Comparative judicial review 9781788110594, 1788110595, 9781788110600, 1788110609
"Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet
1,077 89 4MB
English Pages 0 [463] Year 2018
Polecaj historie
Table of contents :
Part I. The origins and functions of judicial review --
The real case for judicial review / Alon Harel and Adam Shinar --
Constitutions as political insurance : variants and limits / Rosalind Dixon and Tom Ginsburg --
Comparative constitutional law as a window on democratic institutions / Samuel Issacharoff --
The origins and growth of judicial enforcement / Steven Gow Calabresi --
Part II. The political and institutional contexts for judicial review --
Interpreting constitutions in divided societies / Hanna Lerner --
Judicial review in the context of constitutional Islam / Salma Waheedi and Kristen Stilt --
New judicial roles in governance / Robert A. Kagan, Diana Kapiszewski and Gordon Silverstein --
Competition or collaboration : constitutional review by multiple final courts / Wen-Chen Chang and Yi-Li Lee --
Part III. The stability and effectiveness of judicial review --
Judicial review as a self-stabilizing constitutional mechanism / Tonja Jacobi, Sonia Mittal and Barry R. Weingast --
Losing faith in law's autonomy : a comparative analysis / Theunis Roux --
Courts and support structures : beyond the classic narrative / David Landau --
National perspectives on international constitutional review : diverging optics / Karen J. Alter --
Efficacious judging on apex courts / Lee Epstein and Jack Knight --
Limiting judicial discretion / Mila Versteeg and Emily Zackin --
Part IV. Operationalizing judicial review : typologies, doctrines and methodological challenges --
Beyond Europe and the United States : the wide world of judicial review / Virgílio Afonso da Silva --
Judicial review and public reason / Wojciech Sadurski --
Pockets of proportionality : choice and necessity, doctrine and principle / Vicki C. Jackson --
Comparative approaches to constitutional history / Jamal Greene and Yvonne Tew --
Judicial review and the politics of comparative citations : theory, evidence and methodological challenges / Ran Hirschl.
Citation preview
JOBNAME: Delaney PAGE: 1 SESS: 2 OUTPUT: Thu Aug 23 10:51:28 2018
COMPARATIVE JUDICIAL REVIEW
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 2 OUTPUT: Thu Aug 23 10:51:28 2018
RESEARCH HANDBOOKS IN COMPARATIVE CONSTITUTIONAL LAW Series Editor: Tom Ginsburg, University of Chicago, USA Comparative Constitutional Law is a burgeoning field, bringing to bear a diverse array of methodologies on a broad range of issues. The Research Handbooks in Comparative Constitutional Law series provides a set of comprehensive overviews of aspects of the field, including contributions by scholars from around the world. The aim is to give voice to the full range of constitutional experiences from a wide set of countries, from an interdisciplinary and comparative perspective. The Research Handbooks provide an invaluable resource in a world in which judges, constitution-makers and constitutional litigators borrow concepts and ideas across borders. Titles in the series include: Constitutions and Gender Edited by Helen Irving Comparative Constitutional Theory Edited by Gary Jacobsohn and Miguel Schor Comparative Judicial Review Edited by Erin F. Delaney and Rosalind Dixon
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 2 /
Date: 11/7
JOBNAME: Delaney PAGE: 3 SESS: 2 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative Judicial Review
Edited by
Erin F. Delaney Professor of Law, Northwestern Pritzker School of Law, Chicago, USA
Rosalind Dixon Professor of Law, UNSW Sydney, Australia
RESEARCH HANDBOOKS IN COMPARATIVE CONSTITUTIONAL LAW
Cheltenham, UK + Northampton, MA, USA
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 4 SESS: 2 OUTPUT: Thu Aug 23 10:51:28 2018
© The Editors and Contributors Severally 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA
A catalogue record for this book is available from the British Library
Library of Congress Control Number: 2018944038
This book is available electronically in the Law subject collection DOI 10.4337/9781788110600
ISBN 978 1 78811 059 4 (cased) ISBN 978 1 78811 060 0 (eBook)
02
Typeset by Columns Design XML Ltd, Reading
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 2 /
Date: 11/7
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Contents
List of contributors Acknowledgments
vii xv
1. Introduction Erin F. Delaney and Rosalind Dixon PART I
1
THE ORIGINS AND FUNCTIONS OF JUDICIAL REVIEW
2. The real case for judicial review Alon Harel and Adam Shinar 3. Constitutions as political insurance: variants and limits Rosalind Dixon and Tom Ginsburg 4. Comparative constitutional law as a window on democratic institutions Samuel Issacharoff 5. The origins and growth of judicial enforcement Steven Gow Calabresi PART II
36 60 83
THE POLITICAL AND INSTITUTIONAL CONTEXTS FOR JUDICIAL REVIEW
6. Interpreting constitutions in divided societies Hanna Lerner 7. Judicial review in the context of constitutional Islam Salma Waheedi and Kristen Stilt 8. New judicial roles in governance Robert A. Kagan, Diana Kapiszewski and Gordon Silverstein 9. Competition or collaboration: constitutional review by multiple final courts Wen-Chen Chang and Yi-Li Lee PART III
13
99 117 142 164
THE STABILITY AND EFFECTIVENESS OF JUDICIAL REVIEW
10. Judicial review as a self-stabilizing constitutional mechanism Tonja Jacobi, Sonia Mittal and Barry R. Weingast 11. Losing faith in law’s autonomy: a comparative analysis Theunis Roux 12. Courts and support structures: beyond the classic narrative David Landau 13. National perspectives on international constitutional review: diverging optics Karen J. Alter
185 204 226 244
v
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
vi Comparative judicial review 14. Efficacious judging on apex courts Lee Epstein and Jack Knight 15. Limiting judicial discretion Mila Versteeg and Emily Zackin PART IV
272 290
OPERATIONALIZING JUDICIAL REVIEW: TYPOLOGIES, DOCTRINES AND METHODOLOGICAL CHALLENGES
16. Beyond Europe and the United States: the wide world of judicial review Virgílio Afonso da Silva 17. Judicial review and Public Reason Wojciech Sadurski 18. Pockets of proportionality: choice and necessity, doctrine and principle Vicki C. Jackson 19. Comparative approaches to constitutional history Jamal Greene and Yvonne Tew 20. Judicial review and the politics of comparative citations: theory, evidence and methodological challenges Ran Hirschl Index
Columns Design XML Ltd
318 337 357 379
403
423
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 2 /
Date: 11/7
JOBNAME: Delaney PAGE: 7 SESS: 2 OUTPUT: Thu Aug 23 10:51:28 2018
Contributors
Karen J. Alter is Professor of Political Science and Law at Northwestern University, and a permanent visiting professor at iCourts Center of Excellence, Copenhagen University Faculty of Law. Professor Alter’s research has been supported by the John Simon Guggenheim Foundation, the American Academy of Berlin, the Howard Foundation, the German Marshall Fund, the DAAD, and the Bourse Chateaubriand Scientifique. Her book The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014) provides a framework for comparing and understanding the influence of the 24 international courts, and for thinking about how different domains of domestic and international politics are transformed through the creation of international courts. Her most recent books are Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice (with Laurence R. Helfer, Oxford University Press, 2017) and International Court Authority (with Laurence R. Helfer and Mikael R. Madsen, Oxford University Press, 2018). Steven Gow Calabresi is the Clayton J. and Henry R. Barber Professor of Law at Northwestern University and is a graduate of the Yale Law School (1983) and of Yale College (1980). Professor Calabresi has been a Visiting Professor of Law at Yale Law School, a Visiting Professor of Political Science at Brown University and a Scholar in Residence at Harvard Law School. Professor Calabresi served as a Law Clerk to Justice Antonin Scalia of the United States Supreme Court, and he also clerked for U.S. Court of Appeals Judges Robert H. Bork and Ralph K. Winter. From 1985 to 1990 he served in the Reagan and first Bush Administrations working both in the West Wing of the Reagan White House and before that in the U.S. Department of Justice. He is the co-author with Bradley G. Silverman and Joshua Braver of The U.S. Constitution and Comparative Constitutional Law, published in 2016. Wen-Chen Chang is Professor and Director of Policy and Law Center for Environmental Sustainability at National Taiwan University College of Law. She has published major scholarly works on comparative constitutions, including Asian Courts in Context, with Jiunn-rong Yeh (Cambridge University Press, 2015) and Constitutionalism in Asia: Cases and Materials, with Kevin YL Tan, Li-ann Thio & Jiunn-rong Yeh (Hart Publishing, 2014). Professor Chang focuses her teaching and research on comparative constitutions, international human rights, international environmental law, administrative laws, and law and society. She also serves on the editorial boards of a number of leading academic journals including International Journal of Constitutional Law, Cambridge Journal of Global Constitutionalism, Asian Journal of Comparative Law, and National Taiwan University Law Review. Erin F. Delaney is Professor of Law at Northwestern Pritzker School of Law, with a courtesy appointment in the Department of Political Science. Her research focuses on vii
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
viii Comparative judicial review constitutional design and comparative constitutional law, with particular attention to the role of courts in multi-level governance systems. She held the Fulbright Visiting Research Chair in the Theory and Practice of Constitutionalism and Federalism at McGill University and has been a MacCormick Visiting Fellow at the University of Edinburgh Law School and a Wiener-Anspach Visiting Research Fellow at the Université Libre de Bruxelles. Professor Delaney served as a law clerk to Associate Justice David H. Souter of the Supreme Court of the United States and to Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit. She received a J.D., magna cum laude, from NYU School of Law and an A.B., magna cum laude, from Harvard College. Her Ph.D. dissertation (Cambridge University) was awarded the Walter Bagehot Prize from the United Kingdom Political Studies Association. Rosalind Dixon is Professor of Law at the University of New South Wales (UNSW Sydney), Faculty of Law, whose research focuses on comparative constitutional law and constitutional design, theories of constitutional dialogue and amendment, socioeconomic rights, and constitutional law and gender. She is on the Council, and is Co-President Elect, of the International Society of Constitutional Law, and on the Editorial Board of its associated journal, the International Journal of Constitutional Law; a member of the Gilbert + Tobin Centre of Public Law; and deputy director of the Herbert Smith Freehills Initiative on Law and Economics at UNSW. She previously served as an assistant professor at the University of Chicago Law School, and has been a visiting professor at Harvard Law School, Columbia Law School, the University of Chicago Law School, and the National University Singapore. Lee Epstein is the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis. Her interests center on the U.S. Supreme Court, judicial behavior, empirical legal studies, and constitutional law. A recipient of 12 grants from the National Science Foundation for her work on law and legal institutions, Epstein has authored or co-authored more than 100 articles and essays, as well as 15 books, several multi-award winning. In addition to her appointment at Washington U., Epstein is a Distinguished Affiliated Professor at Hebrew University, Visiting Professor at the University of Bergen, and Lecturer in Law at the University of Chicago. She is also principal investigator of the U.S. Supreme Court Database and an elected member of the American Academy of Arts and Sciences and the American Academy of Political and Social Science. Tom Ginsburg is the Leo Spitz Professor of International Law and Professor of Political Science at the University of Chicago and a member of the American Academy of Arts and Sciences. He holds B.A., J.D., and Ph.D. degrees from the University of California at Berkeley. His books include Judicial Review in New Democracies (2003), which won the C. Herman Pritchett Award from the American Political Science Association; The Endurance of National Constitutions (2009), which also won a best book prize from APSA; Constitutions in Authoritarian Regimes (2014); and Judicial Reputation (2015). He currently co-directs the Comparative Constitutions Project, an effort funded by the National Science Foundation to gather and analyze the constitutions of all independent nation-states since 1789.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 2 /
Date: 15/8
JOBNAME: Delaney PAGE: 9 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Contributors ix Jamal Greene is the Dwight Professor of Law at Columbia Law School. His scholarship focuses on the structure of legal and constitutional argument. Greene served as a law clerk to the Honorable Guido Calabresi on the U.S. Court of Appeals for the Second Circuit and for the Honorable John Paul Stevens on the U.S. Supreme Court. He was an Alexander Fellow at the New York University School of Law and a Leo Gottlieb Visiting Professor of Law at Harvard Law School. Greene is the author of more than 30 law review articles, including publications in the Harvard Law Review, the Columbia Law Review, and the Yale Law Journal. He is a frequent media commentator on the Supreme Court and on constitutional law. Alon Harel is the Phillip and Estelle Mizock Chaired Professor in Administrative and Criminal Law at the Hebrew University of Jerusalem and a member of the Center of Rationality. His areas of expertise include moral and political philosophy, legal theory, law and economics, constitutional law, and criminal law. Professor Harel was a visiting professor at University of Chicago, Columbia Law School, Texas Law School and Boston University Law School. He was a fellow at the Ethics Center at University of Toronto and at Harvard University. Professor Harel’s recent book Why Law Matters (Oxford University Press, 2014) argues that political and legal institutions are not merely means to bring about desirable outcomes such as justice, security and prosperity. Why Law Matters defends the argument that legal institutions and legal procedures are valuable and matter as such, irrespective of their instrumental value. Ran Hirschl is Professor of Political Science and Law at the University of Toronto, Max Planck Fellow and holder of the Alexander von Humboldt Professorship in Comparative Constitutionalism, awarded by the Humboldt Foundation, Germany. He is the author of several major books, most recently Comparative Matters (Oxford University Press, 2014)—winner of the APSA C. Herman Pritchett Award—and over 100 articles and book chapters on comparative constitutional law and its intersection with comparative politics, religion, sociology and geography. Professor Hirschl served as co-president of the International Society of Public Law and is the recipient of prestigious awards, fellowships, and distinguished visiting professorships in five different countries. His work has been translated into various languages, featured in scholarly symposia worldwide, cited by high courts, and discussed in international media outlets. He is Fellow of the Royal Society of Canada (FRSC), the highest academic accolade in Canada. Samuel Issacharoff is the Reiss Professor of Constitutional Law at New York University School of Law and a fellow of the American Academy of Arts and Sciences. He helped pioneer the study of the law of the political process with his articles and Law of Democracy casebook (co-authored with Stanford’s Pam Karlan and NYU’s Rick Pildes). That work was extended internationally in the study of the role of constitutional courts in stabilizing democracy, most notably in his monograph, Fragile Democracies. He is also a leading figure in the field of procedure, both in the academy and outside. He served as the reporter for the Principles of the Law of Aggregate Litigation of the American Law Institute. Professor Issacharoff is a 1983 graduate of the Yale Law School.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 3 /
Date: 15/8
JOBNAME: Delaney PAGE: 10 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
x Comparative judicial review Vicki C. Jackson is Thurgood Marshall Professor of Constitutional Law at Harvard Law School and a member of the American Law Institute and the American Academy of Arts and Sciences. She is the author of Constitutional Engagement in a Transnational Era (2010), and co-author, with Mark Tushnet, of Comparative Constitutional Law (3d ed. 2014), a leading course book in the field, and co-editor with Mark Tushnet of Proportionality: New Frontiers, New Challenges (2017). She has served on the Executive Committee of the Association of American Law Schools, on the Executive Committee of the International Association of Constitutional Law, on the Board of Managerial Trustees of the International Association of Women Judges, and on the D.C. Bar Board of Governors. She served as a law clerk for Justice Thurgood Marshall and has practiced law both in private practice and as a government lawyer in the Office of Legal Counsel in the U.S. Department of Justice. Tonja Jacobi is Professor of Law at Northwestern Pritzker Law School. She has a Ph.D. in political science from Stanford University, a Masters from the University of California, Berkeley, and a law degree with first class honors from the Australian National University. Jacobi specializes in judicial behavior and strategy in public law. Her areas of interest include judicial politics, Supreme Court oral arguments, criminal procedure, and constitutional law. Combining doctrinal, empirical, and formal analysis, Jacobi examines how judges respond to institutional constraints. She has published in over 40 peer review and law review journals. Her current projects include an empirical study of Supreme Court oral arguments over time, a formal model of certiorari, and an experiment on understandings of police coercion. Robert A. Kagan is Professor Emeritus of Political Science and Law at the University of California, Berkeley and a former director of Berkeley’s Center for the Study of Law & Society. His publications include Regulatory Justice (1978); Going by the Book: The Problem of Regulatory Unreasonableness (1982, 2002) (with Eugene Bardach): Adversarial Legalism: The American Way of Law (2001); and Shades of Green: Business, Regulation, and Environment (2003) (with Neil Gunningham & Dorothy Thornton). Professor Kagan, a fellow of the American Academy of Arts and Sciences, received the Law & Society Association’s Harry Kalven Prize for Distinguished Contribution to Research (2006) and the Lifetime Achievement Award of the Law & Courts Section of the American Political Science Association (2012). He received his LL.B. from Columbia Law School (1962) and his Ph.D. in Sociology from Yale University (1974). Diana Kapiszewski is Provost’s Distinguished Associate Professor of Government at Georgetown University. Her research interests include public law, comparative politics, and research methods. Her book High Courts and Economic Governance in Argentina and Brazil (Cambridge University Press, 2012) received the APSA Law and Courts Section’s C. Herman Pritchett Award. She has also co-edited Consequential Courts: Judicial Roles in Global Perspective (Cambridge University Press, 2013) and Beyond High Courts: The Justice Complex in Latin America (University of Notre Dame Press, forthcoming 2018). Kapiszewski also co-directs the Qualitative Data Repository and co-edits the Cambridge University Press Methods for Social Inquiry book series. She co-authored Field Research in Political Science: Practices and Principles (Cambridge
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 4 /
Date: 15/8
JOBNAME: Delaney PAGE: 11 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Contributors xi University Press, 2015) and in 2013 was awarded the APSA Qualitative and MultiMethod Research section’s Mid-Career Achievement Award. Her current work examines judicial politics and the uses of law in Latin America. Jack Knight is the Frederic Cleaveland Professor of Law and Political Science at Duke University. His primary areas of interest lie at the intersection of law and politics. His major research focuses on issues in modern social and political theory, law and legal theory, and the political economy of institutions. His publications include Institutions and Social Conflict (Cambridge University Press, 1992), Explaining Social Institutions (with Itai Sened, The University of Michigan Press, 1995), The Choices Justices Make (with Lee Epstein, CQ Press, 1997) and The Priority of Democracy (with James Johnson, Princeton University, 2012), as well as articles in numerous law reviews, journals and edited volumes. David Landau is the Mason Ladd Professor and Associate Dean for International Programs at Florida State University College of Law. He holds an A.B., J.D., and Ph.D. from Harvard University. Since 2012, he has been a founding editor of IConnect, the blog of the International Journal of Constitutional Law. Professor Landau writes primarily about the field of comparative constitutional law. His recent work has focused on democratic backsliding and the potential risks of constitutional amendment and constitution-making for democracy, as well as on judicial activism on socioeconomic rights issues. He has published in various journals including the Harvard International Law Journal, the International Journal of Constitutional Law, and the University of Chicago Law Review. Yi-Li Lee is a Visiting Scholar at Global Taiwan Institute in Washington D.C., United States. She was awarded a Fulbright Scholarship and a scholarship from Taiwan’s Ministry of Science and Technology to serve as a post-doctoral visiting fellow at the Human Rights Program and East Asian Legal Studies of Harvard Law School. Dr. Lee received her Ph.D. in law from National Taiwan University College of Law in 2014. Her academic interests cover a variety of topics including transitional justice, comparative constitutions, international human rights, international humanitarian law and international criminal law. Hanna Lerner is Senior Lecturer in the School of Political Science, Government and International Affairs at Tel Aviv University. She is the author of Making Constitutions in Deeply Divided Societies (Cambridge University Press, 2011) and co-editor of Global Justice and International Labour Rights (with Yossi Dahan and Faina MilmanSivan, Cambridge University Press, 2016) and of Constitution Writing, Religion and Democracy (with Asli Bali, Cambridge University Press, 2017). Her articles have appeared in numerous books and in journals including Law and Social Inquiry, World Politics, Michigan Journal of International Law, Theoretical Inquiries in Law, Constellations, Nations and Nationalism, Journal of Social Philosophy, and Cornell International Law Journal.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 5 /
Date: 15/8
JOBNAME: Delaney PAGE: 12 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
xii Comparative judicial review Sonia Mittal focuses her research on comparative constitutional law, criminal law and procedure, law and economics, and American political development. She will clerk for Chief Judge Robert A. Katzmann, United States Court of Appeals for the Second Circuit, in 2019. She previously clerked for Judge Denise L. Cote, United States District Court for the Southern District of New York. She received a B.A. in History, and an M.A. and Ph.D. in Political Science from Stanford University. Her J.D. is from Yale Law School. Her work has appeared in the Northwestern University Law Review; Harvard Law & Policy Review; Journal of Law, Economics, & Organization; and the University of Pennsylvania Journal of Constitutional Law; among other publications. She served as a Trial Attorney at the United States Department of Justice working on complex corporate and individual white-collar criminal prosecutions. Theunis Roux is Professor of Law at the University of New South Wales in Sydney. Before relocating to Australia in 2009, he was the founding director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), an independent research institute based on Constitution Hill, Johannesburg. His main research interest is the politics of judicial review in new democracies. His book on the Chaskalson Court (The Politics of Principle) was published by Cambridge University Press in 2013. His second monograph, The Politico-Legal Dynamics of Judicial Review: A Comparative Analysis, will be published by Cambridge in late 2018. He is a former Secretary-General of the International Association of Constitutional Law and was previously a co-editor of the leading loose-leaf commentary on South African constitutional law, Constitutional Law of South Africa. Wojciech Sadurski is the Challis Professor in Jurisprudence at the University of Sydney Law School and Professor at the University of Warsaw, Centre for Europe. His interests include jurisprudence, legal theory, philosophy of law, political philosophy, constitutional theory, and comparative constitutionalism. His most recent books include Constitutionalism and the Enlargement of Europe (Oxford University Press, 2012), Equality and Legitimacy (Oxford University Press, 2008), and Rights before Courts (Springer, 2005 and 2014). He has previously taught at Yale Law School, the New York University School of Law, Cardozo Law School, Cornell Law School, National University of Singapore and the University of Trento. Currently he is working on books on (anti-)constitutional backsliding in Central Europe, in particular in Poland, and on constitutional public reason. Adam Shinar is Associate Professor at the Radzyner Law School in IDC Herzliya. He holds an S.J.D. from Harvard Law School, where he also served as the Clark Byse Fellow. He also holds an LL.B. from the Hebrew University in Jerusalem and an LL.M. from Harvard Law School. He clerked for the President of the Israeli Supreme Court, Aharon Barak, and worked as an attorney for several human rights NGOs in Israel and India. He specializes in constitutional law and theory, administrative law, and labor law. Virgílio Afonso da Silva is Professor of Law and Head of the Public Law Department at the University of São Paulo Law School. He holds a Ph.D. from the University of Kiel, Germany. He was a visiting researcher at the Max Planck Institute of Comparative
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 6 /
Date: 20/8
JOBNAME: Delaney PAGE: 13 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Contributors xiii Public Law and at the Humboldt University in Berlin. He is the recipient of a scholarship for distinguished researchers from the Brazilian Research Council (CNPq). His articles and book chapters on balancing and proportionality, judicial review, human rights and socio-economic rights have been published in Brazil and other Latin American countries, as well as in leading international journals such as International Journal of Constitutional Law, Oxford Journal of Legal Studies, European Journal of Political Research, and Ratio Juris, among others. His book The Constitution of Brazil: A Contextual Analysis, will be published in the series Constitutional Systems of the World (Hart Publishing). Gordon Silverstein is an Assistant Dean at Yale Law School, where he oversees the School’s graduate degree programs, including the LL.M., M.S.L., J.S.D., and Ph.D., as well as the Visiting Researcher and Law Teaching programs. Before Yale, Silverstein served for many years as a faculty member in Political Science at the University of California, Berkeley. Silverstein is the author of two books: Law’s Allure: How Law Shapes, Constrains, Saves and Kills Politics (Cambridge University Press, 2009), which won the C. Herman Pritchett Award from the American Political Science Association’s Section on Law and Courts for best book of the year in 2010, and Imbalance of Powers: Constitutional Interpretation and the Making of American Foreign Policy (Oxford University Press, 1997). He is the co-editor of Consequential Courts: Judicial Roles in Global Perspective (Cambridge University Press, 2013). Silverstein earned his Bachelor’s degree from Cornell University and his Ph.D. in political science at Harvard University. Kristen Stilt is Professor of Law at Harvard Law School, where she is also the Director of the Islamic Legal Studies Program and Faculty Director of the Animal Law & Policy Program. Professor Stilt’s research focuses on Islamic law and society in both historical and contemporary contexts. She was named a Carnegie Scholar for her work on constitutional Islam, and in 2013 was awarded a John Simon Guggenheim Memorial Foundation Fellowship. Publications include Islamic Law in Action (Oxford University Press, 2011); “Constitutional Innovation and Animal Protection in Egypt,” Law & Social Inquiry (forthcoming); and “Contextualizing Constitutional Islam: The Malaysian Experience,” International Journal of Constitutional Law (2015). She is currently working on a new book project entitled Halal Animals, to be published by Oxford University Press. Yvonne Tew is Associate Professor of Law at Georgetown University Law Center. Before joining the faculty at Georgetown, she taught at Columbia Law School as an Associate-in-Law, and was a Hauser Global Research Fellow at the New York University School of Law. She completed her Ph.D. in constitutional law at the University of Cambridge as a Gates Cambridge Scholar. Her dissertation was awarded the Distinction in Research Prize in the Arts and Humanities by St. Catharine’s College, Cambridge, in 2012. While at the University of Cambridge, she served as the Editor-in-Chief of the Cambridge Student Law Review (the flagship student-run law review). Professor Tew received her first law degree from the University of Cambridge and completed her Masters in Law (LL.M.) at Harvard Law School.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 7 /
Date: 20/8
JOBNAME: Delaney PAGE: 14 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
xiv Comparative judicial review Mila Versteeg is Class of 1941 Research Professor of Law and Director of the Human Rights Program at the University of Virginia School of Law. In 2017, Professor Versteeg was named an Andrew Carnegie Fellow. She earned her B.A. in public administration and first law degree from Tilburg University in the Netherlands in 2006, an LL.M. from Harvard Law School in 2007, and a D.Phil. in socio-legal studies in 2011 from Oxford University, where she was a Gregory Kulkes Scholar at Balliol College and recipient of an Arts and the Humanities Research Council Award. Prior to joining the Law School, Professor Versteeg worked at the U.N. Interregional Crime and Justice Research Institute in Turin and at the Southern Africa Litigation Centre in Johannesburg. Salma Waheedi is an Affiliated Scholar of the Islamic Legal Studies Program: Law and Social Change at Harvard Law School and a Clinical Instructor at the Harvard Law School International Human Rights Clinic. Ms. Waheedi received her J.D. from Northwestern Pritzker School of Law and holds an M.A. in Government and International Law from Georgetown University and an M.A. in International Affairs from American University. Her academic interests include comparative constitutional law, Islamic law, gender justice, and social and economic rights. Barry R. Weingast is Ward C. Krebs Family Professor, Department of Political Science at Stanford University, a Senior Fellow at the Hoover Institution, and a member of the National Academy of Sciences and the American Academy of Arts and Sciences. Professor Weingast’s research focuses on the political foundation of markets, economic reform, and regulation. He has written extensively on problems of political economy of development, federalism and decentralization, legal institutions and the rule of law, and democracy. He has won numerous awards, including the William H. Riker Prize, the Heinz Eulau Prize (with Ken Shepsle), the Franklin L. Burdette Pi Sigma Alpha Award (with Kenneth Schultz), and the James L. Barr Memorial Prize in Public Economics. Professor Weingast is co-author of Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (with Douglass C. North and John Joseph Wallis, Cambridge University Press, 2009) and Analytic Narratives (Princeton University Press, 1998). Emily Zackin is Assistant Professor at the Krieger School of Arts & Sciences at Johns Hopkins University. She earned her Ph.D. in politics from Princeton University. Professor Zackin is the author of Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton University Press, 2013), which focuses on three political movements that added positive rights to state constitutions. In particular, it examines the campaign for education rights, which spanned the nineteenth and twentieth centuries, the movement for positive labor rights, which occurred during the Gilded Age and Progressive Era, and the push to add environmental bills of rights to state constitutions during the 1960s and 1970s. Professor Zackin spent the 2016–17 academic year as a member in the School of Social Science at the Institute for Advanced Study in Princeton, New Jersey. Her current book project focuses on the role of debt and debtors’ movements in American constitutional and political development.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 8 /
Date: 15/8
JOBNAME: Delaney PAGE: 15 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Acknowledgments
We thank Northwestern Pritzker School of Law and the University of New South Wales for support for this project. For their administrative and research assistance, we are grateful to Francesca Bullerman, Jentry Lanza, Derek Mong, Ashley Moore, Melissa Vogt, Claire Walsh and Kelly Zoeckler. We give particular thanks to Evan Bianchi for excellent and unflagging editorial and research support.
xv
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 1 /
Date: 15/8
JOBNAME: Delaney PAGE: 16 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Prelims
/Pg. Position: 2 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
1. Introduction Erin F. Delaney and Rosalind Dixon
The late 20th and early 21st centuries may well be marked as the Judicial Era. Courts have burgeoned across the globe. With this turn to judicial power has come the rise of judicial review—a court’s review of a legislative or executive act for constitutional compliance. Judicial review now exists in some form in more than two-thirds of countries worldwide (Dixon and Ginsburg, Chapter 3, this volume), including in many new and fragile democracies. And it has further expanded to the international arena, with judicial review by international courts of both supranational and national acts. Accompanying this rise of courts has been a growth in academic commentary and discussion about the justifications for and the scope of judicial review. Oftentimes the focus has been a normative analysis of the role of a court in a specific national system, but recent work has showcased a more theoretical and comparative trend (see, e.g., Daly 2017; Ginsburg 2003; Gloppen et al. 2004; Hirschl 2004, 2014; Issacharoff 2015; Kapiszewski et al. 2013; Sadurski 2008; Yap 2017). This volume builds on the existing literature by providing a distinct interdisciplinary and global approach to the core questions surrounding judicial review: What accounts for the adoption of judicial review in various contexts, or justifies its normative foundation? What determines its scope and effectiveness? How is it structured, institutionalized and operationalized? A key premise of this volume is that, to analyze courts and explore their constitutional role, we must situate them in a broader social and political context. The study of judicial review may logically and intuitively start with a focus on courts as institutions. But it cannot end there. To understand judicial review—its origins, its contexts, its effectiveness, its operation—we must look beyond the courts. We must look to the distribution of political power, the presence of religious and political cleavages, the role of individual members of the political elite, the nature of political parties and the dynamics of civil society, as well as the concerns of judges, lawyers and even, perhaps, the academy itself. In so contextualizing judicial review, we nevertheless retain a central concern for courts themselves and the role they may play in promoting constitutionalism, stability, the rule of law and democracy. In the final chapter of this volume, Ran Hirschl argues that comparative constitutional law fails to engage sufficiently with the insights of comparative law, comparative politics, law and religion, international relations theory, and theories of diffusion, emulation and networks. Part of the aim of this volume is to respond to this diagnosis from Hirschl: It explicitly seeks to develop an interdisciplinary account of the origins, contexts, effectiveness and operation of judicial review. In the chapters that follow, we bring together leading comparative constitutional lawyers, political theorists and political scientists from around the world to summarize existing thinking and to offer new insights. The result, we believe, is a comprehensive introduction to judicial review 1
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 1 /
Date: 15/8
JOBNAME: Delaney PAGE: 2 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
2 Comparative judicial review that, from the outset, gives readers an appropriately interdisciplinary and empirically oriented approach to understanding the role of courts in constitutional systems.
A. THE ORIGINS AND FUNCTIONS OF JUDICIAL REVIEW What explains the rise of judicial review in both new and established democracies, and what justifies its use? Myriad theories and accounts purport to answer these questions. For example, there are theories about judicial review as a method of deflecting blame from political actors, about judicial review as a response to popular constitutional movements and demands, and about judicial review as a reaction to transnational dynamics and pressures. Theories of rights-based constitutionalism, and the role of courts in advancing and protecting rights, can also provide important rationales for judicial review. As judicial review in a particular country often arises out of a mix of contextualized political dynamics, various accounts may explain different aspects of the scope or focus of judicial review or its evolution over time. This section provides four approaches to these questions—an argument for judicial review from political theory, an explanation drawn from political dynamics, a justification based on institutional structure, and a traditional legal account. The opening chapter of the book, “The real case for judicial review,” provides a theoretical and normative justification for judicial review grounded in political legitimacy. For Alon Harel and Adam Shinar, judicial review is not a product of formal legal-institutional-political design choices; rather, it serves a fundamental noninstrumentalist function in a democratic society. Judicial review provides individuals aggrieved by particular government decisions with a right to a hearing. This right encompasses the opportunity to voice a grievance and requires that the state engage in meaningful moral deliberation about its decision and provide reasons for its actions. Finally, it ensures a reconsideration of that decision in light of arguments or defenses marshaled against it. This right to a hearing is grounded in the fundamental duty of the state to deliberate with its citizens on matters of rights. Harel and Shinar explain that judicial review is the instantiation of the right to a hearing, and that although the institution performing this hearing need not be a court, it necessarily will operate like a court by engaging in the judicial function. In reviewing several legal systems around the world, the authors find evidence that all aspire to provide the right to a hearing so defined. They note, however, that the robustness of the right varies, particularly when assessing whether systems fulfill the duty to reconsider the initial decision giving rise to the grievance. They conclude that weak judicial review may not be sufficiently protective of the right to a hearing. Turning to a more instrumentalist account of judicial review, the next chapter builds on and refines a leading theory that conceptualizes constitutions, and judicial review, as a form of insurance, through which political elites seek to protect themselves against a range of risks (Ginsburg 2003; Hirschl 2004; Finkel 2008). In “Constitutions as political insurance: variants and limits,” Rosalind Dixon and Tom Ginsburg argue that the dynamics of insurance go beyond the risks of losing office or influence in future democratic elections—they include the risks of reduced access to political power,
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 2 /
Date: 10/7
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Introduction 3 reduced policy influence and individual persecution or adverse treatment. By showcasing the complexity of the risks confronting political elites and against which they may wish to insure, Dixon and Ginsburg are able to assess the different possible forms of insurance that may be deployed in response, including a range of constitutional provisions and judicial structures. In addition to elaborating and refining the insurance theory, Dixon and Ginsburg recognize that the efficacy of judicial review as a form of political insurance depends on ongoing political tensions. They show that the threats of insurance cancellation or nullification are mitigated in those contexts in which insurance is bilateral rather than unilateral in nature, and where courts engage in forms of review that, through careful balance, are able to sustain political support for the enforcement of constitutional constraints. In “Comparative constitutional law as a window on democratic institutions,” Samuel Issacharoff explores the creation of new constitutional courts in the context of democratic transitions, where courts are asked to meet the dual aspirations of preventing a return to an autocratic past and serving the newly formed democratic government. In these situations, he explains, a constitutional court offers a promise of controlled democratic renewal. Limitations on majority power through judicial review may serve to stabilize democratic governance more effectively than political solutions, such as formal power sharing. This judicial engagement begins with the transition to democracy itself: Constitutional courts can both facilitate the transition by relieving pressure on bargaining parties to negotiate all details to completion, and serve to ensure the bargain’s endurance by supervising the initial pact and protecting the political process. The judicial role expands beyond traditional judicial review, however, as these new constitutional courts often are given some form of administrative oversight over elections themselves. Courts tasked with these democracy-reinforcing roles deploy a range of strategies to accrue and maintain the authority necessary to achieve compliance, but the challenges are great and their ultimate success is uncertain. Nevertheless, creating a structural commitment to democratic stability through the judiciary should be understood and appreciated as a signal innovation of turn-of-the-century constitutional design. As Dixon and Ginsburg note in their chapter, there are many theories of the origins of judicial review, and no one theory provides a comprehensive account that can satisfy the historical and contextual nuances of every jurisdiction. Heterogeneous theories often overlap, occasionally reinforce one another, and certainly add to the complexity of an individual constitutional creation story. To this end, Steven Calabresi, in “The origins and growth of judicial enforcement,” provides a traditional legal account of the relationships between law, courts and constitutional structure. He argues that the need for an independent arbiter of disagreements between national and state conflicts may require the adoption of independent judicial review. And, once established, courts that perform this umpiring function can often also be given additional, broader functions (see also Friedman and Delaney 2011). Calabresi also proposes a secondary dynamic that may underpin both the creation and expansion of judicial review: a desire to affirm a repudiation of certain historical wrongs. Judicial review in the United States, Germany and India, he suggests, can be understood as a combination of these two dynamics.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 3 /
Date: 10/7
JOBNAME: Delaney PAGE: 4 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
4 Comparative judicial review
B. THE POLITICAL AND INSTITUTIONAL CONTEXTS FOR JUDICIAL REVIEW As we noted above, there are many reasons why political leaders may empower judges to conduct judicial review, and the results of that empowerment will vary according to the context. Understanding the political and institutional contexts for judicial review serves to complicate and enrich our assessment of its viability. For instance, is judicial review being exercised in the context of democratic, authoritarian, deeply divided or religious societies? Is it being exercised against the backdrop of a battle for control of the basic identity of a society? What are the broader institutional constructs of the judiciary that might help (or hinder) the exercise of judicial review? Hanna Lerner focuses on the specific context of deeply divided societies, or societies divided along religious or ethno-nationalist lines in “Interpreting constitutions in divided societies.” A common approach to constitutional design in such societies, Lerner notes, is one of permissiveness: a mixture of deferring controversial decisions, relying on ambiguity or vagueness in drafting, and even incorporating conflicting provisions. The strategy is to delegate many important constitutional choices to legislative constitutional actors or the domain of ordinary politics. Incrementalism of this kind, however, also shapes the context for judicial review. It means courts must exercise powers of review in the face of deep social conflict, so that whatever position courts take may be seen as unduly aligned with one or another set of political actors, or as an inherently political rather than legal form of intervention. Judicial review can thus serve to entrench or even further polarize existing conflicts, threatening both the legitimacy of the court and the stability of the broader constitutional settlement. As Lerner suggests, divided societies may both seek out and be harmed by judicial review. Salma Waheedi and Kristen Stilt develop a related argument that, in debates over the role of Islam in a given polity, the structure of judicial review is both a cause and an effect of constitutional tension. In “Judicial review in the context of constitutional Islam,” the authors examine judicial review in countries that have some constitutional commitment to Islam—countries whose constitutions have (in increasing order of commitment to Islam): an “Islamic establishment clause,” which provides that Islam is the religion of the state; “a source of law clause,” which declares that Islamic Sharia or its principles are to guide legislation; a “repugnancy clause,” which invalidates any law that conflicts with Sharia law; or a clause that declares a country an “Islamic state.” Ultimately, they find that these commitments shape, but do not entirely predict or determine, the scope and contours of judicial review. Judicial review lies along a spectrum, from secular judicial review (where a constitutional Islam clause— usually an establishment clause—is simply one clause among many) to Islamic constitutional review (where the relevant clause—the Islamic state clause—controls all constitutional meaning and validity). Many countries sit along the continuum in a mixed or hybrid model that combines elements of secular and Islamic constitutional influence or control. Although some correlation may exist between the particular clauses of constitutional Islam and the judicial review structure, the authors are wary of drawing any sharp conclusions, given the fluidity and fragility of judicial review in contexts of shifting political power and strong Islamist movements.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 4 /
Date: 15/8
JOBNAME: Delaney PAGE: 5 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Introduction 5 Beyond foundational challenges, internal disputes and conflicts will emerge within any individual polity that may increase demands for judicial action and the expansion of the judicial role. In “New judicial roles in governance,” Robert Kagan, Diana Kapiszewski and Gordon Silverstein explore the contexts in which these new roles emerge. Conflict arenas include disputes between political incumbents and challengers, intergovernmental disputes about governing power, challenges to government stasis and maladministration, cultural and religious cleavages, and tensions between rights and equity. Judicial willingness (or ability) to play new roles within these arenas is conditioned by variations and change in national institutional and political structures, in contemporary political dynamics and in court-related factors. As Kagan, Kapiszewski and Silverstein make clear, it is not only political and societal factors that condition the judicial role and concomitant success, but national institutional structures and court-related factors themselves also provide important context. Wen-Chen Chang and Yi-Li Lee develop this insight through a close analysis of the institutional factors that affect multi-court relationships in “Competition or collaboration: constitutional review by multiple final courts.” Although many systems provide for specialized constitutional courts distinct from ordinary courts that exercise general jurisdiction, the effectiveness of those constitutional courts will depend on a range of inputs. Chang and Lee argue that institutional design—including the apportionment of jurisdiction, the mechanisms of review (abstract or concrete), the appointments processes and the broader political context of a national system—will condition a constitutional court’s relationship, whether adversarial or collaborative, with parallel high courts of ordinary jurisdiction.
