Rights and the Ideal Constitution – 权利与理想中的宪法

ANITA ANAND: Welcome to Washington DC and the fourth BBC Reith Lecture with the former UK Supreme Court Judge, Jonathan Sumption. 

欢迎来到华盛顿特区参加英国前最高法院法官Jonathan Sumption的第四场睿思讲座。

We’re at George Washington University, home to 26,000 students. Former alumni include Jacqueline Kennedy Onassis and the former director of the FBI, J Edgar Hoover.  

我们在有26000名学生的华盛顿大学。其校友包括杰奎琳·肯尼迪和前FBI主任，J Edgar Hoover。

In his series, Jonathan has been interrogating the complex relationship between politics and the law, suggesting that the Courts have become too powerful. Now he compares the constitutional models of the US and the UK. This lecture is called Rights and the Ideal Constitution. 

在系列讲座中，Jonathan反复追问政治运作与法律之间的复杂关系，指出法院已变得过于强大。这次讲座，他会比较英国和美国的宪政模式，标题是权利与理想中的宪法。

Please welcome the BBC 2019 Reith Lecturer, Jonathan Sumption.

请欢迎BBC 2019睿思讲座主讲人，Jonathan Sumption。

(AUDIENCE APPLAUSE)

（掌声）

JONATHAN SUMPTION: When the French political writer Alexis de Tocqueville visited the United States in the 1830s, one of the things that struck him most forcibly was the dominant place occupied by lawyers in the public life of the nation. In his classic account of early American democracy, de Tocqueville suggested that lawyers, as a class, had succeeded to the beliefs and influence of the old landed aristocracy. They shared its habits, its tastes and, above all, they shared its contempt for popular opinion.

法国政治作家Alexis de Tocqueville在1930年代访问美国的时候，最感到震惊的事情之一，是律师在国家公共生活中所占据的主导地位。在他对美国早期民主的经典记述中Tocqueville暗示，作为一个阶级，律师已经继承了过去的封地贵族的信念和影响。他们继承了贵族的习惯，品味，以及更重要的，对大众意见的轻视。

“The more we reflect upon all that occurs in the United States,” he wrote, “the more we shall find that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element in the Constitution.” There is scarcely any political question in the United States that does not ultimately resolve itself into a judicial question.

“对美国所发生的一切反思越深”，他写道，“我们越发现律师作为一个整体，构成了宪制中对民主因素最有力的，甚至是唯一的平衡。”在美国，几乎没有任何政治问题最终不会自动转化为司法问题。

There was only one other country that de Tocqueville could think of where the legal elite enjoyed a comparable influence over public affairs and that country was Britain.

Tocqueville还能想到的另外唯一一个国家，法治精英在其公共事务方面享受着的可比的影响力的，就是英国。

A new edition of de Tocqueville written for today would probably make the same point. The twin themes of these lectures have been the decline of politics and the rise of law to fill the void. I have argued that democracies depend for their survival on their ability to mitigate the power and impulses of electoral majorities. Historically, they’ve done this in two ways. One is by a system of fundamental law standing above the elected legislature and enforced by judges. The other is representative politics, which creates a class of professional politicians with an interest in softening extremes in order to broaden their electoral appeal.

如果Tocqueville在今天撰写新版，会得出同样的看法。本系列讲座的并行主题就是政治运作的衰落和法律的兴起。我阐述了，民主整体的生存依赖于其缓和选举多数派的权力和冲动的能力。在历史上，人们用两种方式做到这一点。一种是通过由法官执行的、凌驾于选举的立法机构的基本法制度。另一种是通过代议制。代议制引入专门的政治家群体，他们有动力为了提高自身的选举吸引力而软化极端立场。

Representative politics is a very imperfect mechanism for achieving this but in the long run, political constraints on the part of majorities are likely to be a great deal more effective than legal ones. Why do we believe in democracy, or think we do? What are the proper limits of democratic choice? What rights ought a democratic constitution to protect, even against the will of the people?

代议制是一种算不上完美的解决方案，但从长远看，对选举多数派的约束，政治运作产生的约束要比法律产生的约束更为有效。为什么我们相信民主制，或者认为我们相信？民主选择的正当边界在何处？哪些权利必须得到宪法保护，即使民众反对？

When the British argue about these questions, as they often do, they generally look to the United States. Sometimes as an inspiration, sometimes as a warning. Yet, in spite of a close similarity of political outlook, the American constitutional tradition is the polar opposite of the British one. At its most basic level, the difference is between two models of the state, a legal model and a political  one. The Constitution of the United States is the archetypal legal constitution. Britain, by comparison, has historically been the archetypal political state. 

