John Uhr. Handbook of Public Policy. Editor: B Guy Peters & Jon Pierre. Sage Publications. 2006.
This chapter investigates the place of constitutions and rights in public policy, drawing together three elements of ‘constitutions,’ ‘rights’ and ‘public policy’ in ways that might appear unusual to specialists in any one of these three fields. The aim here is to relate the three fields together for a generalist policy audience interested in the policy relevance of constitutions and rights. Predictably, this account will leave unsaid many things that specialist audiences interested in constitutions and rights would expect to find, especially at the level of detail preferred by those searching for scholarly authority on constitutions and rights. Instead, this chapter frames a discussion of the ways that constitutions themselves frame policy discussion of rights. Rights are in the foreground of our analysis because democratic systems of public policy generate much of their most heated and sustained dispute when dealing with rights policies, or the impact on rights-claims on public policy. Focusing then on rights, we present three overlapping stories about constitutions and rights in public policy, arranged to bring together political (rights), policy (constitutions) and personal (policy analysis of constitutions and rights) aspects of democratic governance.
Our first story is about the central value of rights of citizenship in democratic public policy. As a political theory, democracy proclaims the value of equality. But democratic regimes vary in the ways they apply values of equality to political life. Common to all democracies is a formal commitment to equal citizenship rights, yet in practice democracies vary in the range of rights they associate with citizenship. At the conservative end is a preference for equality of opportunity for all citizens, with minimal legal barriers to all the rights (or entitlements) of citizenship, of which the right to political participation is fundamental. At the liberal end is a preference for equality of outcome, one meaning of which is that all citizens share as equally as possible in the rights of citizenship, with each citizen entitled to equal political consideration regardless of other social or economic inequalities. Rights of citizenship not only define who participates in the political process but also clarify how citizens participate: depending on precisely what range of rights are specified (e.g. rights to vote, rights to public speech, rights to form political parties) citizens can act on their rights or hold all or some of them in reserve for tomorrow’s policy causes. Thus, on one hand, democratic policy processes assume some sort of determination of citizenship rights in order to generate a legitimate range of policy participants; and on the other hand, democratic policymaking also reviews, revises and reshapes the rights of citizenship as part of the ongoing struggle of political activity.
The second story is about how constitutions frame policy disputes over rights. Core rights like that of citizenship can be embedded in fundamental laws, such as a constitution, where they are protected against government temptations to tamper with them or reduce their scope. But other rights are creatures of statute, made by the legislature and able to be remade by a subsequent legislature. Many policy rights fit this model, as, for example, laws on social security which define entitlements, or laws on public health insurance which define rights of access to medical facilities and services. Constitutions can protect the rights of legislatures to make laws but they need not protect these legal rights from later alteration or modification by the same legislatures when dominated by different legislators. Still another class of rights derive from discretionary recognition by executive governments which, unless the legislature otherwise provides, can set their own terms and conditions on rights of access to many government programs. But rights extended by one government can be withdrawn by a successor government. A final class of rights are judge-made rights, where courts or tribunals can recognise rights flowing from ordinary laws or constitutions or even from such traditional sources as ‘the common law’ (meaning other judges, for the most part). How each or any of these rights-determination processes operates will depend on the precise constitutional circumstances of particular policy systems. The important point is that constitutions affect rights- makers (among the various branches of government) as well as rights-takers (among the citizenry).
Time now to get personal. Our third story is about the story-teller, in this case the practitioner of public policy analysis. The study of public policy is not easily divorced from the private politics of the person undertaking the study. Few policy analysts admit to thoroughgoing neutrality in their work and this personal imprint is probably clearer in the study of rights-policies than other fields. Despite its theoretical ambitions, much of the best policy analysis is applied research, where analysts want to find practical solutions to policy problems. For the purposes of this chapter, we suggest that those telling the story are in some sense part of the story, drawn to the study because of their interest in improving policy processes and outcomes. This situation gives rise to a number of ethical issues about the rights and responsibilities of policy analysts, particularly when dealing with policy debates over equality rights. We can demonstrate that these ethical issues have been with the discipline of public policy analysis since its foundations by reviewing a neglected aspect of the well-known Friedrich-Finer debates from the 1940s over the democratic norms of administrative discretion in the policy process—Friedrich defending the ‘inner checks’ of public service professionalism against Finer’s call for external political accountability. As we will show, this debate brings together old concerns for democratic rights and new concerns for policy analysis. Friedrich’s case is part of a wider justification of the innovation of academic public policy analysis, designed to increase bureaucratic capacities for responsible policy work. For our purposes, Friedrich and Finer mark out two analytical perspectives on the study of rights in the policy process. Friedrich represents an applied and quite personal perspective, aiming for a practical impact through improvements in government capacities to promote citizen rights as beneficiaries of government programs. Finer represents a valuable and equally personal skepticism about the ambitions of public policy analysis, based on his conviction that democratic rights are best protected through political rather than administrative institutions, operating in the political process with its traditional constitutional safeguards against misguided rights enthusiasts, including well-intentioned policy activists within government. The work of most policy analysts falls between these two poles, but it is important to note this foundational debate over the rights and responsibilities of policy analysts in and out of government. Thus, this challenging topic of constitutions and rights impacts on ‘our’ rights as students of public policy as much as on the rights and wrongs of those policy actors whom we study.
Defining Constitutions and Rights
Constitutions are fundamental laws establishing ‘the rules of the game’ for the political process. Rights are guarantees about fair treatment: holders of rights expect governments to honour, for example, their obligations to give effect to the rights in question—traditional ‘negative’ rights such as those against ‘unreasonable searches and seizures’ (US Constitution, 4th amendment) or more modern ‘positive’ rights like a ‘right to housing’ (European Social Charter, act 31). In this sense, negative rights restrain governments; positive rights redirect governments. Rights are often protected in constitutions, sometimes in explicit charters or bills of rights protecting citizens against mistreatment by governments.