C. THE STABILITY AND EFFECTIVENESS OF JUDICIAL REVIEW It is one thing to create independent courts with powers of judicial review. It is quite another to create constitutional courts capable of exercising effective powers of review and imposing binding constraints on political actors. This section presents a range of studies that explore the socio-political conditions under which judicial review is likely to be stable and effective and what the limits to judicial review might be. In “Judicial review as a self-stabilizing constitutional mechanism,” Tonja Jacobi, Sonia Mittal and Barry Weingast identify three broad conditions they suggest are necessary for the “success” or stability of a constitutional system, describing a constitution that fulfils these conditions as “self-stabilizing.” A self-stabilizing constitution lowers the stakes of politics by limiting the scope of government action (the limit condition); it ensures elected officials’ constitutional compliance by facilitating coordination among citizens and generating shared understandings about constitutional meaning (the consensus condition); and it is able to adapt to changing conditions that threaten to reduce cooperation and increase instability (adaptation condition). The authors argue that, in the United States, judicial review has become an increasingly important means of advancing these conditions. By enforcing the limit condition, courts can generate or foster shared understandings about constitutional meaning, and thus advance the consensus condition. And, even as they may strain the limit condition or
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 5 /
Date: 15/8
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
6 Comparative judicial review retard consensus building, the mechanics of judicial decision-making—from the practice of handing down multiple opinions to issue framing and applying interpretive methodologies—can advance the adaptation condition. Theunis Roux addresses stability from a different angle, by identifying the conditions under which a constitutional culture may transform from one in which judicial review is seen as the instantiation of law’s autonomy from politics to one in which judicial review becomes an adaptable instrument to achieve policy goals. In “Losing faith in law’s autonomy: a comparative analysis,” Roux traces the evolution of the legalist– instrumentalist shift in the United States and India and notes how such transformations stalled in Australia, South Africa and Germany. From these systems, he derives two key factors—each necessary but not sufficient—that influence the likelihood of change: first, the existence of an exogenous shock which threatens the public’s confidence and destabilizes the legitimating ideology of legalism; and second, either a broad-based intellectual movement or charismatic judges who will act to exploit a crisis and drive the transformation forward. Although not developed thematically by Roux, his chapter rightly assumes the centrality to judicial review of the relationships between civil society and the judiciary. David Landau, in “Courts and support structures: beyond the classic narrative,” addresses this issue explicitly by building upon Charles Epp’s key insight that the success and effectiveness of judicial review are tied to a court’s “support structures” (Epp 1998). Enriching Epp’s approach, Landau first argues that support structures should be viewed broadly and appreciated for their heterogeneity. In addition to domestic civil society or nongovernmental organizations, support structures may include international civil society, domestic political parties, the ordinary, nonconstitutional judiciary and generalized public support. The question becomes not whether a court has external support, but with which groups a court or its judges are most closely linked. Landau demonstrates the utility in disaggregating support structures by showing that courts themselves have the potential to affect the “external” environment or political context for judicial review. By interacting with various audiences or support structures in different ways, courts can affect the contexts in which their support is created and maintained. The agency that a court may have goes beyond its internal processes and staffing decisions to the framing of its opinions and the scope of its remedies. By approaching this descriptive analysis in a comparative perspective, Landau finds important normative benefits. Exploring how courts interact with their broader environments should allow scholars to build more nuanced theories about judicial behavior, judicial review and judicial empowerment and, eventually, to enhance the quality and range of normative advice for emerging judiciaries or judiciaries under threat. The concept of support structures resonates with the relationships that Karen Alter explores in “National perspectives on international constitutional review: diverging optics.” Alter investigates the rapidly developing new frontier of judicial review by international courts (ICs), and she argues that the effectiveness of IC constitutional review—particularly the review of national actions against international obligations—is intimately related to actions at the national level. National judges play a critical role in constructing the cultural context in which international law and the decisions of ICs are received. Identifying two “optics” through which national judges approach international
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 6 /
Date: 10/7
JOBNAME: Delaney PAGE: 7 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Introduction 7 law, Alter provides a useful shorthand for conceptualizing this dynamic context: first, the “luxury good” optic, which sees ICs as external, superfluous and expendable; and second, the “fail-safe” optic, which sees ICs and IC constitutional review as an additional level of security to counteract national lacunae in protections. The choice in approach to international law will necessarily affect the legal authority of ICs and international law within the domestic realm. Through detailed examples of these optics in practice, as well as the exploration of an “intermediate position” taken by the German Constitutional Court, Alter maps out a variety of national approaches to IC review, highlighting the aspirations and weaknesses inherent in extending judicial review into the international sphere. Focusing on the effectiveness of judicial review, Lee Epstein and Jack Knight tackle the problem head on with a menu of pragmatic options available to judges to ensure the short-term validity of decisions and long-term institutional legitimacy. In “Efficacious judging on apex courts,” the authors acknowledge that theoretical accounts of judicial behavior suggest that such tools are unnecessary, but they root their approach in real-world evidence to the contrary. Judges frequently challenge their governing regimes and face political attacks and threats to their power and independence—and they often lack perfect information about the relevant players in their system. Drawing on a set of methods for protecting the efficacy of their decisions and the legitimacy of their courts, judges seek to minimize conflict. From interpreting statutes dynamically to writing vague opinions to creating information-forcing rules, judges seek to anticipate and take account of the reactions of relevant external actors in the current political sphere. Some substantive decisions also seem to strategically anticipate the reactions of incoming external actors, conditioning some results on expected “political cover.” In other approaches, courts develop procedures and limiting doctrines to avoid collisions with a regime or to control the timing of a decision or its remedy. Finally, some judges might actively cultivate public opinion, through incorporating it into jurisprudence, going public about the reasons behind key decisions, or advancing the protection or entrenchment of key rights that have broad popular appeal. Epstein and Knight are careful to note that these various mechanisms raise both positive and normative critiques, and they identify many of the questions presented and call for further research. Finally, judicial review may be approaching certain limits. In “Limiting judicial discretion,” Mila Versteeg and Emily Zackin identify an important counter-trend to judicialization—the increasing use of long, specified and flexible constitutions to constrain and limit judicial discretion. This approach to constitutionalism highlights a larger and omnipresent constitutional puzzle: How can a principal empower and yet control its agent? In reviewing constitutions both globally and at the state level in the United States, Versteeg and Zackin demonstrate that detailed and specific constitutional provisions have been used to exercise popular control over legislative processes and, in other contexts, to protect legislation from judicial attack by limiting the breadth of judicial review. They argue that this approach to constitutionalism provides an alternative theory of constitutional design to the traditional view of constitutions as deeply entrenched, broad-based statements of principle and raises important questions about the perception of courts and their roles in democratic society.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 7 /
Date: 15/8
JOBNAME: Delaney PAGE: 8 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
8 Comparative judicial review
D. OPERATIONALIZING JUDICIAL REVIEW: TYPOLOGIES, DOCTRINES AND METHODOLOGICAL CHALLENGES By focusing on the social and political contexts for judicial review, we gain a new lens through which to view some of the most well-established concepts or categories in comparative constitutional law. Of course, categories of this kind continue to have conceptual and organizational value: They allow us to see connections, as well as differences, between various constitutional systems which might otherwise be hidden.1 They allow for the possibility of shared understandings and categorization of the kind that is necessary for large-n comparison. And they provide a useful starting point for a methodologically rigorous form of small-n comparison, which relies on relatively objective and transparent principles of case selection (Hirschl 2014). But long-standing constitutional categories also can frustrate our ability to innovate, expand and generate new insights. Part of the value of an expanded focus is that it may allow us to rethink these existing categories in ways that open up new lines of comparative inquiry. One such categorization is that between the “US” and the “European” models of judicial review, a dichotomy developed along two axes—the presence of “concrete versus abstract review” and “decentralized versus centralized review.” As Virgílio Afonso da Silva explains in “Beyond Europe and the United States: the wide world of judicial review,” the US model entails judicial review in the context of concrete cases performed by all courts in the system (decentralized). The European model, in contrast, is judicial review over abstract questions about constitutional validity, conducted by a specific court with a monopoly over the declaration of unconstitutionality (centralized). Da Silva argues that a focus on social and political context in actually existing systems leads to the conclusion that this typology explains very little and ultimately requires the construction of a third (and large) category of “hybrid” approaches. Almost all constitutional systems engage in review that is effectively abstract and concrete, concentrated and diffuse. He presents a range of additional variables that could be taken into consideration to construct a new, and more useful, typology, including the timing of review; mechanisms of appointment; composition of the bench; length of judicial term; ways of accessing the court; deliberation and decision-making process; and effects of court decisions (such as the remedies employed). Da Silva does not suggest building a comprehensive matrix based on his variables, recognizing that typologies must reduce complexity in addition to identifying variations relevant in the real world. Rather, he concludes that “research goals should define how a given typology should be constructed, not the other way around.” Shifting from typologies of judicial review to doctrinal tools for instantiating judicial review, Wojciech Sadurski’s chapter, “Judicial review and Public Reason,” resonates with da Silva’s frustration with binaries. Sadurski reconciles the supposedly distinct interpretive approaches used by the United States Supreme Court (“tiers of scrutiny” analysis) and by various other national courts (“proportionality analysis”) by recognizing that all of these courts share an attention to the motivations behind enacted laws. This motive analysis, effected in different ways in different systems, highlights the 1 See, e.g., in this context de Visser (2013). We are indebted to Aziz Huq for his very useful comments on this question.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 8 /
Date: 10/7
JOBNAME: Delaney PAGE: 9 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Introduction 9 overarching centrality of a “Public Reason”-infused theory of judicial review. Public Reason requires that lawmaking be rooted in a set of public reasons exclusive of those to which members of society have good moral reason to object, and motive analysis constrains what reasons can be provided to legitimate laws. In evaluating these doctrinal approaches to motive analysis, Sadurski examines evidentiary challenges and the contrasts between motive- and effects-oriented scrutiny, harmonizing tensions where possible and otherwise suggesting normative resolutions. He questions the ability of courts to conduct review in terms of Public Reason and calls for further research along a number of positive and normative dimensions at the national and supranational levels. Vicki Jackson delves deeper into both the doctrine and principle of proportionality in “Pockets of proportionality: choice and necessity, doctrine and principle.” She outlines the generalized appeal of the concept of proportionality as something akin to the promise of constitutional democracy itself: that government, monitored by the judiciary, be proportionate in its impositions on the people. In a detailed analysis of case law from multiple jurisdictions, Jackson develops the possibility that judges face a choice whether to use the general principle or a structured doctrinal approach. She argues that the instantiation of the proportionality principle into structured doctrinal tests brings with it strengths and weaknesses that may, in certain circumstances, complicate adherence to the underlying principle itself. In particular, she notes how the application of the sequential questions of proportionality analysis asked under the Canadian Oakes test may have perverse results, and she raises questions about how and to what extent judges should take into consideration the costs of their adherence to a rigid test. Transforming broad constitutional principle into concrete doctrine requires constitutional interpretation, and there is a familiar set of debates over modalities of constitutional argument that occurs in national contexts. Approaching this question from a comparative angle, Jamal Greene and Yvonne Tew look at the use of history in constitutional interpretation in “Comparative approaches to constitutional history.” Greene and Tew explain that courts use history in a variety of ways for a multiplicity of purposes, rendering history’s salience contingent on a particular nation’s political and historical circumstances. Understanding this variation allows them to introduce a helpful taxonomy of historical approaches. Dividing the uses of history into three broad categories, they demonstrate that history may be used to shed light on a text’s purpose, to elucidate the intentions of the drafters or the understanding of the ratifiers, or to explain what ongoing constitutional norms or institutions may exist as a “backdrop” behind a new text. In drawing on history, judicial invocations may be interpretive or merely rhetorical; courts may treat history as dispositive or as one of many sources of interpretive guidance; and history may factor in differently for the interpretation of constitutional rules versus standards, or for provisions that differ in the determinism of their semantic content. In light of this schema, Greene and Tew assess eight jurisdictions and conclude that while history is consistently deployed across countries in some way, its use in specific countries varies from rhetorical to purposive to dispositive. In a similar vein, Ran Hirschl takes up the question of how courts engage with foreign and international legal materials in “Judicial review and the politics of
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 9 /
Date: 15/8
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
10 Comparative judicial review comparative citations: theory, evidence and methodological challenges.” He highlights the steady and increasing interest in constitutional migration, breaking down this “pollination” into distinct spheres that include constitutional structure, modes of interpretation and comparative jurisprudence. Focusing on the latter sphere, Hirschl proposes a range of factors that may explain comparative reference and its rise, from need-based rationales to political, structural and institutional reasons, including the desire to construct broader judicial and constitutional identities reflecting the judges’ position in their own society and their view of that society’s place in the world. In elaborating these themes and theories, Hirschl presents a rich set of examples across history. He concludes by raising a number of methodological challenges to the difficult study of foreign references by constitutional courts, exhorting scholars to consider interdisciplinarity, collaborative work and a greater attention to research design. *** One of the important questions in any work on comparative constitutional law, including comparative judicial review, relates to the geographic or jurisdictional scope of the project. As editors, our aim has been to encourage broad coverage of different jurisdictions; a focus on the socio-political context and functioning of judicial review clearly necessitates attention to a wide range of constitutional cases. Together, the various contributions to the volume satisfy this criterion: They are highly diverse in terms of the regions and the types of courts and constitutional systems they cover. The chapters also adopt a variety of methodological approaches in engaging with the selected topics and case studies. Chapters range from a focus on a single case study as a means of illustrating a broader political–institutional dynamic (Jacobi, Mittal and Weingast) to comparisons of two countries (Chang and Lee), to the use of a relatively small number of case studies (Calabresi; Lerner; Jackson). Still others could be described as “large small-n.” These chapters use a larger number of cases through a qualitative approach in order to explore broader patterns and dynamics (Alter; Hirschl; Greene and Tew; Waheedi and Stilt). Other contributors arguably deploy what Hirschl calls a form of “prototypical” approach—an identification and interrogation of cases deemed “prototypical” by the literature (da Silva; Landau). Finally, the chapter by Versteeg and Zackin draws on true large-n empirical techniques, supplemented by historical, case-study-based methodology. This robust jurisdictional and methodological pluralism is critical to engaging with the rich set of questions posed in the study of comparative judicial review. We hope it will inspire future scholars to reflect on their own approaches and to engage across disciplines and through new methods. As the authors in this book have highlighted, many questions are yet to be explored. There is more work to be done.
REFERENCES Daly, Tom Gerald. 2017. The Alchemists. Cambridge: Cambridge University Press. de Visser, Maartje. 2013. Constitutional Review in Europe: A Comparative Analysis. Oxford: Hart Publishing.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 10 /
Date: 10/7
JOBNAME: Delaney PAGE: 11 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Introduction 11 Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago, IL: University of Chicago Press. Finkel, Jodi S. 2008. Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s. Notre Dame: University of Notre Dame. Friedman, Barry and Erin Delaney. 2011. “Becoming Supreme: The Federal Foundation of Judicial Supremacy.” Columbia Law Review 111: 1137–93. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press. Gloppen, Siri, Roberto Gargarella and Elin Skaar, eds. 2004. Democratization and the Judiciary: The Accountability Function of Courts in New Democracies. London: Frank Cass. Hirschl, Ran. 2004. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press. Hirschl, Ran. 2014. Comparative Matters. Oxford: Oxford University Press. Issacharoff, Samuel. 2015. Fragile Democracies: Contested Power in the Era of Constitutional Courts. Cambridge: Cambridge University Press. Kapiszewski, Diana, Gordon Silverstein and Robert A. Kagan, eds. 2013. Consequential Courts: Judicial Roles in Global Perspective. Cambridge: Cambridge University Press. Sadurski, Wojciech. 2008. Rights Before Courts. Dordrecht: Springer. Yap, Po Jen. 2017. Courts and Democracies in Asia. Cambridge: Cambridge University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 01_Introduction_ts
/Pg. Position: 11 /
Date: 10/7
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
PART I THE ORIGINS AND FUNCTIONS OF JUDICIAL REVIEW
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 1 /
Date: 10/7
JOBNAME: Delaney PAGE: 2 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
2. The real case for judicial review Alon Harel and Adam Shinar*
A. INTRODUCTION Constitutional theory has been obsessed for many years with an attempt to provide an adequate justification for judicial review. This is because judicial review seems to conflict with foundational democratic principles; it allows a few elite unelected individuals whom we call “judges” to make decisions for the rest of us. In previous work, one of us argued that the traditional justifications for judicial review are flawed and proposed an alternative framework through which judicial review may be considered. More specifically, it was argued that contrary to the traditional view, judicial review is not aimed (exclusively) at protecting rights or democracy or even bringing about justice. Instead, it facilitates the hearing of justified or unjustified grievances (see Harel 2014, 191–224). This chapter examines to what extent contemporary constitutions can be explained and understood in terms of this framework. Which institutional features facilitate a hearing and which hinder a hearing? Seeking to answer that question, this chapter provides a comparative analysis of the ways in which different systems of judicial review succeed (or fail) in facilitating and protecting the right to a hearing. The critical flaw of the debate concerning judicial review is the conviction that judicial review must be instrumentally justified—i.e., that it be grounded in contingent desirable features of the judicial process (e.g., the superior quality of decisions rendered by judges, the superior ability—or willingness—of judges to protect rights, the special deliberative powers of judges, and so on).1 Once the critical flaw of traditional theories is understood, an alternative proposal to defend judicial review must take its place. Under the proposal mentioned above, judicial review is designed to provide individuals with a right to a hearing or a right to raise a grievance. More particularly, judicial review is indispensable because it grants individuals an opportunity to challenge decisions that impinge (or may have impinged) upon their rights, to engage in reasoned deliberation concerning these decisions, and to benefit from a * We thank Evan Bianchi, Noam Kolt, and Noa Nitzan for excellent research assistance. 1 In this volume several contributors provide instrumental reasons for judicial review. Dixon and Ginsburg suggest that judicial review can be explained as a mode of political insurance for moments of declining political influence (Chapter 3, this volume). Issacharoff points to the potential salutary role of judicial review in empowering weak democracies (Chapter 4, this volume). Versteeg and Zackin note (though do not endorse) the “bulk of the literature” that views the development of judicial review as crucial to guaranteeing constitutional compliance, restraining office-holders, and facilitating transitions to democracy (Chapter 15, this volume). Jacobi, Mittal, and Weingast (Chapter 10, this volume) suggest that judicial review contributes to the stabilization of the political system.
13
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 1 /
Date: 10/7
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
14 Comparative judicial review reconsideration of these decisions in light of this deliberation. Under this view, judicial review is intrinsically, rather than instrumentally, desirable; its value is grounded in procedural features that are essential characteristics of judicial institutions per se. The right to a hearing as understood here is grounded in the fundamental duty of the state to deliberate with its citizens on matters of rights, and to consult those who complain (justifiably or unjustifiably) that their rights have been violated.2 In contrast, therefore, to traditional theories, vindicating the case for judicial review does not require establishing complex assertions, such as the claim that courts render better decisions or are more protective of democracy, rights, or stability and coherence. It is the adjudicative process itself, and not any complex contingent consequences of this process, that justifies judicial review. This procedural justification of judicial review has important normative ramifications. In recent years, there have been persistent proposals and constitutional modifications which advocate weakening the powers of courts and strengthening the powers of executive and legislative bodies in constitutional interpretation.3 These proposals have been fiercely criticized on the grounds that they do not provide sufficient protection for rights or justice. Our critique is different: Even if the de-adjudication of constitutional disputes and their politicization may be sufficiently protective of rights or other constitutional values, it may erode important procedural values. In particular, it may undermine the opportunities litigants have to present their cases and to be heard. Note two preliminary clarifications. First, our interest is in rights-based judicial review rather than in judicial review that is designed to protect structural institutional features such as separation of powers. Second, we do not argue that the right to a hearing motivated decision makers to empower courts or to establish judicial review. We merely point out that the right to a hearing can provide a justification for the process and that different systems of judicial review can be comparatively evaluated on the basis of the degree to which they facilitate a hearing. Our analysis is therefore generally normative rather than descriptive. Yet, while our analysis is primarily normative, we show that at times the right to a hearing was explicitly considered as a consideration of policy makers and theorists. In Section B, we first examine the failure of instrumentalist explanations and then defend judicial review on the grounds that it protects the right to a hearing. In Section C, we examine various constitutions and establish that the right to hearing is not merely a fantasy of liberal academic minds but that it is grounded in existing practices and in the self-understanding of constitutional jurists. We also examine several existing legal mechanisms designed to de-adjudicate constitutional disputes and examine their ramifications with respect to the right to a hearing.
2 The analysis is based mainly on four previous papers: Eylon and Harel 2006; Harel and Kahana 2010; Harel and Shinar 2012; and Harel 2014, ch. 6. 3 See discussion in Section C.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 2 /
Date: 10/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 15
B. JUDICIAL REVIEW AND THE RIGHT TO A HEARING This section is divided into two sub-sections. Section 1 establishes the failure of traditional theories of justifying judicial review and Section 2 defends the right to a hearing theory. 1. The Failure of Constitutional Instrumentalism This section establishes that the prominent theories purporting to justify judicial review are instrumentalist, and that these theories fail for this reason. Judicial review, as understood here, consists of the following two components: (1) courts have the power to make binding decisions concerning the constitutional validity of statutes that apply to individual cases brought before them, and these decisions ought to be respected by all other branches of government; and (2) no branch of government has the power to immunize its operation from judicial scrutiny. Under instrumentalist theories, judicial review is justified to the extent that it is likely to bring about contingent desirable consequences. While there are important differences among different theories, they all share important structural similarities. Under each one of these theories, the constitutional theorist proceeds through two distinct stages of analysis. At the first stage, the theorist addresses the question of what the “point” of the constitution is and, consequently, how it should be interpreted. Once the point of the constitution is settled, the theorist turns to identify the institutions best capable of realizing the point of the constitution. Instrumentalist theories of judicial review perceive this second step—identifying the institutions best situated to interpret the constitution—as subservient to the findings in the first stage. The institution in charge of interpreting the constitution is simply the institution most likely to interpret the constitution “rightly” or “correctly” (in other words, the institution whose decisions are the most conducive to the constitutional values as identified at the first stage of analysis). Interpreting the constitution can therefore be described as a task in search of an agent capable of performing it, the agent being an instrument whose suitability depends solely on the quality and the costs of its performance. To establish the dominance of instrumentalist theories, let us briefly survey five influential theories purporting to justify judicial review: rights-based theories, democracy-enhancement theories, settlement theories, the dualist democracy argument, and institutionalist instrumentalism. Each one of these theories characterizes the constitutional goals differently. Yet, once the constitutional goals are identified, each one of the theories justifies judicial review on the grounds that it is the best institutional means of realizing that goal. Rights-based theories maintain that judicial review is justified in order to guarantee an efficacious protection of rights (Harel 2003). Many theorists believe that judges are superior to other officials in their ability (or willingness) to identify the scope of rights and assign them the proper weight (Fiss 1978; Fiss 1985; Sager 2004). This view is perhaps the most popular and well entrenched in American legal thought.4 4
It has most famously been argued by Alexander Hamilton. See Hamilton 1788.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 3 /
Date: 10/7
JOBNAME: Delaney PAGE: 5 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
16 Comparative judicial review Democracy-enhancement theories argue that the constitution is designed to protect the representative nature of government. The most influential advocate of this view— John Hart Ely—maintains that the “pursuit of participational goals of broadened access to the processes and bounty of representative government” ought to replace “the more traditional and academically popular insistence upon the provision of a series of particular substantive goods or values deemed fundamental” (Ely 1980, 74). The US Constitution, in Ely’s view, is essentially a procedural document, and the goals of the Constitution and those of the institutional structures designed to protect it should favor a “participation-oriented representation reinforcing approach to judicial review” (Ely 1980, 87 n.12). Settlement theories of judicial review maintain that judicial review is justified on the grounds that it is conducive to settlement, coordination, and stability (Alexander and Schauer 1997; Alexander and Schauer 2000). Alexander and Schauer believe that courts are more capable at maintaining stability and achieving settlement than other institutions such as the legislature (Alexander and Schauer 2000, 477). They argue that settlement of contested issues is a crucial component of constitutionalism, that this goal can be achieved only by having an authoritative interpreter whose interpretations bind all others, and that the Supreme Court can best serve this role (Alexander and Schauer 1997, 1359). The dualist democracy position, advocated by Bruce Ackerman, distinguishes between two different types of decisions: decisions made by the American people and decisions made by their governments (Ackerman 1991). The US Constitution is designed to protect the first type of decisions—decisions of “We the People”—from being eroded by the second type—decisions of “We the Politicians.” In Ackerman’s view: “Quite simply, the Justices are the only ones around with the training and the inclination to look back to past moments of popular sovereignty and to check the pretensions of our elected politicians when they endanger the great achievements of the past” (Ackerman 2007, 1806–7). Institutionalist instrumentalism provides a more coherent and scientific instrumentalist theory. Institutionalists such as Einer Elhauge, Neil Komesar, and Adrian Vermeule share with other instrumentalists the belief that constitutional design is ultimately an instrument used to realize desirable social goals. More specifically, what ought to determine the scope of judicial powers to review legislation is an institutional choice based on “the relative strengths and weaknesses of the reviewer (the adjudicative process) and of the reviewed (the political process)” (Komesar 1994). All of these theories are instrumentalist; they are all based on a conjunction of two claims: first, that the constitution is designed to realize certain goals and that the constitution is contingently conducive to the realization of these goals (e.g., to protect rights, to enhance democracy, to guarantee stability and coherence, to protect constitutional politics or, more generally, to bring about the best consequences overall); and second, that judicial review is desirable only to the extent that it succeeds in realizing the constitutional goals. Instrumentalist theories are misguided for at least two reasons. First, it is doubtful whether instrumentalists can in fact make reliable assertions concerning the likely
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 4 /
Date: 16/7
JOBNAME: Delaney PAGE: 6 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 17 performance of courts versus legislatures or other institutions.5 Second, instrumentalist arguments in general, and institutionalist arguments in particular, are subject to the insincerity or inauthenticity objection (Harel 2014, 4). They fail to capture what the debate is really about and to understand the roots of the appeal of constitutionalism and judicial review. The controversy concerning constitutionalism cannot be about the expertise of judges versus legislatures or the quality of the performance of these institutions; it is to a large extent a debate about the political morality and legitimacy of constitutional decision making. By purporting to provide an instrumental rationale for judicial review, its advocates fail to capture what really underlies the passions of the participants of the debate and what sentiments underlie both proponents and opponents. Our goal instead is to capture as much as possible the real concerns that are cherished by activists, politicians and citizens rather than to provide “rigorous” or “scientific” justifications which are alien to these concerns.
2. THE RIGHT TO A HEARING The previous subsection demonstrated the inadequacy of instrumentalist justifications for judicial review. This subsection defends a non-instrumentalist justification for judicial review. What is distinctive about courts is not the special wisdom of judicial decisions or other desirable contingent consequences that follow from judicial decisions, but the procedures and the mode of deliberation that characterize courts. These procedures are intrinsically valuable, independent of the quality of decisions rendered by courts, because these procedures are, in themselves, a realization of the right to a hearing. The argument proceeds in two parts. First, we argue that individuals have a right to a hearing consisting of an opportunity to challenge what the purported right holder considers (rightly or wrongly) to be a violation of a right. We then show that the right to a hearing is embedded in the procedures of the legal process, and that judicial review or quasi-judicial review is the only manner in which the right to a hearing can (as a conceptual matter) be protected. Judicial review is not a means for protecting the right to a hearing; it is, in reality, its institutional embodiment. When and why do individuals have a right to a hearing? The right to a hearing depends on the right holder’s claim concerning the existence of an all-things-considered right that is subject to a challenge. The right imposes a duty on the person or entity that is charged with a right violation to conduct joint deliberation with the person who claims his rights were violated. The right to a hearing consists of three components: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision that impinges (or may impinge) upon one’s rights, and the duty to reconsider the initial decision giving rise to the grievance. The right to a hearing is valued independently of the merit of the decision likely to result at the end of this process. To establish the importance of the right to a hearing consider the following example. Assume that A promises to meet B for lunch, but unexpected circumstances, e.g., a 5 See Komesar 1994, 256–61; Vermeule 2006, 243. This skepticism is also shared by Annabelle Lever. See Lever 2009.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 5 /
Date: 15/8
JOBNAME: Delaney PAGE: 7 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
18 Comparative judicial review memorial, disrupts A’s plans. A, the promisor, believes that these circumstances override the obligation to go to the lunch. It seems that B, the promisee under these circumstances, deserves a “hearing” (to the extent that it is practically possible). That hearing consists of three components. First, A must provide B with an opportunity to challenge her decision to breach. Second, A must be willing to engage in meaningful moral deliberation, addressing the grievance in light of the particular circumstances. Finally, A must be willing to reconsider the decision to breach.6 The second and third components require further clarification. To understand the significance of the willingness to engage in meaningful moral deliberation, imagine the following: A informs B that sometime in the past, after thorough deliberation, she adopted a rule that in cases of conflicts between lunches and memorials, she always ought to attend the memorials. When challenged by B, A recites the arguments used in past deliberations without demonstrating that those arguments justify infringing this promise in the specific circumstances at hand, and without taking B into consideration in any way. Such behavior violates A’s duty to engage in meaningful moral deliberation. This is not because the original deliberation leading to forming the rule was necessarily flawed or even likely to be flawed. Instead, the second component of the right to a hearing dictates that A has a duty to take the particular situation of B into account. The obligation to engage in moral deliberation which takes into consideration B’s circumstances is owed to the purported right holder as a matter of justice. B is entitled to question and challenge the decision because it is her rights that are being infringed. Lastly, note the significance of the third component; namely, the willingness to reconsider the initial decision based on the conviction that the right can be justifiably infringed. To note its significance, imagine a promisor who is willing to engage in a moral deliberation but announces before the deliberation (or, even worse, decides without announcing) that her decision is final. It is evident that such a promisor breaches the duty to provide a hearing even if she is willing to provide an opportunity for the promisee to raise her grievance and even if she is providing an explanation. A genuine hearing requires an “open heart,” i.e., a principled willingness to reconsider one’s decision in light of the moral deliberation. The right to a hearing can be conceptualized in terms of deliberative duties. By raising a grievance, a purported right holder can impose a deliberative duty on the alleged duty holder. Such a deliberative duty is not grounded in epistemic considerations (i.e., on the prospects that such deliberation improves the quality of the decision) and it is not designed to guarantee that the decision is justified. The force of the right-to-a-hearing conception of judicial review does not depend on establishing that judicial review is more congenial to the protection of rights than alternative systems, or that granting the right to a hearing better protects democracy, 6 This example differs from that of a legislature. In the case of A and B, there is no third-party adjudicator. This difference is not significant for our purposes. In our view, a hearing could theoretically be conducted by the legislature, as long as it is willing and competent to re-evaluate and reconsider its initial decisions. Realistically, legislatures are not effective in reconsidering their decisions. Hence there is a need for a third party evaluation. Of course, it is also true that courts are not “third-party” adjudicators, as they are also part of the state.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 6 /
Date: 15/8
JOBNAME: Delaney PAGE: 8 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 19 stability, or the dual-democracy structure, or even that it serves to maximize the hearing given to grievances. This is precisely what makes this position immune to the objections raised against instrumentalist views. The only virtue of judicial review under this framework is the fact that it constitutes the hearing owed to citizens as a matter of right. It is time to explore the exact relationship between a right to a hearing and judicial review. To establish the claim that the right to a hearing provides a non-instrumentalist justification for judicial review, we need to establish that judicial procedures are not merely an instrument to providing a hearing but in fact actually constitute a hearing in themselves. There is a special affinity between judicial deliberation and the right to a hearing, such that judicial deliberation is tantamount to protecting the right to a hearing. To defend this claim, we will show that (a) courts are specially designed to conduct a hearing, and (b) to the extent that other institutions can conduct a hearing, it is only because they operate in a judicial manner and thereby functionally exercise review in the same manner as courts. Operating in a judicial manner is (as a matter of conceptual truth) a form of honoring the right to a hearing. The first part of the defense—establishing that courts are especially suited to facilitate a hearing—requires looking at the procedures that characterize courts. It seems uncontroversial (to the extent that anything can be uncontroversial) that courts are designed to investigate individual grievances (see, e.g., Bickel 1986, 173; Horowitz 1982, 131; Fallon 1994, 958). The judicial way of assessing individual grievances comprises three components. First, the judicial process provides an opportunity for an individual to form a grievance and challenge a decision. Second, it imposes a duty on the part of the state (or other entities) to provide a reasoned justification for the decision giving rise to the challenge. Lastly, the judicial process involves—ideally at least—a genuine reconsideration of the decision giving rise to a challenge, which may ultimately lead to overriding the initial decision giving rise to the grievance. These components are equivalent to the components comprising of the right to a hearing. To establish this claim, consider the nature of a failure on the part of courts to protect the right to a hearing. Such a failure is different from a failure on the part of the court to render a right or a just decision. The latter failure indicates only the obvious, namely that courts like all institutions are fallible; but it does not challenge their status as courts. In contrast, the former is a failure on the part of courts to act judicially. In short, it is a failure to function like a court. The second part of the defense requires establishing that other institutions operate in a judicial manner to the extent that they conduct a hearing. The right-to-a-hearing justification for judicial review does not require review by courts or judges. It merely requires guaranteeing that grievances be examined in certain ways and that the reviewing institution use certain procedures and modes of reasoning, but it tells us nothing of the identity of the institutions in charge of performing this task. Thus, in principle, the right to a hearing can be protected by any institution, including perhaps the legislature. This may seem counterintuitive, but we would argue for this seemingly implausible claim. What is crucial about courts is the mode of reasoning characterizing them. Whichever institution performs the hearing, it will inevitably use procedures that are indistinguishable from those used by courts. It will, in other words, operate like a court.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 7 /
Date: 10/7
JOBNAME: Delaney PAGE: 9 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
20 Comparative judicial review Courts provide individuals an opportunity to raise their grievances. Courts also engage in reasoned deliberation and provide an explanation for the alleged violation. Finally, courts reconsider the presumed violation in light of the deliberation. Institutions that operate in this way thereby inevitably become institutions that operate in a judicial manner. The more effective institutions are in facilitating a hearing, the more these institutions resemble courts. The right-to-a-hearing justification for judicial review not only accounts for the need to establish some institution designed to honor this right, but also establishes the claim that the institution conducting a hearing necessarily operates in a court-like manner and effectively becomes a court. After all, “if it walks like a duck, quacks like a duck and looks like a duck, it must be a duck.” Similarly, if it provides an opportunity to raise grievances, engages in reasoned deliberation, and reconsiders the decision giving rise to the grievance, it engages in a judicial function irrespective of what its title is. This section has developed both a negative and a positive argument concerning judicial review. Subsection 1 established the negative argument—that the traditional justifications for judicial review face grave difficulties and that these difficulties are attributable to their instrumental nature. Subsection 2 developed an alternative rationale for judicial review (previously developed in Harel, 2014 ch. 6), establishing that judicial review ought to be understood as the institutional embodiment of the right to a hearing. This non-instrumental argument favoring judicial review is immune to many of the objections raised against the instrumental arguments. Advocates of judicial review can therefore rest assured that the case for judicial review is not solely contingent upon speculative empirical conjectures. Judicial review is valuable not only because it improves the quality of decision making, but because it compels government to be attentive to the grievances of its citizens.