当英国人争论这些问题时——这种争论经常发生——他们常常将目光投向美国，有时寻求启发，有时借鉴教训。然而，尽管政治见解极为相似，美国的宪法传统却与英国截然相反。在最基本的层面上，区别在于两种国家模式：法律模式和政治模式。美国宪制是典型的法律宪制。相比之下，英国在历史上一直是典型的政治国家。

In Britain, as in many other countries, including the United States, we have witnessed a mounting tide of hostility to representative politics over the past three or four decades. This has naturally been accompanied by a growing interest in the legal constitutional model, especially among the judiciary. This is therefore a good time to be assessing its attractions, and Washington is a good place in which to do it, for 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.

在英国，与包括美国在内的许多国家一样，在过去三四十年中，我们见证了对代议制政治运作不断增加的敌对情绪。这自然伴随着人们对法律宪政模式的兴趣日益增长，尤其是在司法机构当中。因此，现在对其吸引力进行评估正当其时。在华盛顿进行这样的评估非常适合，因为法律模式给民主制带来两难境地，在这方面美国比任何其它国家的经验都更丰富。

The prime purpose of any constitution is to provide a framework of political rules for making collective decisions. In its original form of 1787, the Constitution of the United States did almost nothing else. The Protection of Rights came later with the 10 amendments of 1791 which together constitute the Bill of Rights. Twelve years later, in 1803, came the decision of the Supreme Court in Marbury and Madison which established the power of the Supreme Court to quash acts of Congress held to be unconstitutional. 

任何宪法的首要任务都是为集体决策制定政治运作规则的框架。在1787年的美国宪法中，几乎没有任何其它内容。此后权利保护法案和1791年的10项修正案一起构成了权利法案。十二年之后的1803年，最高法院在马伯里和麦迪逊的决定，确定最高法院有权推翻被认为违宪的国会法案。

So, by the beginning of the 19^th century the US Constitution had already acquired the three basic features which have come to be regarded as the hallmarks of every legal constitution. First, there is a recent code of rights which prevails over all other law. Secondly, it is proof against political amendment, except by some extraordinary procedure such as a super majority in the legislature or a popular referendum. Third, it confers on judges the power to enforce constitutional rights, to strike down any act of the state, including its legislation, which they find to be inconsistent with them.

这样，到19世纪初，美国宪法已经获得了三个基本特征，这些特征后来被视为每一步法定宪法的标志。第一，一套超越其它法律的近代权利法典。第二，除非经过特别程序，比如立法机关中的压倒性多数或者全民公决，这些权利不可被政治运作修改。第三，法官被赋予宪法权力，宣布任何与宪法不符的行为非法，包括立法行为。

By comparison in Britain, at any rate in orthodox constitutional theory, there are no constitutional limits on the power of the British parliament. There is no fundamental law which parliament cannot alter or abrogate at will. Even the treaties of the European Union, which have prevailed over domestic legislation for the past 46 years, do so only by virtue of an act of parliament which can be repealed at will, as we have seen. We are almost the only country in the world of which this is true.

相比之下，在英国，按照任何正统的宪法理论，英国议会的权力都没有宪法限制。没有任何基本法律国会不能随意改变或废除。即使是那些在过去46年中一直超越国内法的欧盟条约，也只能通过国会立法实现其对国内法的超越，而国会也可以根据需要废除这些条约。英国几乎是世界上唯一做到这一点的国家。

Of course, the difference between the legal and the political models of the state has never been absolute. Almost all constitutions have some elements of both. The United States has a sophisticated doctrine of the separation of powers which reserves a large space to political judgments by the executive and the legislature. In Britain, law has always had a place in its basically political constitution. Nonetheless, the conceptual difference between the legal and the political model remains a real one which exposes two very different views about democracy. 

当然，法律模式和政治模式并非泾渭分明，几乎所有的宪政都兼而有之。在美国，复杂的分权学说为行政和立法机关的政治决断留下广阔的空间。在英国，法律在其政治构成中始终占有一席之地。尽管如此，法律模式和政治模式的概念差异是实实在在的，这种差异暴露了关于民主的两种截然不同的观点。

The attraction of the legal model is that it is based on a body of principle applied by judges whose perceptions are less likely to be swayed by passion, prejudice, self-interest or [realpolitik] than those of politicians or voters but it’s patronising overtones are perfectly obvious. The legal model seeks to create a body of constitutional rights which is beyond the reach of popular choice. Its advocates do not trust elective institutions to form opinions about them with the necessary restraint, intelligence or moral sensibility. They therefore favour an accretion of power to the sort of people, namely judges, whose superior qualities and independence of public opinion are thought to produce more enlightened judgments.