In the world of public policy, rights can also refer to entitlements to public services, sometimes claimed as a matter of moral and not simply legal right, as for example in claims by minorities or marginalized groups for special treatment (or more simply ‘just deserts’) to overcome past injustices. These moral claims become legal disputes over the terms and conditions of citizenship. Thus, the two issues of constitutions and rights come together in policy disputes over citizenship, which are amongst the most heated disputes in contemporary public policy.
The argument here is that the discipline of public policy itself arose from debates over relations between constitutions and rights. Over half a century ago, when public policy came together as an analytical endeavour, it promoted a big-government model of a rights-attentive bureaucracy using the new analytical strengths of policy analysis. This sparked considerable constitutional debate over the appropriateness of conferring policy responsibilities on public administrators. We argue that, in the subsequent half century, the original model of a rights-attentive policy bureaucracy (a model of welfare paternalism) has been overtaken by models of rights-responsive public agencies (models of more open civic activism) dealing more directly with policy activists. The different policy-making frameworks reflect different constitutional perspectives on the protection of rights in the democratic policy process.
Think of constitutions as laws about laws: they are the articles of association for political communities, establishing the rules to determine who governs and how they govern. Constitutions are meant to bring stability to an organisation and are therefore often designed to withstand pressure for easy change by those in power. Constitutions are prior to governments which must work within the limits of their constitutional powers. Typically, constitutions allocate governing powers among the core institutions of state, frequently arranged according to a separation of powers among legislative, executive and judicial branches of government. Constitutions often specify a range of basic rights enjoyed by citizens which governments may not curtail—sometimes even specifying rights to services which governments must honour. Many additional rights are established through the policy process by specific pieces of legislation, such as rights to publicly-funded schooling or rights to subsidised medical services. In many democratic regimes (e.g. the United States), the constitution is a formal written document deriving from a founding period of nation-building. Some democracies however (e.g. the United Kingdom), have a variety of traditional core legal documents, some old (such as the Bill of Rights of 1689) but others quite new (such as the European Convention on Human Rights), that serve constitutional purposes. Rights come in all shapes and sizes. For example, the constitution of the United Nations includes a Universal Declaration of Human Rights which itself articulates into international agreements on five types of rights: civil, political, economic, social and cultural.
At one level, constitutions and rights comprise a basic field of policy attention, and this is clearly evident when new nations debate precisely what sort of constitution and what range of rights are appropriate for their circumstances. Older nations also revisit the policy design of constitutions and rights, often reforming either the explicit legal provisions or the spirit of the laws to bring out new policy possibilities from old legal instruments. Over the last half century we have also seen that nation-states can agree to submit to various international constitutions, either loose arrangements like the United Nations or tighter arrangements like the European Union. At whatever level, constitutions and rights can restrain the policy process when policy participants feel constrained to modify their conduct and their policy ambitions consistent with the legal norms associated with constitutions and rights. In this sense, constitutions and rights are thought to be ‘off limits’ to the policy process, providing the boundaries of acceptable policy for those engaged in the political contest over policy options. At yet another level, the democratic policy process is never really locked down by unchangeable legal constraints and is best understood as a work in progress, with few limits to the policy implications capable of being derived—by executive, legislative or judicial institutions—from constitutions and rights. Even in the absence of formal change, constitutions and rights are used in new ways to reflect changing community standards by policy actors across the system of government.
This chapter provides an overview of debates over policy implications of constitutions and rights. Our theme is that rights are best considered as claims—particularly claims on government for policy recognition—and that different constitutional arrangements shape the political process for making and determining competing claims. Drawing examples from each of the three levels just outlined, we provide a stylised account of democratic policy arguments, including arguments about the place of constitutions and rights in public policy analysis. We begin by recounting an episode from the foundations of the intellectual history of the modern academic discipline of public policy, revealing a fascinating scholarly debate over the place of constitutions and rights in the practice as well as the theory of public policy. We return to this foundational debate in the conclusion to this chapter, emphasising just how far the discipline has traveled in the days since its foundations, despite the apparently permanent uncertainty over constitutions and rights.
Back to the Beginning
In many ways, the intellectual foundations of the academic study of public policy rest on rights or at least a view about how rights can be promoted through public policy. An example of this view is evident in the establishment of the first academic journal to be called Public Policy, co-edited by Carl Friedrich of Harvard. This famous journal is the original predecessor of the current Journal of Policy Analysis and Management, which contains many international reports on policy debates over rights. The aim of the founding editors of Public Policy was to devise an analytical perspective on ‘public action’ that would overcome traditional barriers of specialisation among the social sciences and that most solid of all analytical barriers: the separation of theoretical studies of ‘public action’ from the practical applied studies common to the academic study of public administration. Their aim was to bring greater cohesion to ‘the analysis of the conditions which determine the success or failure of whatever modern government undertakes.’ The decade leading up to this innovation had seen a revolution in ‘whatever government undertakes,’ with social-democracy modifying earlier liberal-democracy The New Deal in the US had overhauled the regulation of the political economy of the world’s most wealthy industrial nation-state, ushering in new forms of state intervention in what had traditionally been unregulated aspects of social life. A welfare state had arisen, with more generous social protection for employees and stricter regulation of the social obligations of private enterprise. Friedrich argued in his own contribution to the first issue of Public Policy in 1940 that the new discipline of public policy was an attempt to modernise the study of public administration by bringing a wider range of social sciences to the analysis of public decision-making. The emergence of this new journal marked the arrival of the larger academic enterprise of public policy as a multidisciplinary effort to marshall social science for the purposes of better government, based on more intelligent use of evidence and argument by government officials.