C. THE RIGHT TO A HEARING AND CONSTITUTIONAL REALITIES: A COMPARATIVE ANALYSIS It is time now to explore to what extent different constitutional arrangements effectively protect and reinforce the right to a hearing. We also examine the mechanisms which weaken and erode the adjudicative process and their potential effects on the right to a hearing. We argue that those mechanisms may have epistemic advantages but that they may be detrimental in other respects. As specified above, the right to a hearing consists of three different components: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision that impinges (or may impinge) upon one’s rights, and the duty to reconsider the initial decision giving rise to the grievance. Here, we establish the relevance of this analysis to the contemporary debate in the United States concerning the role of the Supreme Court vis-à-vis other non-adjudicative institutions (Johnsen 2004). Many of the proposals to use non-adjudicative institutions to settle constitutional questions fail to take seriously the right to a hearing. While the normative groundings of judicial review, as it is currently practiced, are often non-transparent, earlier legal systems were much clearer in asserting explicitly
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 8 /
Date: 10/7
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 21 the importance of the right to a hearing. Let us briefly provide two prominent examples. Under the Roman system, the tribunes had the ius intercessionis power to veto—that is, to forbid the act of any magistrate that bore unjustly upon any citizen—but not to invalidate the law on the basis of which the act was performed (Jolowicz and Nicholas 1972). The tribunes were also declared “inviolable”; they could not be arrested, and anybody who interfered with them in their exercise of their lawful duty could be put to death. In our terminology, the tribunes provided an opportunity for aggrieved plebeians to raise a grievance and be heard. Another clear recognition of the concern for the right to a hearing can be found in the First Amendment of the US Constitution, particularly in the right to petition. The First Amendment proscribes that “Congress shall make no law … prohibiting … or abridging … the right of the people … to petition the government for a redress of grievances.”7 One commentator discussing the history of the right to petition described the right to petition in terms that were almost identical to those discussed in Section B: “In colonial America, the right of citizens to petition their assemblies was an affirmative, remedial right which required governmental hearing and response” (Higginson 1986, 142). The debate as to the scope of the right to petition and whether it imposes a duty to consider grievances persists despite the fact that some have questioned the general effectiveness of the right (see Lawson and Seidman 1999). It is easy to see the limitations of the right to petition as entrenched in the US Constitution. When legislatures conduct hearings they do it not in the individualized form characteristic of courts; their task is not to examine the soundness of particular grievances. It is this incongruity which requires the establishment of institutions which specialize in adjudication. Before conducting a brief comparative analysis, we wish to describe, and reject, one strand of constitutional thought that seeks to diminish the importance of courts and to transform the protection of constitutional rights from the adjudicative sphere into the political sphere. In the American context, Robert Nagel argued that many of the constitutional values are already well entrenched in political culture (Nagel 1993). Courts thus deal only with trivial or profoundly controversial issues. This, he argues, harms the constitutional values at question because they are cast into doubt or ridiculed, thus compromising their firm stance in society. In order to protect the constitution and its values, he argues, the Supreme Court must limit its power of judicial review and relinquish the monopoly it has over constitutional interpretation, making room for other public officials and the people to shape constitutional meaning.8 Nagel is by no means an outlier. He joins a long line originating in the United States with James Bradley Thayer’s call to limit judicial review only to cases when legislators have made a very clear mistake not open to rational question (Thayer 1893, 144). In a
7
U.S. CONST. amend I. For the claim of monopoly, see Cooper v. Aaron, 358 U.S. 1 (1958); City of Boerne v. Flores, 521 U.S. 507 (1997). 8
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 9 /
Date: 10/7
JOBNAME: Delaney PAGE: 11 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
22 Comparative judicial review previous article we described such approaches as falling under “popular constitutionalism,” a school of thought arguing that for various reasons9 constitutional interpretation should not be confined to the courts (Harel and Shinar 2012). Instead, popular constitutionalists seek to rely on other branches of government, on social movements, and on individuals to shape constitutional meaning—when courts are engaged in judicial review, they are shutting down a valuable conversation that should primarily be taking place outside the judicial sphere. This view suggests not that courts have no role in constitutional interpretation, but that it is wrong to grant them superior or exclusive status. On this view, popular constitutionalists either oppose or seek to limit judicial review because they reject judicial supremacy.10 Thus, the message of popular constitutionalists is to disengage from strict legalism, turn to politics, and determine constitutional meaning not only or primarily in the courts. Our framework is a direct response to this proposal to de-adjudicate and politicize the protection of constitutional rights. While we agree that much constitutional work can be done outside courts, the problem with popular constitutionalism, at least in its extreme version, is that it fails to account for the intrinsic value of adjudication. Namely, it fails to account for the right of every person to raise his grievance and force the state to deliberate and reconsider its soundness. After all, raising a grievance through the political process depends on favorable social conditions (particularly political mobilization) for the grievance to be reconsidered. And while the political process is valuable in many respects and perhaps even epistemically superior to the adjudicative process, it is inferior in that typically it does not provide a real opportunity for an aggrieved party to be provided with a full-fledged hearing. How well, then, do systems of judicial review guarantee the right to a hearing? To this we turn now by comparing the ability of courts around the world to honor the three components of the right to a hearing: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision that impinges (or may impinge) upon one’s rights, i.e., the willingness to engage in meaningful moral deliberation, and the duty to reconsider the initial decision giving rise to the grievance. 1. The Opportunity to Voice a Grievance Judicial review must start with a grievance. However, the nature of the grievance that might trigger judicial scrutiny can vary significantly because courts control the type of admissible suits through a variety of doctrines, most notable of which is standing doctrine.11 For our purposes, a useful way to describe the various judicial systems is to broadly divide them into two types of systems. Type one systems allows many claims to go forward, even when an individualized grievance is difficult to locate. Type two systems strictly limit the kind of grievances that warrant judicial review. The systems are not static; there can be a transition from one system to another over time, and the 9 E.g., courts are not particularly good at discerning constitutional meaning, judicial review is in tension with democracy, judicial review distorts legislators’ incentives. 10 For representative works, see Tushnet 1999; Kramer 2004; Post and Siegel 2004; Post and Siegel 2003. 11 Other doctrines are, e.g., justiciability, mootness, and ripeness.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 10 /
Date: 10/7
JOBNAME: Delaney PAGE: 12 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 23 distinctions are not always sharp. Rather, the systems should be considered as two opposing ideal types along a spectrum, where most countries fall somewhere along the spectrum. Type one systems can be found, for example, in Israel, India, and Colombia, which allow claims of rights violation to go forward even when the nexus between the particular complainant and the allegedly violated right is tenuous, and even when it is not clear whether a right has been violated. For example, in Israel, the Supreme Court has moved away from a doctrine that intervened only when the plaintiff asserted a concrete and personal interest to one that grants broad standing to every individual or organization claiming that the rule of law has been violated, even if the plaintiff has not been personally harmed.12 The Court’s reasoning is rooted in its perception that no other institution, including the legislature, can safeguard the rule of law as effectively as the judiciary.13 A more radical example is India’s institution of public interest litigation. Under Article 226 of the Indian Constitution, high courts have the power to enforce the rights conferred by the Constitution. Article 226 has been interpreted to include both human rights and public issues that are deemed important or pressing. A narrower provision is Article 32, which gives individuals the right to enforce fundamental rights directly through the Supreme Court, though it is reserved for urgent cases where a swift decision with public resonance must be taken (Chuan 2009, 262; Ginsburg 2003, 97 n. 18). Both provisions have been interpreted to grant citizens the right to approach the courts in cases of rights violations.14 More expansively, under the banner of public interest litigation, the Indian Supreme Court has liberalized access to the courts by relaxing the traditional requirement of a plaintiff having a “real interest” (Cassels 1989, 498; see also Wadehra 2009, 22–42). As the Court stated in 1976: Where a wrong against community interest is done, ‘no locus standi’ will not always be a plea to non-suit an interested public body chasing the wrongdoer in court … Locus standi has a larger ambit in current legal semantics than the accepted, individualist jurisprudence of old. The legal dogmas of the quiet past are no longer adequate to assail the social injustices of the stormy present.15
Accordingly, when disadvantaged persons encounter difficulties in accessing the judicial system, the Court has allowed others to file on their behalf, including NGOs. Famously, there have also been instances where the Court itself has instigated litigation based on letters it has received (Bhagwati 1985, 527). A similar transformation took place in Colombia. Article 86 of the 1991 Colombian Constitution established the “tutela action,” which allows individuals to bring any constitutional claim before any court when the claim is directed at the immediate enforcement of a fundamental right (Young and Lemaitre 2013, 185; Iturralde 2013). Moreover, a tutela action can be brought by any person claiming rights violations of a 12
H.C. 910/86 Resler v. Minister of Defense, 42(2) P.D. 441 (1988). H.C. 270/80 Segal v. Minister of Interior, 34(4) P.D. 429 (1980). 14 Union of India & Ors v. Major General Shri Kant Sharma & Anr. (2015) INSC 201 (March 11, 2015), at para. 22. 15 Cassels 1989, 498, citing Maharaj Singh v. Uttar Pradesh, A.I.R. 1976 S.C. 2602, 2609. 13
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 11 /
Date: 15/8
JOBNAME: Delaney PAGE: 13 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
24 Comparative judicial review larger group or the rights of another who is not in a position to bring a suit (for example poor persons, the elderly, children). Tutela actions are highly informal—they relieve citizens of any procedural requirements typical in ordinary litigation and, in contrast with ordinary litigation, must be resolved within ten days. The Constitutional Court of Colombia maintains review power over decided actions. Moreover, an action for the enforcement of a right can extend to a right not delineated in the Constitution. As Article 94 provides, the rights guaranteed by the Constitution should not be understood to negate other rights inherent to a human being that are not expressly mentioned in the Constitution. Israel, India, and Colombia are type one systems that are characterized by liberal standing rules. This means not only that courts will not be confined to individualized grievances that display concrete injury, but also that courts are more likely to entertain cases where the injury is remote, the right is less defined and settled, and where the connection between the violation and the complainant can be indirect or generally shared with many other potential complainants. Consider now a type two system, for example the United States, where stricter standing rules, among others, might prevent courts from fully engaging in claims of rights violations, thus diminishing the opportunity to raise a grievance (see Delaney 2016, 20–28). Under Article III of the US Constitution, the courts’ power only extends to “cases” and “controversies.”16 Because no definition exists for either, US courts, like their Indian, Colombian, and Israeli counterparts, have discretion in deciding which cases they will hear (see Bandes 1990, 229. Fisher 1988, 96–7). Under established standing jurisprudence, the court relies on a tripartite test. First, a party must show that it has suffered an “injury in fact,” which must be “concrete and particularized” and “actual or imminent.”17 Second, there needs to be a “causal connection between the injury and the conduct complained of.”18 Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”19 As it turns out, the “injury in fact” requirement significantly limits access to the courts. For example, unlike India, Israel, and Colombia, an assertion that the government is violating the law does not entitle a plaintiff to bring a suit forward because the injury is not “real.” Put differently, an abstract interest, or a “generalized grievance” that the government disobeyed the law, does not suffice for Article III purposes.20 Interestingly, as India, Colombia, and Israel liberalized their standing requirements, the United States went in the opposite direction. As public interest litigation became more prominent, Israeli, Indian, and Colombian courts recognized the importance of relaxing access rules so that disadvantaged groups could have their day in court. But as the same social shifts occurred in the United States, and as public interest litigation became widespread, courts pushed back. Thus, in stark distinction with Israel, India, 16
U.S. CONST. art. III, § 2. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted). 18 Id. 19 Id. at 561 (1992) (citation and internal quotation marks omitted); see also Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976). 20 See O’Shea v. Littleton, 414 U.S. 488, 494 (1974); United States v. Richardson, 418 U.S. 166, 176–8 (1974); Massachusetts v. EPA, 549 U.S. 497, 516–17 (2007). 17
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 12 /
Date: 15/8
JOBNAME: Delaney PAGE: 14 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 25 and Colombia, which expanded the first component of the right to a hearing, the United States sought to divert more grievances back to the political process,21 consonant with the proposals of popular constitutionalists.22 2. Willingness to Engage in Meaningful Moral Deliberation As Carl Friedrich noted long ago, the very concept of political authority implies the capacity to give reasons (Friedrich 1958; Shapiro 1992, 181). Giving reasons is essential when the state seeks to infringe rights, as only rights infringements that are backed up by the right reasons might withstand scrutiny. Without the provision of reasons and the subsequent engagement in meaningful deliberation, official acts will be deemed arbitrary and invalidated.23 Of course, the type of reasons proffered may differ depending on context, but the basic obligation to provide a reason for the right infringement exists independently.24 Here we note a convergence among many jurisdictions: Once the court provides an opportunity to voice a grievance and the rights violation has been sufficiently substantiated, the court will order the state to provide reasons and to establish either that it did not infringe a right or that the infringement was justified.25 Under the second component we can find, depending on the rights violation, requirements to explain the compelling, substantial, or legitimate government interests at stake. Subsequently, various balancing, proportionality, and margin of appreciation formulas are employed to examine whether the reasons proffered can meet their burden.26 Thus, the requirement to give reasons is also a requirement to provide good
21
See, e.g., United States v. Richardson, 418 U.S. 166, 179 (1974). We do not claim, however, that there is a causal connection between the two. The narrowing of standing started to occur at least two decades before popular constitutionalists began to formulate their claims under that heading. 23 Shapiro 1992, 185–6, 188 (describing judicial review of administrative action in the United States, and also noting a substantive shift from requiring reasons to requiring adequate reasons). 24 See, e.g., Article 190 of the Rome Treaty, which has been interpreted by the ECJ to mean that “the nature and extent of the reasons that must be given depend on the nature and circumstances or context of the particular action taken” (Shapiro 1992, 198 (citing cases)). 25 See, e.g., Laws 1992, 1393–4 (“Once it is shown by the applicant that the decision indeed abrogates his right, he will succeed unless the respondent shows a sufficient justification. But this means that such a respondent will always have to explain himself to the court, whether or not he has done so to the applicant, on pain of losing the case peremptorily. In short, the court will require reasons”). 26 Shapiro 1992, 192 (noting an American and European doctrinal convergence in the reason-giving requirement). See also Aleinikoff 1987; Cohen-Eliya and Porat 2013. 22
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 13 /
Date: 15/8
JOBNAME: Delaney PAGE: 15 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
26 Comparative judicial review reasons.27 Further, the reasons must be elaborated so that the court can determine whether the alleged rights violation was justified.28 Although there are pockets where reason giving is not required (e.g., jury verdicts), giving reasons and deliberating about their correctness is a hallmark of legal decision making (Schauer 1995, 634). As the South African Constitutional Court remarked: [T]his Court can best carry out its task if careful and detailed evidence and argument are placed before it by those in government qualified to do so, particularly when legislation is under challenge. If this is not done, the Court’s ability to perform its constitutional mandate is hampered and the constitutional scheme itself may be put at risk.29
Whereas deliberative practices among courts vary, courts performing judicial review are essentially committed to being, and inherently are, “deliberative institutions—forums in which reasons, explanations, and justifications are both expected and offered for coercive state policies” (Ferejohn and Pasquino 2002). As explained above, the right to a hearing does not have to take place in a court and could theoretically take place in a different body. But when that body attempts to secure the right to a hearing, it employs review akin to that of the judiciary, and must provide reasons. The Indian Supreme Court was aware of this and maintained that: [i]f courts of law are to be replaced by administrative authorities and tribunals … it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them … The rule requiring reasons to be given in support of an order is … a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretense of compliance with it would not satisfy the requirement of law.30
Indeed, as the Constitutional Court of South Africa maintained, the “duty to give reasons when rights or interests are affected has been stated to constitute an indispensable part of a sound system of judicial review.”31 But, more importantly, “[t]he giving of reasons satisfies the individual that his or her matter has been considered.”32 27
See, e.g., Hochfief Gammon v. State of Orissa (1975) 2 SCC 649 (“If [the executive] give reasons and they are not good reasons, the Court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny”). 28 Shapiro 1992, 199, 218 (“The [ECJ] looks not only to the purely procedural question of whether reasons are given but also to the substantive question of whether the reasons are good, correct, persuasive, or make sense”). See also Schauer 1995. 29 Dawood and Another v. Minister of Home Affairs and Others; Shalabi and Another v. Minister of Home Affairs and Others; Thomas and Another v. Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837, para. 17 (June 7, 2000). Cf. Harel and Shinar 2012, 967. 30 Siemens Engineering & Manufacturing Co. v. Union of India A.I.R. 1976 SC 1785. 31 Bel Porto School Governing Body v. Premier, Western Cape 2002 (3) SA 265 (CC) para. 159. 32 Id. (emphasis added).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 14 /
Date: 15/8
JOBNAME: Delaney PAGE: 16 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 27 For example, in Mazibuko v. City of Johannesburg,33 a case challenging a water supply scheme to Soweto, applicants argued that the free water quota violated their constitutional right to access sufficient amounts of water guaranteed under Section 27 of the Constitution. Although the Court dismissed the case, it noted the importance of receiving information from the government both in order to call the government to account and to assess whether a violation meets the constitutional standard of “reasonableness”: Government must disclose what it has done to formulate the policy: its investigation and research, the alternatives considered, and the reasons why the option underlying the policy was selected … Simply put, through the institution of the courts, government can be called upon to account to citizens for its decisions.34
3. Duty to Reconsider the Initial Decision Giving Rise to the Grievance The third component of the right to a hearing is the duty to reconsider—and potentially overturn—the initial decision or action giving rise to the grievance. Suppose an aggrieved party voiced her claim, and the court, following a deliberative process, indeed decided that a right was unjustifiably infringed. The right to a hearing dictates that the court must then override the decision that led to the grievance. This is required by the duty to reconsider the decision in light of the deliberation. Yet this view is not shared by all legal systems. The distinction we elaborate here, made familiar by Mark Tushnet, is between systems of strong judicial review and systems of weak judicial review (see, e.g., Tushnet 2003a, 814; Tushnet 2003b).35 Briefly, systems of strong judicial review embrace judicial supremacy. For example, after a court rules to invalidate a statute, the legislature has no recourse other than to strike the law from the books or (in some systems) to enact a new law that will adhere to the court’s requirements. Systems of strong judicial review, therefore, closely attend to the individual grievance, and courts in such systems have the duty to consider the soundness of the decision on the basis of the deliberation (Harel and Shinar 2012, 952). In contrast, systems of weak judicial review de-privilege courts and resist judicial supremacy by devising institutional arrangements that allow the legislature to respond to judicial decisions it disfavors by effectively invalidating the constitutional interpretation of the courts (see Gardbaum 2001). The legislature of course can, if it so wishes, attend to the particularities of the judicial deliberation and follow it but it need not do so. To the extent that it fails to do so, the third component of the right to a hearing is compromised (see e.g., Gardbaum 2010, 171). Historically, the study of weak judicial review began in commonwealth countries. For example, courts in New Zealand are instructed to interpret legislation so that it complies with an enumerated list of individual rights, an interpretation the legislature 33
Mazibuko and Others v. City of Johannesburg and Others [2009] ZACC 28, 2010 (4) SA 1 (CC). 34 Id. at para. 161. 35 Tushnet refers to them as a “weak-form judicial review.” We use “weak judicial review.”
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 15 /
Date: 10/7
JOBNAME: Delaney PAGE: 17 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
28 Comparative judicial review can then reject by subsequent enactment.36 In the United Kingdom, the Human Rights Act 1998 introduced “incompatibility declarations”—a procedure whereby a court declares an enactment to be incompatible with constitutional commitments but the legislature maintains the authority to amend, repeal, or leave the statute unchanged.37 And in Canada, Section 33 of the Canadian Charter of Rights and Freedoms famously allows the legislature, with regard to some Charter rights, to actively override a judicial decision, in what is known as the “Notwithstanding Clause.”38 Other weak judicial review mechanisms exist, for example in Mongolia, Hong Kong, and Israel, all with their own particular variations (Tushnet and Dixon 2014; Weill 2016). In a previous paper, we analyzed some of these mechanisms (Harel and Shinar 2012). Our conclusion was that although they vary significantly, and much of their implementation depends on empirical assessments, the fundamental flaw of weak judicial review systems is that they are not sufficiently attentive to the third component of the right to a hearing. While they (sometimes) instruct the legislature to reconsider the infringement, there is no certainty that such reconsideration will take place. In particular, there is no guarantee that reconsideration will take place in light of the adjudicative deliberation. The legislature may be able to override the court without giving due attention to the particularities of the grievance, thus violating the principal purpose of the right to a hearing, which is focused on the individual and the infringement of her rights.39 In other words in weak judicial review systems, the right to a hearing cannot truly be fulfilled, because while a court may satisfy the three components of a hearing on its own, the hearing is conditional on actions of the legislature, which provides no protection or guarantee. Ordinarily, legislatures are not structured in a way that is conducive to inquiring into particular grievances. Were they to be structured so, they would take on adjudicative functions, making them de facto courts. Yet in addition to these types of structural mechanisms, which are usually enshrined in the constitution or a statute, weak judicial review may also come in other forms. In many jurisdictions, even those which can be characterized as strong judicial review systems, courts have used their discretion to fashion remedies that may be termed “weak.” The remedies are weak in the sense that they give courts an active monitoring role over the implementation of the desired remedy, but leave the state to work out for itself the particular solution. In the United States, for example, this has been the case with institutional reform litigation of police departments, prisons, schools, and mental health institutions. This type of litigation, usually taking place in lower courts, involves court oversight 36 See New Zealand Bill of Rights Act 1990, 1990 S.N.Z. No. 109. For the Australian equivalent, see Australian Capital Territory’s Human Rights Act of 2004 (ACT HRA) and the Victorian Charter of Human Rights and Responsibilities of 2006 (VCHRR). 37 Human Rights Act, 1998, c. 42 (U.K.). 38 Constitution Act, 1982, pt. I (Canadian Charter of Rights and Freedoms), Schedule B to the Canada Act, 1982, ch. 11 (U.K.). 39 We note, however, that some systems of weak judicial review have transformed into strong judicial review once the weak mechanism was discredited or became unpopular, whereas strong judicial review can transform into de facto weak review. The former is the case in Canada. See Tushnet 2008. An example of the latter is Japan. See Tushnet and Dixon 2014, 106–8.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 16 /
Date: 10/7
JOBNAME: Delaney PAGE: 18 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 29 (sometimes for a period of years) of the overhaul of public institutions that have been found to be infringing the constitutional rights of prisoners, students, and patients (see e.g., Feeley and Rubin 1998; Kirp and Babcock 1981; Sabel and Simon 2004, 1029–34). The idea behind institutional reform litigation is for the court to prescribe a constitutional goal—often leaving state actors to fill in the details, especially regarding the means by which the constitutional goal will be achieved. Parties subsequently return to the court in a repeated iterative process. Ideally, the court fosters a resolution that is acceptable to the parties, thus mitigating the counter-majoritarian difficulty while bolstering its institutional legitimacy.40 The remedy is “weak” in the sense that the court articulates general goals (with varying levels of specificity) but leaves the parties relatively unconstrained in deciding how to achieve them, though it may also be perceived as “strong” because it subjects the state to continuous judicial supervision and intervention. The Indian Supreme Court has also sometimes adopted remedial strategies that look like the ones adopted by many American lower courts in the institutional reform litigation context. Thus, on occasion, it has taken to continued supervision, administering the remedy while creating fact-finding commissions and agencies which advise on appropriate remedies and monitor compliance. For example, in a case seeking to end bonded labor in quarries, the Court ordered the government to identify oppressed workers, effectuate their release and rehabilitation, regularly inspect quarries, educate workers about their rights, and provide a clean working environment.41 In a case seeking to dismantle child labor in the carpet industry, the Court ordered the submission of periodic reports so that it could continuously monitor the situation.42 Traditional institutional reform litigation focuses on particular institutions and claimants under the charge of the institution. But this does not have to be the case. In Colombia, for example, institutional reform litigation has “gone national.” Although courts resolve many tutelas dealing with individual cases,43 there are also instances of systemic rights violations that give rise to large-scale judicial intervention, which in turn require the state to reconsider broad policies that generate rights violations. Thus, in Colombia, under the “unconstitutional state of affairs” doctrine, when the Constitutional Court detects mass rights violations—which require the collaboration of several branches—it takes it upon itself to assume a coordinative function in the hopes of triggering action among the other branches. The doctrine resembles the American structural injunction, but it is more centralized and can be more opaque in terms of its outcomes due to its nature as a remedy that has to fit the entire country and not a single institution (see e.g., Ariza 2013; Cepeda-Espinosa 2006, 22; Landau 2010, 359–60; Landau 2012, 434–5). We briefly discuss two paradigmatic cases. In the first, after upholding several tutelas that complained of unconstitutional conditions in Colombian prisons, the Colombian 40 For representative examples, see Chayes 1976; Fiss 1978; Diver 1979; Moss 1986; Sturm 2001; Jeffries and Rutherglen 2007; Rushin 2015. 41 Bandhua Mukti Morcha v. Union of India (1984) 3 S.C.C. 161; A.I.R. 1984 S.C. 802. 42 Bandhua Mukti Morcha v. Union of India (1997) 10 S.C.C. 549. 43 See Section C.1.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 17 /
Date: 15/8
JOBNAME: Delaney PAGE: 19 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
30 Comparative judicial review Court decided that the problem was national in scope and took to reforming the entire Colombian prison system.44 Consequently, the Court ordered the government to address the problem within a limited period of time. It ordered the government to build new prisons and increase personnel, specified which institutions should be in charge of the plans, and provided a timeline for the implementation of the plan. The second Colombian case dealt with internally displaced people—Colombians who fled their homes due to fighting between the state and armed guerilla groups.45 Although there was a law on the books that aimed to provide social services, it was not implemented, compromising displaced persons’ rights to food, shelter, and health (Landau 2014a, 259 n. 69). The problem was so widespread that individual tutelas could not remedy the situation. Declaring an “unconstitutional state of affairs,” the Court ordered the government to formulate a comprehensive plan to deal with the problem of internally displaced persons. This included planning a budget that could be invested in the implementation of the plan, and providing, at a minimum, the essential core of the rights needed for survival.46 Importantly, as in the American and Indian cases, the Court took a dialogic approach. It did not dictate the content of the plan that had to be created, nor did it decide on the budgetary sources from which the plan would be drawn. Instead, it set deadlines and forced the government to deal with a problem it had previously neglected (Rodríguez-Garavito 2011, 1693). Another weak remedy, similar to the ones taken in institutional reform litigation, is the “meaningful engagement order,” embraced by the South African Constitutional Court. The order, used in socio-economic rights litigation, requires parties to engage in good faith in order to reach a reasonable solution. The court monitors the process and the parties report back on the outcome of the engagement.47 For example, in suits challenging evictions based on the constitutional right to adequate housing, the Court has ordered municipalities to meaningfully engage with those facing evictions. This includes, inter alia, engagement over the consequences of eviction, the timetable for eviction, and alleviating the harms caused by eviction, including finding temporary shelter and responding to the needs of those evicted.48 In the most famous case, Occupiers of 51 Olivia Road, the Court approved the settlement reached by the parties post engagement, but it dismissed the plaintiffs’ claim that there was still no comprehensive housing plan in effect. Instead, the Court focused on the engagement process, arguing that the parties would continue to engage in good faith toward a satisfactory solution. Indeed, the Court noted that the City’s position evolved as a consequence of engagement, which demonstrated the effectiveness of the
44
Case T-153 of 1998, ¶¶ 56–65. See also Yepes 2006. Case T-025 of 2004. 46 Id.; Rodríguez-Garavito 2011. 47 See Occupiers of 51 Olivia Road Berea Township v. City of Johannesburg [2008] ZACC 1; 2008 (3) SA 208 (CC), para. 18. 48 See Wilson 2011, 273; Residents of Joe Slovo Community Western Cape v. Thubelisha Homes and others 2009 (9) BCLR 847 (CC); 2010 (3) SA 454 (CC). 45
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 18 /
Date: 10/7
JOBNAME: Delaney PAGE: 20 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 31 process.49 Engagement is therefore not mere lip service—it must be “meaningful,” offering a “real opportunity for negotiating a mutually acceptable solution” (Ray 2008, 709). One can therefore conceptualize a meaningful engagement order as a type of a right to a hearing: After the government decides on a policy that might violate a constitutional right, it is under an obligation to consult and engage with the other party.50 However, it is under no obligation to reconsider its policies (unless instructed to do so by the court) so long as the engagement was meaningful and the result reasonable. Thus, the promise of engagement—avoiding judicial involvement while respecting constitutional rights—might also lead to a diminishing role for the judiciary over the interpretation of constitutional rights.51 Indeed, engagement orders hold out the potential for even weaker weak judicial review. Unlike systems of weak judicial review, where the Court announces a constitutional standard that is then subject to revision by the legislature, engagement leaves the constitutional standards entirely up to the executive, which can also leverage its power over the plaintiffs.52 As long as the resolution is “reasonable,” the Court will not intervene, even if the engagement turned out to be flawed.53 Finally, the Supreme Court of Israel has, on occasion, instituted “rolling procedures.” What will usually happen is that the Court will note, during oral arguments, a flaw in the legislation. If the state shows willingness to amend the law, the Court sometimes waits and periodically examines the progress made. For example, in the Nasser case,54 petitioners filed a petition in 2002, challenging tax benefits that the legislator awarded to certain towns without according similar benefits to Arab towns in the same area. Instead of striking down the law on equality grounds, the Court waited for a committee to be established that would check the criteria for tax benefits, issuing decisions in the interim in order to speed things up. Only in 2012, ten years after filing the petition, did the Court uphold the legislative amendment that was triggered by its overseeing of the petition. Similarly, in a case concerning the drafting of ultra-orthodox Jews to the Israeli military, the Court struck down the law that permitted their exemption but suspended the start date of its ruling so as to give the legislature ample time to enact a new law. In response, however, the legislature extended the prior law (which was initially a temporary provision, set to expire after five years, but nevertheless extended by the Knesset). The Court struck it down in 2012, five years after the petition was submitted and after data was presented to the Court regarding the number of ultra-orthodox 49 Occupiers of 51 Olivia Road Berea Township v. City of Johannesburg, para. 34. For an extended discussion, see Ray 2008. 50 Indeed, the Court has held that engagement should ordinarily take place prior to litigation. See Abahlali baseMjondolo Movement SA v. Premier of Province of Kwazulu-Natal 2010 (2) BCLR 99 (CC). 51 Id. 52 Id. 53 Residents of Joe Slovo Community Western Cape v. Thubelisha Homes and others 2009 (9) BCLR 847 (CC); 2010 (3) SA 454 (CC). 54 H.C.J. 8300/02 Nasser v. Government of Israel [2012] IsrSC (unpublished).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 19 /
Date: 10/7
JOBNAME: Delaney PAGE: 21 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
32 Comparative judicial review recruits.55 These cases illustrate that the third component of the right to a hearing is realized in different ways and, most importantly, to a different degree in different legal systems. The more courts control the decisions and the remedies, the greater the degree of realization of the right to a hearing.
D. CONCLUSION What follows from our (admittedly selective) comparative analysis? First, every legal system we examined (here and elsewhere (Harel and Shinar 2012)) adheres to all three components of the right to a hearing. Indeed, having a system of judicial review means, ipso facto, granting a right to a hearing along the lines we have outlined above. What varies, however, is the robustness of the right to a hearing along the three dimensions. The analysis revealed that, for the most part, systems of judicial review adhere to the first and second components of a right to hearing. The main differences between systems of judicial review, then, have to do with the third component: the duty to reconsider the initial decision that gave rise to the grievance. Systems that incorporate weak judicial review (either in their constitution or their statute) might not be sufficiently protective of the right to a hearing. The more legislatures are willing to attend to individual grievances in their particular contexts, the more they will safeguard the right to a hearing (see Harel and Shinar 2012: 974). Ultimately, the level of protection these systems grant depends on complicated empirical assessments, which we do not undertake here. We also discussed weak remedies—remedies designed by courts that seek to incentivize greater deliberation and action on the part of legislatures and executives. We believe that weak remedies are an important tool, but, like weak judicial review, are vulnerable to the same critique. The resulting decision is not governed by adjudicative bodies but by executive and legislative entities that do not necessarily make their decision on the basis of adjudicative deliberation. In recent years there have been attempts to de-adjudicate constitutional controversies. This process is often justified by instrumentalist explanations. In particular, it is grounded in the belief that greater participation of executive and legislative entities in constitutional disputes may improve the process, protect rights more effectively, and promote welfare. We do not deny that this may be the case; we only point out that this transformation may have other costs. De-adjudication of constitutional litigation erodes and undermines the opportunity citizens have to exercise the right to a hearing and in particular the third component of this right, namely the right individuals have that the state reconsider its decision in light of the particularities of the case. Legal and political institutions often matter not for the reason that legal and political theorists believe they do—as mere contingent instruments to bring about desirable outcomes. Judicial review is one such example. Judicial review is valuable not only because it is likely to result in “better” decisions, or to better promote worthy goals or values, but also because judicial review constitutes the hearing to which individuals have a right. Given that the right to a hearing requires by definition an adjudicative 55
H.C.J. 6298/07 Resler v. The Knesset [2012] IsrSC (unpublished).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 20 /
Date: 10/7
JOBNAME: Delaney PAGE: 22 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 33 process, judicial review is not an accidental or contingent feature of the legal system; it is essential and indispensable for providing an opportunity for a hearing.