法律模型的吸引力在于，它基于法官所运用的一系列原则，与选民和政治人物相比，这些法官的看法不太可能被热情，偏见，自利或现实政治左右。但其居高临下的弦外之音也十分明显。法律模式试图建立一种民主选择无法干预的宪法权利体系。法律模式的倡导者不信任选举制度有必要的克制、智慧和道德感可以达成同样的意见，因此更赞成赋权给一些品质卓越，不为舆论左右的人，也就是法官，由他们做出更为开明的判断。

“We, the people,” are the opening words of the US Constitution but as James Madison’s contributions to the federal papers show, the founding fathers regarded the people as a bigger threat to liberty than their governments. Madison looked for a solution to the representative principle. He expected lawmakers to be wiser and more circumspect than their electors. For later generations, however, the representative principle 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. 

“我们人民”是美国宪法的开篇词，但正如James Madison在联邦党人文集中所显示的那样，开国元勋们认为人民对自由的威胁超过政府。Madison在代议原则中寻找解决方案，然而对后世而言，代议原则已不足以提供解决方案。对多数派的不信任和对多数人暴政的恐惧一直是固有宪法权利观念的推动力。

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, prejudice and 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 counting votes at all. There are, surely, two main reasons. 

当然，选民及其代表的决定可能到道义上并不纯粹。这些决定是智慧与愚蠢，偏见与理解的不同调和，也是理想主义、实用主义和自我利益的权衡折衷。问题是，因为动机不纯而使用法律限制其选择，理由是否充分？要回答这个问题，我认为首先有必要自问，为什么我们看重计票？确实，有两条主要原因。

In the first place, all governmental authority which is not based simply on force requires some source of legitimacy. If a political community is to have any long-term 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 in the United States, even if the British do not have a document that says so. 

首先，任何不全靠暴力的政府都需要有正当性来源。一个政治社区要长期稳定，除了胁迫之外，必须另有理由让人们遵守他们不喜欢的法律。虽然英国没有成文宪法，但“我们人民”同样也是英国民主的情感基础。

The second reason why we believe in counting votes is that 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 lex majoris, 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 all have our own way. What we can expect is that the decision-making 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 decision making, even if as individual voters our influence on the outcome is minimal.

看重计票的第二个原因是，它反映了我们的社会和政治平等。Thomas Jefferson在给德国科学家Alexander von Humboldt的信中写道，在一个每个人享有平等权利的社会中，多数原则是基本原则。其中的关键词是“平等权利”。公民的利益和意见各不相同，又不可能每个人各行其是。我们可以期望的是，决策过程平等地考虑、尊重每个人的利益和意见。这是通过给与每个人同等的决策权实现的，虽然因此每个人对决策结果的影响很小。

A constitution which was not based on democratic choice but on some embedded scheme of values, such as liberalism, human rights, Islamic political theology or the dictatorship of the proletariat, would not achieve this. It would privilege those citizens who happened to agree with these values. That might not matter if the 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.

基于某种内在价值观而非经民主选择的宪法，比如自由主义，人权，伊斯兰政治神学或者无产阶级专政，将无法实现这一目标。它只会赋予那些恰好同意这些价值观的人特权。如果这种价值观刚好被普遍或者几乎普遍接受，这种做法可能没有问题。然而，如果价值观已经被普遍接受，也就无需在宪法中确立了。只有有争议的，一旦民众有机会自由选择就可能被抛弃的，才有必要放入宪法。

That suggests that the essence of democracy is not moral rectitude but participation, that 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 motives is really not the point. We cannot make the constitution for some imaginary world in which people are without prejudices or indifferent 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 a political process in which every citizen can engage, whose results, however imperfect, are likely to be acceptable to the widest possible range of interests and opinions. 

这表明，民主制的本质不在于道义，而在于可参与。宪法的正当功能在于确定人们参与国家决策过程的方式，而不是确定决策结果。选民的动机如何不是重点。我们不能为虚构的世界制定宪法，在其中选民不偏不倚，大公无私。政治制度可期望的，是提供最能够解决公民之间的实际分歧的决策机制。这就要求政治进程让每个公民都可以参与，而尽管其结果不完美，仍可能被持有不同观点和利益的最广泛群体所接受。

This is arguably a more important priority for a political community than finding the right answers to its moral dilemmas, even assuming that there are right answers or that we can finally hit on them. The problem about the legal model is that it marginalises the political process. When a judge identifies something as a constitutional, or a human, or a fundamental right, he is saying that it derives 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.