Looking back now and applying contemporary terms, we can see here the beginnings of evidence-based policy-making. What has not been properly appreciated is the debated place of constitutions and rights in this novel public policy orientation. We can take Friedrich as an exemplary exponent of the new discipline. His foundational article in the initial issue of Public Policy is something of an intellectual charter for the emerging discipline of public policy. His theme was the importance of ‘administrative responsibility,’ by which he meant the constructive contribution to policy-making made by those holding administrative as distinct from political power. When Friedrich’s article is seen against his contribution to the famous Friedrich-Finer debates over the competing forms of democratic accountability, we can see the importance of his reordering of traditional relationships between constitutions and rights. Traditional approaches to the policy process rest on distinctions between a political realm of ‘policy’ and a non-political realm of ‘administration.’ In Finer’s hands, this older approach is associated with a larger political theory about constitutional government, with elected politicians responsible to voters for public policy and unelected officials responsible—primarily to elected politicians—for public administration. Friedrich distanced himself from this traditional constitutionalism by blurring these distinctions in ways that left unelected public officials with substantial discretionary power over policy as well as administration. This model of social democracy had great potential for official regulation of industry as well as welfare. Friedrich’s aim was not to take power away from elected politicians but to recognize the inevitable power of government bureaucrats in modern democratic systems and to try to devise ways in which that power can be increased to serve democratic policy ends—including the protection of economic, social and political rights.
Traditional approaches held that administrative power ideally serves policy ends by confining itself to questions of policy implementation, leaving policy-making in the hands of elected politicians who are directly responsible to the people. The traditional constitutional arrangement was one where the undoubted power of state officials was held in check by their accountability to elected representatives of the people. With the emergence of the public policy movement, this constitutional arrangement, with its neat divisions between elected and unelected officials, and between policy and administration, is challenged in the name of a more effective and responsible form of democratic government. In Friedrich’s orientation, the new discipline of public policy will not only increase the analytical power of state bureaucracy but also increase its capacity to act as a responsive institution of democratic government. Friedrich locates this version of democratic accountability in the professional sense of public service responsibility cultivated by public officials as a condition of their discretionary powers. These powers are partly policy, partly administrative—just as the emerging science of public policy seeks to train officials in the new skills of policy analysis as well as the old skills of administrative competence.
Friedrich’s championing of public policy analysis had major implications for the constitution of rights. A state bureaucracy empowered by new forms of public policy analysis could act as a responsive instrument of government services by satisfying public rights to services in ways not contemplated by traditionally unresponsive state bureaucracies. In Friedrich’s formulation, this was a vision of the welfare state, with more than a hint of policy paternalism. The rights-attentive bureaucracy was not envisaged as directly responsive to citizens, as with later developments we will examine below. Instead, in this foundational era of public policy, the welfare bureaucracy was seen as taking responsibility itself for the identification of a rights agenda, and of being responsive to the needs, if not the actual claims, of rights to government services.
As Finer suspected, this new model of responsiveness departed from many of the traditional norms of responsiveness to governing authorities. By contrast, Friedrich’s confidence reflected the growing faith in policy analysis: he shared the hope that the innovation of policy analysis would strengthen responsible government by bringing new degrees of responsiveness to administrators by helping them meet and be responsive to the dual standard of what he termed ‘technical knowledge and popular sentiment.’ Thus, Friedrich argued that ‘administrative responsibility’ could greatly improve existing forms of responsible government by supplementing existing institutions of political responsibility. Finer responded by arguing that in practice these innovations would displace rather than supplement existing constitutional safeguards, including the political protection of rights jeopardised by incompetent, however well-meaning, state bureaucracies, armed with Friedrich’s misguided ‘positive ideal of social service’ with its platitudes about ‘responsiveness to commonly felt needs and wants.’ Finer feared that the ‘social service’ rights agenda promoted by Friedrich would undermine conventional political rights which were better protected by elected representatives acting openly in the political process—as distinct from the protection of bureaucrats acting bureaucratically
This debate at the foundations of academic public policy tells a larger tale. The two constitutional orientations illustrate contrasting policies on rights: Friedrich wants government to promote rights through the provision of social services; Finer wants government to protect rights through the rule of law. The exemplary proponent of public policy is relaxed about traditional constitutional structures (and indeed traditional constitutional strictures) because of the countervailing concern with promoting rights. The traditionalist is wary of a rights-attentive bureaucracy because it might undermine constitutional restraints on the use of political powers by non-political institutions, thereby threatening hard-earned rights of self-government.
But, perhaps most importantly, both orientations are compatible with the constitutional forms of modern democracy, which are quite permissive about acceptable relationships between constitutions and rights. Most of the time, democratic policy-making accepts as given the prevailing constitutional arrangements and operates within inherited policy processes. But occasionally there can be quite significant shifts in expectations about appropriate policy forms, and the emergence of the public policy movement illustrates one such moment. In his own way, Friedrich is quite a revolutionary, working to reconstitute the role of administrative officials and to rewrite the constitution of public decision-making to confer greater policy responsibility on administrative officials. Despite Finer’s protests over the unconstitutional nature of bureaucratic policy discretion, the world has moved in Friedrich’s direction. Elected politicians in newly-formed governments typically try to confine this bureaucratic discretion to policy implementation as distinct from policy determination. Yet, even under quite conservative governments, the trend has been to subject more and more rights to the regulatory power of public administrators, in keeping with Friedrich’s original hopes for a rights-attentive bureaucracy—now, more than in his era, mixed between core institutions of the state and contracted service providers.
A Model of the Constitution of Rights
Where can we test the utility of our approach to constitutions and rights? We could remain aloft at the level of theory, or we could assemble a mass of comparative data on democratic policy processes, or we could select a case study of democratic polity which illustrates many of the tensions we have identified. Our preference is for the third approach. Canada is a good example of a democratic polity with a policy process increasingly emphasising rights discourse. It is one of the few nations to receive supportive reports from such international rights bodies as Human Rights Watch and Amnesty International. More to our point, Canada shows how even Westminster-derived parliamentary systems, with traditionally slight interest in rights policies, can reshape their public policy processes around rights claims. For our purposes, Canada stands out as a useful case study of a contemporary policy system because of the convergence of so many of the most pressing rights-claimants in modern democratic countries—a range of indigenous peoples, a bicultural social tradition with two settler peoples (French and English), intergovernmental complexity resulting from well over a century of experience of federal government, widely diverse ethnic populations from extensive recent immigration, and multiple perspectives on the national government’s internationally pioneering programmes of multiculturalism.
