undemocratic origins of constitutions. These rhetorical pillars help combat the wilful blindness of the elite's clinging to constitutionalism. “This book,” he concludes, has sought to “adopt a devilish and laughter-filled democratic approach in the task of confronting the angelic pretentions of traditional constitutionalist thinking and its concerted effort to erase memory” (183).
Theoretically speaking, many of the arguments at the core of Hutchinson's analysis have already been made elsewhere by leading critics of judicial review (for example, Jeremy Waldron), by proponents of “popular constitutionalism” (for example, Larry Kramer), by advocates of “political constitutionalism” (for example, Richard Bellamy), by thinkers who question the democratic credentials of the American constitutional order and call for its reorganization (for example, Sanford Levinson), by left-leaning critics of American constitutional history (for example, Joseph Fishkin and Willy Forbath) and of Canadian constitutional history (for example, Michael Mandel, and occasionally Hutchinson himself). Hutchinson admits that of all these branches of critical thought (not all of which he refers to directly, alas), his arguments are most closely aligned with those of Mark Tushnet—in particular, Tushnet's call to “take the constitution away from the courts” in order to foster greater popular engagement with the constitution. But in a somewhat cursory mention, Hutchinson suggests that Tushnet's (as well as others’) position is largely stuck within existing constitutional parameters (140).
The book's occasional theoretical déjà vu feel notwithstanding, there is something refreshing and contemporary in Hutchinson's discussion, owing to his unambiguous, against-the-grain position contrasted with the chorus-like, liberal-constitutionalist reaction to the rise of populism. His book is also exceptionally reader-friendly. Hutchinson is a gifted writer who turns complex themes and arguments into an often-entertaining, witty and provocative (in the best sense of the term) read. This light approach enables him to cover much terrain, even turning the occasional corner-cutting nature of his discussion into an advantage. Although published in 2021, it is relevant today in view of the ultraconservative 2022 US Supreme Court rulings (severely limiting the right to have an abortion, states’ capacity to regulate guns, and the federal government's ability to regulate the environment—among other things).
While the book succeeds in putting a critical realist mirror in front of mainstream liberal constitutionalists, it is not entirely clear why it focuses exclusively on North American constitutionalism, leaving aside the comparative scholarship of the last decade. This scholarship considers democratic backsliding, constitutional capture, and retrogression elsewhere, in settings as diverse as Hungary, Poland, Brazil, India, Turkey and Israel. Hutchinson's account is largely framed as a general critique of oft-complacent liberal constitutionalism, not merely of its North American variant (assuming, as Hutchinson does, that such a unified US-Canada variant even exists—an assumption that some would vehemently contest). Likewise, Hutchinson does not refer to the empirically rigorous and theoretically advanced accounts of judicial decision making that cast serious doubt about the Dworkinian notion of Herculean judges that are removed from politics and are tasked with preserving the enduring values of the polity. And despite Hutchinson's proposals for institutional changes, the book's broad treatment of democracy, in particular of the participatory variant—supposedly a viable alternative to high-voltage “legal constitutionalism”—remains an abstract, pie-in-the-sky notion that is not discussed at all.
In summary, while lifelong scholars of constitutional theory and constitutional history in the United States and Canada might only find modestly novel insights here, Hutchinson's intellectual honesty, his commanding grasp of the American and, in particular, the Canadian constitutional terrains, and above all his accessible and captivating presentation more than make up for that. Every open-minded student of contemporary constitutionalism can enjoy reading this book and will benefit from grappling with some of the inconvenient truths it presents.