对政治群体而言，相比为道德困境寻找答案，这可说是更重要的事项，即便那些道德问题真的有正确答案，我们又能找得到。法律模型的问题在于，它会边缘化政治过程。当法官判定某事是宪法的，是属于人权或者属于基本权利的，他是在说，此事源自高于国家普通决策程序的规则。他宣称，此事的存在和范围不是由政治选择决定。然而，很多关于基本权利的司法裁决本身就是政治选择，只不过参与选择的人更少，更没有代表性。

In an American context, perhaps the most interesting example is the due process clause of the Fourteenth Amendment. It provides, among other things, that no state shall deprive any person of liberty without due process of law. Successive decisions of the US Supreme Court have made this the functional equivalent of Article 8 of the European Convention on Human Rights and Fundamental Freedoms which protects private life. Both provisions have been interpreted as potentially embracing any interference with the personal autonomy of individuals within limits. But within what limits? 

就美国而言，也许最有趣的例子是第十四修正案中的正当程序条款。除其它事项外，它规定未经正当法律程序，任何州不得剥夺任何人的自由。最高法院的连续裁决使得该条款在功能上等同于保护私人生活的《欧洲人权和基本自由公约》第8条。两者均被解释为可以在一定限度内接受对个人自主权的任意干涉。那么限度是什么呢？

All mandatory rules of law interfere with the personal autonomy of individuals, that is what they are there for. 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 a judgment about which interferences with personal autonomy are acceptable and which are not. 

所有强制性法律都会干涉个人的自主权，这就是这些法律的目的。如果要法官对于自主权划出原则性的界限，这界限必然取决于法官的判断，判断哪些对个人自主权的干涉是可接受的，哪些不可接受。

Half a century ago this problem was energetically debated in the US Supreme Court in a celebrated case about a Connecticut statute forbidding 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 Court 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 that 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.

半个世纪前，在一个著名的案子中，最高法院就这个问题进行了激烈的辩论。该案涉及康涅狄格州一项禁止避孕的法令。最高法院以多数票裁定，康乃狄格州法令侵犯了一项宪法规定的隐私权。但是宪法中没有任何地方提到隐私权，而其确切依据之令人疑惑从大法官之间的观点差别可见一斑。有些法官认为隐私权可以从宪法中明确提到的权利类比推出。另有法官认为隐私权可由法院认定的人民的集体价值中派生出来。一名法官认为在自由概念整体中隐含了隐私权，这一点足以支持裁决。隐私权反对者认为没有这样的权利，因为说存在的唯一依据就是有足够的法官认为应该有这种权利。

I think that the dissenters had a point. When a judge is asked to decide a 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 and 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 illiberal, as well as some of the most progressive, decisions of the federal Courts, according to the changing outlook of judges of the day.

我认为反对者的意见是有道理的。当要求法官就一个如此广泛的问题做裁定时，真正的问题不在于权利是否存在，而是权利应否存在。然而，权利应否存在肯定应该由立法者回答而不是法官回答。自加入宪法以来的一个半世纪以来，随着时任法官的观念变化，正当程序条款一直是联邦法院一些最自由以及最不自由的判决的基础。

As is well known, during the so-called Lochner era between the 1890s and the 1930s, the US Federal Courts struck down as unconstitutional some 150 pieces of employee protection legislation under the due process clause. They did this on the grounds that liberty required absolute freedom of contract subject only to limited considerations of public policy. Among the laws which they struck down were state laws limiting hours of work in the interests of health, guaranteeing a right to join unions and outlawing child labour. 

众所周知，在1890到1930之间的所谓Lochner年代，美国联邦法院根据正当程序条款，将约150条员工保护立法视为违宪，予以废除。法院这样做的理由是，自由意味着在公共政策允许范围内绝对的合同自由。被废除的州法律包括出于健康考虑限制工作时长的法律，保障参加工会的法律和禁止童工的法律。

Moving to the opposite extreme, the due process clause was also the basis of the decision in Roe and Wade in 1973. The US Supreme Court derived a right to abortion from the newly discovered constitutional right of privacy and autonomy. The same reasoning, in a sense, lay behind the Court’s decision more recently about same sex marriage in 2015. In both cases the Supreme Court’s decisions were necessarily based on the perception of the justices that this was what liberty now required. 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.

在另外一个极端，正当程序条款也是1973年Roe对Wade案的判决基础。最高法院从宪法中新发现的隐私权和自治权中推导出了堕胎权。在某种意义上，最近最高法院在2015年关于同性婚姻的判决使用了同样的论证。在这两个例子中，最高法院的判断必然基于大法官的认知——大法官认为现在需要这样的自由。然而，同样的问题如果交给现在的最高法院，结果可能会不同，虽然除了法官的个人观点，其它条件都没有变化，。

Now, 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 value judgment. The case for or against labour regulation 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 in either context and how far it should go are fundamentally political questions.