REFERENCES Ackerman, Bruce. 1991. We the People: Foundations. Cambridge, MA: The Belknap Press of Harvard University Press. Ackerman, Bruce. 2007. “The Living Constitution.” Harvard Law Review 120: 1737–812. Aleinikoff, T. Alexander. 1987. “Constitutional Law in the Age of Balancing.” The Yale Law Journal 96: 943–1005. Alexander, Larry and Frederick Schauer. 1997. “On Extrajudicial Constitutional Interpretation.” Harvard Law Review 110: 1359–87. Alexander, Larry and Frederick Schauer. 2000. “Defending Judicial Supremacy: A Reply.” Constitutional Commentary 17: 455–82. Ariza, Libardo José. 2013. “The Economic and Social Rights of Prisoners and Constitutional Court Intervention in the Penitentiary System in Colombia.” In Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia, edited by Daniel Bonilla Maldonado, 129–62. Cambridge: Cambridge University Press. Bandes, Susan. 1990. “The Idea of a Case.” Stanford Law Review 42: 227–319. Bhagwati, P. N. 1985. “Judicial Activism and Public Interest Litigation.” Columbia Journal of Transnational Law 23: 561–78. Bickel, Alexander M. 1986. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven, CT: Yale University Press. Cassels, Jamie. 1989. “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?” The American Journal of Comparative Law 37: 495–519. Cepeda-Espinosa, Manuel José. 2006. “How Far May Colombia’s Constitutional Court Go to Protect IDP Rights?” Forced Migration Review (Special issue: Putting IDPs on the map: achievements and challenges): 21–3. Chayes, Abram. 1976. “The Role of the Judge in Public Law Litigation.” Harvard Law Review 89: 1281–316. Chuan, Gan Ching. 2009. “Administrative Law and Judicialized Governance in Malaysia: The Indian Connection.” In Administrative Law and Governance in Asia: Comparative Perspectives, edited by Tom Ginsburg and Albert H. Y. Chen, 257–86. New York, NY: Routledge. Cohen-Eliya, Moshe and Iddo Porat. 2013. Proportionality and Constitutional Culture. Cambridge: Cambridge University Press. Delaney, Erin. 2016. “Analyzing Avoidance: Judicial Strategy in Comparative Perspective.” Duke Law Journal 66: 1–67. Diver, Colin S. 1979. “The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions.” Virginia Law Review 65: 43–106. Ely, John Hart. 1980. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press. Eylon, Yuval and Alon Harel. 2006. “The Right to Judicial Review.” Virginia Law Review 92: 991–1022. Fallon, Richard H. Jr. 1994. “Reflections on the Hart and Wechsler Paradigm.” Vanderbilt Law Review 47: 953–92. Feeley, Malcolm M. and Edward L. Rubin. 1998. Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons. Cambridge: Cambridge University Press. Ferejohn, John and Pasquale Pasquino. 2002. “Constitutional Courts as Deliberative Institutions: Toward an Institutional Theory of Constitutional Justice.” In Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe, in a Comparative Perspective, edited by Wojciech Sadurski, 21–36. The Hague: Kluwer Law International. Fisher, Louis. 1988. Constitutional Dialogues: Interpretation as Political Process. Princeton, NJ: Princeton University Press. Fiss, Owen M. 1978. The Civil Rights Injunction. Bloomington, IN: Indiana University Press. Fiss, Owen M. 1985. “Two Models of Adjudication.” In How Does the Constitution Secure Rights?, edited by Robert A. Goldwin and William A. Schambra, 36–49. Washington, DC: American Enterprise Institute.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 21 /
Date: 16/7
JOBNAME: Delaney PAGE: 23 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
34 Comparative judicial review Friedrich, Carl J. 1958. “Authority, Reason, and Discretion.” In Authority, edited by Carl J. Friedrich, 28–51. Cambridge, MA: Harvard University Press. Gardbaum, Stephen. 2001. “The New Commonwealth Model of Constitutionalism.” The American Journal of Comparative Law 49: 707–60. Gardbaum, Stephen. 2010. “Reassessing the New Model of Commonwealth Constitutionalism.” International Journal of Constitutional Law 8: 167–206. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press. Hamilton, Alexander. 1788. The Federalist No. 78. Harel, Alon. 2003. “Rights-Based Judicial Review: A Democratic Justification.” Law and Philosophy 22: 247–76. Harel, Alon. 2014. Why Law Matters. Oxford: Oxford University Press. Harel, Alon and Tsvi Kahana. 2010. “The Easy Core Case for Judicial Review.” Journal of Legal Analysis 2: 227–56. Harel, Alon and Adam Shinar. 2012. “Between Judicial and Legislative Supremacy: A Cautious Defense of Constrained Judicial Review.” International Journal of Constitutional Law 10: 950–75. Higginson, Stephen A. 1986. “A Short History of the Right to Petition Government for the Redress of Grievances.” The Yale Law Journal 96: 142–66. Horowitz, Donald L. 1982. “The Judiciary: Umpire or Empire.” Law and Human Behavior 6: 129–43. Iturralde, Manuel. 2013. “Access to Constitutional Justice in Colombia: Opportunities and Challenges for Social and Political Change.” In Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia, edited by Daniel Bonilla Maldonado, 361–402. Cambridge: Cambridge University Press. Jeffries, John C. Jr. and George A. Rutherglen. 2007. “Structural Reform Revisited.” California Law Review 95: 1387–422. Johnsen, Dawn E. 2004. “Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?” Law and Contemporary Problems 67: 105–47. Jolowicz, H. F. and Barry Nicholas. 1972. Historical Introduction to the Study of Roman Law. Cambridge: Cambridge University Press. Kirp, David L. and Gary Babcock. 1981. “Judge and Company: Court-Appointed Masters, School Desegregation, and Institutional Reform.” Alabama Law Review 32: 313–98. Komesar, Neil K. 1994. Imperfect Alternatives: Choosing Institutions in Law, Economics and Public Policy. Chicago, IL: University of Chicago Press. Kramer, Larry. 2004. The People Themselves: Popular Constitutionalism and Judicial Review. New York, NY: Oxford University Press. Landau, David. 2010. “Political Institutions and Judicial Role in Comparative Constitutional Law.” Harvard International Law Journal 51: 319–78. Landau, David. 2012. “The Reality of Social Rights Enforcement.” Harvard International Law Journal 53: 189–248. Landau, David. 2014a. “The Promise of a Minimum Core Approach: The Colombian Model for Judicial Review of Austerity Measures.” In Economic and Social Rights after the Global Financial Crisis, edited by Aoife Nolan, 267–98. Cambridge: Cambridge University Press. Landau, David. 2014b. “Aggressive Weak-Form Remedies.” Constitutional Court Review 5: 244–64. Laws, John. 1992. “Is the High Court a Guardian of Fundamental Constitutional Rights?” Commonwealth Law Bulletin 18: 1385–96. Lawson, Gary and Guy Seidman. 1999. “Downsizing the Right to Petition.” Northwestern University Law Review 93: 739–66. Lever, Annabelle. 2009. “Democracy and Judicial Review: Are They Really Incompatible?” Perspectives on Politics 7: 805–22. Moss, Randolph D. 1986. “Participation and Department of Justice School Desegregation Consent Decrees.” The Yale Law Journal 95: 1811–35. Nagel, Robert F. 1993. Constitutional Cultures: The Mentality and Consequences of Judicial Review. Berkeley, CA: University of California Press. Post, Robert C. and Reva B. Siegel. 2003. “Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power.” Indiana Law Review 78: 1–46. Post, Robert C. and Reva B. Siegel. 2004. “Popular Constitutionalism, Departmentalism, and Judicial Supremacy.” California Law Review 92: 1027–43.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 22 /
Date: 10/7
JOBNAME: Delaney PAGE: 24 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
The real case for judicial review 35 Ray, Brian. 2008. “Occupiers of 51 Olivia Road v City of Johannesburg: Enforcing the Right to Adequate Housing through ‘Engagement.’” Human Rights Law Review 8: 703–13. Rodríguez-Garavito, César. 2011. “Beyond the Courtroom: The Impact of Judicial Review Activism on Socioeconomic Rights in Latin America.” Texas Law Review 89: 1669–98. Rushin, Stephen. 2015. “Structural Reform Litigation in American Police Departments.” Minnesota Law Review 99: 1343–422. Sabel, Charles F. and William H. Simon. 2004. “Destabilization Rights: How Public Law Litigation Succeeds.” Harvard Law Review 117: 1015–101. Sager, Lawrence. 2004. Justice in Plainclothes: A Theory of American Constitutional Practice. New Haven, CT: Yale University Press. Schauer, Frederick. 1995. “Giving Reasons.” Stanford Law Review 47: 633–59. Shapiro, Martin. 1992. “The Giving Reasons Requirement.” University of Chicago Legal Forum 1992: 179–220. Sturm, Susan. 2001. “Second Generation Employment Discrimination: A Structural Approach.” Columbia Law Review 101: 458–568. Thayer, James B. 1893. “The Origin and Scope of the American Doctrine of Constitutional Law.” Harvard Law Review 7: 129–59. Tushnet, Mark. 1999. Taking the Constitution Away from the Courts. Princeton, NJ: Princeton University Press. Tushnet, Mark. 2003a. “New Forms of Judicial Review and the Persistence of Rights-and Democracy-Based Worries.” Wake Forest Law Review 38: 813–38. Tushnet, Mark. 2003b. “Alternative Forms of Judicial Review.” Michigan Law Review 101: 2781–802. Tushnet, Mark. 2008. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Perspective. Princeton, NJ: Princeton University Press. Tushnet, Mark and Rosalind Dixon. 2014. “Weak-form Review and its Constitutional Relatives: An Asian Perspective.” In Comparative Constitutional Law in Asia, edited by Rosalind Dixon and Tom Ginsburg, 102–20. Cheltenham: Edward Elgar Publishing. Vermeule, Adrian. 2006. Judging under Uncertainty: An Institutional Theory of Legal Interpretation. Cambridge, MA: Harvard University Press. Wadehra, B. L. 2009. Public Interest Litigation: A Handbook, with Model PIL Formats. New Delhi: Universal Law Publishing. Weill, Rivka. 2016. “Juxtaposing Constitution-Making and Constitutional-Infringement Mechanisms in Israel and Canada: On the Interplay between Common Law Override and Sunset Override.” Israel Law Review 49: 103–30. Wilson, Stuart. 2011. “Planning for Inclusion in South Africa: The State’s Duty to Prevent Homelessness and the Potential of ‘Meaningful Engagement.’” Urban Forum 22: 265–82. Yepes, Rodrigo Uprimny. 2006. “The Enforcement of Social Rights by the Colombian Constitutional Court: Cases and Debates.” In Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor?, edited by Roberto Gargarella, Pilar Domingo and Theunis Roux, 127–52. Aldershot: Ashgate Publishing. Young, Katharine G. and Julieta Lemaitre. 2013. “The Comparative Fortunes of the Right to Health: Two Tales of Justiciability in Colombia and South Africa.” Harvard Human Rights Journal 26: 179–216.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 02_Chapter2_ts
/Pg. Position: 23 /
Date: 10/7
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
3. Constitutions as political insurance: variants and limits Rosalind Dixon and Tom Ginsburg*
Constitutional review has spread all over the world in recent decades, to the point where some three-quarters of all constitutional systems have it in some form (Ginsburg and Versteeg 2013). In many settings, the practice of constitutional review raises a distinct political puzzle: Why would political elites agree to limit their power by empowering an independent court to invalidate certain kinds of legislative action?1 One oft-used explanation for the existence of independent judicial review is the idea of “political insurance”—i.e., the notion that political elites may use constitutions, and constitutional judicial review in particular, to provide a form of insurance against the risk that they will lose office and influence in future democratic elections (Ginsburg 2003; see also Hirschl 2004; Finkel 2008). Thus far, insurance has been characterized as a kind of unitary concept, without any examination of sub-types. In this chapter, we extend the insurance-based account of constitutional review by providing a typology of the different varieties of insurance that political elites may seek in moments of declining political influence. There are, this chapter suggests, at least three discrete types of political risk against which political elites may wish to insure themselves: first, the risk of reduced access to political power; second, the risk of reduced policy influence; and third, the risk of individual persecution or adverse treatment. Each of these different types of political risks generates different institutional responses, which we elaborate in this chapter. This complexity of insurance-based accounts of constitutional judicial review is implicit in prior work on constitutions as political insurance (see, e.g., Epperly 2013, 248). Different aspects of it have also been explored by different proponents, as well as critics, of the idea of insurance (see, e.g., Finkel 2008; Gatmaytan 2011; Dixon and Ginsburg 2011a; Inclán 2009; Nunes 2010; Tridimas 2009; Volcansek 2010).2 But the aim of this chapter is both to refine and make more explicit the various different * This chapter is reproduced, with minor modifications, from our article: 2017. “The Forms and Limits of Constitutions as Political Insurance.” International Journal of Constitutional Law 15: 988–1012. 1 One answer relates to the problem of agency costs, or the principal–agent relationship: lower-level executive officials are not always faithful agents of their political masters, and judicial review of executive action provides a relatively low-cost way of monitoring this kind of problem (see, e.g., Shapiro 1988). In most countries, however, practices of judicial review also extend to legislation. 2 See also Stefanus Hendrianto, The First Ten Years of the Indonesian Constitutional Court: The Unexpected Insurance Role, ICONNECTBLOG (August 25, 2013), http://www.iconnectblog. com/2013/08/the-first-ten-years-of-the-indonesian-constitutional-court-the-unexpected-insurancerole/.
36
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 1 /
Date: 10/7
JOBNAME: Delaney PAGE: 2 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 37 possible types of constitutional insurance and how they relate to a variety of substantive constitutional provisions, different styles of constitutional drafting, requirements for constitutional amendment, and norms governing judicial appointments in different jurisdictions. We thus survey the recent literature and characterize it according to our conceptual sub-types. Understood in this way, the idea of constitutions as a form of political insurance is also broader than originally understood. Our account may not explain every instance of constitutional change, or expansion in the scope of constitutional judicial review— ideational factors clearly play an important role in the expansion or exercise of judicial review in certain cases (see, e.g., Hilbink 2008; Nunes 2010). Other complex political dynamics, including “signaling” by political elites and bottom-up processes of social movement activism, have likewise played a role in the creation of rights-based judicial review in some countries (see, e.g., Farber 2002; Epp 1998). In non-democracies, a turn to judicial review may represent an attempt to legitimize the regime, rather than insure against any immediate threat of declining political power (see Randazzo, Gibler, and Reid 2016). The expansion of judicial review is also inevitably shaped by a range of distinctive social and political conditions, many of which are quite locally and historically specific (see, e.g., Pasquino and Billi 2009). But understood in this way, we suggest, the insurance idea does explain a wide range of cases, especially in democratic contexts. Indeed, it may point to a broader understanding of the written constitution as an institution inherently designed to manage certain kinds of risk. At the same time, this chapter suggests that the idea of political insurance may have certain preconditions that, while identified in earlier work on the topic, merit further examination. For example, constitutional provisions designed to provide political insurance may be cancelled by elites who retain a greater than expected share of electoral power, or else nullified by newly dominant political elites. Consider the recent developments in Eastern Europe, a region celebrated for its thorough adoption of constitutionalism and the rule of law in the 1990s (Emmert 2008). In both Hungary and Poland, constitutional courts that were celebrated as among the most progressive globally have found themselves under sustained—and effective—attack. The prospect of constitutional “renegotiation” of this kind may in some cases also undermine the willingness of elites to bargain over constitutional insurance in the first place.3 This chapter, however, suggests two conditions under which political elites may have the incentive to honor a prior commitment to constitutional insurance: first, where insurance is two-sided rather than one-sided in nature; and second, where courts themselves adopt a jurisprudence that is effectively two-sided in nature. By this we mean decisions that are somewhat but not overly aligned with a prior political majority, or deliver some degree of ongoing insurance or benefit to both current and prior political majorities. The idea that insurance can be limited is particularly important to understand in an era of democratic backsliding. In the past decade, for the first time since the end of the Cold War, the number of democracies has fallen each year. This raises questions of the resilience of judicial review and possibly constitutionalism itself. In examining both 3
On constitutional renegotiation, see, e.g., Twight 1992.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 2 /
Date: 10/7
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
38 Comparative judicial review the spread and limitations of constitutional judicial review in recent years, we draw on examples from Asia, Africa, Latin America, and Europe. This chapter is divided into four sections. Section A sets out the three basic types of constitutional insurance and how they respond to three distinct forms of political risk. Section B explores the robustness of constitutional review as a form of political insurance and the potential risks posed through renegotiation or “cancellation” of continually dominant elite. Section C then considers the risk of “nullification” by a new political majority. In both sections, we provide a refined account of the conditions under which constitutional review can be effective, and in particular the significance of one- versus two-sided forms of insurance, and two-sided or politically “balanced” or moderate forms of judicial review. Section D offers a brief conclusion.
A. THE IDEA OF CONSTITUTIONS AS POLITICAL INSURANCE—A TYPOLOGY OF RISKS 1. The Origins and Uses of Insurance Theory The insurance theory arose as part of an effort to understand why political actors would bind their own hands by empowering independent courts. The solution, initially suggested by Mark Ramseyer’s work on the Japanese judiciary, drew on ideas of intertemporal uncertainty among political actors (Ramseyer 1994).4 Ginsburg, Hirschl, and Stephenson each applied this framework to judicial review, suggesting that judicial review was particularly attractive when a political party currently held power but foresaw that it might lose power in the future (Ginsburg 2003; Hirschl 2004; Stephenson 2003). In such circumstances, courts can reduce the costs of losing elections by preserving an outgoing party’s future chances of winning democratic elections—by preventing political “lock-out.” Ginsburg’s version of the argument was the most general, as it considered the moment of constitutional negotiation as a discrete bargaining problem. Demand for insurance in this view was not limited to departing hegemons, but could also be found in situations where multiple small parties were involved in constitutional negotiations. Judicial empowerment increased with the degree of political uncertainty facing key players. And while the original theory focused on moments of constitutional formation, the logic extends to instances of constitutional amendment. This idea of multiple parties agreeing on a framework of mutual guarantees is an example of what we characterize below as two-sided insurance. In Korea, three small parties bargained for a constitution in a situation in which none could foresee victory; in Mongolia, a strong ex-communist party played a major role in constitutional reform and kept the Constitutional Court somewhat subservient to the legislature by providing for the possibility of legislative override of initial decisions. Taiwan was a somewhat intermediate case in terms of the political hegemony of the ruling party and in terms of judicial empowerment. The Constitutional Court, which had existed prior to democratic 4
For even earlier origins of the idea, see Landes and Posner 1975.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 3 /
Date: 10/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 39 reform, became more active in the democratic era, and seemed to be a helpful institution for both sides of the political aisle. Beyond these core cases, a number of scholars have also suggested that the idea of political insurance provides a compelling way of understanding constitutional reforms and expanding judicial review in a range of other cases. In Indonesia, Stefanus Hendrianto notes the degree to which an insurance theory can help explain support for the creation of the Constitutional Court as part of the constitutional reforms adopted in Indonesia between 2000 and 2003 (Hendrianto 2018; see Butt, Crouch, and Dixon 2016).5 In 2001, the Indonesian People’s Consultative Assembly (MPR) voted to impeach President Wahid, in ways that made it clear to the new president, Megawati Soekarnoputri, that it would be very difficult to exercise strong presidential power. She thus joined with other proponents of the creation of a constitutional court, as a means of gaining some additional insurance against the dangers of improper or unwarranted impeachment (Hendrianto 2018).6 Other insurance accounts focus on instances in which it is unilaterally imposed. In the Philippines, Dante Gatmaytan argues that insurance theory explains the postdemocratization role of courts, including in reviewing constitutional amendments themselves (Gatmaytan 2011). The argument is that when temporal political forces seek to inappropriately entrench their power in the Constitution to dominate others, the courts can step in to preserve the spirit of the original bargain. Gatmaytan further suggests that, in the transition from military rule under the dictator Ferdinand Marcos, President Corazon Aquino actively supported the creation of a powerful court of this kind, in part so as to guard against the risk that Marcos or his generals might seek to reinstate military rule via a series of formal constitutional amendments. In Mexico, Jodi Finkel suggests that judicial reform was part of an insurance strategy for the long-dominant Institutional Revolutionary Party (PRI), which made sense in an environment of heightened political competition in the early 1990s—particularly at the state and local levels (Finkel 2008; but see Inclán 2009). In South Africa, a number of scholars have noted that the 1993 Interim Constitution offered a valuable form of insurance to the outgoing National Party (NP), against the risks of a permanent loss of national electoral power (Dixon and Ginsburg 2011a; Hirschl 2004). In Italy, Mary Volcansek posits that the creation of the Constitutional Court in the 1950s could equally be seen as a form of political insurance for the Christian Democrats, against the threat of a decline in electoral influence (Volcansek 2010). In Romania, Liviu Damsa argues that the expanded role given to the Constitutional Court after 2003 is usefully understood through the lens of insurance theory and the fact that the long-dominant Socialist Democratic Party (SDP) accurately predicted its declining influence in the national democratic elections held in 2004 (Damsa). Beyond judicial review, other scholars likewise suggest that an insurance theory can explain the creation of other independent institutions by otherwise dominant political actors. In Taiwan, Jen-Cheng 5 See also Stefanus Hendrianto, The First Ten Years of the Indonesian Constitutional Court: The Unexpected Insurance Role, ICONNECTBLOG (25 August, 2013), http://www.iconnectblog. com/2013/08/the-first-ten-years-of-the-indonesian-constitutional-court-the-unexpected-insurancerole/. 6 Id.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 4 /
Date: 10/7
JOBNAME: Delaney PAGE: 5 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
40 Comparative judicial review Wang suggests that, with some modifications, an insurance theory can explain the changes created by the Court Organization Law, which led to a significant increase in independence for prosecutors (Wang 2010). While the key forces behind the law were prosecutors and civil society, the changes were only finally adopted when both the Democratic Progressive Party (DPP) and long-time dominant Kuomintang (KMT) party faced significant uncertainty about their future electoral prospects. In short, insurance theory has had wide application in a variety of contexts since its articulation in the early 2000s. Scholars such as Epperly have also found strong empirical support for the basic logic underpinning the idea of constitutions as political insurance. In an empirical study of the post-tenure fate of leaders of 188 countries from 1875 to 2004, he found a strong, statistically significant negative relationship between the degree of judicial independence in a polity and the risk of ex post punishment of a political leader (Epperly 2013, 255–64). To be sure, insurance theory has its detractors. Silvia Inclán contests its application to the Mexican case, arguing that the search for legitimacy has more explanatory power (Inclán 2009). Lisa Hilbink has been a sustained critic, arguing that ideational factors are a better place to look to understand judicial behavior (Hilbink 2008). In other work, one of us has suggested that it may have limited application in contexts where a dominant party or elite is in a position of increasing electoral dominance (see Dixon 2018). Scholars such as Randazzo, Gibler, and Reid have likewise questioned the extent to which it is likely to apply in non-democratic settings (Randazzo, Gibler, and Reid 2016). They suggest that non-democratic leaders, like democratic leaders, may sometimes fear a loss of power—not via electoral means, but via a coup or other form of popular revolution. This may also encourage them to empower independent courts as a form of political insurance. But a key difference between democracies and nondemocracies is that they do not expect courts to be truly independent of the ruling elite and thus provide meaningful insurance. Courts may offer a costly form of opening to the political opposition. Independent judicial review may therefore be less likely, rather than more, in non-democracies under conditions of true uncertainty or threat to a ruling coalition (Randazzo, Gibler, and Reid 2016).7 However, as a positive account of the adoption and spread of constitutional review at least in democracies, the insurance theory seems to perform better than many alternatives in a range of circumstances (Ginsburg and Versteeg 2014). 2. Three Distinct Risks: Power, Policy, and Personal Protection The idea of constitutional insurance, we suggest, can also explain a broader range of cases than the original, basic version of insurance theory (“basic insurance theory”). Ginsburg’s theory focused on power and the idea of dominant political elites insuring themselves against the loss of future electoral dominance, or an array of weak parties who are uncertain as to who will win (Ginsburg 2003). But it does not end with this particular constitutional pattern. 7 They also find a non-linear relationship between the level of political competition or external threat and levels of judicial independence in non-democracies (Randazzo, Gibler, and Reid 2016, 19–20).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 5 /
Date: 10/7
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 41 As a theory of the relationship between constitutions and political risk, it may extend to a much broader range of circumstances—i.e., to situations in which constitutional actors are seeking to protect themselves against a broad range of risks, including the risk of loss of political power, retribution or criminal punishment as an individual or the risk of a loss of policy influence (Epperly 2013).8 i. Power and personal protection When political elites face a potential decline in electoral power, they face two broad risks: first, the risk that they will lose power or influence over the long term, not just the short term; and second, that they will be subject to individual forms of retaliation or punishment at the hands of a new government. In many new or fragile democracies, there may be long-standing practices of electoral manipulation, or exclusion of the political opposition from any possibility of effective political competition. Deep patterns of commitment to reciprocity-based norms may be lacking. If the governing party loses office, it might expect the new legislative majority to attempt similar antidemocratic tactics to those used in the past. In many cases, practices of electoral manipulation will also overlap with forms of economic patronage designed to shore up support for the government. Patronage of this kind may also, in many cases, be relatively hard to distinguish from more overt forms of quid pro quo corruption. If and when a new government is elected, this will also mean that it has broad power to exclude prior officeholders from any future political competition—simply by instigating various forms of criminal prosecution against them for electoral misconduct or corruption. Political elites who are aware of this risk will thus also have a strong incentive to look for available legal—or constitutional—means of insuring themselves against the risk. One obvious way in which to do this will be to create a newly independent constitutional court with strong powers of judicial review in respect of core political and civil rights—i.e., rights to political participation and rights to procedural due process in criminal matters. To further reduce the risk of electoral manipulation, such a court may also be given a broader jurisdiction in respect of electoral matters—i.e., to act as a court of final returns, or to rule on the constitutionality of electoral laws and procedures. A constitutionally entrenched electoral commission may also play a role in this regard. Constitutional insurance under such circumstances will be a mix of personal and power-based insurance: it will ensure that, in the short term, individual political leaders are protected against the threat of political retaliation through the criminal process; and in the long term, that outgoing political elites have some chance of regaining office. Constitutional insurance may be more directly focused on one or the other of these risks. It can address either the protection of existing elites’ personal rights or access to power. An electoral commission will be more focused on the latter, while judicial 8 At its broadest, insurance could also potentially be used to explain the interpretation or function of a democratic constitution, ex post, and not simply in circumstances in which the proponents of constitutional change understood the constitution as designed to produce a form of insurance. The analogy here might be to socialized as opposed to purchased forms of insurance. See, e.g., Gough 1979; Castles 2010; Shapiro 2007.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 6 /
Date: 10/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
42 Comparative judicial review integrity in ordinary criminal matters will matter for the former. Even if outgoing elites realize that their chances of ongoing political power or influence are limited, they may still wish to protect their individual liberty and property against the threat of arbitrary infringement or expropriation. The corresponding form of insurance may be limited, and may not involve courts engaging in any broad role in settling electoral disputes— but rather, a far more limited, traditional judicial role in protecting individuals against arbitrary arrest, detention, and conviction, or protecting the assets and freedom of movement of elites (in terms of their ability to exit or re-enter the country and/or remove their property from the jurisdiction). While not our primary focus, we note that insurance of this kind will also be valuable both to democratic and non-democratic actors: For non-democratic actors, there may be the added risk of prosecution for war crimes or other crimes against humanity during their term in office, and thus a desire to insure against this risk by adopting additional constitutional “amnesty” provisions.9 Conversely, some elites may place limited weight on their individual position: they may have large economic resources outside the jurisdiction and may plan to leave the country if they lose office. Beyond insuring their own freedom of exit, their prime concern may thus be to obtain a form of power-based insurance—i.e., to adopt provisions that maintain their existing political power and influence. For elites facing a decline in electoral power, provisions in this category might include “reserved” legislative seats or executive roles, or forms of federalism designed to give geographically concentrated minorities some minimum access to governmental power. In South Africa, for instance, faced with the prospect of losing electoral dominance in 1992–1993, representatives of the NP sought to protect their position in a number of ways. They sought to ensure strong protection for individual property rights (Dixon and Ginsburg 2011a; Chaskalson 1995) and to promote constitutional structures that would preserve their own ongoing access to public power. Once black South Africans were allowed to vote, the NP knew that it was unlikely it would continue to win a national majority. But it was optimistic they would gain a strong minority of seats in a new democratic parliament, and a majority in at least some provinces. In both the drafting of the interim and final constitutions, NP negotiators thus consistently argued for a more federal structure in the new South Africa, and strong powers for the provinces in the National Assembly, as a form of power-based insurance for the white minority. They also pushed for a more temporary form of power-based insurance, which involved a power-sharing arrangement between the NP, African National Congress (ANC), and Zulu Inkatha Freedom Party in the exercise of executive power under the Interim Constitution. ii. Policy Political elites may also be concerned with a third, overlapping risk: the risk of a loss of influence over policy. For some political actors, access to political power may be 9 See, e.g., “The Rule of Law in Myanmar: Challenges and Prospects.” International Bar Association 53 (Dec. 2012) (discussing Myanmar 2008 reforms); Benshoof 2014, 92. But equally, non-democratic actors may have a broader range of non-insurance related “tools” for addressing these risks—including to increase repression of the opposition, and the concentration of political and governmental power.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 7 /
Date: 10/7
JOBNAME: Delaney PAGE: 8 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 43 more or less an end in itself. But for many, it will simply be an intermediate goal, in the service of an ultimate interest in influencing public policy. Political elites may also lose influence over policy in a range of ways: through a loss of strength in the legislature, a loss of influence over the bureaucracy or even the ordinary courts, a loss of control over state or local governments in a federal or decentralized system, or even declining factional control within their own party. To insure against this, political elites may further seek to adopt a form of constitutional insurance that focuses more directly on protecting various policy commitments—via provisions that in some way entrench a preferred approach to those policy questions. Of course, not every policy issue is one that readily lends itself to constitutionalization: Some issues may simply be too transient or specific to be included in a constitution. Constitutions, however, are becoming increasingly detailed, and covering a greater number of topics traditionally seen as purely legislative or sub-constitutional in nature (Versteeg and Zackin 2016; Benvindo 2010).10 Constitutional drafters thus have the option of entrenching an ever-increasing range of substantive policy positions. The idea of insurance of this kind is closely related to the account of the political origins of judicial review offered by Ran Hirschl in Towards Juristocracy (Hirschl 2004). Hirschl’s account was developed primarily in the context of established democracies, where the personal risk to political actors was probably not particularly high, but the policy risk faced by a declining majority was high. Foreseeing near-certain electoral loss, elites in Israel, New Zealand, and Canada sought to entrench key policies into the Constitution in the form of rights. A loss of power need not be electoral, however, for such logic to hold. Policy-based insurance can be equally attractive to non-democratic elites as to democratic ones: For military elites, independent courts may in fact be the only reliable means of protecting certain preferred policies once they “retreat to the barracks.” Thus in Turkey, for example, both the military and political opposition at various times have sought to promote the role of the Constitutional Court as a guardian of secular constitutional values, in the face of the increasing role of religious parties in Turkish politics (Hirschl 2004; Gulener 2011). Policy-based forms of constitutional insurance may equally be designed to protect against much smaller-scale, micro-political risks associated with the defeat of particular policies in the courts, the legislature, the bureaucracy, or even the party room. In Brazil, for example, Rodrigo Nunes suggests that the expansion in the independence and jurisdiction of the Supreme Court was largely due to a desire on the part of incumbent political parties to “improve governance or their ability to implement preferred policies” (Nunes 2010, 313). A major impetus for the expansion of judicial review in the 1990s was thus a desire to empower the Supreme Court to uphold attempts at market liberalization, and increased fiscal control, by overturning lower court decisions that consistently stalled the implementation of such policies (Nunes 2010, 325–7). 10 The interaction between constitutional and international human rights norms also gives national policymakers an even broader range of legal tools on which to draw, in seeking to entrench their preferred policy positions via norms enforceable in both domestic and international fora. See Alter 2013. For a more skeptical or critical view, see Schneiderman 2000. We are indebted to Samuel Issacharoff for pressing us on this point.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 8 /
Date: 16/7
JOBNAME: Delaney PAGE: 9 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
44 Comparative judicial review iii. Forms of insurance Not only will different constitutional provisions respond to different forms of political risk, but they may take different forms depending on the type of insurance needed. Power-based insurance, for instance, will generally involve both constitutional provisions that guarantee basic norms of fair electoral competition, as well as guarantees of minimum ongoing access to office. Provisions in the first category will involve guarantees of freedom of expression, access to the franchise, the supervision of electoral disputes and political districting practices. Provisions in the second category, in contrast, may involve “reserved” legislative seats or executive roles, or forms of federalism designed to give geographically concentrated minorities some minimum access to governmental power, which ensures some minimum level of representation for all key political factions or parties, regardless of their showing in national legislative elections. Policy-based insurance will generally involve a different set of constitutional provisions, which aim to entrench certain substantive policy preferences, such as preferences for social democracy or market-based capitalism, secularism, or religious law. And personal forms of political insurance will generally have a much narrower focus: They will involve protection against arbitrary arrest, detention, and conviction, as well as protection for the assets and freedom of movement of former leaders seeking to exit or re-enter the country, and/or remove their property from the jurisdiction. They may also provide for specific immunities (such as in Fiji in 2010 or Chile in 1988). Different theories of insurance likewise imply a different emphasis on the role of courts compared to other independent institutions, and the design of courts’ structure and jurisdiction. To begin with, the historical role of courts in a particular country can affect the degree to which elites are likely to turn to courts to enforce a constitution as a form of political insurance. If courts have a history of independence and strong judicial review, elites are quite likely to trust courts to provide meaningful insurance; whereas if they have little history of independence or meaningful judicial review, trust will be more scarce (see Randazzo, Gibler, and Reid 2016). The relative attractiveness of courts as the enforcers of political insurance will also vary based on the degree to which other institutions—such as electoral commissions and human rights or “integrity” institutions—provide effective oversight and limitation on majoritarian political processes. Institutions of this kind, however, are also inherently more likely to provide meaningful political and policy-based forms of insurance, rather than reliable forms of personal insurance for individual political leaders. Similarly, different forms of insurance can imply different understandings about the design of courts’ jurisdiction and norms of access and appointment to the court. In the original insurance theory, Ginsburg suggested that where judicial review is explained by the idea of insurance, courts will generally be larger in size, have long terms of judicial appointment and broad norms of access (Ginsburg 2003). These factors may, however, vary according to the nature of the insurance at stake. For power-based insurance to be effective, an essential feature is access to a court by organized political groups. Thus we observe schemes (as in Mexico or Fifth-Republic France) in which subnational governments or legislative minorities have a right to challenge laws. This would make some sense in instances in which a prospective loser has some confidence they will have electoral strength in some part of the government.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 9 /
Date: 10/7
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 45 For personal insurance, access by individual citizens will be more critical; for policy-based insurance, either political elites or citizens may be able to bring relevant challenges. The structure of courts may also differ, depending on the particular insurance needs of drafters. Power-based insurance will generally require constitutional judges who are willing to exercise robust forms of structural judicial review, which may mean judges appointed to a new constitutional court with only constitutional jurisdiction. Personal forms of insurance, in contrast, will require judges to have a conception of judicial review far closer to the traditional Anglo-American view—i.e., one grounded in notions of procedural due process or procedural fairness and individual rights protection, rather than general structural or political review. This might manifest itself in a preference for non-specialized courts of general jurisdiction over specialized constitutional courts. For policy-based insurance, there may be a less clear mapping to the structure or jurisdiction of a constitutional court: The key question will be whether judges actually share the substantive policy preferences of relevant political elites, or, if not, will be willing to adopt a relatively backward-looking or purposive approach to constitutional interpretation. Table 3.1 lays out the options. Table 3.1 Different forms of insurance Type of insurance
Risk insured against
Power
Loss of access to political power; partisan lock-out, electoral manipulation
Personal
Political prosecution, detention, arbitrary deprivation of property or liberty
Policy
Fundamental shift in policy direction
Relevant constitutional provisions/scope of judicial review or independent enforcement Free speech, access to franchise, jurisdiction over electoral disputes; “reserved” legislative or executive seats; certain forms of federalism Due process; liberty and property rights guarantees; immunities
Wide variety of provisions—e.g., social democracy, social rights, secularism or religious preferences
Court jurisdiction + access
Specialized; opposition access/standing
Ordinary court/court of general jurisdiction; individual access/standing Either specialized or ordinary court; opposition or individual access
Understanding insurance theory in these terms also helps explain the adoption of a range of constitutional provisions, such as various socio-economic rights, which can have a strongly pro-majoritarian character (Landau and Dixon 2015). While it is perfectly understandable why a dominant majority party with a left wing ideology would seek to use the language of rights or directive principles to signal their policy
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 10 /
Date: 10/7
JOBNAME: Delaney PAGE: 11 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
46 Comparative judicial review goals, it is far less understandable why it would wish to constitutionalize such rights in a positive, judicially enforceable form (see Farber 2002). Adopting such rights will inevitably constrain discretion in governing, if a party wins power at subsequent democratic elections; and the left wing has not typically placed much faith in courts as instruments for rights protection, perhaps because of the association of courts with protection of property. The long saga of property rights and judicial power in India, in which government redistribution programs were continually blocked by courts, provides an important example (see, e.g., Robinson 2009; Neuborne 2003; Alexander 2006, 49ff). But the idea of constitutional insurance as focused on entrenching certain policy-based outcomes provides a clear explanation for why certain political elites or factions might push to adopt such provisions.
