II Constitutional Scholarship in a Populist Moment

Given the increased attacks on academic freedom globally, it should come as no surprise that those currently studying democratic backsliding are thinking about the role of the academy in the protection of constitutional democracy. Ginsburg and Huq argue that ‘one of the most serious threats to constitutional democracy…derives from a steady degradation of its public sphere, and in particular the disappearance of a shared universe of facts about which policy debate can occur’.^{Footnote 7} Within a populist political environment, academic scholarship is interchangeably vilified, discredited or glorified depending on whether it serves its general populist purpose. Indeed, we need look no further than the trial of Wojciech Sadurski,^{Footnote 8} and the attacks on the Crackow Institute of Criminal Law,^{Footnote 9} to see the scale of the potential threats to scholastic freedom. Whether in India, Venezuela, Poland, Turkey or Hungary, the threats to academic freedom from authoritarian populism are widespread and growing.^{Footnote 10}

Attacks on academic freedom also manifest in less overt forms. A range of ‘discrediting’ techniques used in populist discourse are designed to erode the epistemic authority of the academy. Discrediting strategies manifest most commonly in assertions of a ‘free speech crisis’ within universities. These attacks have been growing across the UK,^{Footnote 11} US,^{Footnote 12} Canada^{Footnote 13} and Australia^{Footnote 14} over the last decade.^{Footnote 15} Discrediting strategies mirror populist campaigns against apex courts which are accused of bias when they stand in the way of executive action.^{Footnote 16} In the same way, the persistent characterisation of academics as ‘woke liberal elites’ is a powerful discrediting device in the current populist environment designed to caricature academics as partisan activists rather than experts in their disciplinary fields.^{Footnote 17}

Despite an apparent volte-face with respect to scientific knowledge during the coronavirus pandemic, these populist discrediting strategies persist. While populist leaders such as Jair Bolsanaro have been particularly extreme,^{Footnote 18} the schism between scientific advisors and US President Donald Trump is now widening dramatically.^{Footnote 19} In the United Kingdom, the newfound deference to scientific advice has been notable. Nevertheless, it remains unclear whether early scientific advice was heeded,^{Footnote 20} and concerns have also been expressed about the independence and transparency of scientific advisors,^{Footnote 21} as well as the tendency for politicians to use scientific advice to deflect from political accountability.^{Footnote 22} In Australia, the government’s persistent pattern of discrediting scientific evidence on climate change appears to have shifted during the pandemic.^{Footnote 23}

Looking beyond these extreme pandemic conditions, populism as a political discourse is unlikely to shift its core approach to academic knowledge. As Brubaker argues, populism—authoritarian and democratic—is at its core suspicious of claims to elite knowledge and easily characterises specialised expertise as out-of-touch elitism (particularly where it fails to support its ends):

In this environment, the threat to academic freedom lies not only in attacks on individual and institutional autonomy but also in the hyper-politicisation of the academic space and polarisation of academic opinion. This risk of politicisation is high when the constitutional stakes are high or where the ruling executive disagrees with the general view of the constitutional academy about basic constitutional principles. Hyper-politicisation of academia is a particular risk to well-functioning constitutionalism where ‘popular constitutional knowledge remains exceedingly poor’,^{Footnote 25} and these conflicts are played out in social and traditional media. We need only to observe the polarised media presence of constitutional experts during the recent prorogation debate in the UK, and in the impeachment debate in the US, to get a sense of the challenges of hyper-politicisation.

In this politicised environment, academic freedom may not go far enough in protecting those constitutional scholars who are most likely to come into conflict with populist movements that seek to consolidate power. The fact that many constitutional scholars make propositions, as a matter of course, which may contest the power of the executive or other constitutional organs, makes the protection of their independent status particularly important.^{Footnote 26} In this sense, the idea of constitutional scholars as constitutional actors serves both to strengthen and to go beyond the general protections of academic freedom.