在美国历史上不同时期，这些全然不同的结果都是正当程序条款的合理结果，由此人们可以得到两点教训：其一，在政治争议问题上，法官的裁决总是包含很大程度的政治判断。支持还是反对劳动法规是一个经济和社会政策问题，支持还是反对堕胎是一个社会和道德观问题。在这两种情况下，自由需要什么样的权利，已经应该在多大程度上确保自由不受侵犯，归根结底是政治问题。

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 book in Britain since the middle of the 19^th century. It had got there by ordinary legislation and by political action. The justification commonly put forward for treating such matters as constitutional issues is that it protects minorities against majoritarian tyranny. But what constitutes majoritarian tyranny very much depends on how you define your majority and what you regard as tyranny. Except, perhaps, in classic discrimination cases where the animating principle is to treat like cases alike, there are no legal standards by which these questions can be answered. The only available standards are political ones.

另一个教训是，对于这类问题司法裁决的结果未必比立法机关的裁决更明智或更道德。从19世纪中叶以来，Lochner时代那些被推翻的保护员工的立法，已经进入英国法规——完全通过普通立法和政治行动。将此类问题作为宪法问题处理的理由通常是，作为宪法问题处理可以保护少数群体免受多数人的暴政。然而，什么构成多数人暴政取决于你如何定义多数人，以及你认为怎么样算是暴政。可能除了那些经典的歧视案例之外——在经典歧视案例中，原则是类似的案例类似处理——没有可用的法律标准能够回答这些问题。政治标准是唯一可用的标准。

There is also, although I perhaps hesitate to make the point here, a wider issue, namely whether it is wise to make law in this way. I recognise that partisan divisions and institutional blockages in Congress have made controversial legislative change difficult to achieve in the United States. I recognise that that encourages those who look for a judicial resolution of major social issues, but the chief function of any political system is to accommodate differences of interest and opinion among citizens. Resolving these differences by judicial decision contributes nothing to that end. On the contrary, characterising something as a constitutional right removes the issue from the arena of political debate and transfers it to judges. 

另外还有一个更广泛的问题——对于指出这一点我有些犹豫——那就是，通过这种方式制定法律是否明智？我明白，国会中的党派分裂和体制障碍使得有争议的立法变革在美国难以实现。我认识到，正是这种困难刺激人们寻求以司法方式解决重大社会问题。但是，任何政治制度的首要功能都是在公民的利益和见解分歧中求同存异，形成折衷共识。通过司法裁决解决这些分歧并不能达到此目的。相反，将某事定性为宪法权利只是将该问题从政治辩论领域拿走，转交给法官。

In the United States it does this irreversibly unless the Supreme Court changes its mind or the constitution is amended. Personally, I’m in favour of a regulated right of abortion but I question whether it can properly be treated as a fundamental right displacing legislative or political intervention. Abortion was once highly controversial in Britain too. After extensive parliamentary debate it was introduced by ordinary legislation in 1967 within carefully defined limits and subject to a framework of clinical regulation. The same pattern has been followed in Europe where all but one state, and Northern Ireland, have now legislated for a regulated right of abortion. As a result, abortion is much less controversial in Europe than it is in the United States. I suspect, although I cannot prove it, that 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 among Americans to irrelevance. Instead, the debate is concentrated on candidacies for the Supreme Court with results that were apparent in the undignified and partisan procedures in the most recent [consummation] hearings. 

在美国，这种裁决是不可逆转的，除非最高法院改变注意或者宪法得到修改。就个人而言，我赞成受规范的堕胎权，但我质疑是否应该将其作为基本权利，从而取代立法和政治干预，得到恰当处理。在英国，堕胎也曾经是一个备受争议的话题，经过议会的激烈辩论，在严格定义的范围内并遵循临床法规框架的堕胎权在1967年经由正常立法程序引入。在欧洲，除了一个国家之外，都遵循了同样的模式，立法规定了受规范的堕胎权。结果，堕胎在欧洲的争议比在美国要少得多。我怀疑，尽管我无法证明，堕胎在美国仍然充满争议的原因之一，就是因为它是通过司法手段引入的，或者说，通过一种将包含更广泛民众的政治辩论贬低到无关紧要地位的方式引入的。而实际的辩论集中于最高法院的候选人资格上，其结果在最近的听证会中不体面的党派程序中显而易见。

In his 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 candid citizen,” he said, “must confess that if the policy of the government on vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Lincoln had in mind the notorious Supreme Court decision in Dred Scott, which had held that AfricanAmericans were not to be treated as citizens, but he was also making a broader point which was about active citizenship. A nation cannot hope to accommodate divisions among its people unless its citizens actively participate in the process of finding political solutions to common problems. 