B. CONSTITUTIONAL RENEGOTIATION, CANCELLATION AND ONE- V. TWO-SIDED INSURANCE The efficacy of constitutions as a form of political insurance also depends on certain ongoing political conditions. While the initial theory recognized that the insurance might not be foolproof, as political circumstances could change, the idea was that insurance raised the costs of reversal. However, it did not fully specify the modalities of downstream change, which include renegotiation, cancellation and nullification. Sections B and C treat these in turn. An obvious difficulty in any contractual bargaining situation is the possibility that parties will seek to renegotiate the terms of the contract after it is complete. Renegotiation of this kind is extremely difficult to prevent, ex ante. It can also undermine the basic incentives parties have to engage in processes of contractual bargaining in the first place. If bargaining is costly for parties, either in terms of the resources involved, or time foregone, there will be little reason for parties to incur such a cost—unless there is some reason to believe that the agreement they reach will actually be enforced. In many cases, this will mean that the practice of contract writing itself also depends on strong preconditions—i.e., the existence of either a strong external enforcement mechanism (such as an independent court with knowledge of the agreement), and/or a context of repeated interaction between the parties that gives them an incentive to comply with the terms of the agreement, in any given period. The same is also true for constitutions, if we understand constitutions as a form of bargain between political elites. As Gretchen Helmke and Frances Rosenbluth note, insurance theory clearly shares with a range of other theories “the difficulty of explaining why a majority government, if in possession of a sufficiently large legislative majority, might not renege on the [original constitutional insurance] deal once it returns to office” (Helmke and Rosenbluth 2009, 350). Facing the risk of a decline in electoral power, elites may have good reason to want to insure against the risk of political “lock-out.” But once a subsequent election reveals more fine-grained information as to their actual political position, they may have a very real interest in
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 11 /
Date: 10/7
JOBNAME: Delaney PAGE: 12 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 47 renegotiating the terms of a prior constitutional bargain, so as to give themselves greater freedom of action, unconstrained by the terms of a prior judicial insurance policy. The scope for renegotiation of this kind will be particularly acute where the process of creating a new constitutional court occurs over two broad stages—i.e., the creation stage, where constitutional changes are adopted to empower or authorize the creation of a new constitutional court, and also an implementation stage, where the resources, personnel, and institutional structures necessary for the exercise of judicial review are put in place. Where there is an established constitutional court, it may be possible for proponents of constitutional insurance to adopt relevant changes via a single constitutional amendment, prior to the relevant election—because a court’s infrastructure already exists, and the court is staffed with the number of judges required to hear constitutional matters, the expansion of the court’s jurisdiction will simply require the passage of a single, or single set of, constitutional amendment(s). In some cases, an amendment may have delayed or prospective effect or require parallel amendments to a statute regulating a court’s jurisdiction. But a court can often rely on the amendment to impose limits on the scope for delay, or statutory non-implementation, in this context. This means that after a subsequent democratic election there will also be reduced scope for strategic renegotiation by dominant elites as to the scope of the court’s jurisdiction. The court will already enjoy the relevant form of jurisdiction, and so the onus will be on the newly strengthened coalition to enact changes removing that jurisdiction.11 The court may also already have an independent degree of public political support, which means that there is less scope for dominant political elites to punish judges or independent agencies without facing adverse political consequences.12 Like an insurance company with an established reputation, an established court is more difficult to undermine and less likely to fail (Garoupa and Ginsburg 2015). Attacking the court will involve a complex political calculus about the relative long-term benefits of removing constraints on political action, versus short-term costs of provoking widespread public backlash. In contrast, when insurance requires both the creation of a constitutional court and relevant new substantive constitutional jurisdiction, there will be much greater scope for renegotiation by elites that retain a strong—and greater than expected—hold on political power. Jodi Finkel illustrates this vividly in her study of judicial reform in Latin America. In both Peru and Argentina, the expansion in the scope of judicial review took place across two broad stages: an adoption and implementation stage (Finkel 2008, 39–85). In both cases, the president and his party also chose not to proceed to the implementation stage until much later, when their own electoral prospects had weakened considerably. In both cases, this was also a clear renegotiation of the terms of a prior constitutional deal: Increased judicial power and independence 11 On the burdens of inertia, see Dixon 2007; Roach 2001. On endowment effects, see Morewedge and Giblin 2015; Hoffman and Spitzer 1993. 12 Stephenson 2003, 63 (noting that “a common explanation for government deference to independent courts is that the public favours judicial independence and would punish politicians who openly defy the Court”).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 12 /
Date: 10/7
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
48 Comparative judicial review was the agreed price for the willingness of the opposition to support a right of re-election for the president. The prospect of renegotiation of this kind can have damaging consequences for the prospects of democratic constitutional bargaining, ex ante. Like ordinary forms of insurance, constitutional insurance creates new problems of its own even as it solves others—it can increase moral hazard or induce adverse selection. Moral hazard, in this context, would involve reduced levels of effort by the party that is out of power, because the risks of losing are lower. Adverse selection would involve the conclusion of constitutional bargains that should not otherwise exist, and is less of a risk in our view. The overall effect is that, by allocating risk more efficiently, political insurance can also enhance social welfare. In the context of constitution-making, effective forms of political insurance may help promote the chances of concluding a constitutional bargain ex ante, and thus the capacity of constitutions to serve as a socially valuable tool for their myriad purposes.13 If parties believe that their core interests are protected, whether those interests take the form of power, personal integrity, or policy, they will be more willing to give in on other matters. That is, the availability of insurance can, through reducing the stakes of political bargaining, enhance constitutional formation and thus efficacy. What, if anything, in the nature or context of a particular constitutional insurance contract, might prevent constitutional renegotiation that undermines the insurance contract? One important factor, we suggest, is the degree to which insurance is two-sided rather than one-sided in nature, and thus the political opposition has both some ability and incentive to insist on the implementation of a prior constitutional bargain (see Pozas-Loyo and Ríos-Figueroa 2010). In prior work, we developed the idea that insurance may be either one- or two-sided in nature (Dixon and Ginsburg 2011a). If a single party is politically dominant, it can often adopt constitutional change unilaterally—without the need to engage in extensive bargaining with any other political actors. The scope of such changes will thus often also be one-sided in nature: there will be few obstacles, or “transaction” costs, to the ruling elite adopting changes that systematically favor its own position over that of other political actors—i.e., providing that a court’s jurisdiction only applies to some, but not other issues, or only operates on a delayed or prospective basis (or in respect of future legislative or executive action). However, if a political party lacks or has already lost significant power or influence, it may need to negotiate with the political opposition in order to achieve constitutional change. The transaction costs of such change will be much higher. Knowing that they face a real prospect of increased power in the future, opposition political parties may simply decide to oppose changes proposed by the current legislative majority, and “hold out” for a better constitutional deal (Dixon and Ginsburg 2011b). To achieve constitutional change, a ruling party must therefore be prepared to compromise in some way. One way to do this will be to adopt a form of constitutional 13
These include taming or reducing conflict, creating public goods, reducing agency costs in government, protecting democratic stability, or protecting and promoting minority rights protection and democratic inclusion. On assessing South African constitutional performance, see Ginsburg and Huq 2016; Dixon and Roux.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 13 /
Date: 10/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 49 “swap” or trade with the opposition (Dixon and Ginsburg 2011b). The idea of a constitutional swap is one we first developed in the context of ideas about constitutional “deferral,” but the concept is potentially much broader: It can refer to any two provisions (or sets of provisions) connected at the level of constitutional bargaining or politics, or that are the product of deliberate constitutional trade by parties to constitutional negotiations.14 Parties may also be willing to agree to a trade of this kind in a range of circumstances: because of uncertainty surrounding their future electoral performance, or because they have a relatively high political discount rate. In some cases, individual political leaders may not expect to seek re-election beyond the relatively short term, or they may regard their future political prospects as so uncertain that they place very high value on actual—or perceived—political victories in the present. There is an analogy here between forms of constitutional insurance and financial insurance contracts. Increasingly, in global financial markets, insurance contracts are not simply one-way in nature. They are effectively forms of “insurance swap,” whereby parties hold mutual cross-collateralized promises that hedge their risk to a certain degree, but leave it to downstream or market agents to determine the precise value of the hedge for both sides (Dixon and Ginsburg 2011a). Common forms of swap arrangement of this kind, in an economic context, arise in markets such as those for currency, commodities, and interest rates (Stulz 2010).15 In a constitutional context, swaps of this kind are also increasingly common. If constitutional insurance is from the outset truly two-sided in nature, at least one side of the political bargain will also have a strong incentive to ensure that it is implemented. The whole idea of an insurance swap is that counterparties hold mutual or cross-collateralized promises. As the risks covered by a swap arrangement eventuate, at least one side will thus have a strong incentive to defend the institutional independence and integrity of courts as institutions capable of enforcing the terms of the contract. In many cases, the same political dynamics that explained the creation of a two-sided insurance arrangement will also support the ability of the opposition to block attempts at constitutional renegotiation by the dominant political coalition. Generally, two-sided contracts will only arise where the opposition has sufficient power to “hold-up” unilateral attempts at constitutional change by the dominant political coalition. This may also be a good indication of the relative strength of the opposition in subsequent elections. 14
That is, not all forms of constitutional deferral will involve constitutional swaps, and not all swaps involve deferral. Sometimes constitutional drafters adopt “by law” clauses that explicitly delegate certain decisions to later legislators, or in other cases, vague constitutional language that implicitly delegates certain constructional choices to later courts (Dixon and Ginsburg 2011b). Conversely, some forms of constitutional trade or bargain occur across quite unrelated areas, and thus call for limited downstream constructional choices by courts or other constitutional actors. 15 There is, unsurprisingly, a large literature on the costs and benefits of credit default swaps in the wake of the 2008 financial crisis, in which swaps on subprime mortgage-backed securities played a major role. Some argue that the presence of swaps improves the speed of transmission of market information and makes markets more efficient. Others have argued that the ability to offload risk reduces incentives for monitoring (see Stulz 2010, 76).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 14 /
Date: 10/7
JOBNAME: Delaney PAGE: 15 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
50 Comparative judicial review We also see this dynamic of opposition-led enforcement of a two-sided constitutional insurance swap in a range of cases involving actual constitutional change, which follows an insurance-based logic. In South Africa, the 1993 Interim Constitution created what was clearly a form of two-sided insurance: for the NP, it insured an ongoing share in executive power, some ongoing commitment to policies of marketbased capitalism, and substantially protected individual NP leaders against the risk of criminal punishment for past wrongs and appropriation of their property and other assets; and for the ANC, it provided important insurance against the risk that the NP would renege on its earlier commitment, at Kempton Park, to the transition to full multi-party democracy. Similarly, the 1996 Constitution again created a form of two-sided insurance: for the NP, the ongoing chance to exercise power at a provincial level and protection for individual property rights and a market-based economy; and for the left of the ANC, protection against the possibility that a later ANC government might abandon commitments to broad and inclusive growth and development. For the ANC more generally, it also arguably provided insurance against the risk that non-performing or reactionary provincial or local governments might undermine broad national policy goals. The new property clause, in § 25 of the Constitution, for instance, provided that compensation for the appropriation of property was to be agreed, or determined by a court, as: just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including— (a) (b) (c) (d)
the current use of the property; the history of the acquisition and use of the property; the market value of the property; the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the purpose of the expropriation.16
(e)
At the same time, §§ 25(5) and 26(2) provided that the state must “take reasonable legislative and other measures, within its available resources” both to “foster conditions which enable citizens to gain access to land on an equitable basis” and “achieve the progressive realisation of” the right of access to housing. Section 26(3) further provided that “[n]o one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances,” and that “[n]o legislation may permit arbitrary evictions.” The 1996 Constitution thus effectively created a form of two-sided insurance for both the NP and ANC in the economic domain. The NP and its membership were insured against the risk of radical forms of nationalization, or other economic reorganization, which could dramatically decrease the value of their existing holdings, while the ANC (and the left in particular) was insured against the risk that more traditional, legalist conservatives might rely on the
16
CONST.
Columns Design XML Ltd
/
OF THE
REPUBLIC
OF
SOUTH AFRICA (1996), Ch. 2, § 25(3).
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 15 /
Date: 10/7
JOBNAME: Delaney PAGE: 16 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 51 right to property to frustrate even moderate attempts at economic redistribution, or policies aimed at promoting inclusive growth (Dixon and Ginsburg 2011a).17 In Mexico, the nature of the agreement struck between the PRI and the National Action Party (PAN) in 1994 was likewise a form of two- rather than one-sided insurance arrangement. President Zedillo and the ruling PRI party in Mexico initiated changes to the Constitution in 1994 designed to expand the scope of judicial review and the independence of the Supreme Court. As Finkel notes, this was also arguably the product of an insurance-based logic: In the long run it protected the PRI against the chances of leaving national electoral office (Finkel 2008, 105–6). But more importantly, in the short run, it provided a valuable form of power or policy-based insurance against the risk of a loss of influence in certain state and local government elections. The PRI also sought to ensure that, in empowering the Court to check state and local governments, a newly independent Court specifically did not have significant power to check laws and policies enacted by a PRI-controlled national legislature or executive branch. It proposed that the Court would have power to declare laws invalid only if they were challenged by a member of a legislature within 30 days of promulgation, would have no jurisdiction over the constitutionality of laws dealing with “electoral matters” and could reject laws only by vote of a supermajority of nine out of eleven justices (Finkel 2008, 96–8). Ultimately, however, the PRI would not pass these changes in Congress unilaterally. To obtain the two-thirds supermajority approval required for proposed changes, they required the support of some members of the political opposition (Finkel 2008, 109). Before agreeing to support the proposed changes, the PAN opposition party also managed to extract a number of concessions from the PRI. First, PAN demanded that the new Court should have increased independence from the president (i.e., that the president should be entitled to nominate one not two members of the Court), and have power to invalidate a law by vote of eight rather than nine out of 11 justices. Second, it pushed for a lower threshold for the legislative petition of the Court (i.e., 33 percent not 45 percent of the legislature), so that there was the potential to challenge national as well as state and local laws (Finkel 2008, 109). Thus, while the PRI gained valuable insurance against the risk of a loss of power and influence at the state and local level, PAN also gained the very real chance of being able to challenge PRI actions before the Court. The 33 percent threshold for petitioning the Court was lower than the combined vote-share of the PRI and the other major opposition party, the Party of the Democratic Revolution (PRD), in both the national legislature (the Chamber of Deputies) and Mexico City Legislative Assembly. PAN also controlled one-third of the seats in many northern state legislatures as well as the Chamber of Deputies (Finkel 2008, 109). When it came to creating a new Judicial Council, or staffing the Court with new justices, PAN was also active in helping push for full implementation. Four out of 11 members of the newly appointed Court were aligned with PAN (Finkel 2008, 109). A member of PAN was also appointed as Attorney General, so that PAN had a lead role in implementing the relevant reforms (Finkel 2008, 109). 17 On the idea of inclusive growth, see, e.g., Ali and Son 2007; Sengupta 2010. On the strength of legalist methodologies and ideas in South African constitutional culture in 1995, see, e.g., Roux 2009.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 16 /
Date: 10/7
JOBNAME: Delaney PAGE: 17 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
52 Comparative judicial review In Italy, the Christian Democratic (DC) party was initially the major force behind the creation of the Constitutional Court during the years in which the country was returning to democratic rule. Scholars suggest that this was driven by a desire to create a form of political insurance, against the risk of declining electoral popularity and thus a loss of political power. The DC party was anxious, Volcansek writes, to “consolidate its control and passed the so-called … ‘fraud law’ that established a ‘first majority system’” (Volcansek 2010, 288). Under this law, if a coalition of parties won more than 50 percent of votes in parliamentary elections, they would take two-thirds of seats in Parliament. The DC party also sought to entrench this arrangement, by creating a Constitutional Court with broad referendum powers and jurisdiction over disputes between national organs of government. The DC party also passed the law creating the Court just prior to national democratic elections in June 1953. The form of insurance created by the Italian Constitution, and particularly the 1953 Constitutional Court Act, however, was ultimately not one-sided in nature. After the 1953 elections, the Socialist and Communist Parties had significant power in Parliament and argued for expanding the Court’s jurisdiction to include a range of checks on central government power, including powers to review the validity of referendum proposals and to protect regional constitutional arrangements (Volcansek 2010, 288). The Constitutional Court Act of 1993 also reflected this compromise. While the DC party itself also increasingly lacked an interest in creating and maintaining an independent court after 1953, the socialist and communist left ultimately became forceful defenders of the Court’s jurisdiction and independence. Large-N studies of constitution-making also lend support to the idea that two-sided forms of insurance may be particularly viable as a basis for judicial empowerment. One of us, together with Mila Versteeg, shows that an important predictor of the likelihood that a country will in fact adopt independent judicial review is the gap between the largest and next-largest political party: The closer the parties are in terms of electoral performance, the more likely it is that independent courts will be empowered to engage in judicial review; whereas the bigger the gap, the less likely independent judicial review will be (Ginsburg and Versteeg 2014). Similarly, empirical studies of constitution-making in Latin America show that multilateral (or multi-party and inclusive) as opposed to unilateral episodes of constitution-making are more consistently associated with functioning, independent courts (Pozas-Loyo and Ríos-Figueroa 2010).
C. POLITICAL NULLIFICATION AND “BALANCED” JUDICIAL REVIEW The constitutional insurance policy also faces a danger from a different direction, namely from newly dominant political elites who may wish to nullify the constraints placed on them by prior political majorities. This possibility emerges only with a major shift in the political landscape, such that a new government is elected with sufficient electoral support to threaten the power and policies of prior elites. This may involve amending the constitution so as to remove constitutional provisions inserted by way of political insurance or the exercise of influence over the composition and behavior of a
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 17 /
Date: 10/7
JOBNAME: Delaney PAGE: 18 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 53 constitutional court. As Ramseyer notes in the Japanese context, there are a broad range of tools available to a dominant political coalition when seeking to discourage or undermine true judicial independence—it can control not only the appointments process, but also the training and career structure of judges (Ramseyer 1994, 724–6). It can also transfer, pass over for promotion, or remove judges who show too much political independence (Ramseyer 1994, 724–6). When outgoing elites are able unilaterally to amend the constitution to create newly independent forms of judicial review, new governments will also often have similar power to amend the constitution to restrict access to the courts. Relatedly, dominant elites might cancel the insurance they provided in the original arrangement. To avoid the danger of political insurance being voided by newly dominant elites, courts might therefore adopt an approach to judicial review that is both somewhat counter- and pro-majoritarian, or politically two-sided, in nature. If a court simply defers to the laws and policies of current political majorities, it will inevitably fail to advance the powers, prerogatives, or policies of prior elites. Courts themselves would in effect be voiding the constitutional insurance bargain. But equally, if a court takes an overly counter-majoritarian approach to judicial review, it will give a new legislative majority a strong incentive to undermine the scope and independence of judicial review, either by way of formal constitutional amendment, or informal change via a process of judicial appointment, thereby increasing the chances of political nullification of relevant forms of insurance. For courts to provide effective political insurance, they must therefore uphold the rights and interests of prior elites with sufficient frequency to give constitutional insurance teeth, but not so frequently as to give newly dominant elites a strong incentive to attack the court and its jurisdiction and independence. Formal models of judicial independence make clear the importance of judicial “moderation” of this kind to maintaining political support for independent judicial review. Ramseyer, for instance, analyzes judicial independence through the lens of a repeat-game structure, and suggests that whether political actors will maintain independent judicial review in this context depends largely on “whether they expect elections to continue indefinitely,” and “to continue to win [elections] indefinitely”: The more political actors believe elections will continue but their own chances of uninterrupted electoral victory are low, the more they will tend to support maintaining the independence of the judiciary (Ramseyer 1994, 722). Randazzo, Gibler, and Reid lend empirical support to this hypothesis, showing that in democracies there is a positive, statistically significant relationship between the level of political competition and judicial independence (Randazzo, Gibler, and Reid 2016, 18). Matthew Stephenson has also formalized this hypothesis and shown that for parties to have an incentive to maintain judicial review in such circumstances, courts must adopt a relatively “moderate” approach to judicial doctrine: “if the judiciary is too far left or right and for some reason cannot or will not adjust,” he suggests, “we would
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 18 /
Date: 10/7
JOBNAME: Delaney PAGE: 19 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
54 Comparative judicial review expect both parties—even the one favored by the judiciary’s political slant—to support changes that make the judiciary more moderate” (Stephenson 2003, 77).18 The same analysis, we suggest, also applies to the effectiveness of constitutional courts and substantive constitutional provisions as a form of political insurance. Courts need not adopt an insurance-based understanding of their role in order to perform this function: Courts may give effect to constitutional provisions as a form of political insurance because of a distinctly legalist approach to constitutional interpretation, which places strong emphasis on the actual language of the constitution, the original public meaning of that language, or the intentions of those who wrote and ratified it. They might also adopt a more purposive approach, which effectively advances the aims and understandings, and thus also the interests, of those adopting constitutional norms (Barak 2007; see also Dixon 2015). Or they may do so for more overtly ideological reasons, based on a desire to advance the interests of the political actors who appointed them. Equally, they may choose to defer to the laws and policy-judgments of current, national political majorities as a matter of prudence, or out of more principled commitment to the democratic resolution of political controversies (Tushnet 2002; Kronman 1985; Eisgruber 1993; Waldron 2009). What matters is not individual judges’ motivation or interpretive theory in adopting an ideologically “moderate” or balanced approach to constitutional decision-making. It is that, for whatever reason, and whether consciously or not, courts develop a jurisprudence that is politically two-sided in nature in order to sustain ongoing political support for the enforcement of constitutional constraints by an independent court. What is striking about the examples of constitutional insurance in the literature thus far is that, in many cases, they also do have a constitutional jurisprudence that meets this description. In Korea, the Constitutional Court has maintained its profile and independence, even in the wake of political controversies. In exercising its powers, the Court has also largely deferred to the incumbent political coalition, while upholding challenges to legislation and government action in a nontrivial number (i.e., roughly one-third) of cases (Ginsburg 2003, 221). In Taiwan, following the move to democratization in the 1990s, the Judicial Yuan progressively expanded its power. Scholars such as Chien-Chih Lin also credit this to a willingness on the part of the Court to exercise its powers in ways that “have been welcomed both by the ruling and opposition parties” (Lin 2012, 171, 193–200). From 2003 to 2012, the Court upheld citizen petitions in roughly 50 percent of cases and upheld a number of key challenges by the opposition. But it also decided the most controversial cases (such as the Nuclear Power Case19) in ways that effectively avoided deciding the question or alienating either side of politics, particularly the governing coalition. In South Africa, one of the ways in which the Constitutional Court arguably built its legitimacy was via early decisions that had some real benefits to both the democratic opposition (i.e., the NP and the more progressive Democratic Alliance) and left of the ANC, but only modest costs to the ruling ANC government (or ruling right wing 18
He further shows that the range of conditions in which judicial independence is sustainable “will be skewed toward the point preferred by whichever political party is more successful in political competition” (Stephenson 2003, 74). 19 J.Y. Interpretation No. 520 (2001).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 19 /
Date: 10/7
JOBNAME: Delaney PAGE: 20 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 55 faction of the ANC).20 In the First Certification Case,21 for example, the first case heard by the new Constitutional Court, the Court found that certain provisions of particular concern to the opposition (such as employers’ rights to lock out) were not fully compatible, and had to be re-drafted. But equally, it largely upheld the democratically drafted Constitution as consistent with the constitutional principles in the Interim Constitution. A very large number of the early cases heard by the Court also involved laws passed by the outgoing NP government. This meant that, in striking down those laws, the Court delivered an important affirmation for the NP of the value of The Interim Constitution as a form of political insurance, but imposed only the smallest of political costs on the ANC—it was simply required to accelerate the pace of repealing or amending apartheid-era laws it fully intended to revisit in any event. Similarly, in later cases, such as the TAC Case,22 the Court has given the government considerable flexibility in the timetable for adopting a new policy response to the HIV AIDS epidemic (i.e., the rollout of antiretrovirals designed to prevent mother-to-child transmission of HIV). But it also handed important victories to the ANC left and the Congress of South African Trade Unions by finding it unreasonable for the government to continue to impose a blanket ban on access to antiretrovirals of this kind outside certain limited test sites. The Romanian Constitutional Court, on the other hand, has arguably come close to being so counter-majoritarian in nature as to present a real risk of provoking an attack on its institutional standing and independence, which effectively voids its capacity to serve as a form of constitutional insurance for the former SDP. As Liviu Damsa notes, the Court appointed by the outgoing SDP “manifested the highest historical percentage of unconstitutionality” ever declared by the Court as a result of ex ante petitions brought by the parliamentary opposition, and the lowest percentage of findings of unconstitutionality ex post or as a result of petitions brought by citizens (Damsa 2010). This also came close to undermining the institutional standing of the Court. Arguably, it is only the fact that the Court has shifted somewhat its approach in later periods which helps explain how and why the Court has survived. In Mongolia, too, the Constitutional Court has found itself in a battle for supremacy with the legislature, which has led to a decline in its role. The Court, in this context, has also shown a consistent unwillingness to defer to current legislative majority preferences, including in the face of the actual use of a legislative override power by a legislative majority (Ginsburg 2003, 176–7).
D. CONCLUSIONS No theory of the political origins of judicial review provides a complete or exhaustive account of the process of constitution-making in any given jurisdiction. Inevitably, different theories overlap in ways that mean that they explain different aspects of the same constitutional moment, and reinforce and complement each other in different 20 21 22
See Roux 2009 (also highlighting its role in building support from lawyers). 1996 (4) SA. (2002) 5 SA 721.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 20 /
Date: 10/7
JOBNAME: Delaney PAGE: 21 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
56 Comparative judicial review contexts. Insurance theory is no exception. Yet it has provided a robust set of explanations for the adoption, form, and performance of constitutional review in many contexts. In this chapter, we show that the idea of constitutional provisions as a form of political insurance does not end with the protection of political elites against the danger of subsequent electoral lock-out. It also extends, as Epperly has shown, to protecting individual members of the elite from the risk of subsequent reprisal by a new government, or the preferred policies of a current legislative majority or faction (Epperly 2013). Each of these particular rationales implies its own form of review, with different implications for standing, substantive provisions, and the design of the constitutional court. These different forms of insurance may also be adopted in a wide variety of contexts: where political elites fear losing control of the national government, either through democratic elections or a return to authoritarian rule, but also where they may fear a decrease in power or influence—such as via a loss of influence over the bureaucracy, or even the ordinary courts, a loss of control over state or local governments in a federal or decentralized system, or even declining factional control within their own party. Moreover, how much insurance elites may wish to “purchase” in any given context will inevitably depend on a range of context-specific factors: the information or beliefs they have about their own future electoral prospects and the strength and behavior of political rivals; their degree of individual or collective risk aversion; and the discount rates of relevant actors (or preference for short- versus long-term insurance). Similarly, the ability of particular elites to obtain insurance of various kinds will inevitably depend on their relative power in the constitutional bargaining process. The more difficult question for an insurance theory is when, or under what conditions, constitutional provisions and institutions of this kind will in fact be effective in providing insurance to political elites. Efficacy requires that current political majorities must be willing to honor the terms of a prior constitutional bargain, both by taking the steps necessary to implement it and leaving it free from repeal or replacement. Both of these preconditions, we suggest, are demanding: The possibility of legislative non-implementation or even constitutional modification of prior agreed constitutional changes is always a threat to the effectiveness of constitutions as political insurance. At the same time, we suggest that there will also be two related conditions under which insurance cancellation or nullification will be unlikely to occur: first, where insurance is two- rather than one-sided in nature; and second, where courts engage in forms of review that are effectively two- rather than one-sided—i.e., that advance the interests of both current and prior political majorities at different times in a relatively balanced approach. Insurance swaps of this kind can not only help resolve hold-up problems at the moment of constitutional design, but may also offer the most promising means of ensuring that constitutional provisions in fact deliver on the promise of effective political insurance. We suggest that the idea of insurance is a quite rich—and general—account of the way in which political elites respond to a range of potential future risks: the risk of losing democratic elections, and thus being locked out of future political competition, but also the risk of losing policy influence in certain areas or being subject to individual reprisal. Constitutional insurance also takes a wide variety of forms in response to these
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 21 /
Date: 10/7
JOBNAME: Delaney PAGE: 22 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 57 perceived risks: It may be structural or rights based in focus, focused on judicial review, political safeguards, or first- or second-generation rights. These various sub-types of the insurance analogy may have different logics and dynamics, but together they provide a useful lens for understanding a wide range of constitutional problems and solutions. They may even point to more general insights about the nature of written constitutions. In some ways, they suggest that all constitutions will effectively be a response to certain forms of social, legal, and political risk. The only question will be how much, and in what way they attempt to cabin or mitigate various risks, not whether they seek to lower the risks associated with future social, legal, and political change.
REFERENCES Alexander, Gregory S. 2006. The Global Debate Over Constitutional Property: Lessons for American Takings Jurisprudence. Chicago, IL: University of Chicago Press. Ali, Ifzal and Hyun Hwa Son. 2007. “Measuring Inclusive Growth.” Asian Development Review 24: 11–31. Alter, Karen J. 2013. The New Terrain of International Law: Courts, Politics, Rights. Princeton, NJ: Princeton University Press. Barak, Aharon. 2007. Purposive Interpretation in Law. Princeton, NJ: Princeton University Press. Benshoof, Janet. 2014. “Women, Peace, and Security.” In The United Nations Security Council in the Age of Human Rights, edited by Jared Genser and Bruno Stagno Ugarte. New York, NY: Cambridge University Press. Benvindo, Juliano Zaiden. 2010. On the Limits of Constitutional Adjudication: Deconstructing Balancing and Judicial Activism. Berlin: Springer. Butt, Simon, Melissa Crouch, and Rosalind Dixon. 2016. “The First Decade of Indonesia’s Constitutional Court.” Australian Journal of Asian Law 16: 1–7. Castles, Francis G. 2010. The Oxford Handbook of the Welfare State. Oxford: Oxford University Press. Chaskalson, Matthew. 1995. “Stumbling Towards Section 28: Negotiations over the Protection of Property Rights in the Interim Constitution.” South African Journal of Human Rights 11: 222–40. Damsa, Liviu. 2010. “Extending the Powers of Constitutional Court, While Limiting and Focusing the Judicial Review: Some Considerations of the Impact of Recent Romanian Constitutional ‘Reform’ in the Activity of the Constitutional Court and of the Ombudsman.” Paper submitted to the Fourth International Graduate Legal Research Conference, King’s College London, April 15–16. Dixon, Rosalind. 2007. “Creating Dialogue about Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited.” International Journal of Constitutional Law 5: 391–418. Dixon, Rosalind. 2015. “Constitutional Drafting and Distrust.” International Journal of Constitutional Law 13: 819–46. Dixon, Rosalind. 2016. “Constitutional Carve-outs.” Oxford Journal of Legal Studies 36: 1–25. Dixon, Rosalind. 2018. “Rights as Bribes.” University of Connecticut Law Review 50, forthcoming. Dixon, Rosalind and Tom Ginsburg. 2011a. “The South African Constitutional Court and Socio-economic Rights as ‘Insurance Swaps.’” South African Constitutional Court Review 4: 1–29. Dixon, Rosalind and Tom Ginsburg. 2011b. “Deciding Not to Decide: Deferral in Constitutional Design.” International Journal of Constitutional Law 9: 636–72. Dixon, Rosalind and Theunis Roux. “Constitutional Triumphs, Constitutional Disappointments: A Critical Assessment of the 1996 South African Constitution’s Local and International Influence.” In From Parchment to Practice: The Dynamics of Constitutional Implementation, edited by Thomas Ginsburg and Aziz Huq. Cambridge: Cambridge University Press. Forthcoming. Eisgruber, Chris. 1993. “Justice and the Text: Rethinking the Constitutional Relationship between Principle and Prudence.” Duke Law Journal 43: 1–55. Emmert, Frank. 2008. “Rule of Law in Central and Eastern Europe.” Fordham International Law Journal 32: 551–86. Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago, IL: University of Chicago Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 22 /
Date: 10/7
JOBNAME: Delaney PAGE: 23 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
58 Comparative judicial review Epperly, Brad. 2013. “The Provision of Insurance? Judicial Independence and the Post-Tenure Fate of Leaders.” Journal of Law and Courts 1: 247–78. Farber, Daniel A. 2002. “Rights as Signals.” Journal of Legal Studies 31: 83–98. Finkel, Jodi S. 2008. Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s. Notre Dame: University of Notre Dame. Garoupa, Nuno and Tom Ginsburg. 2015. Judicial Reputation: A Comparative Theory. Chicago, IL: University of Chicago Press. Gatmaytan, Dante. 2011. “Judicial Review of Constitutional Amendments: The Insurance Theory in Post-Marcos Philippines.” Philippine Law and Society Review 1: 74–94. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press. Ginsburg, Tom and Mila Versteeg. 2014. “Why Do Countries Adopt Constitutional Review?” Journal of Law, Economics, & Organization 30: 587–622. Gulener, Serdar. 2011. “Relations Between Politics and Constitutional Review in Turkey with Special Reference to the Referrals of Republican Peoples Party: 2002–2010 Period.” Alternatives: Turkish Journal of International Relations 10: 1–19. Helmke, Gretchen and Frances Rosenbluth. 2009. “Regimes and the Rule of Law: Judicial Independence in Comparative Perspective.” Annual Review of Political Science 12: 345–66. Hendrianto, Stefanus. 2018. Law and Politics on Constitutional Courts: Indonesia and the Search for Judicial Heros. New York, NY: Routledge. Hilbink, Lisa. 2008. Judges Beyond Politics in Dictatorship and Democracy. New York, NY: Cambridge University Press. Hirschl, Ran. 2004. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press. Hoffman, Elizabeth and Matthew L. Spitzer. 1993. “Willingness to Pay vs. Willingness to Accept: Legal and Economic Implications.” Washington University Law Quarterly 71: 59–114. Inclán Oseguera, Silvia. 2009. “Judicial Reform in Mexico: Political Insurance or the Search for Political Legitimacy?” Political Research Quarterly 62: 753–66. Kronman, Anthony T. 1985. “Alexander Bickel’s Philosophy of Prudence.” Yale Law Journal 94: 1567–616. Landau, David and Rosalind Dixon. 2015. “Constraining Constitutional Change: Constitution-Making and Constitutional Design.” Wake Forest Law Review 50: 859–90. Landes, William M. and Richard A. Posner. 1975. “The Independent Judiciary in an Interest-Group Perspective.” Journal of Law and Economics 18: 875–901. Lin, Chien-Chih. 2012. “The Birth and Rebirth of the Judicial Review in Taiwan—Its Establishment, Empowerment and Evolvement.” National Taiwan University Law Review 7: 167–222. Morewedge, Carey K. and Colleen E. Giblin. 2015. “Explanations of the Endowment Effect: An Integrative Review.” Trends in Cognitive Sciences 19: 339–48. Neuborne, Burt. 2003. “The Supreme Court of India.” International Journal of Constitutional Law 1: 476–510. Nunes, Rodrigo. 2010. “Politics without Insurance: Democratic Competition and Judicial Reform in Brazil.” Comparative Politics 42: 313–31. Pasquino, Pasquale and Francis Billi. 2009. The Political Origins of Constitutional Courts: Italy, Germany, France, Poland, Canada, United Kingdom. Rome: Fondazione Adriano Olivetti. Pozas-Loyo, Andrea and Julio Ríos-Figueroa. 2010. “Enacting Constitutionalism: The Origins of Independent Judicial Institutions in Latin America.” Comparative Politics 42: 293–311. Ramseyer, J. Mark. 1994. “The Puzzling (In)Dependence of Courts: A Comparative Approach.” Journal of Legal Studies 23: 721–47. Randazzo, Kirk A., Douglas M. Gibler and Rebecca Reid. 2016. “Examining the Development of Judicial Independence.” Political Research Quarterly 69: 583–93. Roach, Kent. 2001. “Constitutional and Common Law Dialogues between the Supreme Court and Canadian Legislatures.” Canadian Bar Review 80: 481–533. Robinson, Nick. 2009. “Expanding Judiciaries: India and the Rise of the Good Governance Court.” Washington University Global Studies Law Review 8: 1–70. Roux, Theunis. 2009. “Principle and Pragmatism on the Constitutional Court of South Africa.” International Journal of Constitutional Law 7: 106–38. Schneiderman, David. 2000. “Investment Rules and the New Constitutionalism.” Law & Social Inquiry 25: 757–87.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 23 /
Date: 20/8
JOBNAME: Delaney PAGE: 24 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Constitutions as political insurance 59 Sengupta, Arjun. 2010. “Inclusive Growth as Rights-Based Development.” Journal of Asian Public Policy 3: 215–22. Shapiro, Daniel. 2007. Is the Welfare State Justified? New York, NY: Cambridge University Press. Shapiro, Martin. 1988. Who Guards the Guardians?: Judicial Control of Administration. Athens, GA: University of Georgia Press. Stephenson, Matthew C. 2003. “‘When the Devil Turns …’: The Political Foundations of Independent Judicial Review.” Journal of Legal Studies 32: 59–89. Stulz, René M. 2010. “Credit Default Swaps and the Credit Crisis.” Journal of Economic Perspectives 24: 73–92. Tridimas, George. 2009. “Constitutional Judicial Review and Political Insurance.” European Journal of Law and Economics 29: 81–101. Tushnet, Mark V. 2002. “Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine.” North Carolina Law Review 80: 1203–35. Twight, Charlotte. 1992. “Constitutional Renegotiation: Impediments to Consensual Revision.” Constitutional Political Economy 3: 89–112. Versteeg, Mila and Emily Zackin. 2016. “Constitutions Un-Entrenched: Toward an Alternative Theory of Constitutional Design.” American Political Science Review 110: 657–74. Volcansek, Mary L. 2010. “Bargaining Constitutional Design in Italy: Judicial Review as Political Insurance.” West European Politics 33: 280–96. Waldron, Jeremy. 2009. “Can there be a Democratic Jurisprudence?” Emory Law Journal 58: 675–712. Wang, Jen-Cheng. 2010. “Politician’s Vision and Judicial Independence Reform: The Case of Taiwan.” Paper prepared for delivery at the Annual Meeting for the Western Political Science Association, San Francisco, April 1–3.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 03_Chapter3_ts
/Pg. Position: 24 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
4. Comparative constitutional law as a window on democratic institutions Samuel Issacharoff
A. INTRODUCTION The preamble to the 1948 Universal Declaration of Human Rights compelled a central commitment to the proposition that “[a]ll human beings are born free and equal in dignity and rights.” The ensuing discourse over the definition and meaning of human rights, their expansion into social and economic rights, and the demands upon government to be accountable to the dominion of dignity and rights, came to define much of the subsequent late 20th-century discourse over the obligations of law. In the face of universalist commands of the rights and dignity owed to all individuals, regardless of place or circumstance, any national law necessarily receded as the shaping force of domestic legal arrangements. Among the tensions created by human rights universalism was the role of constitutional law, what had previously been seen as the highest source of domestic legal authority in democratic states. The postwar period also saw the creation of constitutional courts as a central domestic guarantor of basic rights, first in Germany and Italy, and then throughout the post-1989 spread of the third wave of democratization. The emergence of strong courts, as I have chronicled in my work on Fragile Democracies (Issacharoff 2015), enabled judicial review of democratic processes in the name of a higher order of law than simple statutory enactments. While these courts were the fruits of particular constitutional orders—frequently the product of democratic reorganization after either conflict or the fall of an authoritarian regime—seemingly these courts could claim two sources of authority. On the one hand, following the American origins of judicial review, the courts could claim to be, per John Marshall, the ultimate arbiters of the specific constitution from which they sprang.1 Yet, on the other, constitutional courts could claim a mandate in universal law traditions to assume the role of protector of human rights against transgression by the state and its political institutions. Not surprisingly, this tension in the source of ultimate authority for judicial review pervades the modern study of comparative constitutional law, a field that consolidates only in the postwar period. Previously, efforts to assess constitutional orders systematically were subsumed in the study of politics, rather than judicial approaches to constitutional law. The field traces to Aristotle’s assessment of the constitutional orders of the Greek city-states, and the rejection of any search for a Platonic ideal form of political organization: 1
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–8 (1803).