As part of this remarkable mosaic of diverse identities, Canadian political values responded positively to the prospect of a formal bill of rights to lay down some core principles of fair treatment of citizens by governments. What began as a parliamentary ‘bill of rights’ statute in 1960 gathered institutional strength to emerge as the national Charter of Rights and Freedoms in 1982, resulting in an increased policy role for the Canadian courts as a central forum for resolving policy conflicts over competing rights. Some of the rights claims have been traditional civil liberties claims against government interference with the liberties of citizens (e.g. restrictions on police evidence in court proceedings). Others have been more contemporary equality claims against government failures to provide services to discriminated groups (e.g. prisoners’ voting rights). These two categories of claims illustrate the broad range of rights preoccupations: at one end, ‘negative’ rights to protect individual liberties held in common by all citizens and, at the other end, ‘positive’ rights to promote equality for neglected groups who have been denied access to services necessary for full citizenship. Both ends address citizenship claims, but they do so in different ways with different balances of the two core values of liberty and equality.
One particular relevance of the Canadian story is that it shows how the formal provisions of a nation’s constitution can be interpreted by different rights-claimants in different ways, sometimes elevating individual liberties over equality for neglected groups and at other times elevating group equality over individual liberties. Constitutions manage the policy process through their allocations of powers and responsibilities among legislative, executive and judicial institutions. The Canadian policy process has been transformed by the court’s growing policy arbitration of interest group conflicts that have become congested in the other two branches of government. The 1982 Charter of Rights and Freedoms is not so much the cause of this transformation as the vehicle driven by the real cause—policy activists who have seized on the new policy potential of the courts to settle rights-claims unresolved by legislatures and governments. We acknowledge, of course, that in other nations with no such explicit rights-charter, the judiciary can also get involved in what can be called ‘judicial policy-making’ by discovering implied if not explicit constitutional rights that governments must respect: the high courts of France, Israel and Australia are all examples. But we see the Canadian policy process as nicely illustrating contemporary democratic policy-making writ-large, with the policy process charged with competing claims against government, at one point demanding the courts to restrain government from undue interference with liberties and at another point demanding the courts to direct governments to interfere to guarantee equality of opportunity for neglected groups. We see the Canadian policy process as containing an armoury of arguments over relationships between constitutions and rights—with a growing case load of public policy dispute over such contemporary challenges over rules relating to disability, discrimination, employment, family status, hate propaganda, race, religious and sex discrimination, and sexual harassment and sexual orientation.
Modelling Rights Determination
We will return to the Canadian story below, when trying to identify parallels with the story in other polities. But before we enter the thicket of rights and wrongs, we will try to clarify the general nature of rights resolution in the policy process. Our contention that rights can be usefully understood as claims and analysed by reference to ‘claims systems’ draws on Peattie and Rein who in turn draw on the clash of rights associated with feminism and the women’s movement. Their influential study focuses largely on policy battles in the United States, where so much of public policy is argued out by reference to the right to ‘equal protection of the laws’ contained in the US Constitution. This constitutional provision is itself a good example of rights as claims, since it is contained in an amendment to the Constitution that arose from the Civil War struggles over slavery. This provision reflects the commitment to equal rights of citizenship for blacks and whites that only came about because of the military victory of the Union over the secessionist South. In this case, tensions within the ‘claims system’ could only be resolved through a momentous civil war. In extreme cases, might can bring right. But extreme cases also illustrate the might that suppresses right: in this case, the might of social groups with vested interests in slavery. The right to ‘equal protection of the laws’ sounds quite basic but it was denied to substantial racial minorities by established social groups, who benefited economically from slavery. The struggle to right the wrongs of slavery is an awesome example of the war-like potential of the policy process in modernising nations, and of the lengths that democratising systems may have to go to resolve disputed claims about central values of citizenship.
The civil war over equal citizenship rights is a good example because it illustrates a default position not uncommon in democratic societies, where competing social interests have fundamentally opposed views on rights-claims, even to the point that a head of government like President Lincoln understood that his constitutional duty was not simply to erase slavery but to overturn what we might now term judicial policy-making—which had justified slavery by rejecting minority claims to equal rights. Not for nothing does Bernard Crick use the drama of Lincoln’s presidency as his primary example of democratic policy-making. To oversimplify: opponents of slavery claimed that the US constitutional order recognised the rights of African-Americans as citizens; proponents of slavery countered that there were no such constitutional rights. Only in the wake of the military defeat of the slave states did the claims of the opponents of slavery emerge victorious. But, even then, reformers had to institute a formal constitutional amendment to put their preferred policy beyond legal doubt.
Consistent with this, Peattie and Rein acknowledge that their approach to ‘claims systems’ puts more emphasis on politics than on law. Legal battles emerge as means towards political ends, with rights established only where rights proponents win the political battle over the agenda of public policy. The claims Peattie and Rein deal with are claims on government—articulated by groups demanding provision of government services ‘as of right.’ Claims tend to develop through a structured process of steadily increasing demand. Claims on government tend to begin as pleas for assistance, turn into requests for closer consideration, before becoming demands for urgent action. We can think of this as a three-fold process involving all three branches of government, beginning with routine requests to the executive government to modify aspects of public administration, followed if necessary by political pressure on legislators to write new laws to authorise preferred practices, and finally followed if necessary by legal challenges against the government to compel compliance with the claimed right.
Claims systems vary, with the constitutional order standing out as the largest domain within modern nation-states. As we argue later, many contemporary rights disputes involve claims on international authorities (such as the human rights committee of the United Nations) to take action against recalcitrant national governments. But within the nation-state, the battle is typically over domestic public policy priorities, which can be won even in the face of determined opposition by executive government. Although victory in this battle has enormous implications for governments, the claimants know that victory can come through the acceptance of their claim by legislative or judicial institutions as much as by the institutions of executive government. Each branch of government has its distinctive claims-system. At the heart of government is the executive administration with its ‘realm of interpretation,’ causing claims advocates to appeal to revised ‘interpretations’ of the rules and regulations administered by the offending government. As alternatives, claims advocates can pursue their cause through the courts in order to obtain a definitive legal interpretation in favour of their rights; or they can mobilise support so that the political assembly can pass new legislation to superimpose a favourable definition over less sympathetic interpretations from either executive government or the judiciary.