林肯在1861年的首次就职演说中，将人们的注意力转向通过司法裁决填补宪法空白带来的潜在影响。他的话广为人知。“坦率的公民，”他说，“必然会承认，如果那些影响所有民众的政府政策由最高法院来裁决，那么民众将不再是自己的主人，因为在某种程度上，他们将政府拱手让给了那显赫的法庭。”林肯头脑中所想的，是当时最高法院在Dred Scott案中的臭名昭著的判决，判决裁定非裔美国人不应被视为公民。但他的话同时提出了一个更宽泛的关于积极公民的观点。在一个国家里，除非其公民积极参与为共同问题寻求政治解决方案的进程，否则无法在民众内部就分歧意见达成折衷。

Law has its own competing claim to legitimacy but it is really no substitute for politics. Now, I’m certainly not saying that there are no rights which should be constitutionally protected in a democracy but I think that one lesson which Britain can learn from the US experience is that one must be very careful about which rights one regards as so fundamental as to be beyond democratic choice. 

法律判决自有其正当性，但无法替代政治运作。我当然不是说在民主体制中没有任何权利应该得到宪法保护，但我认为英国可以从美国经验中学到的一点是，在选择哪些权利如此重要，以至于可以超越民主选择时，人们必须非常慎重。

I suggested in a previous lecture in this series that in a democracy there are only two kinds of right 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 a crude contest in the exercise of force. And there are rights such as freedom of expression, assembly and association, without which a community cannot function as a democracy at all. These rights will certainly not be enough to prevent majoritarian tyranny, but no code of rights will do that.

在本系列上一次讲座中，我提出在民主政体中，只有两类权利是真正的基本权利。一类是人身，自由和财产安全的基本权利，没有这些权利，生活将变成野蛮的武力争斗。另一类权利比如言论，集会和结社自由，离开他们社区无法行使民主功能。这些权利当然不足以防止多数人暴政，但没有任何法典能够。

The law simply has no solution to the problem of majoritarian tyranny, even in a system of perfectly entrenched constitutional rights like that of the United States. Law can insist that public authorities have a proper legal basis for everything that they do. Law can supply the basic level of security on which civilised existence depends. Law can protect minorities identified by some personal characteristics, such as gender, race or sexual orientation, from discrimination. But the Courts cannot parry the broader threat that legislative majorities may act oppressively unless they assume legislative powers for themselves. 

法律根本无法解决多数人暴政的问题，即使是在像美国这样有完全根深蒂固的宪法权利的体系中。法律可以坚持要求当局为其所作的一切提供适当的法律依据。法律可以为文明生活所以来的基本安全提供依据。法律可以保护由某些个人特征，比如性别，种族或性取向，所确定的少数群体免受歧视。但是，法院不可能抵御广义的，来自立法多数派的可能压迫，除非法院自己得到立法权。

The only effective constraints on the abuse of democratic power are political. They depend on active citizenship, on a culture of political sensitivity and on the capacity of representative institutions to perform their traditional role of accommodating division and mediating dissent. If that no longer happens in the United States, or on some issues in Britain, it is because our political culture has lost the capacity to identify common premises, common bonds and common priorities which stand above our differences. This is a serious problem in any democracy but there is nothing that the law can do about it. 

对滥用民主权利的唯一有效限制是政治运作。他们依赖积极的公民参与，依赖一种有政治觉悟的文化，以及代议机构行使其传统的调解分歧和异议角色的能力。如果在美国或者在英国的某些问题上，对民主权利的滥用失去了约束力，那是因为我们的政治文化已经失去了在我们的分歧中发现共同前提，共同纽带和共同事项的能力。在任何民主国家，这都是一个严重问题，但法律对此无能为力。

In an essay written in 1942, the great American Judge Learned Hand confessed that he could not predict whether the spirit of equity and fairness which emanated the constitution would survive without judges to enforce them. But he added these words, “This much,” he said, “I think I do know, that a society so riven that the spirit of moderation is gone no Court can save, that a society where that spirit flourishes, no Court need save. That a society which evades its responsibilities by thrusting upon the Courts the nurture of that spirit, that spirit will in the end perish.”

在1942年撰写的一篇文章中，美国大法官Learned Hand承认，他无法预言如果没有法官执行的话，宪法的公平公正精神能否持续，但他补充说，“我想，”他说，“我确实知道这些，如果社会撕裂到丧失折衷的精神，法院无法挽救。如果社会充满折衷的精神，则无需法院拯救。如果社会通过向法院施加折衷精神的结果来逃避其责任，折衷精神终将消亡。

The ultimate expression of claims of law to set limits on political action is a written constitution. In the next, and final, lecture in this series, I shall look at calls to introduce one in the United Kingdom and at what such a constitution might say. Thank you.