III Constitutional Scholars as Constitutional Actors

The constitutional academy can be viewed as analogous to ‘integrity institutions’ or ‘fourth branch institutions’.^{Footnote 27} Paul Kildea (in this special edition) builds on Ackerman and Tushnet’s view of integrity institutions as ‘protective’ of democracy.^{Footnote 28} He argues that integrity institutions ‘should reflect not only on their capacity to protect but also to facilitate…integrity, democracy or some other value’.^{Footnote 29} Constitutional scholarship is analogous to this category because of the central role that it plays to ‘well-functioning constitutionalism’^{Footnote 30} and the facilitative role that it plays in a healthy democracy.^{Footnote 31}

Vicki Jackson conceives of the broader academy in constitutional terms—alongside the press, libraries and scientific offices—as ‘“knowledge institutions”…that help provide the epistemic foundation for a successful democracy’.^{Footnote 32} For Jackson, ‘“[k]nowledge institutions” should not be understood as a branch of constitutional government, but rather as a necessary organ of constitutional democracy’.^{Footnote 33} As ‘organs of epistemic objectivity’, Jackson argues, ‘knowledge institutions play special roles in representative democracies’.^{Footnote 34} She accounts for this special role thus:

Jackson’s work compliments Ignatieff’s ideas developed through his experience as President and Rector of the Central European University which the autocratic Orban regime forced out of Hungary in December 2018.^{Footnote 36} He identifies the freedom of the academy as one element of a ‘counter-majoritarian fabric that is integral to the health of a democratic society’.^{Footnote 37} The contribution that academic scholarship makes to the health of a democratic society—through its dissemination of knowledge—is thus commonly invoked as a basis for the protection of academic freedom. The modern concept of academic freedom can be traced to the Prussian education reforms of Wilhelm Von Humboldt, which enshrined the twin concepts of Lehrfreiheit (freedom to teach) and Lernfreiheit (freedom to learn).^{Footnote 38} Today academic freedom receives various levels of protection in constitutional bills of rights,^{Footnote 39} statutory law,^{Footnote 40} international declarations^{Footnote 41} and vocational statements.^{Footnote 42} It is a freedom linked directly to the expert status of the academy. As Adrienne Stone argues, academic freedom is ‘freedom to work within disciplinary bounds…[it] does not give rise to a general claim to intellectual freedom in matters unrelated to research’.^{Footnote 43}

Two more recent declarations explicitly link academic freedom with robust democratic contestation. First, the European Parliament passed the Recommendation on defence of Academic Freedom in 2018 in which the democratic value of a free academy is confirmed:

Secondly, the statement on academic freedom from the Australian Assocation of University Professors in January 2020 has connected academic freedom to a well-functioning democratic and civil society:

While this special contribution to democratic deliberation is used as a basis for the protection of academic freedom generally, it also supports the analogy beween the constitutional academy and integrity institutions. This analogous argument is implicit in Tushnet’s assertion that constitutional scholars have a particular role to play in enhancing judicial accountability (which he views as consisting ‘primarily’ in accountability to the law). For Tushnet, accountability to law means ‘accountability to contemporaries in the legal profession, who identify the modes of reasoning they take as defining what acting according to law is’.^{Footnote 46} Constitutional scholars within the legal community thus set the professional norms and ‘ultimately determine whether a [judicial] opinion is appropriately oriented to “the law” and so whether judges are indeed accountable to the law’.^{Footnote 47} Similarly, Khaitan makes the case for scholars as a realm of judicial accountability, drawing specifically on their independent status:

Constitutional scholarship is not only limited to judicial accountability, however, as it also plays a role in scrutinising all claims to the constitutionality of political action. Indeed, constitutional scholars hold a special role in holding constitutional reasoning to account. This is particularly important where constitutional arguments are presented by the executive or Parliament and where these arguments remain—often for good reason—outside of the judicial realm. Viewed through this lens, the protection of academic freedom enhances the accountability fabric of the constitutional order by underpinning the independence of the constitutional academy and protecting its expert status. Importantly, it is not only that individual constitutional scholars should be free to make their arguments but also that the critical scrutiny of constitutional organs depends on the ‘institutional autonomy’ of the constitutional academy.^{Footnote 49}

Beyond facilitating robust democratic and constitutional debate, constitutional scholarship is also constitutive of the constitutional order itself. Albert Venn Dicey has constituted the UK and other commonwealth constitutions,^{Footnote 50} while Sir John Salmond played a similar role in New Zealand.^{Footnote 51} The constitutive role of scholarship in the formation of constitutional rights doctrine in postwar Germany has also had implications across European constitutional cultures.^{Footnote 52} Smaller interventions by contemporary constitutional scholars may also prove to be of equal significance. John Finnis’s front-page article in The Telegraph during the Brexit debate prompted the government policy that prorogation was an appropriate response to an activist opposition in a hung Parliament.^{Footnote 53} Finnis’s standing as an ‘eminent Oxford Professor’ was referenced repeatedly in right-wing media as a form of constitutional legitimation for prorogation.^{Footnote 54} Indeed, it is the description of Finnis as ‘arguably the most distinguished lawyer of our time’ which continues to be used as a validation for reforms of the Supreme Court in the light of the Miller/Cherry decision.^{Footnote 55}