Rights-advocates often present rights as non-negotiable. But even this strategy is part of a larger process of social negotiation over public policy priorities. Established rights might appear to be part of the natural order of social arrangements, but almost every right had at some point to be fought for through a social process of ‘requests, bids, bargins or negotiation.’ As Peattie and Rein map this out, we see that competing interests engage in political competition to ‘demand, extract, request, enforce their bids for resources.’ Calling this ‘political’ might seem to suggest that rights can be reduced to the social and economic interests characteristic of their political advocates. While partly true, such a view misleads us by taking attention away from the important role of ideas and argument in the policy process.
Rights policies are classic expressions of the power of ideas in the public sphere. Peattie and Rein argue that rights policies illustrate the neglected importance of ‘a struggle of ideas, a struggle over the extension and application of various principles or claims rationales’ in the policy process. They contend that ‘one of the basic elements in the claiming process is an intellectual one: a definitional element,’ usually involving the ‘development of a new political language’ as illustrated by the deliberately confrontational rhetoric about politics of the personal associated with the women’s movement. Finally, it is useful to remember that rights-claims do not necessarily reflect economic or material interests on the pattern of so much traditional interest-group politics. As Peattie and Rein note: ‘purposes create interests as well as interests driving purposes.’ Many rights-advocates justify their claims in terms of benefits to the general interest in equal citizenship rights rather than to neglected sectoral interests. While it is true that many conventional sectoral interests disguise their specific interests under the rhetorical banner of general interests, it is a distinctive feature of many rights-claimants that they shape the policy process to focus on arguments about citizenship and ‘the idea of the public interest’ with claims based on ‘a rationale of collective purpose.’
Rights and Policy-Making
We return now to the Canadian story, hoping to identify links to developments in the policy process of other nations. No one nation stands out as exemplifying contemporary practices in public policy. But Canada is relevant because over recent years it has generated a remarkable public dialogue over the competing norms and principles of democratic policy-making. Our interest is not so much in what Canadian policy actors have done as what they have said about what needs to be done, including what needs to be done about aligning constitutions and rights.
The 1982 Canadian Charter of Rights and Freedoms begins by declaring that its rights of citizenship are subject to only those ‘reasonable limits’ which can be ‘demonstrably justified in a free and democratic society.’ This clearly deals the courts into the policy process as the arbiters of claims to ‘reasonable limits’ by the two other political branches of government: parliament and the political executive. But, just as importantly, the Charter reinforces the power of the courts by providing a lengthy list of rights with which Canadians may expect governments to comply. The Charter defines a set of so-called ‘fundamental freedoms,’ dealing with free thought, free expression and freedom of assembly. These fundamental freedoms are then followed by an extensive articulation of more specific rights—such as a list of core ‘democratic rights’ (primarily the right to vote), ‘mobility rights’ (very relevant to a federal polity with a history of division and separatism), ‘legal rights’ (eight detailed provisions relating to criminal procedure), ‘equality rights’ (a combustible combination of anti-discrimination and affirmative action declarations), and finally language and language-of-choice education rights (at least for French and English speakers). The traditional ‘treaty rights’ of Aboriginal peoples of Canada are separately identified (including new rights to participate in constitutional change processes).
This 1982 change to the Constitution of Canada has given the Supreme Court of Canada a prominent role in arbitrating rights-claims against Canadian governments. Policy activists have used the new rights system to ‘constitutionalize policy preferences that could not easily be achieved through the legislative process.’21 In the first 16 years of Charter jurisdiction, the Court struck down nearly 60 federal and provincial statutes as incompatible with the new Charter. While the Court might not have become a policy-making body, the courtroom has become ‘a policy-making arena’ because policymaking has become ‘judicialized, legalized, and conducted in the vernacular of rights talk…’ We repeat our warning that this new policy-making arena is one that, in principle, can benefit the rights of social establishments as much as the rights of the socially excluded. It all depends on the policy responsibilities and interpretative legal doctrines entertained by the courts themselves. What one generation of judicial officers might favour can be overturned by a succeeding generation. Canadian commentators have noted that contemporary rights-advocates have turned to the courts in ways that are reminiscent of the strategy of earlier ‘business elites … (who) used litigation to slow the advent of the emergent welfare state.’ This potential variability in judicial policy-making postures has provoked renewed attention in Canada to the policy implications of appointments processes for judges, with hopes that greater public transparency might weaken the power of serving governments to stack courts with policy favourites.
We note two aspects of this new rights-responsive policy process. First, we should not exaggerate the apparent victory of leftish causes in using judicial review to promote their preferred policy agenda. Constitutions can just as easily favour rightist causes, as shown in earlier eras, and not only in Canada, when conservative forces used prevailing legal doctrines of ‘judicial restraint’ to reinforce a conservative hegemony. To use the old adage: the constitution is what the judges say it is. Therefore, what matters is not so much the internal text of the constitution as the external political context of judicial interpretation, including the evolution of interpretative doctrines about judicial policy-making. There are always powerful entrenched interests favouring judicial restraint and always vocal outsiders favouring judicial activism. The power of the judiciary is just as crucial to policy outcomes in eras of restraint, when courts decide not to intervene, as in eras of activism, when courts decide to intervene. That is, non-decisions (i.e. decisions not to intervene) are decisions too. Second, and building on this, we note that the new rights system in Canada has not established a consensus about preferred policy rights or preferred policy outcomes. Even those policy activists favouring judicial intervention are divided about the policy priorities deserving judicial intervention. For instance, the rights-camps of negative liberty (e.g. civil libertarians) and positive equality (e.g. feminists) continue, as before, to struggle against one another—but now before the courts rather than before the legislature.