通过法律限制政治行为的终极形式就是一部成文宪法。在本系列的下一次也是最后一次演讲中，我将探讨在英国引入成文宪法的呼声，以及宪法的可能内容。谢谢！

(AUDIENCE APPLAUSE)

掌声

ANITA ANAND: Thank you very much, Jonathan. We’re going to open this up for questions from our audience in just a moment but before we do, is it not a case of old world arrogance that you will come over here and tell these good people, when the majority of countries in the world right now have written constitutions, that we do it better because we haven’t written it down?

非常感谢你，Jonathan. 很快开始听众提问。在此之前我想问，世界上大多数国家现在都有成文的宪法，而你来到这里，告诉这些纯良的人们，就是因为我们没有成文宪法，因此才做的更好。这真的不是一种老派的傲慢吗？

JONATHAN SUMPTION: I haven’t said that we did it better. We obviously start from completely different points of view. In the United States a written constitution on the legal model has nearly a quarter of a millennium of history, so that is where you start and I am not for one moment suggesting that that is something that you should dispose of or modify, it’s 240 years too late for that. But, in the United Kingdom we start from a tradition in which our constitution is essentially political. It differs from almost every other country in the world in that respect. We are where we are and it is relevant when you try to answer the question: Ought the United Kingdom to move closer to a legal model? Then it seems sensible to me that one should look at the experience, pre-eminently that of the United States, of managing such a model.

 我没说我们做的更好。我和你的视角完全不同。在美国，法律模式的成文宪法有接近250年历史，这是美国的起点。我从未表示美国应该修改或者丢弃这种模式，晚了240年了。而在英国，我们开始于传统的政治宪政。在这方面几乎跟所有其它国家都不同。

The United States Constitution experience has demonstrated that there are dilemmas when you try to have both a democratic model and a legal one. That is something from which the United Kingdom ought to learn.

ANITA ANAND: But you do believe in – in your country and my country that we are slightly more fleet of foot, we have more flexibility because we have an unwritten – is that true or not true, that you believe that we have more flexibility because we have an unwritten constitution?

JONATHAN SUMPTION: I believe that we have a great deal of flexibility. I don’t wish to suggest that the United States lacks that degree of flexibility.

ANITA ANAND: Question over there?

MARK MEDISH: Thank you. Mark Medish, a lawyer in Washington DC. I wanted to probe further on your view of the role of judges. You had made the observation in reference to due process and privacy cases decided by the Supreme Court that American judges, justices, sometimes appear to arrogate power, that they almost act as legislators through their practice of interpretation of legislation and of the constitution. And I was just wondering if you think that judges in your country as somehow less powerful? Don’t they have the same powers of interpretation that can have hugely consequential impact on the outcome of cases and controversies and in that case, what really is the difference between a written and an unwritten constitution if judges, who must be the arbiters, still have this awesome power of interpretation?

JONATHAN SUMPTION: Judges in the United Kingdom have the same power of interpreting written instruments as they do in the United States, although they carry that power less far than at any rate the Supreme Court has done but their – the basic theoretical framework is the same. Moreover, judges in the United Kingdom have the same appetite for developing rights, as many judges do in the United States. That is something which I think is relatively recent. It’s not recent in the States, it is recent in the United Kingdom, and is, I think, undesirable. The difference between our systems is that what the Supreme Court decides to be a right, a constitutional right, is thereafter written in stone unless the Supreme Court itself modifies its view subsequently or, unusually, there is a constitutional amendment. Whereas in the United Kingdom there are no entrenched rights that cannot be modified by parliamentary legislation, if necessary, by a single vote. That’s the difference.

ANITA ANAND: Thank you very much. The gentleman over there?

REVEREND GRAYLAN HAGLER: I’m Reverend Graylan Scott Hagler, I’m the pastor of Plymouth Congregation of the United Church of Christ here in Washington DC and what I’m intrigued by is the total absence of any kind of racial analysis when it comes to the interpretation and the use of the constitution and law in the United States because it is basically the constitution and the language that was put in there, embedded in there, that gave our black folks the opportunity to hope that those words would be interpreted in a way that would lead towards their emancipation. And that eventually happened as attitudes got changed but the reality, if we waited for attitudes to change, it would never, ever happen, which was our process of almost 400 years of slavery in this country. And so, in a sense, you know, it was the words in the constitution, it was the battleground in order for people to get Brown v. Board of Education, even the Dred Scott decision failed or Plessy v. Ferguson, but they kept coming up because that constitution was in place that guaranteed some rights. So what is your perspective on that analysis?

