The supremacy of a nation’s people should be distinguished from the supremacy of its legislature. The former may be expressed by the latter, but there is no obligation to suppose that a legislature is the only means of expressing the people’s sovereignty.
A group is made up of individuals; indeed, there can be no group without individuals to populate it. If we subscribe to the basic principle that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights”, then we must hold these rights to be supreme. If they are qualified in the sense that certain rights may be withdrawn under certain circumstances, we must define what those circumstances are or else such action will be arbitrary and inimical to stability.
For example, it is relatively uncontroversial that a convicted felon forfeits his right to liberty, subject to the term of his incarceration. However, this example only partially answers the question. Beyond this, one might ask:
* What kinds of action should be classified as crimes?
* What kinds of crime should be punished with incarceration?
* What other justifications might there be for removing or limiting the rights of citizens (e.g. war)?
The answers to these complex questions lie beyond the scope of this post, but they remain important questions, and they reveal the potential conflict between the rights of citizens and the power of the state. If, as a general rule, the rights of citizens are to take priority over the will and power of the legislature, then it becomes evident that a discussion of supremacy must begin by asking the foundational question, “Whose supremacy?”
I have read at various times articles on Brexiters saying that they had voted for British supremacy but were opposed to the House of Commons voting on whether to trigger Article 50 and voting to keep Britain within the customs union. The implication of such pieces is that Brexiters are guilty of hypocrisy, of entertaining a contradiction.
However, this is not necessarily so. Returning to the question of whose supremacy is at stake, many Brexiters would argue that they were voting for the supremacy of the British people, not the supremacy of Parliament. The two
are not identical, and the former does not entail the latter. Many Brexiters, in voting to leave the European Union were not necessarily saying that they wanted all powers returned to Parliament. Rather, they were arguing that exiting the European Union was a necessary precondition to restoring supremacy to the British people, but that this task would not be completed until the power of the British executive, judiciary, and legislature had been limited also. In essence, what many Brexiters wish for is the adoption of a constitutional democracy as the US possesses, rather than a return to a system in which Parliament is free to make laws in any form on any matter it wishes.
Indeed, in the infamous Jackson case, which, I believe, involved fox-hunting. Lord Steyn suggested that the courts should not enforce laws that strike at the fundamental principles of liberty and the rule of law. He argued that Parliament derives its authority from the people, representing them. Parliament, therefore, has a duty not to infringe those rights that the people could never consent to having infringed. Where a Parliament does so, it ceases to represent the people by whom and for whom it was created, forfeiting its legitimacy and rendering Acts passed pursuant to illegitimate aims invalid.
We must serious ask ourselves as a nation, in light of continuing developments regarding Brexit, freedom of speech, personal property, and the right to life, at what point it becomes necessary to resist incursions by Parliament against the people’s supremacy. I do not suggest that we have reached that point, but I submit that, if we believe in the principles found in the American Declaration of Independence, we must concede that such a point exists.