60
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 1 /
Date: 10/7
JOBNAME: Delaney PAGE: 2 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 61 [P]olitics has to consider which sort of constitution suits which sort of civic body. The attainment of the best constitution is likely to be impossible for the general run of states; and the good law-giver and the true statesman must therefore have their eyes open not only to what is the absolute best, but also to what is the best in relation to actual conditions. (Aristotle 1958, 181)
The Aristotelean approach held forth even as the academic study of politics developed, particularly before the study of public law shifted from the departments of government to the legal academy. An early primer on comparative constitutional law would therefore downplay the significance of the constitutional protection of enumerated rights as an incident of political organization; something that “simply indicates that the power to abolish them is deposited at another point in this organism than in the absolute state” (Crane and Moses 1884, 5). The objective was not the universal, but taking “a particular government at a particular period” as the point of reference so as to identify “in what person or department the preponderance of power lies, or how power is distributed” (Crane and Moses 1884, 1). Undoubtedly this narrow approach could not withstand the increased focus on courts as protectors of individual rights, regardless of the particular forms of national political organization. Under pressure from rights universalism, there was a strong impulse to find “constitutional guarantees [that] are cut from a universal cloth,” in which “all constitutional courts are engaged in the identification, interpretation, and application of the same set of principles …” (Choudhry 1999, 833). As a result, “the renaissance of comparative constitutional law has focused heavily on rights jurisprudence and to a considerable extent overlooked structural judicial decision making” (Landau 2016, 1070). For the universalist camp, “human rights language is now a common feature of national constitutions,” and the “shift in discourse from the rights of man and citizen to the rights of all humanity is a long standing historical, and now global, process” (Beck, Drori, and Meyer 2012). In its strongest formulation, “[t]hese commonalities are at points so thick and prominent that the result may fairly be described as generic constitutional law—a skeletal body of constitutional theory, practice, and doctrine that belongs uniquely to no particular jurisdiction” (Law 2005, 659). Certainly there is truth to the increased overlap of language among courts, and to the growing sense of shared enterprise.2 But acontextualism has its limits. As Ran Hirschl well assails, this “brisk traffic in constitutional ideas has been accompanied by the rise of what may be termed generic constitutional law—a supposedly universal, Esperantolike discourse of constitutional adjudication and reasoning, primarily visible in the context of rights and liberties” (Hirschl 2013, 1). For comparative constitutional law to advance our understanding of constitutional governance, the trick seems to be finding a proper perch that gives enough distance from the particular to allow perspective, but not to reach such heights of overview as to lose the drama of struggle and institutional pathways. 2
This argument about the interactive effect of judicial dialogue and reinforcement is forcefully advanced by Anne-Marie Slaughter. See, e.g., Slaughter 2000, 1109–23 (identifying the intersection of human rights law and domestic constitutional law as the primary sources of “substantial and growing judicial cross-fertilization”).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 2 /
Date: 15/8
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
62 Comparative judicial review Because the emergence of strong constitutional courts coincides with the efforts to buttress democracy against the authoritarian forces of the 20th century, I have spent a considerable amount of time examining the relation between courts, constitutionalism, and democracy. The focus has been institutional. The aim is to give a structural account of why courts emerge as the guarantors of a modern liberal vision of limited government, and how constitutional checks on political authority shore up an antiauthoritarian commitment to democratic self-governance. The approach draws from the universal in terms of trying to observe general trends and parallels in the practices and problems across national settings, especially in the rise of court-centered constitutionalism. Yet, it is also anti-universalist in the Aristotelean tradition of seeing constitutional arrangements as responsive to the particular political conflicts that accompany the formation of each state entity. The aim here is to outline an approach to comparative constitutional law that is court centered but not rights oriented. A focus on the institutional role that courts can play in weak democracies allows a comparative overview without trying to mandate the resolution of particular cases according to acontextual abiding principles. In this brief overview, I want to highlight four questions that comparative constitutional analysis may elucidate, without in any conclusive way trying to resolve these issues in this short chapter. The four are: (1) establishing the role of new constitutional courts and their powers of judicial review; (2) how the role is used in new constitutional democracies; (3) how courts survive confrontations with political power; and (4) the prospects for success of court-centered constitutionalism as a strategy to protect democracies.
B. THE ROLE OF NEW CONSTITUTIONAL COURTS The first proposition is the easiest to establish. Without exception, the post-1989 democracies adopted court systems designed to serve two functions. First and foremost, courts were to forestall any incipient return to an autocratic past. Second, these courts were to serve as the handmaidens of a new democratic organization of political power. In general, the form of the judiciary followed the German post-World War II model of a separate constitutional tribunal with a distinct jurisdictional basis and a unique model of appointment (Kommers and Miller 2012, 3). Some countries vested constitutional authority in a Supreme Court of general jurisdiction (see Rait and Schneider 1998, 98), and yet others created a distinct constitutional chamber within a generalist apex court (see Lopez 2008, 531–2). Some allowed a priori review in the style of the French Conseil Constitutionnel (see Sweet 2000, 63–5), while others allowed general powers of review (see Issacharoff 2015, 238–9). Some permitted constitutional review in specific cases (see Sadurski 2014, 13–14), others like the Hungarian Court allowed actio popularis review upon citizen petition (Sadurski 2014, 15). Others still limited review to the minority in Parliament, again following the French tradition.3 What unified all these courts is the power of judicial review. For all that American jurisprudence has worried over the countermajoritarian claim of authority by the US 3 See Venice Commission. 2010. Council of Europe, Report on the Role of the Opposition in a Democratic Parliament 28.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 3 /
Date: 10/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 63 Supreme Court, the new courts faced an easier task of self-definition. There is simply no reason to establish a constitutional court except as a check upon the democratic branches of government. The power of judicial review flowed organically from the creation of a court charged with superintendence of constitutional principles in the face of challenged legislative or executive conduct. Much as the original model of a post-authoritarian constitutional court would have been inconceivable without the post-fascist examples of Germany and Italy, so too the modern wave of democracies would have been inconceivable without the collapse of the Soviet Union. Most apparently, the removal of the Soviet armed presence allowed the mobilization of democratic forces without the threat of the invasions of Hungary in 1956 and Czechoslovakia in 1968. The impact of the demise of Soviet power reached much further, however. The easy divide of the world along the Cold War lines of demarcation ended, with far-reaching consequences. The American patrons of rightwing regimes reexamined their commitment to non-democratic rulers once freed from the need to maintain the anticommunist alliance. Similarly, client states of the Soviet Union from outside the Soviet bloc found their benefactor and, oftentimes, financier suddenly unresponsive. No country seems more removed geographically from the Cold War struggle than South Africa. The National Party (NP) government was no mere American puppet, and in its final stages, the apartheid state had to withstand increasing economic sanctions from its Western allies. The insurrectionary African National Congress (ANC) was certainly no simple Soviet ploy either, despite its decades-long collaboration with the South African Communist Party. The struggle against apartheid was many-fronted and the ANC struggled to be the big tent in which the diverse opposition elements could rally toward a collective end. Even so, the end of the Cold War removed from the ANC its longtime association to Soviet backing and removed from the NP its last remaining international card as part of the Western anticommunist alliance. Despite being at a remove from the frontlines of the collapse of the Soviet empire, South Africa offers a perfect launching point for the inquiry into the structural role of the new constitutional courts. As the transition process matured, there were three facts that drove the ultimate result: First, South Africa would have to enjoy some form of democratic government; second, the majority of the electorate was black; and, third, the ravages of apartheid had left a prosperous white minority amid overwhelming black poverty. The combination of these three factors made continuation of complete parliamentarism impractical as insufficiently protective of minority rights, including minority property rights. Although South Africa had no experience with formal judicial review, the creation of a strong constitutional court well fit the country’s needs. At the simplest level, the judiciary offered a potential check on an excess of majoritarian power in the Parliament. But beyond the simple check on parliamentary prerogatives, a strong judiciary carried forward the struggle against apartheid that had long been waged in the universalist language of human rights and the rule of law. The international conventions on human rights that followed from the end of World War II created a robust international law of relations between states and their citizens. All of the democracies created in the late 20th century necessarily internalized the rights commitments, at least formally. Even in states with woeful human rights records, there is generally a legal
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 4 /
Date: 10/7
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
64 Comparative judicial review commitment to rights protections for the citizenry. Almost inescapably, the enshrinement of rights commitments also pushes toward the creation of an independent judiciary. Further, South Africa reveals the structural interrelation between the new form of constitutionalism that emerged after 1989 and the stabilization of democracy. Most of the new democracies were created in states bearing deep historic divisions along lines of race, ethnicity, religion, or language. In all such countries, achieving buy-in from the various constituencies was a critical feature to stabilize democratic governance. Rather than the formalized consociational power-sharing that dominated the emergence of new democracies after World War II and the fall of colonialism, the post-1989 period saw a dampened enthusiasm for power-sharing as a mechanism for protecting vulnerable minorities. Instead, the third wave of democracy substituted an institutionalized set of checks on majoritarian power enshrined in a strong form of constitutionalism combined with an empowered independent judiciary. The well-documented transition in South Africa serves as the most visible of the constitutional allocations of power in a new democracy, but it is hardly unique in using constitutional governance to address the fundamental divides in a nascent democracy. Constitutionalism was designed to provide an institutional buffer against legislative overreach. In South Africa, the interim constitutional arrangement was designed to share power for five years, while a more lasting arrangement could be negotiated. Within that time period, the interim government was required to cede power to a more formal constitution that could only be implemented if deemed faithful to the original negotiated limits on the new state.4 Moreover, the National Assembly,5 required by Principle VIII of the Interim Constitution to be selected through proportional representation, would also serve as the formal drafting body for the final Constitution.6 As a result, the final Constitution would have two critical features. First, it would bear a democratic legitimacy that could not be claimed by a negotiated compromise among political leaders, no matter how much de facto authority they could muster. Second, the interim Principles of the Constitution, rather than the formalities of power-sharing, could serve to assuage minority concerns over the limits of majoritarianism. South Africa innovated in two significant ways in its constitutional formation. First, it divided the process of negotiating the political accords from the final step of constitutional adoption. In some real sense, the functional Constitution of South Africa was the 34 Principles that emerged from the original Kempton Park negotiations between the ANC and the NP. These Principles represented the negotiated accord and enshrined not only the transition from apartheid, but also the political and institutional protections demanded by the NP negotiators. Second, the transition accords required a process of popular engagement in creating the exact form of constitutional governance through a popularly elected constituent assembly. That resulting draft was broadly communicated to the public prior to its presentation to President Mandela for signature. The two phases of the process were tied together institutionally by the Constitutional 4 5 6
S. AFR. (INTERIM) CONST., 1993 ch. 5, § 71. S. AFR. (INTERIM) CONST., 1993 sched. 4, Principle VIII. S. AFR. (INTERIM) CONST., 1993 ch. 5, § 68.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 5 /
Date: 10/7
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 65 Court. No final constitution could go into effect until and unless the Court certified that it was true to the previously negotiated 34 Principles. While the tension between a negotiated accord and popular approval of a constitution was hardly a new problem in South Africa, the use of the nascent Constitutional Court was a novel solution. The negotiating parties agreed to the minimum baselines of protection of the interests of all parties. The subsequent process of final constitutional drafting and popular approval would proceed, but only to the extent that the end product met the negotiated commitments of the underlying political accords. The 34 Principles were the agreed-to pact, and the Constitutional Court was enlisted as the institutional commitment that the agreement would be honored. The task of ensuring compliance was given in its entirety to the Constitutional Court. In effect, once South Africa emerged as a full constitutional democracy, the Constitutional Court would stand as the ultimate arbiter of the Constitution, holding full powers of judicial review. Ironically, however, the Constitutional Court would pre-date the Constitution and would serve as the final body approving the adoption of the Constitution itself. Hardly customary, yet innovative, this arrangement seemed to satisfy the security interests of all parties and was integral to the peaceful transition to constitutional democracy. The Constitutional Court’s historic moment came in July 1996 when the proposed permanent Constitution was submitted for review. While some courts have had to confront the constitutionality of particular amendments to the national charter, no other court has ever had to pass on the suitability of the entire constitutional project. Two months later, in September 1996, the Court handed down its decision, upholding much of the constitutional project, but significantly rejecting a number of key provisions.7 The rejected provisions had in common that they gave too much power to the majoritarian processes, meaning that the Constitution in general, and the Court in particular, served to constrain the political will of the democratic majority. Viewed in this light, the Court’s first constitutional certification opinion8 draws a distinction between the domains of specific institutional structures, which were left to the constituent assembly process, and the areas of express commitment to minority protections, which were held to a higher level of judicial scrutiny. In the second group were particular provisions of the 34 Principles that restricted the ability of a democratic majority to act, and hence could not be compromised in the ratification process. Among the key provisions struck down for an excess of majoritarian control were the attempt to preclude constitutional review from certain categories of statutes, the absence of federalist safeguards on centralized power, and the lack of supermajoritarian protection for certain components of the Constitution itself, including the liberty protections of the
7 In re Certification of the Constitution of the Republic of South Africa, 1996 (4) SALR 744, 744 (CC) (S. Afr.). 8 The Court certified an amended proposed constitution three months later. See In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1997 (2) SALR 797 (CC) (S. Afr.).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 6 /
Date: 10/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
66 Comparative judicial review Bill of Rights.9 With regard to the latter, the Court found that the proposed constitutional provisions violated the principles of the Interim Constitution by failing to “entrench” the rights in question.10 Only upon subsequent amendment did the new constitutional period begin in South Africa. South Africa had the good fortune to enter the constitutional period with a developed industrial base, a well-functioning market economy, and robust institutions of civil society both inside and outside the market arena. The country had a strong legal tradition, however fatally contaminated by the laws of apartheid. Even without a background of judicial review, the concept of a constitutional court acting as a constraint on a genuine parliamentary democracy was easily adapted. Though no country emerges from a period of conflict or authoritarian rule in identical fashion, with similar social cleavages, or with the same institutional capabilities, the South African experience is nonetheless generalizable at the institutional level. The role of an overseeing constitutional tribunal was to ensure that democracy would not be captured by the first electoral majority, that assurances could be given to the minority of security in property and person, and to provide process integrity in the future electoral processes. For countries emerging from authoritarian rule or from a crisis born of civil war, the creation of a mediating institution at least offers the promise of democratic renewal. Particularly in deeply riven societies, what emerges is the use of limitations on majority power as a mechanism for stabilizing democratic governance without the reinforcement of ethnic and racial divides created by formal power-sharing.
C. HOW THE ROLE IS USED IN NEW CONSTITUTIONAL DEMOCRACIES Next is the question of what the constitutional courts actually have done. Here it is necessary to push back against the naïve expectations that democracy was the natural order for societies, absent the imposition of wayward state authority. The historic end of the Cold War brought with it a heralding that the epochal wars of the 20th century had at last been concluded. Democracy was triumphant. Its ideological challengers of fascism and communism were defeated. The market was ascendant in China and the few outliers in North Korea or Cuba were simply rogue states that were ill-suited to resist the demands of their populations for freedom and improved material standards of living. In short order, apartheid fell in South Africa, democracy took root in the Pacific Rim, and Mexico recovered competitive elections. Entire regions were transformed, as with the stabilization of civilian rule in Latin America. Even in sub-Saharan Africa, long the bastion of strongman rule, there was actual rotation in office for the first time in the postcolonial period. 9
This is referred to as the requirement that there be “special procedures involving special majorities” for constitutional amendment and for any alteration of the constitutional guarantees of individual rights. Id. at 821. 10 Id. at 822.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 7 /
Date: 10/7
JOBNAME: Delaney PAGE: 8 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 67 What a heady time it was. Democracy was both inevitable and easy. Just hold elections for head of state—the visible touchstone for any regime claiming democratic legitimacy—and, poof, democracy ensues. Once elections were held, democracy was secure. Every post-Soviet country held at least one election, as did Afghanistan and Iraq after foreign intervention. And upon election of a government, mission accomplished. Would that it were so. A quarter-century retrospective confirms what should have been apparent all along. Democracy is a complicated interaction between popular sovereignty, political competition, stable institutions of state, vibrant organs of civil society, meaningful political intermediaries, and a commitment to the idea that the losers of today have a credible chance to reorganize and perhaps emerge as the winners of tomorrow. Elections are the end product of democratic selection, but not the definition of democracy as such. The great challenge, particularly for the constitutional courts that are the focus here, was how to ensure that the first election was not the last election. In countries emerging from authoritarian rule or violent conflict, the multiple institutional pillars of democracy are slow to emerge and invariably are unlikely to appear all in tandem. Indeed, in the disorganization that followed the sudden collapse of the Soviet Union, to take but one example, the easiest component to organize was formal elections. Foreign experts, like the Venice Commission of the European Union, could provide oversight and a reasonable integrity to the election itself. After an initial election, the most difficult component to realize, and likely the key to any long-term democratic stability, is the proven ability to have rotation in office. No new democracy could possibly have a track-record of peaceful surrender of power to an electoral challenger. Yet, that is what wise observers, such as Adam Pzreworski and his colleagues, have come to define as an operational core of genuine democratic governance.11 Too often, in retrospect, early elections appear as a contest not over democratic governance but over which political or ethnic faction would seize the instrumentalities of the state. In the worst cases, such as the former Soviet Republics of Central Asia, the elections were simply a prelude to the consolidation of new strong-armed power. In some instances, as in Belarus, a weak electoral system was overtaken by the former Communist Party, ill-disguised in its resumption of power. It is hard to credit that any real democratic moment occurred in these countries, simply an interregnum in a cycle of autocratic rule. In yet another paradox of history, many of these post-Soviet era democracies— Samuel Huntington’s famous “third wave” of democratic surges (Huntington 1991)— faced an unexpected threat. The threat was not the stifling of democracy under the autocratic ancien régime, but the excess of democracy. 11
According to Adam Przeworski and his co-authors, there are four threshold requirements for a state to claim democratic pedigree: (1) the election of a chief executive either by direct election or parliamentary election; (2) the election of the legislative branch, whether by party slate or by direct election of the legislators; (3) the existence of more than one party; and (4) the possibility of “alternation” in office and some experience with incumbents being voted out (Przeworski et al. 2000, 18–27). No new democracy can satisfy the fourth requirement of some experience of incumbents being voted out.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 8 /
Date: 15/8
JOBNAME: Delaney PAGE: 9 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
68 Comparative judicial review Most recently, with the rise of extreme parties in Europe and the anger reflected in Brexit, the medium of democratic excess is a destabilizing populism. But in the initial period of transition, populism tends to be harnessed by the first dominant political party as a means to consolidate power in the hands of executive control. The obstacle to meaningful democracy is not the naked repressive force of authoritarianism but the suffocating control by the party that manages to consolidate its political apparatus in office. Constitutional courts emerged in country after country in the post-1989 period as an institutional barrier to this initial concentration of political authority. They served to insure that there might be an obstacle to subsequent oppression of a losing minority, to use Tom Ginsburg’s formulation (Ginsburg 2003, 25). The hope is that if political competition lags or fails, these courts can serve as an institutional actor capable of challenging an excessive consolidation of power. But constitutional courts facing consolidated political power are themselves terribly handicapped by their absence of independent levers of power. Once power is truly consolidated, courts are capable of being bypassed as irrelevant institutions, as in Russia today, or subject to replacement of their leading jurists, as in Hungary—or perhaps simply disregarded. The capacity to defer the risk of political consolidation—what I term a “democratic hedge” (Issacharoff 2015, 224)—is the promise of constitutional courts, a promise to vouchsafe that there will be rotation in office and that all political factions will ultimately benefit from some kind of arbitrated guarantee of a fair process. In the absence of such a mediating institution, the risk is that the first political force to consolidate, typically the executive, will consolidate into the focal center of all state functions, ranging from the economic to the military. These courts serve as an “institutional barrier to majoritarian abuse” (Sheive 1995, 1221). What remains is some account of why political forces would entrust this role to a judiciary. From a theoretical perspective, there are two possible answers to the paradox of negotiating parties at the foundational moment of a new democracy creating an independent judicial authority and then believing that it will in fact continue to be independent and protect the democratic bargain. Neither construct can explain all the nuances of the state-by-state experiences of the past 25 years of democratic experiences, yet they provide some insight as to why the creation of a strong judicial power may help fill the void in legitimate power after the fall of autocracy. The first construct is that the presence of an external authority might facilitate the ability of the contending parties for state power to realize an initial agreement that permits a government to be formed. On this view, the ability to turn to an arbiter to resolve complications in implementing the initial accord relieves the negotiating parties of the burden of hammering out all details of how the new government will operate. The key insight is that parties to any contract are better able to reach accord if they can reduce the difficulty of negotiating all details to completion. The presence of an external arbiter promotes efficiency in the bargaining process by allowing the parties more efficiently to reach a solution. But that is only the first step. A second construct looks not to the question whether a bargain can be reached, but whether the terms might be more just or enduring. The insight is that the presence of a future constitutional arbiter may improve the quality of the solution reached. For this purpose, the existence of a court to rule on imprecise
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 9 /
Date: 10/7
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 69 issues concerning the bounds of state authority may promote a fairer initial bargain, and may lessen the advantage obtained by the first officeholders. Here the focus is not upon the ability to realize a bargain, but on the actual terms contained in the bargain that is achieved. In the game theory literature, the ability to turn to an alternative trading partner or an alternative arbiter during the process of negotiation is known as bargaining with an outside option (Shaked and Sutton 1984, 1363).12 Translated to the context of constitutional bargaining, constitutional courts may facilitate the transition to democracy in two ways. The first is by permitting the parties a quick transition to basic democratic governance before they are capable of full agreement. Constitutions, by contrast to statutes, are notoriously open-textured in their commands. Imprecise but evocative terms such as “due process” carry forward the soupçon of commitment without the substance of the agreement. Oftentimes this is the product of the inability to resolve deeply contested issues.13 At other times, vagueness may serve as an efficient mechanism to allow the parties to reach sufficient consensus to proceed in circumstances where either social norms or strategic considerations might overly tax the ability of the parties to reach express understandings.14 The second advantage offered by constitutional courts has more to do with the specifics of constitutional compromise, recognizing in the spirit of John Marshall that “it is a constitution we are expounding.”15 Unlike parties in conventional contracts, the harm in constitutional breach is not retrospective but prospective. Parties to a constitutional compact do not so much fear that their expectations at the time of contracting will not be realized as they fear that the powers they are creating will be used prospectively against them. At the heart of any constitutional compromise lies the brutish fact that some of the parties to the pact will soon hold state power over their erstwhile fellow negotiators. From this perspective, constitutional courts play the role of an “insurance policy” against forms of power grabs that cannot be specified or negotiated at the outset of the constitutional process. The term comes from Professor Tom Ginsburg, who attributes to the courts the power both to cement the terms of the bargain and to provide for an acceptable response to conditions subsequent to the negotiations (Ginsburg 2003,
12
See also Binmore, Shaked, and Sutton 1989, 757 (testing the impact of an outside option on bargaining outcomes in a laboratory setting). 13 For example, Andrew Kull’s review of the legislative history of the Fourteenth Amendment shows how the term “equal protection” was chosen because of fundamental disagreements on the rights to be afforded the freed slaves (Kull 1992, 67–9). 14 For a more formal account of how deliberately vague language can be welfare enhancing by mitigating conflict, see Blume and Board 2013 (providing numerous examples of commonplace uses of vagueness ranging from sexual innuendo to the famously inscrutable pronouncements of former Federal Reserve chairman Alan Greenspan). For an account of how vague judicial opinions might ease tensions over judicial intrusion on the political branches, see Staton and Vanberg 2008. 15 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 415 (1819) (“[W]e must never forget, that it is a constitution we are expounding” that is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs”).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 10 /
Date: 10/7
JOBNAME: Delaney PAGE: 11 SESS: 6 OUTPUT: Thu Aug 23 10:51:28 2018
70 Comparative judicial review 30–31).16 This argument may be pushed even further, perhaps by extension of Richard Pildes’s caution against excessive rigidity in initial constitutional design (see Pildes 2008, 173–5), to say that the prospect of active superintendence of the constitutional pact by courts may allow for greater experimentation and flexibility in the initial institutional design under the initial constitutional framework. Although American constitutional law remains excessively focused on the justification for the power of judicial review, the prevalence of constitutional courts indicates at least a tacit recognition that judicial review may indeed be indispensable to establishing a functioning constitutional democracy. On this score, the legitimacy of these courts subsequent to the founding may turn on the degree that they reinforce the democratic hedge that accompanied the founding. This is a departure from the conventional debates, at least in the United States, about the source of legitimacy of constitutionbased judicial review—the proverbial imposition of the dead hand of the past on the political will of the present majority. Rather than being tied to a narrow originalist vision of enforcing the agreed-upon terms of the original pact, the contemporary approach in new democracies imposes a broader duty on a constitutional court to reinforce the functioning of democracy more broadly. The original pact turns not only on the areas where agreement was reached—text, of course, is still central—but also on the areas where no agreement was possible save for the overall commitment to political accountability of the first set of rulers. This idea that courts are integral structural parts of the moment of original constitutional creation is confirmed by the additional responsibilities over democratic accountability given to them. In most new democracies, the creation of these constitutional courts is accompanied by “ancillary powers” beyond simply the ability to subject legislation to judicial review (Ginsburg and Elkins 2009, 1440–41). Most common among these additional powers is some form of oversight over the electoral process itself, reaching in many cases to election administration, the subject matters of elections, the eligibility of parties to compete in elections, and electoral challenges. Indeed, 55 percent of constitutional courts hold specific powers of either administration or appellate review over the election process (Ginsburg and Elkins 2009, 1443). The combination of constitutional review of legislation affecting the political process and administrative oversight of elections appears fortuitous. Both afford constitutional courts the ability to check efforts to close the political process to challenge. More centrally, both correspond to a vision of strong constitutional courts as a necessary check on excessive concentration of political power under conditions that are unforeseeable at the time of constitutional ratification or whose terms cannot be specified under the strategic uncertainties of the installation of democracy.
16
A similar argument can be made in the context of more gradual democratization of autocratic regimes. For example, in Mexico, the emergence of strong challengers to the PRI’s hegemony and the possibility of electoral reversals created an incentive for the ruling PRI to institute reforms granting real measures of autonomous judicial authority. See Finkel 2005, 88.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 11 /
Date: 20/8
JOBNAME: Delaney PAGE: 12 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 71
D. HOW COURTS SURVIVE CONFRONTATIONS WITH POLITICAL POWER If courts are indeed to serve as arbiters of democracy against vested power, the question then becomes an issue of how they do that. Certainly any attempt to assert watchdog powers invites confrontation, and courts are notoriously possessed of neither the purse nor the sword (Hamilton 1788). This is a puzzle that defies easy explanation. An anecdote helps ground the inquiry. In conversations over the years with Justices from the South African Constitutional Court, and with South African scholars, I always come back to a question of historical uncertainty. By the time the South African Court entered its famous decision in the Certification case discussed above, the transition to post-apartheid governance had been largely completed. Now secure in his role as head of state, President Mandela had control of the police and the military, had a formidable legislative majority, and possessed an overwhelming sense of authority as the unquestionably dominant figure in South African politics. The initial proposed permanent Constitution that emerged from the constituent assembly process may have had defects, but at bottom it was just not that bad. The question I then ask is why Mandela did not simply disregard the Constitutional Court. Why would political power cede to the first assertion of judicial supremacy? To ask such a question is to invite a bewildered look of incomprehension. To begin with, Mandela’s personal trajectory—notably his long legal battles against his incarceration on Robben Island—left him with a surprisingly deep respect for the rule of law. But the answer cannot be Mandela alone. During the period of Constitutional Court ascendancy following 1989, the striking result is that ruling leaders in country after country acceded to the assertion of muscular judicial oversight. In recent work with Rosalind Dixon (Dixon and Issacharoff), we look to a few examples of confrontation to develop a model of judicial deferral, a strategy that draws from the historic example of Marbury v. Madison.17 To make this point concrete, contrast the polar examples of the Argentine decision, known as the Acordada, with the Colombian Constitutional Court’s rejection of President Uribe’s efforts to secure constitutional authority for a third term in prison (Dixon and Issacharoff, 689–91). The Acordada emerged from a legal challenge to the governmental authority of the military government of General Uriburu after the 1930 coup. On abstract review, the Court found that the possession of governmental power by the military “is a de facto government whose title cannot be disputed judicially …”18 The “recognition” afforded by the Court was seen as necessary to the formalization of the military regime’s ability to act as a state authority. In terms of formalizing judicial powerlessness, the Argentine judgment is simply an overt and extreme expression of the assumption that courts ultimately are adjuncts of political power and helpless before first-order contestations of power. The longstanding American doctrine of non-justiciable “political questions”19 17
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Acordada of the National Supreme Judicial Court, Legitimating the 1930 Coup d’Etat. Translation by the author. 19 Luther v. Borden, 48 U.S. 1 (1849). 18
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 12 /
Date: 15/8
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
72 Comparative judicial review represents a milder form of judicial self-limitation in the face of matters best entrusted to the political branches.20 The Acordada fares poorly in the modern era of strong constitutional courts. Increasingly, these courts have assumed superintendence over what the Indian Supreme Court has termed the “basic structures” of democracy.21 The idea of constitutions enshrining core commitments to democracy is a defining feature of modern constitutionalism. Clearly the era of judicial passivity exemplified by the Argentine withdrawal in the face of military rule poorly translates into the South African context in which a newly created Constitutional Court is asked to assess the validity of the founding constitutional document. Across the divide is the extreme Colombian Constitutional Court’s confrontation with President Uribe over the question of an constitutional reform that would have permitted a third term in office. As Uribe consolidated power after restoring order beginning in 2002, he sought first one, then another constitutional amendment allowing him to serve a second and then a prospective third term in office (see Posada-Carbó 2011, 138). The Court accepted the first constitutional amendment and Uribe was elected to a second term. However, confronted with a constitutional reform that looked to enshrine a new Latin American caudillo, the Colombian Court issued a forceful short ruling, against a backdrop of hundreds of pages of divided judicial opinions, that directly challenged Uribe and struck down the proposed constitutional amendment as contrary to deeper, though textually unspecified, constitutional principles: “The Court finds that [the proposed amendment] ignores some of the structural axes of the Political Constitution, such as the principle of separation of powers and the system of checks and balances, [and] the rule of alternation in office according to preestablished time periods.”22 Courts in other parts of the world, as in Peru with Fujimori or Russia with Yeltsin and Putin, forcibly confronted executive power and were quickly pushed aside. Unlike the Peruvian and Russian courts, the Colombian Court prevailed and, in short order, Uribe stepped aside, new elections followed, and Colombia institutionalized the rotation in office, emblematic of healthy democratic governance. Dixon and I suggest that neither the older Argentine model of abdication nor the headlong confrontation of Colombia is likely to provide guidance to new constitutional courts—and neither captures how courts protect democracy against excessive political power. Most typically, courts avoid a frontal confrontation with political powers, particularly on the ultimate issue of who should rule. We refer to this as the strategy of “judicial deferral,” a process of accreting judicial authority in a fashion that does not directly engage the political branches. In some cases, the process of deferral is built in to constitutional design, what we term “first-order deferral.” For example, the Canadian notwithstanding clause or the European Community powers of derogation each give 20 On the application of the political question doctrine, see, for example, Baker v. Carr, 369 U.S. 186, 209–18 (1962); Mourtada-Sabbah and Cain 2007; Choper 2005. 21 See Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461 (Supreme Court of India); Minerva Mills Ltd. v. India (1981) 1 S.C.R. 206 (Supreme Court of India). See also Krishhnaswamy 2009; Mate 2010. 22 Corte Constitucional [C.C.] [Constitutional Court], septiembre 8, 2010, Sentencia C-141/ 10, Por medio de la cual se decide sobre la constitucionalidad de la ley 1354 de 2009, de convocatoria a un referendo constitucional (translation by author).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 13 /
Date: 10/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 73 national political branches the power to set aside contrary judicial rulings—raising the political consequences of doing so without challenging the authority of the courts to engage the constitutional questions. The Canadian Supreme Court’s ability to offer an “appropriate and just” remedy under the Canadian Charter of Rights and Freedoms also entails the ability to delay enforcement “until Parliament or the provincial legislature has had an opportunity to fill the void” created by any declaration of constitutional infirmity.23 Such first-order deferral also promotes dialogue between the judiciary and the political branches seeking an accommodation between expediency and long-term principle. More intriguing is what we term the process of “second-order deferral,” or more brusquely, the “Marbury strategy.” Unlike first-order deferral, this is a court-created approach that allows courts to assert their constitutional authority in a fashion that does not force a frontal confrontation with the political branches. In Marbury itself, the US Supreme Court announced its constitutional authority to review legislation and declare it invalid, while holding—under the facts of the case—that it had no warrant to disrupt the decisions of the Jefferson administration. The contrast between broad pronouncements of judicial authority and circumspect rulings continues to this day in the US, even though the power of judicial review is by now well established (cf. Sunstein 2001). Deferral shifts the burden of confrontation from a power reach by the judiciary to a relatively unthreatening claim of reserved authority by a seemingly pliant judiciary. Delay favors the entrenchment of the claimed power of review, either because of institutional accommodation to the judicial role, or because other institutional actors ranging from civil society to the political opposition may rally to the support of the judiciary. Considered from the vantage point of the Marbury strategy, even Uribe’s decision to back down in the fact of the Colombian Constitutional Court appears more nuanced. Recall that the key Colombian confrontation came not on Uribe’s first attempt to amend the constitution to his benefit, but on the second. The first had come when Uribe sought to extend his electoral mandate to a second term, something that was prohibited under the Colombian Constitution. Yet Uribe was enormously popular for the success of his program of “democratic security” in curbing the power of narco-terrorism, confronting the Revolutionary Armed Forces of Colombia (FARC), and restoring domestic order. The result was a substantial decline in the rate of murder and kidnapping across the country, and Uribe’s popularity soared (see Posada-Carbó 2011, 138). When confronted with a constitutional amendment enabling a second term, the Colombian Court could easily have hesitated and found the entire matter of constitutional amendment non-justiciable, or perhaps only justiciable as to the procedures invoked for the amendment process. But the Court found a different path that allowed a broader assertion of judicial authority over the core of democratic governance, while at the same time avoiding direct confrontation with the broad mandate enjoyed by Uribe. The Court held that even a constitutional amendment could be judicially reviewed to ensure that it was at bottom in conformity with the constitutional design, and not simply the product of a supermajoritarian overthrow of 23
Schachter v. Canada [1992] 2 S.C.R. 679, 684 (Supreme Court of Canada).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 14 /
Date: 10/7
JOBNAME: Delaney PAGE: 15 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
74 Comparative judicial review a constitutional order.24 Even the Constitution’s grant of power of amendment to Congress could be checked by the broader contours of constitutional authority, a strategy reminiscent of the Indian Supreme Court’s articulation of the basic structures doctrine. There too the Indian Court announced its expansive powers of constitutional review, including the ability to strike down procedurally proper constitutional amendments as violative of a deeper commitment to democracy, in the course of holding the actual proposed constitutional amendment sub judice to be constitutional. With regard to the specific question of Uribe’s ability to seek a second term, the Court found that an eight-year term limit for the Presidency did not alter the defining aspects of the Constitution, which establish a “social and democratic state.” Rather, it held that such a change simply “modified” one element of its prior operation, or amended its specific mode of operation, in a manner consistent with Congress’s power of amendment. Uribe was therefore free to run, and indeed was the first re-elected Colombian president in 2006. By the time of the proposed second constitutional amendment, the Court’s doctrine had germinated into a powerful constraint on constitutional change. In its dramatic confrontation with Uribe’s claim for a third term, the Court could now decree that three terms effectuated a substantive alteration of the Constitution. The Court could assert that multiple terms altered the constitutional structure of limited executive power by allowing a single president to name members of the central bank, the attorney general, the ombudsman, the chief prosecutor, and many members of the Constitutional Court itself, in a way that was not the case given an eight-year term limit. At a minimum, the Court had sown the seeds of its authority well before the final confrontation with Uribe. Second-order deferral, the Marbury strategy of assertion of judicial capacity but holding in abeyance its realization, appears with remarkable frequency across the newly assertive apex courts of the post-World War II period. Even the wellspring of modern constitutional courts, the German Federal Constitutional Court, developed its famous doctrine of proportionality review cautiously, in a case that did not challenge state authority directly. As Niels Petersen explains, the Court awaited a test case that allowed it to test the boundaries of judicial authority with little risk of provoking a confrontation with the political branches (Petersen 2015, 67). In the Lüth decision of 1958, however, the Court found an ideal vehicle for introducing its “balancing framework and develop[ing] it without undermining its own legitimacy” (Petersen 2015, 72). At immediate issue was a dispute concerning a Nazi propagandist whose efforts to rehabilitate himself provoked a boycott campaign. A state court had found against Lüth, the Hamburg-based leader of the boycott, and enjoined all further efforts to organize a boycott (Quint 1989, 253–4). Proportionality review emerged from Lüth’s challenge that the injunction was a violation of his Article 5 freedom of expression.25 Though there was no state action at 24 Corte Constitucional [C.C.] [Constitutional Court], octubre 19, 2005, Sentencia C-1040 (Colom.). The Court makes an authoritative English summary available at http://english. corteconstitucional.gov.co/sentences/C-1040-2005.pdf. 25 GRUNDESETZ FÜR DIE BUNDERSREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGBl. I, Art. V. (Ger.), available in translation at http://www.gesetze-iminternet.de/englisch_gg/englisch_gg.html.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 15 /
Date: 10/7
JOBNAME: Delaney PAGE: 16 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 75 issue, the Court held that the Basic Law “erects an objective system of values in its section on basic rights,”26 thus protecting freedom of expression from not only state, but also private threat,27 which required protection of Lüth. For our purposes, what is critical is that there was no threat to governmental power presented in the case, particularly given the strong anti-Nazi mandate of the postwar Federal Republic. As Petersen rightly concludes, the Court managed to expand its power of review without any threat to the legislature or executive: The Court selected “a case that catered to the suspicion against the general judiciary. Lüth was thus ideal for claiming the review authority and to introduce balancing as a doctrinal tool” (Petersen 2015, 72). More important than the sheer number of cases falling into the deferral category is the significance of the cases themselves. The key exposition of the basic structures doctrine in India comes with Minerva Mills Ltd. v. India28 in 1981 (see Issacharoff 2015, 162–3),29 a constitutional property challenge to the government seizure of underperforming industries. The Indian Constitution was freely amended by Congress and included the ability to remove certain congressional enactments from judicial review altogether. At issue in Minerva Mills was a specific statutory authorization for the seizure of mills, which also removed constitutional protection from nationalizations of this sort—by demoting the right to property from its status as a fundamental right,30 Congress placed it outside the scope of judicial review. In Solomonic fashion, the Court asserted its authority to challenge government action—a matter of tremendous importance following the period of Emergency Rule in the 1970s—while at the same time allowing the seizure to go forward. Under the Court’s rationale, there remained a residual basis of constitutional review of the basic structures of democracy, even in the face of constitutional amendment, but under the particulars of the case the form of property right at issue was not outside the scope of congressional regulation (Mate 2014a, 467–77). As Dixon and I sum this up, the Supreme Court won, the government lost, but the owners of Minerva Mills got nothing in the process (Austin 1966, 507 n.25). Rather than an act of usurpation, the opinion gathered “strong approval” from elites and the media for whom the judiciary was now a strong limiting partner against governmental excess (Mate 2014b, 375). A final example shows the force of this strategy. Israel at this point has a strong tradition of constitutional review by its Supreme Court. Yet in the absence of a written constitutional text, the authority for judicial review is power ascribed to a statutory Basic Law. The Supreme Court has invested the Basic Law with both the force and presumed immutability of a constitution and, on the basis of the need to implement the 26 Bundesverfassungsgericht [BVerfGE] [German Constitutional Court], Jan. 15, 1958, 1 BvR 400/51 (Ger.), available in translation at https://law.utexas.edu/transnational/foreign-lawtranslations/german/case.php?id=1369. 27 Quint 1989, 262 (“If the goal of the ‘objective’ value is to encourage the optimal amount of speech for the good of society, that value can be significantly impaired by repression of speech whether the repression comes from the state or from private individuals or groups”). 28 (1981) 1 S.C.R. 206 (Supreme Court of India). 29 For an in-depth account of the Court’s “basic structure doctrine” jurisprudence from the self-proclaimed “standpoint that the ‘basic structure’ doctrine is anti-democratic and countermajoritarian in nature,” see Ramachandran 2000, 107. 30 The Constitution (Forty-Fourth Amendment) Act (1978); see also Austin 1966, 506.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 16 /
Date: 10/7
JOBNAME: Delaney PAGE: 17 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
76 Comparative judicial review Basic Law, has asserted a strong form of judicial review powers. The leading case imparting to the Basic Law (and the Court) this overarching authority was United Mizrahi Bank Ltd. v. Migdal Cooperative Village,31 a decision in which the Supreme Court forcefully asserted “that it viewed the Basic Laws as Israel’s formal Constitution and that, as a result, it had the power of judicial review over primary legislation” (Weill 2012, 499). Yet here, as in India, a challenge to property rights under the Basic Law failed and the Israeli Court, again as in India, asserted the doctrine of structural guarantees of democracy in a case that upheld challenged legislation. The creation of apex courts vested with power over the constitution is clearly an invitation to judicial review of the outputs of the political branches. Wojciech Sadurski describes a “strategy of reassurance” that courts in mature democratic societies can offer that they are part of a joint enterprise with the political branches.32 Such judicial authority easily coexists with democracy, whatever the momentary countermajoritarian tensions. But in nascent or fragile democracies, the stakes seem much higher and the capabilities of all branches of government are in flux. Courts tread carefully in such circumstances and may find the steady accretion of authority to allow the broadest authority to protect against political collapse.