JONATHAN SUMPTION: Well, emancipation wasn’t achieved by the original

constitution and, indeed, wasn’t achieved, in a real sense, by the constitution at any stage. It was achieved by a bloody seven year civil war. The results of that civil war were subsequently embodied in the amendments to the constitution which immediately followed it.  It is clearly right that the original constitution – effectively it did not deal with slavery, it was ambiguous on the subject and that was because it was a subject on which the founding fathers would probably never have been able to agree, and that was a missed opportunity at a time when slaves were beginning to be emancipated in much of the rest of the civilised world.

REVEREND GRAYLAN HAGLER: In a sense, the emancipation was a battleground that was fought out in the civil war but also was fought out in the legislature. But the real issue is what follows, after reconstruction, is Jim Crow, what we know as Jim Crow in this country, the bricks of Jim Crow get taken down by basically the challenge of the law that forced legislative bodies to have to deal with things like desegregation and had to deal with things like public accommodations, that basically was the battleground on which we fought, as well as in the street.

JONATHAN SUMPTION: That battle was won politically. I agree that the Supreme Court contributed something to it, rather late, in Brown and Board of Education in particular, but essentially, as I read the situation historically, I mean, correct me if I’m wrong, the legislation of the 1960s and subsequently was what really produced that change. That seems to me to be the way that it ought to work, except in one sense, it ought to have been achieved very much earlier.

BRIAN CHUNG : Hi. My name is Brian Chung, I’m a graduate of both this university, the George Washington University, and the Queen’s College Oxford. Both here in the US and in the UK we’ve seen that leaders have come to power promising to restrict the rights of minorities such as asylum seekers, terrorist suspects and particular religious groups, and Congress and parliament have gone along or generally failed to protect these rights. So my question is, how would your ideal system of constitutional law or politics protect the rights of these persistently unpopular minorities?

JONATHAN SUMPTION: As I understand it, the United States Constitution does not permit the executive to operate a system for admitting migrants which is biased on racial or religious grounds. Certainly that is the principle in the United Kingdom and, so far as I’m aware, of pretty well all European countries. All countries have an immigration policy and it seems to me likely that in any democratic country there will be laws which restrict the right to migrate into that country. I don’t regard that as inherently objectionable. I would certainly regard it has inherently objectionable if these laws operated by discriminating between some races or religions and others but I’m not sure that I would accept that migrants can be regarded as a minority in the sense which you mean.

ANITA ANAND: Which system looks after minorities better, a written constitution or an unwritten constitution?

JONATHAN SUMPTION: I don’t really think that there’s any difference in that respect. It would be possible for the United Kingdom to have laws which did discriminate against migrants from some races. In fact, we don’t do that. It would not be possible in the United States. So to that extent, clearly, the American system has a more durable—–

ANITA ANAND: Sounds more robust?

JONATHAN SUMPTION: More durable protection. At the same time, there are many things in any constitutional polity which one would wish to prevent but which are already effectively prevented politically, and I think that our system does politically protect minorities from ethnic or religious discrimination.

VERA GOGOKHIA: I’m Vera Gogokhia here, and I come from Georgia, the other Georgia across the ocean. My question is what does – what do you think Brexit’s [stance here]? Is it because of the very specific political system model that UK has—–

ANITA ANAND: Wow, there we go.

VERA GOGOKHIA which might be different from other countries, from other EU countries, or do you think it is the reaction to the decline of politics?

JONATHAN SUMPTION: I’m not sure I think either is true. I think that Brexit is the result, partly, of economic frustration, which is not peculiar to the United Kingdom but is very strongly felt there. It is partly the result of a romantic view of the British past, which in some important respects is very different from the past of other European countries. After the Second World War every European country had been invaded and had had its existing political system effectively destroyed, either in the course of the war itself or in the course of the Nazi conquests which preceded it. The fact that this didn’t happen in Britain has given very many British people a feeling that they can operate independently from social and economic movements which exist across Europe and, indeed, in some cases, across the world. I personally think that this is an illusion but historically I think that that is the explanation. 

I do not think that it has anything to do with our constitution except in one respect, which is that we adopted a mode of decision making, namely a referendum, on a particular issue which, I think, was constitutionally completely misguided. If you believe, as I do, that the prime function of any constitution is to provide a method of decision making which has the best prospect of accommodating dissent and disagreement within the citizen body, that’s a state of affairs that you are likely to regard, as I do, as completely unacceptable.

ANITA ANAND: That is all that we have time for. My thanks to all of you here at George Washington University, to you who are listening at home and, most especially, to Jonathan Sumption. Thank you very much indeed.

(AUDIENCE APPLAUSE)