An example of the new policy activism comes from the Charter’s equality rights (s15), where policy activists opposed to various forms of systemic discrimination—‘women, visible and religious minorities, the mentally and physically disabled, and the elderly,’ together with gays and non-citizens—have pursued ‘judicial revision of legislative decision-making.’ Unlike civil libertarian activists, these new social movement activists have sought more rather than less government regulation of social affairs, with governments being called on to resolve inequalities of access to an increasing range of private services (e.g. employment terms and conditions) as well as public services (e.g. employment training).
Where is ‘the government’ in the larger story of rights struggle? Are governments simply the plaything of judicial arbitration of contested rights? Public policy is often effected by governments who pride themselves on getting ahead of the prevailing political demands. Particularly in the area of citizenship rights, governments can aspire to policy leadership that puts demands on themselves shaping rather than reflecting rights-claims. We conclude this section by noting that governments can shape social movements as much as social movements can shape governments. Again, Canada is a good example. For instance, it was only after the Trudeau government in 1971 proclaimed a national policy on multiculturalism that government bureaucracies actively engaged in programmes of ‘social animation’ to bring into existence funded bodies representing relevant ethnic groups. This is a case of how the family of identity rights, to take but one prominent example, can be promoted by executive governments exercising a form of policy leadership that owes very little to interest group advocacy. But, once formed, rights groups can take publicly-funded government programmes off in directions unanticipated or even undesired by sponsoring governments—possibly playing off courts against the other branches of government. The larger point is that, despite our focus here on rights policy as determined by the courts, rights-claimants are ‘often as much the result of key public policies as the source of those policies.’ It is important to remember that governments can govern and that a vital part of democratic governing is setting and seeding the policy agenda—if other governing institutions will permit, an issue to which we now turn.
The Canadian experience has fed into wider international policy debate over the appropriateness of judicial policy-making to norms of democratic governance. We have discussed tensions between political executives and the courts and here we should note a growing international debate over theories and practices of policy ‘dialogue’ between governments and courts. This debate reflects widespread uneasiness over the political powers exercised by the courts in the policy process, with various reform options to limit the policy clout of courts to ‘dialogue’ about, rather than determination of, policy outcomes. An example of this option is the new role of British courts in ‘declaring’ incompatibility of suspect British legislation with the European Human Rights Convention, thereby calling on government to participate in public ‘dialogue’ with courts over the necessity for the suspect legislation. In this model, final power rests with executive government to manage the process of resolving instances of‘incompatibility.’ This example of course relates to judicial views about incompatible legislative schemes rather than public policies as such. But it is held out as an example of judicial restraint worthy of consideration by policy analysts. Another example is the recently established Bill of Rights in the Australian Capital Territory, which is Australia’s first statutory bill of rights: one which allows the legislature to override court ‘declarations,’ but only after a process of deliberate public ‘dialogue’ between governments and courts over the policy merits of the suspect legislation. These examples illustrate in quite practical ways the potential for courts to operate as mediating rather than determinative institutions, with their policy powers limited to generating greater public accountability (or better, perhaps, ‘answerability’) in the policy process.
The ‘dialogue’ metaphor arose from US commentary on judicial review but has now expanded around the globe to inform wider debates about overlaps between the policy process and the judicial process. Concepts of ‘dialogue’ circulate as ways that supporters of judicial review of government action can describe the ideal form of judicial participation in the policy process. This ideal distinguishes the legal role of courts in exercising judicial power from the more limited role of courts in ‘dialoguing’ with the political branches of government about the legal form of policy programmes. Critics of judicial review fear that ‘dialogue’ does not properly describe the considerable policy impacts that disputes about legal form can have on the substance of public policy. There are exaggerated positions at both ends of this debate over constitutions and rights: supporters of the rights of elected representatives to determine policy priorities tend to revive the old policy/ administration distinction to limit the policy reach of judicial institutions; and advocates of ‘dialogue’ claim that judicial power can improve the policy process by drawing governments into public debate over the public merits of suspect policy initiatives. There is no agreed best answer, in part because the range of permissible forms of democratic government is broader than the range of arguments about the relative merits of governments and courts in determining the rights of those affected by public policies.
Three aspects of this growing international debate are of importance here. First, the focus on ‘dialogue’ highlights the extent to which rights disputes depend for their resolution on extensive public discussion rather than simply decisive action by governments or courts. The effectiveness of most public policies is increased when they have widespread community support, and elected governments in particular have leadership roles in trying to build public support for policy initiatives. Democratic governments rest on the consent of the governed, and one of the important rights of democratic citizens is the right to informed consent. Public authorities have to respect the community’s reasonable expectation that their consent should, ideally at least, not be forthcoming until those in authority have convinced them of the merits of policy proposals. Elections are one but not the only means through which informed consent can be tested. Open debate and public argument over policy options are just as important a means of testing informed consent. This rolls into wider consideration of features of deliberative democracy (such as opportunities for oppositions to question and scrutinise governing parties under fair and impartial procedures accepted by both) that might be used to reshape the everyday practices of democratic policy-making to bring about more evenhanded consideration of competing policy perspectives.
Second, the debate over ‘dialogue’ revives older constitutional debates over separation of powers. There is little scope for serious discussion of policy rights in the absence of discussion of the web of political powers used to manage rights claims. The competing perspectives on the relative balance of governments and courts draw on deeper, more fundamental principles of constitutional design. This is recognised by those participants who acknowledge the place of ‘liberal constitutionalism’ in conditioning the relationships among different constitutional organs which are not simply autonomous in their choice of public roles. Constitutional doctrines about the separation of powers provide the scholarly backdrop against which the ‘dialogue’ debate is acted out. But, when trying to locate the rights at issue in this policy debate, much can be gained by an explicit examination of the range of ways that governmental powers can be constitutionally separated and re-arranged. The ‘executive government’ and the ‘courts’ are not the only constitutional actors: formally one has to add the ‘legislature’ and more substantively one has to add ‘the people’ on whose consent legitimate democratic government ideally rests. Just as the people have rights recognised by democratic constitutions, so too the three branches of government have constitutional rights: the legislature exercising legislative powers, executive governments exercising executive powers and the judiciary exercising judicial powers. As we have seen, rights-claims can be complaints about powers or pleas for more powers. Rights-claims can never be resolved or properly managed without close attention to the constitution of public powers framing them.