E. THE PROSPECTS FOR CONSTITUTIONAL OVERVIEW Over the past 20 years or so, a group of public law scholars in the United States embarked upon a project of resuscitating a structural look at constitutional law not organized around the presumed centrality of rights discourse. In particular, one focus was the law governing the political process, an area that had been parcelized doctrinally among laws governing freedom of expression, freedom from discrimination, and freedom of association, with little connective tissue about the proper operation of democratic self-government. One attempt to reconfigure the legal terrain came with the publication of The Law of Democracy, by Pamela Karlan, Richard Pildes, and myself. The aim was to organize the extensive law that had ensnared the judiciary in the “political thicket” of policing democratic politics. In turn, the inquiry focused more and more on the question of the competitive balance that keeps democracy accountable to the electorate. Drawing on prior work ranging from Joseph Schumpeter to John Hart Ely, this approach to constitutional law focused on the role of constitutional constraints in maintaining democracy, a process of repeated contestation for governmental power. In turn, the approach cast a suspicious eye on the various mechanisms by which those with power were likely to make challenges more difficult, whether by restricting the money or organization available to challengers, or frustrating the capacity of new entrants to politics to appear on the ballot, or simply denying the franchise to disfavored groups or political forces. Once constitutional law was redirected to a focus on the democratic process, it provided a platform for a comparative look at the relation between constitutionalism 31
49(4) PD 221 [1995] (Supreme Court of Israel). See Sadurski 1987 (describing a strategy of forcefully asserting reasons that would seemingly lead to the opposite of the actual holding). 32
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 17 /
Date: 10/7
JOBNAME: Delaney PAGE: 18 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 77 and democracy. Comparative constitutional law could then incorporate a discernible theoretical inquiry into how law and the judiciary as institutions stabilize democratic governance. One need only recall Philip Bobbitt’s caustic account of the way comparative constitutional law had developed in the American academy: Comparative constitutional law courses are usually paralyzingly boring; they typically consist of arid comparisons of the provisions of different written constitutions—which ones protect trial by jury, which ones have a bicameral legislature, and so forth … such comparative constitutional law courses … are lifeless because they lack the animating aspect of the subject being studied. (Bobbitt 2002, 207 n.*)
Approached as a question of the relation of constitutionalism to democracy, the post-Soviet experience allows a final question: How likely is the experiment in court-supervised constitutional democracy to succeed? Despite the provenance for the new form of court-enforced constitutionalism in the need to watch over the democratic process, the reality is more complicated. In many instances courts back away from this role, fearing, wisely or not, that intervening in the name of democratic legitimacy threatens direct conflict with political powers. The question then arises of what happens when courts are not capable of assuming a protective role in nascent democracies, or lose the will to continue doing so after the initial transition from authoritarian rule. Here, South Africa again serves as an important illustration and offers a sobering cautionary note. Of particular concern for present purposes is the difficult role for courts in the face of consolidated power. Simply put, the ANC of today is not what it was under Nelson Mandela. The leadership of the revolutionary movement soon became the uncontested heads of the new political order, well accustomed to almost unchallenged political rule. ANC leadership became synonymous with black-majority rule. As expressed by one South African journalist, “[i]n the intervening years the A.N.C. has grown into something of a religion; it is the only thing that several generations, old and young, associate with the liberation of blacks from descendants of white settlers” (Madondo 2014). With that authority came the temptation to stifle political challenges, especially as time passed and the founding political generation faded from the scene. Dominant party democracy is a crisis that afflicts many new states. In such circumstances, there are elections that decide who will assume governmental office, and these elections may even be relatively free of fraud or violence. Yet, such elections in reality may be desultory affairs in which there is only one real contender for office and in which the results are a foregone conclusion. Hollowed-out democracy, devoid of electoral competition, introduces its own set of challenges. The South African Court, beginning with the historic Certification decision of 1996, ushered in a period of what Bruce Ackerman has termed “constrained democracy.” In that role, the Court was created as a central institutional guarantor of the orderly transition from apartheid to competitive elections open to all South Africans. As the ANC consolidated power, however, the Constitutional Court’s role changed. The task of securing a peaceful transition ended, and in its place a new challenge was presented by the lack of political challenge to one-party rule. Increasingly, the key issues taken up by the Court were presented as questions of broad interpretation of constitutional protections for minority parties or of the independence of prosecutors with authority
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 18 /
Date: 10/7
JOBNAME: Delaney PAGE: 19 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
78 Comparative judicial review over official corruption. In each instance, the South African Court was called on to assume a role beyond enabling the transition to a multiethnic constitutional democracy. Instead, the Court confronted the effects of the stranglehold on power of the triumphant ANC. One example highlights the problem. The Constitution contained an “antidefection” principle in addition to the protections of proportional representation, under which a Member of Parliament would have to resign if he or she attempted to switch parties.33 In principle, there is a logic to antidefection provisions in election systems in which voters choose a party slate and then seats are apportioned to reflect the votes each slate received. No individual legislator can claim an individual electoral mandate that could stand independent of the party slate that was the initial electoral vehicle. Ease of defection undermines the creation of viable political parties and is an invitation to corrupt offers to draw legislators across the aisle. In Brazil, party switching is endemic, accounting for at times a quarter of the Chamber of Deputies, and is closely tied to ongoing corruption scandals (see Desposato 2006). In the particulars of South Africa, however, the antidefection provision was something more. The provision was an express subject of negotiations in the transition from apartheid because of the perception from the beginning of the transition process that the ANC might emerge too powerful. Antidefection obstacles reflected the fear that the likely parliamentary majority of the ANC could be used to woo minority legislators and over-concentrate political power. South Africa joined other countries that formalized such antidefection concerns through legal prohibitions on what is known as floorwalking or floor-crossing.34 Unfortunately, once in office, the ANC sought to consolidate its parliamentary majority by repealing the antidefection provision. It forced through new legislation allowing defection, but only if at least 10 percent of the party’s legislative delegation defected at once.35 In practice, a 10 percent threshold would pose an insurmountable hurdle to defections from the ANC, but would leave defection a matter of individual choice for any party with fewer than ten Members of Parliament, and allow the ANC to pick off individual legislators one by one (Fombad 2007, 32). The floor-crossing constitutional amendment prompted a constitutional challenge, this time a claim that the amendment would violate the principles of party integrity and separation of powers inherent in the entire constitutional structure.36 Certainly defection was not the make-or-break issue in South African constitutional governance, but it was a signal point on the road to one-party domination. The Court did not confront the ANC and rejected a constitutional challenge on the grounds that no individual voter 33
In re Certification, 1996 (4) SALR at 829 (considering whether the antidefection principle was unconstitutional) (Supreme Court of South Africa). 34 New Zealand similarly prohibited party switching by Members of Parliament in the Electoral (Integrity) Amendment Act, 2001, but the prohibition was statutory and sunsetted in 2005. See Palmer 2006, 610 and n.64. 35 Loss or Retention of Membership of National and Provincial Legislatures Act 22 of 2002 § 23A(2)(a) (S. Afr.), repealed by S. AFR. CONST., Amendment Act of 2003. 36 United Democratic Movement v. The President of the Republic of South Africa, 2003 (1) SALR 495, 510, 530–1 (CC) (S. Afr.).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 19 /
Date: 10/7
JOBNAME: Delaney PAGE: 20 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 79 could claim a right of faithful representation after the election.37 Had the Court sought to intercede, there were textual grounds such as the constitutional guarantee of effective minority party participation consistent with the aims of democracy that would have allowed it to do so.38 As it happened, floor-crossing proved to destabilize the ANC parliamentary delegations because of the need to renegotiate seniority and other perquisites, and it was ultimately abandoned politically. If constitutional design is seen as furthering the aims of democratic self-government, the South African experience with the consolidation of the ANC illustrates a broader problem. South Africa began the post-apartheid period with tightly ordered powersharing, including rotation in office among the various political parties. This was the classic consociationalist response to the problem of potential winner-take-all elections in divided societies. Under its thoughtful transition program, formally divided power was to recede in favor of democratic elections, but with alternative guarantees of constraint on what the majority could do once in power. Constitutionalism provides the critical limitations on how political power may be exercised. As Daryl Levinson well captures this core feature of constitutional rule: Constitutionalism is the project of creating, allocating, and constraining state power. Doing any of these things successfully requires constitutional designers and interpreters to determine how power should best be distributed among political actors and institutions, how much power these actors and institutions in fact possess, and how power shifts in response to legal and political arrangements and interventions. (Levinson 2016, 33)
Following this view, the simpler consociational models from Ceylon or Cyprus or Lebanon were one strain of constitutionalism that sought to constrain the use of state power to inhibit ethnic or religious strife. Formalized power-sharing of this simple form proved unable to withstand changed demands for power over time, or simply the shifting balance between the constituent groups. Current constitutional models give wider berth to democratic choice. The head of state is either the largest vote-getter or the head of the largest parliamentary bloc, not the preassigned representative of one community or another. Nonetheless, the changed form of allocating and constraining state power should not obscure the same core purpose of allowing both democratic choice and a guarantee of limits on the exercise of state authority. What has changed is the focus on constitutional limits on democratic power, and on constitutional courts to enforce the boundaries of the new political order. The introduction of courts invariably introduces a rights dimension to the expanded scope of constitutional adjudication. But the jurisprudential import of rights claims should not obscure the institutional role that constitutional courts are called upon to perform in recent constitutional design. The jurisprudence may sound more or less in the language of rights, but the role is a structural guarantee of the stability of democracy, particularly in fractured societies. Ultimately, the question presented is one of institutional design. It is not a question of the optimal arrangement for all democratic societies at all times, but a matter of survival for democracies confronting the task of stabilizing contested claims to power. 37 38
Id. at 516. S. AFR. CONST., 1996 § 57(2)(b).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 20 /
Date: 10/7
JOBNAME: Delaney PAGE: 21 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
80 Comparative judicial review Recall that most of these democracies are created in countries that fail John Stuart Mill’s admonition that democracy must presuppose a common language and culture. To the contrary, democracy in the modern era does not follow from the creation of common national enterprise, but often is the effort to what would more properly be the preconditions for democratic governance. The new and weak democracies of the late 20th century turned to a new institutional design to shore up their vulnerable rule. A quarter-century after the new wave of democracies hit the world stage, the historical account remains incomplete. In some areas, such as the former Soviet Republics of Central Asia, democracy had little traction and the attempts ceded to authoritarian rule relatively quickly. In other parts, such as Ukraine and even Russia itself, the history was more contested, even if the prospects look poor. Even so, there remain more people living under some form of democratic rule than a quarter-century ago, and certainly more than at any time before that. Contested elections for power are found in previously unwelcoming places, including Africa, Central America, and the Pacific Rim. Characteristically these are countries without strong civil society institutions, without a developed sense of national solidarity and without a tradition of core liberties of speech or association. These were hardly the optimal conditions for democracy to blossom. Not surprisingly, the historical ledger reveals mixed results. Whether courts can ultimately stabilize democratic governance in fragile democracies has yet to be determined. The key role assigned to a new institutional actor, the constitutional court, is one of the signal innovations of the post-1989 wave of new democracies. While the final accounting is yet to be written, the lesson thus far is that entrusting these courts with stewardship over the democratic enterprise was certainly a valiant experiment.
REFERENCES Aristotle. 1958. The Politics of Aristotle. Translated by Ernest Baker. New York, NY: Oxford University Press. Austin, Granville. 1966. The Indian Constitution: Cornerstone of a Nation. Oxford: Clarendon Press. Beck, Colin, Gili Drori, and John Meyer. 2012. “World Influences on Human Rights Language in Constitutions: A Cross-National Study.” International Sociology 27: 483–501. Binmore, Ken, Avner Shaked, and John Sutton. 1989. “An Outside Option Experiment.” Quarterly Journal of Economics 104: 753–70. Blume, Andreas and Oliver Board. 2013. “Intentional Vagueness.” Erkenntnis 79: 855–99. Bobbitt, Philip. 2002. The Shield of Achilles: War, Peace and the Course of History. New York, NY: Anchor Books. Choper, Jesse H. 2005. “The Political Question Doctrine: Suggested Criteria.” Duke Law Journal 154: 1457–524. Choudhry, Sujit. 1999. “Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation.” Indiana Law Journal 74: 819–92. Crane, William W. and Bernard Moses. 1884. Politics: An Introduction to the Study of Comparative Constitutional Law. New York, NY: G.P. Putnam’s Sons. Desposato, Scott W. 2006. “Parties for Rent? Ambition, Ideology, and Party Switching in Brazil’s Chamber of Deputies.” American Journal of Political Science 50: 62–80. Dixon, Rosalind and Samuel Issacharoff. 2016. “Living to Fight Another Day: Judicial Deferral in Defense of Democracy.” Wisconsin Law Review 2016: 683–731.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 21 /
Date: 15/8
JOBNAME: Delaney PAGE: 22 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative constitutional law as a window on democratic institutions 81 Finkel, Jodi. 2005. “Judicial Reform as Insurance Policy: Mexico in the 1990s.” Latin American Politics and Sociology 47: 87–113. Fombad, Charles M. 2007. “Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from South Africa.” American Journal of Comparative Law 55: 1–45. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press. Ginsburg, Tom and Zachary Elkins. 2009. “Ancillary Powers of Constitutional Courts.” Texas Law Review 87: 1431–62. Hamilton, Alexander. 1788. The Federalist No. 78. Hirschl, Ran. 2013. “From Comparative Constitutional Law to Comparative Constitutional Studies.” International Journal of Constitutional Law. 11: 1–12. Huntington, Samuel. 1991. The Third Wave: Democratization in the late Twentieth Century. Norman, OK: University of Oklahoma Press. Issacharoff, Samuel. 2015. Fragile Democracies: Contested Power in the Era of Constitutional Courts. Cambridge: Cambridge University Press. Kommers, Donald and Russell Miller. 2012. The Constitutional Jurisprudence of the Federal Republic of Germany. Durham: Duke University Press. Krishhnaswamy, Sudhay. 2009. Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine. New Delhi: Oxford University Press. Kull, Andrew. 1992. The Color-Blind Constitution. Cambridge, MA: Harvard University Press. Landau, David. 2016. “Political Support and Structural Constitutional Law.” Alabama Law Review 67: 1069–124. Law, David. 2005. “Generic Constitutional Law.” Minnesota Law Review 89: 652–751. Levinson, Daryl. 2016. “Foreword: Looking for Power in Public Law.” Harvard Law Review 130: 31–143. Lopez, Enrique Guillen. 2008. “Judicial Review in Spain: The Constitutional Court.” Loyola of Los Angeles Law Review 41: 529–62. Madondo, Bongani. “The Loyal Bunch.” New York Times, May 14, 2014. Maruste, Rait and Heinrich Schneider. 1998. “Constitutional Review in Estonia—Its Principal Scheme, Practice and Evaluation.” In Constitutional Reforms and International Law in Central and Eastern Europe, edited by Rein Müllerson, Malgosia Fitzmaurice, and Mads Andenas. The Hague: Kluwer Law International. Mate, Manoj. 2010. “Two Paths to Judicial Power: The Basic Structure Doctrine and Public Interest Litigation in Comparative Perspective.” San Diego International Law Journal 12: 175–222. Mate, Manoj. 2014a. “State Constitutions and the Basic Structure Doctrine” Columbia Human Rights Law Review 45: 441–98. Mate, Manoj. 2014b. “Elite Institutionalism and Judicial Assertiveness in the Supreme Court of India.” Temple International & Comparative Law Journal 28: 361–430. Mourtada-Sabbah, Nada and Bruce E. Cain. 2007. The Political Question Doctrine and the Supreme Court of the United States. Plymouth: Lexington Books. Palmer, Mathew S. R. 2006. “Using Constitutional Realism to Identify the Complete Constitution: Lessons from an Unwritten Constitution.” American Journal of Comparative Law 54: 587–636. Petersen, Niels. 2015. “Balancing and Judicial Self-Empowerment: A Case Study on the Rise of Balancing in the Jurisprudence of the German Federal Constitutional Court.” Global Constitutionalism. 4: 49–80. Pildes, Richard H. 2008. “Ethnic Identity and Democratic Institutions: A Dynamic Perspective.” In Constitutional Design For Divided Societies, edited by Sujit Choudhry. New York, NY: Oxford University Press. Posada-Carbó, Eduardo. 2011. “Colombia after Uribe.” Journal of Democracy 22: 137–51. Przeworski, Adam, Michael E. Alvarez, José Antonio Cheibub, and Fernando Limongi. 2000. Democracy and Development: Political Institutions and Well-Being in the World 1950–1990. Cambridge: Cambridge University Press. Quint, Peter. 1989. “Free Speech and Private Law in German Constitutional Theory.” Maryland Law Review 48: 247–349. Ramachandran, Raju. 2000. “The Supreme Court and the Basic Structure Doctrine.” In Supreme but Not Infallible: Essays in Honor of the Supreme Court of India, edited by B. N. Kirpal, Ashok H. Desai, Gopal Subramanium, Rajeev Dhavan, and Raju Ramachandran. New Delhi: Oxford University Press. Sadurski, Wojciech. 1987. “‘It All Comes Out in the End’: Judicial Rhetorics and the Strategy of Reassurance.” Oxford Journal of Legal Studies 7: 258–78.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 22 /
Date: 10/7
JOBNAME: Delaney PAGE: 23 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
82 Comparative judicial review Sadurski, Wojciech. 2014. Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe. Dordrecht: Springer. Shaked, Avner and John Sutton. 1984. “Involuntary Unemployment as a Perfect Equilibrium in a Bargaining Model.” Econometrica 52: 1351–64. Sheive, Sarah Wright. 1995. “Central and Eastern European Constitutional Courts and the Antimajoritarian Objection to Judicial Review.” Law and Policy in International Business 26: 1201–34. Slaughter, Anne-Marie. 2000. “Judicial Globalization.” Virginia Journal of International Law 40: 1103–24. Staton, Jeffrey K. and Georg Vanberg. 2008. “The Value of Vagueness: Delegation, Defiance, and Judicial Opinions.” American Journal of Political Science 52: 504–19. Stone Sweet, Alec. 2000. Governing with Judges: Constitutional Politics in Europe. New York, NY: Oxford University Press. Sunstein, Cass. 2001. One Case at a Time: Judicial Minimalism on the Supreme Court. Cambridge, MA: Harvard University Press. Weill, Rivka. 2012. “Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power.” Hastings Constitutional Law Quarterly 39: 457–512.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 04_Chapter4_ts
/Pg. Position: 23 /
Date: 20/8
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
5. The origins and growth of judicial enforcement Steven Gow Calabresi*
There is a global consensus today that written constitutionalism is normatively desirable and that enforcement of written constitutions through judicial review of the constitutionality of legislation, as well as of executive branch action, is normatively desirable as well. Courts armed with the power of judicial review are in many countries the most popular branch of the government, according to the opinion polls. The question of what explains the origins and growth of judicial review is important, because in the last 50 years, independent judiciaries with the power of judicial review of the constitutionality of legislation have become the norm in all of the world’s constitutional democracies. Although Americans equate constitutionalism with judicial review, written constitutions and judicial review have not always been a package deal. Almost all written constitutions in the 19th century—and really up until 1945—did not provide for enforcement of constitutional text against the legislature by judicial review. The only pre-1945 exceptions were the four federal regimes in the United States, Canada, Australia and, to some extent, in Switzerland. It is only with the post-World War II constitutions in Germany, Italy, Japan, and India that judicial review of the constitutionality of legislation and of bills of rights came to be seen as essential to constitutionalism itself. Indeed, it was not until after World War II that most of the US Bill of Rights came to be incorporated against the states. Even after 1945, France did not allow for judicial review formally until 1958 and functionally until 1971, 1974, and 2008; Canada did not allow for constitutional enforcement of a Bill of Rights until 1982; and the United Kingdom did not pass its Human Rights Act providing for a form of judicial review until 1998. Vigorous judicial review did not become the norm in emerging democracies until very recently—for the most part since the 1980s. I seek here to advance a theory of the emergence of judicial review that is predicated on two aspects of certain nation-state formation: (1) the need for a neutral umpire in federalism or separation of powers cases; and (2) the introduction of rights protection due to contextualized historic wrongs. I recognize that other theories of the emergence of judicial review exist; for example, Professor Ran Hirschl argues that judicial review emerges as a fading hegemonic elite seeks to entrench itself in the judiciary as it starts to lose elections for political office (Hirschl 2000), and Professor Tom Ginsburg suggests that judicial review originates when two equally divided political parties seek “insurance and commitment” during periods when they are out of favor in national * Professor Calabresi retains the exclusive copyright over this essay, and assigns to the Editor and Publisher the license to publish it as a book chapter while retaining the right to use some of this material in his own two-volume series on “The Origins and Growth of Judicial Review in the G-20 Constitutional Democracies.” Professor Calabresi thanks for their helpful comments Guido Calabresi, Erin Delaney, Akhil Amar, and Bruce Ackerman.
83
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 1 /
Date: 10/7
JOBNAME: Delaney PAGE: 2 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
84 Comparative judicial review electoral politics (Ginsburg 2003). I agree with Hirschl and Ginsburg that elite hegemonic entrenchment and insurance and pre-commitment are partial causes of the creation of judicial review and power, but I do not think their theories can fully explain the emergence of judicial review in the countries I review here.1 My theory is that judicial review usually emerges as the result of either: (1) the need for a neutral umpire in federalism or separation of powers cases; or (2) as the result of what Professor Alan Dershowitz calls the Rights from Wrongs hypothesis. To begin with federalism, I wrote in 1995 that “it appears that judicial review and federalism go hand in hand all over the world. A major impetus in the global spread of judicial review has been the need for central judicial umpiring of federalism guarantees” (Calabresi 1995, 806, italics in original). Professors Mauro Cappelletti and William Cohen (Cappelletti and Cohen 1979, 10–11) made essentially the exact same point about the emergence of judicial review in the United States, Canada, Australia, and India in 1979 (Cappelletti and Cohen 1979, 10–11). Most recently, Professors Barry Friedman and Erin Delaney have explained very convincingly that judicial supremacy exists [in the United States] because it must: Federations need a “supreme arbiter” to monitor the federal bargain. With its duty to police the boundaries of the spheres of sovereignty (i.e., the division of competences), the [American] judiciary is placed at the apex of the [U.S.] constitutional scheme. (Friedman and Delaney 2011, 1147)
Professors Friedman and Delaney clearly show that disagreements that occur between the nation and the states served as the catalyst for judicial supremacy in the United States (Friedman and Delaney 2011, 1183). Turning to the Rights from Wrongs hypothesis, according to Professor Dershowitz, all of our rights emerge when as an historical matter a great wrong has been committed. Revolutionary and elite movements emerge to oppose the Wrong, and they create judicially enforceable constitutional law to ensure that the Wrong never occurs again. Professor Dershowitz’s profound insight is that while people have a lot of trouble identifying what is utopian or good, we find it much easier to agree on things that are wrong. Thus, while public intellectuals do not share a vision of utopia, they do agree that, for example, Nazism, Stalinism, and racial apartheid are great Wrongs. Once judicial review emerges because it is needed to umpire federalism or separation of powers disputes or because of Rights from Wrongs, it spreads to other areas as well. In structuring my argument, my view is that the proper countries for a case study should include democracies that are populous and/or economically successful, and that one must avoid cherry picking. In this short chapter, I will discuss the origins of judicial review in three of the oldest, most economically powerful and territorially 1 I would also note that judicial review originates today in many jurisdictions because of borrowing from such paradigm judicial review countries as the United States, Germany, Canada. and South Africa. Borrowing is a major cause of the creation of judicial review. Finally, judicial power often grows over time as democratically elected legislatures learn that they can leave political hot potato issues, like the legality of capital punishment and the content of abortion law, to courts, thereby freeing themselves from being accountable for such issues to the voters. Judicial power grows when the political branches give judges the power to legislate as to hot potato issues.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 2 /
Date: 10/7
JOBNAME: Delaney PAGE: 3 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
The origins and growth of judicial enforcement 85 largest jurisdictions: the United States, Germany, and India. These three case studies would seem to be class barometers of the global norm with respect to the emergence and growth of judicial review in constitutional democracies. I begin with the United States and then consider the other jurisdictions in the order that they became constitutional democracies with judicial review of the constitutionality of legislation. I do not deny that other causes are part of the story of the emergence of judicial review in some nations, but I do argue that the most persuasive rationale for judicial review is derived from the need for a federalism or separation of powers umpire, the derivation of Rights from Wrongs or some combination of both.2
A. THE ORIGINS AND GROWTH OF JUDICIAL REVIEW IN THE UNITED STATES What explains the origins and growth of judicial review of the constitutionality of legislation for example in the United States? Much has been written about this question,3 investigating it as either an historical or as a political science phenomenon, but no one to date has ever looked at the growth of U.S. judicial review comparatively, even though systems of judicial review to which the U.S. system might be compared now exist all over the world. The standard American account is that judicial review of legislation was foreshowed in the Federalist Paper No. 78 (Hamilton 1788) and announced in Marbury v. Madison.4 But this begs the question of why the Federalist Paper No. 78 and Marbury endorsed judicial review, and why Americans followed those sources and turned Marbury into a canonical text. Legal historians have recently recognized some pre-1803 state cases as pre-Marbury instances of the phenomenon of judicial review (Treanor 1994; Hamburger 2008), but again what, then, explains the origin of those cases? I submit that no one writing today in American law, history, or political science has a perfectly satisfactory explanation of the origins and growth of judicial review of the constitutionality of legislation in the United States. I propose to offer such an explanation, using a comparative constitutional political science approach. 2 Another major historical cause of the emergence of judicial review, which is not discussed by Professors Hirschl and Ginsburg, is borrowing from the U.S., German, and, most recently, Canadian constitutional models. This is a major cause of the origination of judicial review in other G-20 democracies, such as the Federative Republic of Brazil, the United States of Mexico, the Republic of South Africa, the Republic of Korea, Turkey, and Argentina. A nation may decide to retain judicial review or to expand or contract judicial power for the reasons Hirschl and Ginsburg mention, but G-20 nations, other than perhaps South Africa, have not historically adopted judicial review in the first place primarily for hegemonic preservation or insurance and commitment reasons, as they claim. 3 Judicial review is sometimes traced to Dr. Bonham’s Case, 77 Eng. Rep. 638, 646 (1610), see Bilder 2006; Boyer 1997; Gerber 2011; Grey 1978; Hamburger 2008; Sherry 1987; Sosin 1989. Other accounts emphasize structural factors, including popular sovereignty and judicial independence (Bickel 1962; Casto 1995; Clinton 1989; Coxe 1893; Crosskey 1953; Goldstein 1986; Harrington 2003; Nelson 2000; Prakash and Yoo 2003, 893–4; Rakove 1997; Thayer 1895; Treanor 2005; Treanor 1994; Wolfe 1986; Wood 1999). 4 5 U.S. 137 (1803).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 3 /
Date: 15/8
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
86 Comparative judicial review Comparative government is a core discipline in political science, and it is high time that that discipline, along with history, is brought to bear on the question of why judicial review of the constitutionality of legislation originated and grew enormously in the United States. Judicial Review began in the United States during the colonial period from the founding of Jamestown in 1607 until American independence in 1776. All 13 of the original American colonies had written corporate charters of incorporation that defined the scope of power of their respective legal institutions (Bilder 2006), and these charters were enforced by the Privy Council sitting in London, England. The First British Empire, which included the 13 United North American Colonies, was a federal structure, and it required a judicial umpire to police the respective competences of that federal structure. In theory, the king issued his colonial corporate charters pursuant to the king’s royal prerogative both to charter corporations and to manage affairs outside the realm of England and Wales. It was thus no accident that the king’s Privy Council would have had to have the last word in construing the meaning of the colonial corporate charters on behalf of the king. These institutions were the king’s agents. As Professor Bilder shows in painstaking detail, British federal judicial review of colonial actions emerged out of the ultra vires doctrine in British corporate law. When a state legislature or governor exceeded its powers under the corporate charter that created it, the king’s Privy Council would strike down such actions as ultra vires the king’s charter and as therefore being unconstitutional. Parliament had nothing whatsoever to do with the governance of the 13 colonies since this was all handled by the king using his prerogative powers. It is for this reason that the 13 colonies revolted in the 1760s and 1770s when Parliament began to try to tax them. The 13 colonies thought they were subordinate to the king, but not to Parliament. One of the requirements of the corporate charters was that the colonies were barred from enacting laws repugnant to the laws of “this Our Kingdom of England,” unless local circumstances required that such laws be adopted. This command was far from crystal clear and led to many instances of the Privy Council striking down colonial laws on repugnancy grounds while upholding others. Professor Bilder nicely recounts this history in The Transatlantic Constitution: Colonial Legal Culture and the Empire (Bilder 2004). The bottom line is that the federalism structure of the First British Empire gave rise to a system of judicial review of legislation long before the colonial cases of judicial review cited by Professors Phillip Hamburger and William Treanor were ever decided (Hamburger 2008; Treanor 1994). The reason the Framers expected the Constitution of 1787 to lead to federalism-based judicial review, as the Federalist Paper No. 78 clearly shows that they did, is that they had become accustomed to such judicial review when they were part of the British Empire (Hamilton 1788). Many scholars have noted that the Marshall and Taney Courts only struck down two federal statutes as unconstitutional between 1789 and 1861 even though they were much more active in striking down state statutes. This, however, is not so surprising because the Supreme Court of the United States essentially picked up where the Privy Council left off in reviewing primarily the legality of state actions. Judicial review in the United States thus originated in the federal colonial structure that the British put in place between 1607 and 1776, and it was then continued by the U.S. Supreme Court after 1789. Federal judicial review owes more to British practice than it does to the
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 4 /
Date: 10/7
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
The origins and growth of judicial enforcement 87 handful of state decisions cited by Professors Hamburger and Treanor (Hamburger 2008; Treanor 1994). British and early American judicial review of colonial or state legislation was a form of federalism umpiring. The Supreme Court heard cases where states sued each other or the national government, and it passed on the constitutionality of acts of Congress as well as passing on the legality of state laws under the Contract Clause and under the Dormant Commerce Clause. From 1789 to 1868, the Supreme Court was to an overwhelming degree a federalism and separation of powers umpire. There were very few individual rights cases decided under the federal Bill of Rights. Once the Supreme Court gained legitimacy, as it had done by 1868 in the business of federalism and separation of powers umpiring, it became possible to give the Court a new mission of using judicial review of legislation to protect individual rights. It is important to remember that the U.S. Supreme Court was primarily an umpire for the first 70 years of its existence, navigating between the national government and the states or between the president and Congress. No matter how the Supreme Court decided these umpiring cases there was a powerful political actor that would benefit from the Court’s decision and would thus defend it. How persuasive is the federalism explanation of judicial review? It is true that a defender of Professor Hirschl’s elite hegemonic entrenchment thesis might point to the Adams administration’s entrenchment appointment of its loyalists on the Supreme Court in 1801 and to George Washington’s policy of appointing only supporters of the Constitution to be judges. But that entrenchment had only limited effect because the Marshall Court invalidated only one federal statute as being unconstitutional in Marbury v. Madison, and the Jeffersonians were able quite rapidly to appoint a majority of the justices. In contrast, judicial review of the constitutionality of state laws—the federalism dynamic—became quite entrenched and continued throughout the antebellum years. And it would be hard to conclude that judicial review in the United States originated as a process of “insurance and pre-commitment” between two evenly matched political parties because President George Washington appointed all six of the original Supreme Court justices, and a real two-party system did not really emerge in the United States until the Whig Party was created in the 1830s to challenge Andrew Jackson’s Democrats. By that time, judicial review over state laws in the United States was well established, and judicial review over federal laws was still in its infancy. Of course, the Bill of Rights itself might be a form of insurance and pre-commitment: The Anti-Federalists did secure adoption of the Bill of Rights to the Constitution as a condition for ratifying it. But the Bill of Rights is better described as a classic Rights from Wrongs document that protected against general searches through writs of assistance and against prosecution for seditious libel. The rights in the federal Bill of Rights all stemmed from British colonial Wrongdoing. Judicial review in the United States did grow appreciably after the adoption of the Reconstruction Amendments and of the 1875 federal statute granting the federal district courts general federal question jurisdiction. This growth of judicial review emerged for Rights from Wrongs reasons as a result of the great historical Wrongs of slavery and of the Black Codes. Judicial review, and written constitutions and bills of rights have often emerged all over the world as the result of an effort to rectify great Wrongs that were done, like the Holocaust in Germany, or colonialism in India, or apartheid in South
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 5 /
Date: 10/7
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
88 Comparative judicial review Africa. This same phenomenon explains the enormous growth of judicial review in the United States following the Civil War after the adoption of the Reconstruction Amendments and the 1875 federal statute granting the federal district courts general federal question jurisdiction. Federal judicial power grew enormously after the Civil War. The Thirteenth, Fourteenth, and Fifteen Amendments were all written to repudiate the Wrongs of slavery and of the Black Codes. The creation of general federal question jurisdiction in the lower federal courts in 1875 was done to make the federal courts more powerful so they could redress the Wrongs of slavery and of the Black Codes. Ironically, after the reconciliation between the conquered but segregated South and the North, the federal courts used their new powers not to protect African Americans but to enforce constitutional laissez-faire. Thus, elites hijacked the new power of the federal courts for their own selfish purposes. Eventually, the great historical Wrong of Jim Crow legal apartheid led to a new growth in judicial power under Chief Justice Warren in Brown v. Board of Education.5 The Warren Court’s huge growth in judicial power is yet another example of Rights from Wrongs judicial empowerment. The Republicans who wrote the Fourteenth Amendment were, as Hirschl would say, a hegemonic elite, which feared losing power once the southern states regained their representation in Congress. They did indeed write the Fourteenth Amendment to constitutionalize the Civil Rights Act of 1866 so that a future Democratic Congress could not repeal it. But the Civil Rights Act of 1866, which was thus constitutionalized, was itself a classic example of a Right from Wrong. The Wrong in that case was the adoption by southern states after the end of the Civil War of laws (“Black Codes”), which stripped the freed African Americans of many of the common law rights that white southerners enjoyed. The Fourteenth Amendment not only undid the Wrong of the Black Codes, but it also undid the Wrong of Dred Scott v. Sandford,6 which the Fourteenth Amendment overturns in its first sentence. Eventually, the Fourteenth Amendment was read to incorporate almost all of the federal Bill of Rights to apply against the states. This undid many wrongs suffered by African Americans at the hands of state police officials, since the federal Bill of Rights contains many constitutional criminal procedure rights. The Fourteenth Amendment— from the Warren Court and Brown v. Board of Education on—has finally realized the hopes of the most radical members of the Reconstruction Congress. The political power, which the Supreme Court built up as a federalism and separation of powers umpire, came to be used as a powerful engine to protect individual rights. Ironically, Professor Jesse Choper (1979) argued in a book that the Supreme Court ought only to decide Fourteenth Amendment and Bill of Rights cases while treating federalism and separation of powers cases as raising non-justiciable political questions (Choper 1979). This proposal fell on deaf ears. The Supreme Court has been a conspicuous federalism umpire since its decision in United States v. Lopez,7 as is reflected by its rejection of the constitutionality of
5 6 7
347 U.S. 483 (1954). 60 U.S. 393 (1857). 514 U.S. 549 (1995).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 6 /
Date: 10/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
The origins and growth of judicial enforcement 89 President Obama’s health care law under the commerce power.8 The Court has also decided many important umpiring separation of powers cases over the last 60 years such as the Steel Seizure Cases,9 Buckley v. Valeo,10 INS v. Chadha,11 Bowsher v. Synar,12 Morrison v. Olson,13 Edmund v. United States,14 and Free Enterprise Fund v. PCAOB.15 The Supreme Court’s political power is enhanced by its ability to umpire between the nation and the states and between the president and Congress. The need for a neutral umpire in a regime with many veto points and the need to undo great historical wrongs have both been the great engines in the origins and growth of U.S. judicial power.