Constitutional influence of the academy is in no way restricted to one side of the constitutional debate. For example, the arguments of Jeff King, Nick Barber and Tom Hickman led directly to the legal application in Miller/Cherry and were accepted by the Supreme Court.^{Footnote 56} Going further back and to the shape of legislation, constitutional scholars were constitutive of the UK New Labour constitution—in particular the UK Human Rights Act in 1998. This particular set of propositions, by scholar Francesca Klug, became a matter of legislation that is yet to be repealed.^{Footnote 57} Indeed, this legislation may be said to be a fundamental shift in constitutional and judicial culture in the United Kingdom. Outside of the UK, the work of constitutional scholars in Australia around the Uluru Statement from the Heart,^{Footnote 58} and the activism of US constitutional law professors around Trump’s impeachment proceedings,^{Footnote 59} are just two examples of such engagement. There is also no doubt that the constitutional law academy played a formative and central part in the drafting and continued interpretation of the South African Constitution in the 1990s.^{Footnote 60}

These are but a few random examples, but the message is clear: whether indirectly—through teaching and training of future lawyers (and politicians),^{Footnote 61} publishing research, writing textbooks, practitioner handbooks and constitutional commentaries—or directly through active public engagement—constitutional scholars facilitate robust constitutional debate and shape the constitution. They are part of the formation and development of constitutional texts, doctrine, interpretations of doctrine and conventions, evaluation of judicial pronouncements on doctrine and constitutional arguments before courts. Their diverse contributions constitute part of the constitutional accountability fabric and shape the environment in which constitutions are formed.

This is not to ignore that constitutional scholars may commonly act as constitutional office holders such as government advisors or constitutional advisors to parliamentary committees (eg legal advisor to Joint Parliamentary Committee). But these roles come with a particular mandate and official responsibility, and it is now broadly accepted that these officers are constitutional actors in the formal sense.^{Footnote 62} It is the point here, however, to provoke a discussion on the idea of constitutional scholars, when acting outside of any official designated capacity, as constitutional actors. The argument to characterise them as such, and as analogous to integrity institutions, flows from their expert and pervasive influence on the shape of the constitution, their accountability role in critiquing and engaging with official assertations regarding constitutional law, their facilitation of robust democratic and constitutional debate,^{Footnote 63} and their contribution to ‘well-functioning constitutionalism’.^{Footnote 64}

IV The Duties of Scholars as Constitutional Actors

On the 4th of December 2019, before the House Judiciary Impeachment Hearing, Professor Pamela Karlan of Stanford Law School defended her objectivity as a Law Professor and her capacity to evaluate the evidentiary record in the light of her knowledge of the US Constitution. It was a confrontational moment, as Karlan addressed her epistemic capacity to evaluate the impeachability of President Trump. Karlan’s testimony was a manifestation of exactly the principle that Jackson foreshadowed. Given the importance of the ‘knowledge ecosystem’ to the epistemic foundations of democracy, Jackson argued that knowledge institutions should be governed by the principles of ‘objectivity’ and ‘decentralisation’ (described as the encouragement of a diversity of sources and open and free exchange of ideas).^{Footnote 66}

Jackson acknowledges that objectivity may well not be an achievable end state of the pursuit of knowledge, resting her case on an aspiration to ‘better and more accurate understandings of realities’.^{Footnote 67} Indeed, she asks whether ‘constitutional democracies [might] articulate a principled commitment to…support gathering and disseminating objective information’, ‘promote aspirations towards objectivity by government officials in evaluating facts’, and whether ‘academics, many of us steeped in respect for the value of recognizing a diversity of perspectives and viewpoints’ can ‘find a way at the same time to embrace and articulate legal frameworks for promoting more reliable, rather than less reliable, understandings of important social and scientific facts’.^{Footnote 68} Jackson goes on to suggest that:

Jackson’s views on ‘objectivity’ and ‘expertise’ are voiced by Eric Segall who has concerns about the role that Law Professors play in constitutional politics: ‘As I watched three of my favorite colleagues…testify in front of Congress last week, I couldn’t help wondering what should be the appropriate role for law professors in current political and legal disputes’.^{Footnote 70} Segall is concerned about the rise in professorial engagement in constitutional politics and argues that ‘we are supposed to be, I think, primarily academics not advocates, and I’m not sure how often we should blur those roles’.^{Footnote 71} His preliminary solution is to restrict academics to engagement on their specific constitutional expertise rather than joining the general campaigns of constitutional areas in which they are not experts.^{Footnote 72}

Segall and Jackson’s interventions are indicative of a larger debate about the role of law professors in the current populist moment. Indeed, in the UK, there are misgivings articulated about constitutional scholars working within politically partisan think tanks such as Policy Exchange. As Paul Craig argues, ‘the [Judicial Power Project] seeks to exert political influence. That is readily apparent from its placing within the larger Policy Exchange network, from the fact that the Secretary State for Justice turns up when the leading JPP theorist is giving a lecture and from multiple other sources on the site’.^{Footnote 73} This discomfort suggests a desire to find the line within the constitutional academy between expert knowledge and partisan political activism. This line between the partisan political speech and the academic expertise is implicit in Stone’s distinction between academic freedom and freedom of speech. For Stone, ‘academic inquiry is pursued through distinct disciplines, each of which is characterised by methods and standards designed to ensure expertise and independence in research’.^{Footnote 74} Moroever, the ‘constraints of the disciplines, the commitment to academic methods and standards are designed precisely to address the kinds of problems that bedevil public discourse’.^{Footnote 75}

How then, do we go about determining the line between political activism and constitutional expertise? Max Weber, in his famous essay Science as Vocation, confronted this question. For Weber, the ‘prophet and the demagogue do not belong on the academic platform’.^{Footnote 76} He was emphatic about the distinction between academic scholarship, or ‘science’ as he called it, politics and religion.^{Footnote 77} Weber viewed the scholar as teacher, which in turn gives rise to a particular set of responsibilities relating to the presumption of authority and expertise. So while ‘the prophet’ and ‘demagogue’ could speak ‘openly to the world…where criticism is possible’, teachers ‘stand opposite’ their audience, who have ‘to remain silent’.^{Footnote 78} Thus, Weber’s conception of Wissenschaft rested on the ideal of ‘value-freedom’ as an ‘elementary duty of academic self-control’.^{Footnote 79} This duty was closely aligned by Weber with ‘the duty to observe intellectual honesty and integrity’, which remained central to an ‘authentic Weltanschaung’ and which was ‘the only specific virtue that should be taught in a University’.^{Footnote 80}

For Weber, the notion that scholars are all morally bound by the pursuit of ‘value-freedom’ did not necessarily result in the pursuit of technical ‘objectivity’ as an end of scholarly work. On the contrary:

The whole idea of ‘value-freedom’ thus rested for Weber on a conception of value plurality and conflict. It was the task of the academic to render such conflicts transparent: ‘the academic teacher [was] strictly obliged…to make the professorial chair not a seat of battle, but a place of historical and intellectual understanding of alien world-views, diverging from his own’.^{Footnote 82} So for Weber, value-freedom resulted not only in a methodological premise that academics made their value preferences clear but also to engage rigorously and openly with opposing value claims. This is a duty of ‘self-awareness’ mirrored in Weber’s methodological conception of the ‘ideal type’.^{Footnote 83}

The values that Jackson and Segall aspire to are well captured in Weber’s conception of academic self-awareness. This notion captures a range of vocational and ethical aspirations in a discipline characterised by inherent normative contestation.^{Footnote 84} Academic self-awareness is expressed not only by rendering one’s own value framework transparent but also in good faith engagement with opposing value arguments. It neither requires that value neutrality can ultimately be achieved, nor does it go as far as adopting the post-structural practice of announcing one’s positionality.^{Footnote 85} Much like Jackson’s idea of objectivity and decentralisation, or Bernard Williams conception of ‘truthfulness’,^{Footnote 86} academic self-awareness is the practice of engaging with a diversity of value claims with ‘intellectual honesty and integrity’.^{Footnote 87}