Third, the ‘dialogue’ debate raises questions about which particular institutions are best placed to participate in public argument over contested rights and related policy priorities. We suspect that the legislature is usually honoured in a tokenistic fashion. Opponents of judicial activism advance arguments in defence of the rights of elected political assemblies to determine policy priorities. But, more often than not, they really mean to defend the rights of the political executive to use their party-political influence to manage legislative assemblies along policy pathways determined by the executive. In this scheme, the legislative assembly plays its part by granting formal constitutional approval to policy choices originating in the political executive. This confidence in the ability of executives to mobilise the power of legislative assemblies reflects a very traditional orientation to parliamentary politics that is increasingly at odds with the institutional independence open to parliaments. Our point here is that the ‘dialogue’ metaphor suggests two players, but this is at odds with the underlying dynamics of the three separated constitutional powers common in modern democratic systems. Our conclusion is that ‘dialogue’ debates will be unproductive if they persist in ignoring the potential for independent action by legislatures as well as political executives and courts. Or, to put this otherwise: rights at risk in democratic policy systems can be addressed from three rather than two institutional perspectives, as students of presidential systems of government have long appreciated.
One final issue merits attention. We argued that the public policy movement was originally associated with a rights-attentive policy agenda, ideally implemented by a responsible bureaucracy armed with the new skills of policy analysis. Building on the Friedrich formulation, we suggested that this could be seen as a form of policy paternalism, in that the rights agenda in question was one developed by governing officialdom and not, as in the Canadian examples discussed above, frequently by governing bodies in direct response to rights-claims articulated by policy activists. We have termed this later approach a rights-responsive model. There is an interesting contrast here between an original public policy model of administrative obligations to keep alive the operational requirements of citizenship, and later public policy models of government obligations to take note of changing citizenship requirements as determined by courts and other adjudicating bodies. Both seek to develop citizenship but in quite different ways, reflecting contrasting interpretations of democratic rights.
There are also models in between these two alternatives, as this section attempts to show. One of the most prominent is the rise of government-sponsored charters of responsibilities and obligations to balance the rights orientation favoured by so many policy activists. A good example is the framework of ‘mutual obligation’ introduced by the conservative Howard government elected in Australia in 1996. This framework was devised to modify the notion of welfare rights advocated by many policy activists and adopted by beneficiaries of public services. The concept of mutual obligation was intended to establish a contract of sorts between service providers and service consumers on the basis that consumers had obligations to payback or return some of the investment that ‘the community’ was investing in them. This payback might be something as simple as the voluntary acceptance of terms and conditions of reporting work-availability while on income assistance; or it might be more onerous acceptance of training programmes to get beneficiaries job-ready and off welfare at the earliest opportunity. The policy framework was not a throwback to earlier eras when welfare was considered a privilege. The innovation was intended to replace the notion of rights to welfare with a more balanced picture of rights and responsibilities—or ‘obligations’ to use the more formal language of the Howard government.
Mutual obligation is a conservative response to the call for welfare rights. As a policy construct about reciprocity, it is not opposed to welfare as such and draws explicitly on progressive policy analysis of mutual exchange arrangements. This policy construct explicitly addresses ‘participation support’ rather than ‘welfare support.’ This reflects the policy aim, which is to get individuals participating actively in society rather than passively as recipients of welfare—and as responsible citizens returning services to the community assisting them. The language of responsibility does not replace that of rights but balances it: ‘The right to support should be balanced by a responsibility to the community that provides that support.’ The Howard policy framework is flexible enough to justify liberal or conservative experiments in welfare reform: declarations to the effect that ‘the whole of society has an obligation to provide assistance to those in most need’ can justify the ‘leadership role of government’ in taxing for welfare; or it can justify government deferring to private forms of welfare assistance. An example of the deferment option flows from the application of mutual obligations to immigrants, who can expect to be ‘subject to the two-year waiting period for eligibility for income support.’
The Howard government framework targets the responsibilities of employers as well as employees: businesses must ‘look beyond the interests of their shareholders or profit margin.’ The stated policy is to ensure that individual and corporate citizens ‘behave in ways that are not purely self-centred.’ The administrative concept of mutual obligation is ‘underpinned by the concept of social obligations’ which refers to the ‘web of mutual expectations’ holding society together. But even a free society requires government leadership. The power of compulsion is often necessary to enforce these mutual obligations, with government working with and, in some cases, on businesses and individuals to participate as full citizens, including honouring obligations to act in socially responsible ways by providing access to jobs (business obligations) and being available for training schemes (individual obligations). Government regulation is required to help some individuals ‘achieve their own goals for participation and self-reliance.’
This approach is shared by other conservative governments, such as the Bush administration, and to a not inconsiderable extent by the former Clinton administration. How does this international turn to concepts of responsibility relate to the original ‘administrative responsibility’ framework of Friedrich? We have suggested that Friedrich’s model was one of policy paternalism and there are clearly many elements in common with the responsibility model of mutual obligation. In different ways, both models rests on concepts of citizenship. Friedrich looked to intelligent government, wielding the power of policy analysis, to bring citizenship to deserving communities. Half a century later, the skills of policy analysis are more generally available, illustrated in the reliance of the conservative Howard government for its rethink of welfare rights on sympathetic elements of the ‘not for profit’ sector—initially as policy advisors and later as programme providers.
There is a link here between contemporary conservatism and the fears of Finer reported on earlier in our chapter: they are comparable small-government perspectives with a distrust of bureaucracy and of welfare-dependency We began this chapter with a review of the rise of public policy analysis, noting early fears that increased analytical competence at the disposal of government might harm rather than help the cause of rights.
Taking Finer as our exemplary sceptic, we encountered an explicit constitutional argument against rights-attentive policy analysis performed by unelected public administrators. This was not so much an argument against the emerging discipline of public policy as a restatement of the policy/administration distinction designed to protect the integrity of elective politics against misplaced enthusiasm for bureaucratic rule. Seen in another light, this was an early version of the constitutional case for limited government, with political checks and balances against the regulatory rule of big government.
Finer was understandably wary about rights: his preference for an older constitutionalism with norms of limited government is consistent with much of contemporary public choice theory, which is suspicious of rights that are not embedded in a constitutional framework, with checks and balances against discretionary rights managed by executive government. Rights claims are raised by every politically-ambitious interest group and Finer’s scepticism is still valuable in reminding us of the merit of assessing rights-claims against explicit criteria of public choice—constitutionally understood in terms of duly processed popular consent, as distinct from bureaucratically processed government consent. Claims of rights bring with them risks of capture of the political system by rights-advocates in and out of government, and Finer’s voice remains relevant when trying to get some distance from government sympathy with rights policies.
Recapitulating the main themes in this account of constitutions and rights, we can summarise the three related stories presented here.
- Rights are claims on government for policy initiatives to benefit particular classes or groups of individuals. We highlight the importance of one particular set of rights—equality rights—for modern democracy. Most rights claims call for equality of access to policy benefits for traditionally excluded or marginalised classes or groups. We argue that many of the most prominent and enduring policy disputes in democratic systems arise from disagreement over the most fundamental of all of policy applications of equality rights—the rights of citizenship.
- We argue that constitutions are important devices for framing the public management of policy disagreement: sometimes by clarifying the meaning of core rights, but more generally by clarifying the procedures for resolving policy disputes, including disputes over rights policies. But even constitutions can become the object of policy disputes, with contest over the appropriate policy roles of executive, legislative and especially judicial institutions.
- Finally, we argue that debate over relationships between rights and constitutions can be traced back to the origins of public policy analysis, where Friedrich and Finer mapped out contrasting approaches that help plot the range of analytical possibilities open to contemporary policy analysts interested in the place of constitutions and rights in democratic policy processes. Few policy analysts fit either extreme position; most fall between the two poles; but many move between the two positions, depending on the policies under analysis.
In conclusion, we can identify three main implications of these related stories. First, our argument has been that the policy process in modern democratic regimes involves political contests over the rights of citizenship. All politics involves contests over benefits that governments can confer, and often this is part of a power struggle between competing elites occurring behind the scenes. The secrecy of such power struggles is one indication that they are usually more concerned with interests than rights. Rights as we present them here derive from norms of citizenship grounded in a set of constitutional principles which are, ideally at least, acknowledged by all citizens. By contrast, interests are inevitably partial, reflecting a narrower range of considerations that cut across the common field of citizenship. This is not to suggest that democratic nations will or should display a social consensus on all or indeed any policies, including rights policies. Democracy involves disagreement, including disagreement about the core value of equality. Interpretations of democratic citizenship are interpretations of equality and of its political and policy implications. At the level of political theory, interpretations differ according to philosophical orientation; and at the level of political practice, interpretations differ from nation to nation and across nations according to political and policy preferences.
Second, we have argued that constitutions are valuable to public policy because they format, or structure or, as the name suggests, ‘constitute’ the policy process so that rights-claims are considered as fairly as possible. There is no one preferred model of a democratic constitution. Some modern democracies, like the United Kingdom, have no single constitutional text or ‘purpose-built’ foundational document. Regardless, they manage to generate and regulate a healthy policy process through a variety of other means, attributing privileged status to some historic declarations of public right, such as the Bill of Rights of 1689. Other democratic nations have written constitutions sourced from their nation-building period. In some cases, the text of these documents is unchanged from that founding period, with little or no explicit recognition of equality rights. In other cases, written constitutions are relatively flexible by virtue of amending processes, enabling changing community standards to shape the ongoing development of the original set of constitutional provisions. In still other cases, one or more of the core constitutional institutions can use its power (as in the case of the judiciary) to revise the authorised interpretation of provisions; or (as in the case of executive governments) to reshape administrative practices; or (as in the of legislatures) to fill out the core provisions with supplementary provisions, including legislating for new rights. Rights are thus affected by both original constitutional provisions (with or without explicit declarations of rights) and by later developments by all three branches of government. Democratic policy processes are shaped by the changing institutional relationships among the many clusters of institutions across the three branches of government. Rights-claims vary in the institutions of government they target; and, when most contentious, rights-recognition can involve all three branches of government in the resolution of policy disagreement.
Finally, we note some implications of our story about policy story-telling itself. Just over 50 years ago, the emerging discipline of public policy found itself in the middle of a contest over rights. The polarised positions adopted by Friedrich and Finer left open plenty of room for more practical perspectives, with different analytical approaches to constitutions and rights. We have sketched in some of this middle ground by using a pluralist constitutional model where rights are treated as claims, usually sorted through the policy process as a matter of political contest. Purists might prefer that rights be managed either by a rights-attentive bureaucracy (e.g. human rights commissions inspired by Friedrich’s moral mission) or by legislatures with limited legal powers of rights instrusion (e.g. responsible legislatures restrained by Finer’s constitutional norms). The world of modern government has developed quite practical policy processes that fall short of the purity of either of these theoretical perspectives. More importantly, the discipline of public policy has escaped the captivity of institutions of ‘the government’ and spread out across many institutions of civil society, some with a socialist rights agenda of social justice protected by big government and others with a libertarian rights agenda of individual liberties protected by limited government. Rights are better kept alive by open public dialogue among competing interests than by either the Friedrich tendency towards a government monopoly of ‘administrative responsibility’ or by the Finer tendency towards the black letters of a constitutional provision. Contemporary democracy has no agreed model of the ideal relationship between constitutions and rights, and one of the enduring strengths of public policy analysis is this open dialogue, over which social interests deserve the attention of policy analysts, within and without government.