B. THE ORIGINS AND GROWTH OF JUDICIAL REVIEW IN THE FEDERAL REPUBLIC OF GERMANY Germany has had a federal structure going back to the days of the Holy Roman Empire, and even the imperial German Constitution of Kaiser Wilhelm II had an upper chamber, which was all powerful and which represented the German states. The current German Constitution, called the Basic Law, establishes a Bundesrat, or upper chamber of the legislature, in which the states sit, with state officials simultaneously holding state and federal office. The Basic Law also carefully divides power between the German national government and the 16 German states and among the two houses of the national legislature as well as between the legislature and the Chancellor’s government. The Basic Law explicitly, on its face, contemplates that the Constitutional Court exercising the power of judicial review will umpire and police all these constitutional divisions of power. The states and legislative officials, along with all citizens, have standing to bring suits before the Constitutional Court, asking it to play umpire among the Federal Republic’s many constitutional organs. State officials in the Bundesrat elect half the justices of the Constitutional Court, by a two-thirds vote, and the German Basic Law’s Preamble does not begin with the language, “We the People of Germany …” but instead begins by saying that the Basic Law is promulgated by the German states. German constitutional law is very protective of state prerogatives, and there is certainly no hint of the idea that federalism disputes are non-justiciable and raise political questions, as Professor Jesse Choper and Herbert Wechsler have at times argued in the United States (Choper 1979; Wechsler 1959). There is simply no doubt that the need for a powerful federalism and separation of powers umpire was 8
See National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). The Court upheld the health care law under the taxing power. 9 343 U.S. 579 (1952). 10 424 U.S. 1 (1976). 11 426 U.S. 919 (1983). 12 478 U.S. 714 (1986). 13 487 U.S. 654 (1988). 14 520 U.S. 651 (1997). 15 561 U.S. 477 (2010).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 7 /
Date: 10/7
JOBNAME: Delaney PAGE: 8 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
90 Comparative judicial review one of the reasons why the Federal Constitutional Court was given the erga omnes power of judicial review, and federalism remains very much alive and well in German constitutional law because of the neutral umpire between the nation and its states. The fact that the state-dominated Bundesrat elects half of Germany’s Constitutional Court justices guarantees that the Constitutional Court will be very protective of federalism boundary lines. This has been borne out in the German Constitutional Court’s case law. The first major decision of the Constitutional Court—in the Southwest State Case16—held unconstitutional a portion of a constitutional amendment which ended early the term of an elected state government. That federalism protective ruling was followed by rulings in the Television I Case,17 which held that the national government could not set up a TV station that competed with the State-run TV station, and in the Concordat Case,18 which held that state control over education could not be interfered with by a treaty. At the same time, the Constitutional Court defended national power in the Atomic Weapons Referenda Case,19 by disallowing a state referendum on a national decision to deploy atomic weapons. In recent years, the Court has continued to police federalism boundary lines, holding that a state could only cast its votes as a block in the Bundesrat.20 The Court defended the states from federal intrusion on education policy in the Junior Professor Case,21 and it held that the federal government had power to regulate geriatric nurses under the Basic Law, but that the states had power to regulate assistant geriatric nurses.22 In sum, federalism umpiring is a major part of what the Constitutional Court does and has always done, so the need for an umpire at least partly explains the origins of German judicial review. At the same time, it would be a mistake to say that federalism umpiring was the major reason the Federal Constitutional Court was given sweeping powers of judicial review of the constitutionality of legislation. It was not. The major reason the Federal Constitutional Court was given its sweeping powers of judicial review was that it was a reaction to the Holocaust and all the other horrors of Nazism, and the devastation caused by World War II. German judicial review is a classic instance, perhaps the paradigm instance, of the Rights from Wrongs phenomenon. The reason the German Basic Law protects so many fundamental rights, rendering some of them unamendable, and creates a super powerful Constitutional Court is in response to the evils of the Holocaust and of Adolf Hitler’s subversion of the constitutional democracy of the Weimar Republic. Post-war Germany is even today still haunted by the legacy of Nazism, which has prevented it from playing as important a role in its own national defense as it ought to play. Federalism and Rights from Wrongs are key reasons for the emergence of judicial review in Germany, and other rationales have less purchase in this context. There was 16 17 18 19 20 21 22
1 BVerfGE 14 (1951). 12 BVerfGE 205 (1961). 6 BVerfGE 309 (1957). 8 BVerfGE 104 (1958). See Immigration Act Case, 106 BVerfGE 310 (2002). 111 BVerfGE 226 (2004). Geriatric Nursing Act Case, 106 BVerfGE 62 (2002).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 8 /
Date: 16/7
JOBNAME: Delaney PAGE: 9 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
The origins and growth of judicial enforcement 91 no fading hegemonic elite, since the Nazis were completely and utterly destroyed. Post-war elites who drafted the Constitution were not so much trying to entrench themselves in power, as they were saying “never again” in response to the Holocaust and the legacy of Nazism. And there was not an effort by two co-equal political parties to engage in insurance and pre-commitment: the Christian Democratic Party dominated German politics for the first 20 years of West Germany’s history, and they made no concessions to the Social Democrats. German judicial review emerged largely for Rights from Wrongs and federalism umpiring reasons. This is reflected in the very first case the German Constitutional Court decided, the Southwest State Case, mentioned above.23 In that case, the Court held unconstitutional a constitutional amendment that purported to change the length of time a state government could sit without consulting the voters. This case is an umpiring case in which the Constitutional Court claimed the power to review the constitutionality of constitutional amendments.24 Another foundational German Constitutional Court opinion affirming the human rights-protecting function of German judicial review was the pro-free speech decision in Luth’s Case,25 where the Court held that a private party had a constitutional freedom-of-expression right to organize a boycott of a film produced by a prominent Nazi filmmaker who was trying to rehabilitate himself in the post-war era. Other powerful individual rights rulings came in (1) the Spinal Tap Case,26 where the Court refused to allow a highly intrusive medical procedure for a man who had refused to fill out some forms; (2) the German Life Imprisonment Case,27 where the Court held life imprisonment unconstitutional on Kantian grounds; (3) the Transexuals I Case,28 where the Court protected the right of transsexuals to change their gender; (4) the Classroom Crucifix Case II,29 where the Court held that the Catholic state of Bavaria could not force non-Catholics to look at crucifixes on classroom walls; (5) the Monument Protection Act Case,30 where the Court found a historic preservation law to be a regulatory taking; and (6) the Pharmacy Case,31 where the Court found that a former East German pharmacist had a right to pursue his trade and profession. In all of these cases and their progeny the German Constitutional Court has vigorously defended judicial review and individual rights. In summary, the origins and growth of German judicial review are evident in the vigorous enforcement the Constitutional Court has given to the very broad German Bill of Rights, which was a reaction to the Rights from Wrongs phenomenon of German constitutional creation. The need for a federalism umpire has also formed a subsidiary argument in favor of the growth of judicial power in Germany. 23
1 BVerfGE 14 (1951). This power is given to the Court by the Basic Law in Article 79(3), the so-called “Eternity Clause.” 25 7 BVerfGE 198 (1958). 26 16 BVerfGE 194 (1963). 27 45 BVerGE 187 (1977). 28 49 BVerfGE 286 (1978). 29 93 BVerfGE 1 (1987). 30 100 BVerfGE 226 (1999). 31 7 BVerfGE 377 (1958). 24
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 9 /
Date: 10/7
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
92 Comparative judicial review
C. THE ORIGINS AND GROWTH OF JUDICIAL REVIEW IN THE REPUBLIC OF INDIA The origins of judicial review in India can be traced back to the 19th century when the British Empire created High Courts in Bombay, Calcutta, Madras, and Allahabad, as those cities were then called. The first three of these courts were created to hear Indian appeals on June 26, 1862. Decisions from these courts were all appealable to the Judicial Committee of the Privy Council (JCPC), an imperial British Supreme Court and a new standing committee of the Privy Council, thoroughly modernized and reorganized by the Judicial Committee of the Privy Council Act of 1833 (Howell 1979). The 1833 Act provided that all the judges serving on the Privy Council be barristers with expertise in the law similar to that of judges who served as British law lords (Howell 1979). Members were recruited to serve on the Judicial Committee who had expertise in the Civil Law, Hindu Law, and Islamic Law, because those legal traditions were relevant to the imperial Supreme Court’s work (Howell 1979). Although the JCPC’s power came from its exercise of the Royal Prerogative and not from an Act of Parliament, the 1833 Act did specify that British monarchs were bound to follow the Judicial Committee’s advice, which they always did (Howell 1979). The Judicial Committee members did not wear robes or wigs, although those who argued before them did. The Judicial Committee issued one unanimous opinion of the Court, and it did not publish concurrences or dissents. It wanted to present a united front in its decision of appeals from distant parts of the British Empire. It also wanted its opinion to be the voice of the monarch speaking to the Empire. One opinion was thus essential in the JCPC even though in the law and equity courts the judges issued opinions seriatim. The Judicial Committee of the Privy Council heard a very large number of appeals from British India, and, over time, other High Courts were created with a right to appeal their decisions to the JCPC. For example, all six of Australia’s states and all of Canada’s provinces gave litigants the right to appeal to the JCPC while bypassing the High Court of Australia or the Supreme Court of Canada. In the Government of India Act 1935, provision was made for the first time for the creation of a Federal Court of India, which came into existence in 1937. This Court was a judicial body with original, appellate, and advisory jurisdiction, which had exclusive jurisdiction over any dispute between the Central Government of India and the Provinces. It was also empowered to hear any cases concerning the Government of India Act 1935. Judges were appointed by the Crown from among those who had been: (1) a High Court Judge for at least five years; or (2) a barrister or advocate of ten years’ standing; or (3) a pleader in a High Court of ten years’ standing. In order to qualify for the chief justiceship, however, one must have had 15 instead of ten years’ qualification, and had to be a barrister, advocate, or pleader, or have been one when first appointed a judge. It is evident that this latter provision was designed to exclude members of the judicial branch of the Indian Civil Service from the pinnacle of judicial rank. The Federal Court of India heard 135 cases, and it issued four advisory opinions during the period between its creation in 1937 and its absorption into the Supreme Court of India in 1950. Decisions of the Federal Court of India were appealable to the JCPC between 1937 and 1950. In 1949, independent India passed a statute eliminating all appeals to the JCPC.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 10 /
Date: 10/7
JOBNAME: Delaney PAGE: 11 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
The origins and growth of judicial enforcement 93 I agree with Professor Bruce Ackerman that the Indian Independence Movement, led by the Congress Party, was a revolutionary mass mobilization and movement, and I also agree that the adoption of the Constitution of India and the creation of the Supreme Court of India were revolutionary acts (Ackerman, forthcoming). However, by 1941, 11 of the judges on the High Court of Bombay were Indians and only two British judges sat on that bench. When India became independent there was no purge of the court system, the army, or the bureaucracy. All that changed was that Nehru took control and Lord Mountbatten stepped down as Viceroy of India. The Cabinet changed, but that was it. Ackerman thus overstates his case in claiming that there was a real revolution in India as Chandrachud’s scholarship shows (Chandrachud 2015). Nehru and Gandhi were both British barristers who had studied law at the Inns of Court in London and who were among no more than 10,000 British barristers in the world. Their success came legally and not out of a revolution. I do, however, think that the decades-long British practice of holding High Courts in India culminating in the creation of the Federal Court of India had a permanent impact on the revolutionary Oxford-trained lawyers who drafted India’s Constitution and who sat on its first Supreme Court. The Federal Court of India was explicitly created to be a federalism umpiring court and to hear all cases arising under the Government of India Act 1937. The Supreme Court of India continues to this day to hear lawsuits between one Indian state and another and such suits are far more common in India than they are in the United States because the Indian states sue each other so often. The Indian Supreme Court also hears important federal power challenges brought by the states, and in S. R. Bommai v. Union of India,32 the Indian Supreme Court radically cut back on the Central Government’s power to displace elected governments of the Indian states and replace them with nationally chosen governments under so-called presidential rule. Thus, judicial review in India from British times up to the S.R. Bommai Case has involved an element of federalism umpiring. The S.R. Bommai Case is the McCulloch v. Maryland 33 paradigm case of Indian federalism, and it is striking for Americans because it came down in favor of the power of the Indian states, not the power of the federal government. Prime ministers from independence up until 1994 had used presidential emergency power to displace state governments on over 90 occasions. By 1994, the federal government would displace a state government simply because the opposition party was in power in that state. The S.R. Bommai Case put a firm stop to this practice, saying that emergency rule by the nation of a state was only appropriate when, for example, a Hindu mob had destroyed a centuries-old Islamic mosque on the grounds that it had been built on the birth site of the Hindu God Ram. Emergency powers were only to be used in true emergencies. I say that the origins of Indian judicial review are only partly explicable on federalism umpire grounds because I think there are two huge Rights from Wrongs stories that are vital to understanding the Indian constitutional experience. The first Wrong was the wrong of British racism and colonialism, which treated Indian citizens in their own conquered country as second-class human beings. British racism toward Indians is illustrated by Sir Winston Churchill’s famous 1931 remarks on Gandhi, when 32 33
[1994] 2 SCR 644 AIR; 1994 SC 1918; (1994)3 SCC1. 17 U.S. 316 (1819).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 11 /
Date: 15/8
JOBNAME: Delaney PAGE: 12 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
94 Comparative judicial review he went to meet the Viceroy, Lord Irwin, in his usual dress. The exchange is captured in the internet biographies of both men, which can be found by googling their names. Churchill had said: It is alarming and also nauseating to see Mr. Gandhi, a seditious Middle [Inner] Temple lawyer, now posing as a fakir of a type well known in the East, striding half-naked up the steps of the Viceregal palace, while he is still organizing and conducting a defiant campaign of civil disobedience, to parley on equal terms with the representative of the King-Emperor.
While in London to attend the Round Table Conference, Gandhi wanted to meet Churchill but the latter had refused to see him, though his son Randolph did so. And then later in July 1944, Gandhi had written a letter to Churchill saying: Dear Prime Minister, You are reported to have a desire to crush the simple “naked fakir” as you are said to have described me. I have been long trying to be a fakir and that [too] naked—a more difficult task. I, therefore, regard the expression as a compliment though unintended. I approach you then as such and ask you to trust and use me for the sake of your people and mine and through them those of the world.
British racism and colonial exploitation of India was a huge Wrong that was Righted by the adoption of the Indian Constitution, which bans racism and commits the country to equality, social justice, liberty, and democracy. The creation of the Indian Constitution and Supreme Court was thus a Right from a Wrong when it was done in 1950. More specifically, the Framers of the Indian Constitution followed the template of the British Government of India Act. For example, they established a parliamentary government with strong national powers but departed from the British practice by adopting an American-style, judicially enforceable Bill of Rights and a set of positive social rights called Directive Principles, which were not originally judicially enforceable but which have become judicially enforceable over time. Initially, the Indian Supreme Court sought unsuccessfully to protect private property rights from land reform, but once this effort failed the Court created a new mission itself in the 1970s and 1980s. During this period of time there was a second Rights from Wrongs story that explains the growth in power of the Supreme Court of India. Indira Gandhi, India’s prime minister and the daughter of its founding leader Nehru, declared a state of emergency from June 25, 1975 until its withdrawal on March 21, 1977, when it looked as if the Indian courts might rule she was disqualified from holding office as prime minister. Before, during, and especially after the emergency, the Indian Supreme Court’s power grew enormously as the judges clipped the wings of those in positions of power and used the Court to make real the liberties granted in the Bill of Rights to the Constitution. From this period of time, we get the Basic Structure Doctrine enunciated in Kesavananda v. State of Kerala.34 Under this doctrine the
34 (1973) 4 SCC 225. The doctrine was reaffirmed in Minerva Mills Ltd and Ors. v. Union of India and Ors., AIR 1980 SC 1789, and most recently in the Fourth Judges Case (2016) 4 SCC 1.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 12 /
Date: 10/7
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
The origins and growth of judicial enforcement 95 Supreme Court of India has successfully asserted the power to strike down constitutional amendments as being unconstitutional if they alter the “Basic Structure” of the Indian Constitution. In 2015 the Court struck down a government bill on judicial appointments, holding that the judiciary’s power to pick its successors is part of the Basic Structure of the Indian Constitution. Finally, the Supreme Court has also greatly enlarged its power by asserting that only a collegium of the Chief Justice of India, the two most senior justices of the Supreme Court, and two ministers from the government can pick new members of the Supreme Court of India. This doctrine is not provided for in the Indian Constitution, and its acceptance until now has marked a huge growth in power of the Supreme Court. The collegium doctrine is now under assault by the government of Prime Minister Modi, and only time will tell if it will persist. The Supreme Court of India has also greatly broadened its power by getting rid of traditional standing doctrine and holding that it can take cognizance over a matter based on a letter to the editor of a newspaper.35 In Maneka Gandhi v. Union of India,36 the Supreme Court transformed a procedural due process clause in the Indian Bill of Rights into a substantive due process clause (Modi 2013, 29–46). The case concerned the Janata Party’s suspension of the passport of Indira Gandhi’s daughter-in-law, Maneka Gandhi, who was married to Sanjay Gandhi, Indira’s son. The Supreme Court found in the emanations and penumbras of the Indian Bill of Rights a right to travel internationally, which the government had not given sufficient weight to. This was a landmark civil liberties ruling. Another such landmark individual rights ruling came in Aruna Ramachandra Shanbaug v. Union of India.37 In that case, the Indian Supreme Court essentially promulgated a code to govern cases of passive euthanasia because Parliament was unable to deal with the matter. A third such landmark case was handed down in Vishaka v. State of Rajasthan.38 In that case, the Supreme Court of India used a class action suit brought in the wake of the brutal rape of a female social worker to adopt guidelines for all employers on how to stop sexual harassment in their workplaces. Ultimately, in 2013, the courts guidelines were codified by Parliament in the form of the Sexual Harassment of Women at the Workplace Act. The Supreme Court of India wields immense powers today, holding constitutional amendments unconstitutional and selecting the justices’ own successors themselves. The reason the public support the Court in doing this and in taking jurisdiction over matters the justices merely read about in the newspapers is because the Supreme Court of India is the only institution in India which the people think is not corrupt. Indian judicial power thus flows not only from the need for Rights from Wrongs or from judicial umpiring, but also from the need for honest rule of law governance. The power of the Supreme Court of India is a sad reproach to the way in which other entities in the Indian government are perceived to be working. 35
M.C. Mehta and Anr v. Union of India & Ors [1987] AIR 1086 (1986); 1987 SCR 819. (1978) AIR 597; 1978 SCR (2)621. 37 (2011) 4 SCC 454. For a discussion of this case, see Modi 2013, 207–38. 38 (1997) 6 SCC 241; AIR 1997 SC 3011. For a discussion of this case, see Modi 2013, 187–206. 36
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 13 /
Date: 10/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
96 Comparative judicial review
D. CONCLUSION Judicial review originates and grows for a range of reasons: It may originate or grow as the result of efforts by elite hegemonic groups to entrench themselves in power, at least as a general matter, or through attempts by political elites to achieve certain form of pre-commitments. But it also does not originate for insurance and pre-commitment reasons alone: In a range of important cases it arises from the need for federalism or separation of powers umpires, when there are Rights from Wrongs situations, and when constitutional borrowing goes on. The chapter illustrates these phenomena by reference to three key case studies, from three major, populous, and territorially large jurisdictions: the United States, Germany, and India. In this way, it reflects Ran Hirschl’s “prototypical cases” principle, which suggests drawing upon case studies which feature as many key characteristics as possible that are akin to those found in as many cases as possible (Hirschl 2005). Thus, while my theory may not explain the emergence and growth of judicial review in all cases, it can account for its development in a significant number of other jurisdictions, especially those which share the key characteristics of the cases studied here.39 Many of those countries, as this chapter suggests, also have some of the most important and powerful constitutional courts in the world, and help illustrate a distinct and important dynamic in comparative constitutional law: the tendency for judicial review to develop in response to two important and inter-related structural and historical dynamics—the need for a neutral federalism or separation of powers umpire and for an enforcer of a commitment to the repudiation of certain historical wrongs.
REFERENCES Ackerman, Bruce. 2018 forthcoming. The Rise of World Constitutionalism. Cambridge, MA: Harvard University Press. Bickel, Alexander M. 1962. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis, IN: Bobbs-Merill. Bilder, Mary S. 2004. The Transatlantic Constitution: Colonial Legal Culture and the Empire. Cambridge, MA: Harvard University Press. Bilder, Mary S. 2006. “The Corporate Origins of Judicial Review.” Yale Law Journal 116: 502–65. Boyer, Allen D. 1997. “‘Understanding, Authority, and Will’: Sir Edward Coke and the Elizabethan Origins of Judicial Review.” Boston College Law Review 39: 43–93. Calabresi, Steven G. 1995. “‘A Government of Limited and Enumerated Powers’: In Defense of United States v. Lopez.” Michigan Law Review 94: 752–831. Cappelletti, Mauro and William Cohen. 1979. Comparative Constitutional Law. Indianapolis, IN: BobbsMerrill. 39 For example, I am currently writing a three-volume book series on the emergence and growth of judicial review in 15 G-20 constitutional democracies. Volume I is now finished, and I am at work on Volume II. The G-20 constitutional democracies are worthy of study because the group produces 85 percent of the world’s gross domestic product, and the group consists by definition of the countries former President Barack Obama and his peers on the international stage thought mattered the most in the world. Ideally, one would study and consider every constitutional democracy, but since that is not feasible even in a book, the G-20 constitutional democracies make for a pretty good proxy.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 14 /
Date: 10/7
JOBNAME: Delaney PAGE: 15 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
The origins and growth of judicial enforcement 97 Casto, William R. 1995. “James Iredell and the American Origins of Judicial Review.” Connecticut Law Review 27: 329–63. Chandrachud, Abhinav. 2015. An Independent, Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862–1947. New Delhi: Oxford University Press. Choper, Jesse. 1979. The Supreme Court, Trends and Developments. Minneapolis, MN: National Practice Institute. Clinton, Robert L. 1989. Marbury v. Madison and Judicial Review. Lawrence, KS: University Press of Kansas. Coxe, Brinton. 1893. An Essay on Judicial Power and Unconstitutional Legislation. Philadelphia, PA: Kay and Bro. Crosskey, William W. 1953. Politics and the Constitution in the History of the United States. Chicago, IL: University of Chicago Press. Friedman, Barry and Erin Delaney. 2011. “Becoming Supreme: The Federal Foundation of Judicial Supremacy.” Columbia Law Review 111: 1137–93. Gerber, Scott D. 2011. A Distinct Judicial Power: The Origins of An Independent Judiciary, 1606–1787. New York, NY: Oxford University Press. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. New York, NY: Cambridge University Press. Goldstein, Leslie F. 1986. “Popular Sovereignty, the Origins of Judicial Review, and the Revival of Unwritten Law.” The Journal of Politics 48: 51–71. Grey, Thomas C. 1978. “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought.” Stanford Law Review 30: 843–93. Hamburger, Philip. 2008. Law and Judicial Duty. Cambridge, MA: Harvard University Press. Hamilton, Alexander. 1788. The Federalist No. 78. Harrington, Matthew P. 2003. “Judicial Review Before John Marshall.” George Washington Law Review 72: 51–94. Hirschl, Ran. 2000. “The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions.” Law & Social Inquiry 25: 95–139. Hirschl, Ran. 2005. “The Question of Case Selection in Comparative Law.” American Journal of Comparative Law 53: 125–56. Howell, P.A. 1979. The Judicial Committee of the Privy Council 1833–1876: Its Origins, Structure, and Development. Cambridge: Cambridge University Press. Modi, Zia. 2013. 10 Judgments that Changed India. London: Penguin. Nelson, William E. 2000. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence, KS: University Press of Kansas. Prakash, Saikrishna B. and John C. Yoo. 2003. “The Origins of Judicial Review.” University of Chicago Law Review 70: 887–982. Rakove, Jack N. 1997. “The Origins of Judicial Review: A Plea for New Contexts.” Stanford Law Review 49: 1031–64. Sherry, Suzanna. 1987. “The Founders’ Unwritten Constitution.” University of Chicago Law Review 54: 1127–77. Sosin, Jack M. 1989. The Aristocracy of the Long Robe: The Origins of Judicial Review in America. New York, NY: Greenwood Press. Thayer, James B. 1895. Cases on Constitutional Law. Cambridge, MA: C. W. Sever. Treanor, William M. 1994. “The Case of the Prisoners and the Origin of Judicial Review.” University of Pennsylvania Law Review 143: 491–570. Treanor, William M. 2005. “Judicial Review Before Marbury.” Stanford Law Review 58: 455–562. Wechsler, Herbert. 1954. “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government.” Columbia Law Review 54: 543–60. Wolfe, Christopher. 1986. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. New York, NY: Basic Books. Wood, Gordon S. 1999. “The Origins of Judicial Review Revisited, or How the Marshall Court Made More Out of Less.” Washington & Lee Law Review 56: 786–809.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 05_Chapter5_ts
/Pg. Position: 15 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
PART II THE POLITICAL AND INSTITUTIONAL CONTEXTS FOR JUDICIAL REVIEW
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
6. Interpreting constitutions in divided societies Hanna Lerner
A. INTRODUCTION High hopes have been placed in recent years in the ability of courts to promote the rule of law, protect individual rights, enforce the separation of powers, facilitate accountability among political players, and resolve ideational or ideological conflicts. Such hopes have led drafters of new constitutions in democratic or democratizing countries to adopt systems of constitutional judicial review by establishing constitutional courts with exclusive jurisdiction over judicial review. Most recently, in the post Arab uprising Middle East, such steps were taken in an attempt to strengthen the role of the courts in interpreting and enforcing the constitution (Choudhry and Bass 2014, 4). Yet in many of these cases, the drafters of those constitutions intentionally left some foundational issues—for example, concerning religion and state relations or definitions of national identity—undecided, or deliberately adopted incrementalist constitutional arrangements (such as the use of ambiguous language, conflicting principles, or nonjusticiable provisions within formal constitutions, or simply deferral of controversial constitutional choices). The constitutional courts are thus left to serve as central vehicles of conflict resolution in ideational tensions and are expected to advance clear-cut decisions on the state’s fundamental norms and values, even if these have not been clearly decided by the constitution. A recent example of this trend can be found in Tunisia, where the 2014 Constitution envisioned a powerful constitutional court to address controversial foundational issues left unresolved at the constitution-drafting stage, such as the delicate balance between religious accommodation and the protection of human rights, especially women’s rights (Pickard 2015). But what should be the scope of constitutional judicial review in divided societies? In other words, what is—or should be—the role of the court, as chief interpreter of the constitution, in situations where there is deep disagreement over the basic norms and values that underpin the state? And to what extent do deeply divided societies pose special challenges to the application of judicial review, compared with other—less divided—societies? These are the main questions addressed by this chapter. The recent worldwide shift in the pendulum of the relationship between judiciaries and legislatures in favor of the judiciary as an arbiter in what used to be regarded as “political” controversies1 has yielded a growing body of comparative and theoretical 1 The trend, which has been recognized by various authors as “new constitutionalism,” “global constitutionalism,” or “juristocracy,” is characterized by a growing number of newly adopted or rewritten constitutions that contain a formal bill of rights and some form of judicial review, and by the increased tendency to use the judicial arena for pursuing political goals. Hirschl 2004; Klug 2000; Stone Sweet 2000.
99
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 1 /
Date: 15/8
JOBNAME: Delaney PAGE: 3 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
100 Comparative judicial review scholarship. This body generally concerns, on the one hand, normative arguments that justify or criticize the rise of judicial review (e.g., Harel 2014; Issacharoff 2015; Tushnet 2008; Waldron 1999) or, on the other hand, causal explanations regarding political actors’ interests in empowering the courts and advancing their authority to constitutionally review ordinary legislation (e.g., Ginsburg 2003; Hirschl 2004). In both discussions, most studies tend to analyze judicial review from the perspective of post-drafting adjudication, taking the constitutional text that the court is expected to interpret as a starting point of the discussion.2 Moreover, most constitutional studies tended to theorize the rise of judicial power, or discuss its justification, within general normative or causal theoretical frameworks, paying little attention to the type of political disputes or political challenges faced by courts in different countries.3 By contrast, this chapter tackles the question of judicial review in divided societies from a political perspective, situating it within the broader context of the ongoing public, political, and constitutional debates on the vision of the state that characterize such polities. In deeply divided societies, such as India, Tunisia, or Israel, the political roots of controversial foundational cases faced by the judiciary are frequently located in the constitution-drafting debates—or even earlier, in political debates that preceded the project of constitution making. Under conditions of intense societal disagreements on the identity of the state, the political tensions that divide “the people” in the predrafting stage often continue to stir intense disputes during the constitutional drafting process as well as in the post-drafting era, affecting the implementation of the constitution. Fraught topics related to definition and regulation of national, ethnic, religious, or linguistic identity tend to persist on the political agenda, and influence not only the constitutional solutions adopted by the drafters but also the interpretation of the constitution by courts. Such “political continuity” of ideational tensions creates special problems for the court when it is required to interfere and mitigate persistent foundational conflicts. This chapter will analyze the risks and opportunities involved in constitutional drafting and constitutional interpretation in deeply divided societies, arguing that under conditions of foundational disagreements over the basic norms and values that should underpin the state, judicial intervention in controversial issues may both generate a harsh political backlash and weaken the court’s legitimacy as a politically neutral defender of democratic procedures. Eventually, such developments may undermine the main purpose for which strong constitutional courts were designed in the first place: strengthening of the rule of law. Section 2 will offer some conceptual clarification of the term “divided societies.” Section 3 will discuss the challenge of constitution writing under conditions of deep foundational disagreements. Section 4 will present the permissive constitutional approach that is often adopted by constitutional drafters in deeply divided societies. Section 5 will elaborate on potential consequences of such an approach, particularly the burden on the court system to interpret the ambiguous language, inconsistencies, or nonjusticiable provisions included in permissive constitutions. Section 6 concludes with suggestions for further comparative research. 2 3
A rare exception is Versteeg and Zackin 2016. Here too, a rare recent exception can be found in Tushnet and Khosla 2015.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 2 /
Date: 16/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Interpreting constitutions in divided societies 101
B. WHAT ARE DIVIDED SOCIETIES? Whether “divided societies” should be regarded as a separate category in discussing constitution making or interpretation is a contested question. Certainly, all societies may be considered divided along identity or ideological lines, and constitutional debates usually revolve around contentious foundational issues that divide any given society. A growing number of scholars, however, have recognized that some societal schisms are more intense, comprehensive, and enduring than others (Lustick 1979, 325; Nordlinger 1972; Lijphart 1977a; Glazer 2010, 14; Choudhry 2008, 5). The term “divided societies”—or alternative terms such as “plural societies” (Lijphart 1977a) or “severely divided societies” (Horowitz 1985; Horowitz 1993, 18)—has become common in the literature on comparative politics and comparative constitutional design, which explores the challenges that severe internal conflicts pose to the establishment of a democratic government and proposes various institutional schemes of conflict resolution. Most definitions of divided societies focus on the intensity, comprehensiveness, and endurance of societal conflicts and tend to refrain from paying particular attention to the nature of the schism. Ian Lustick, for example, defines a society as deeply divided if it is characterized by “ascriptive ties [that] generate antagonistic segmentation of societies, based on terminal identities with high political salience, sustained over a substantial period of time and a wide variety of issues” (Lustick 1979, 325). Most studies of divided societies rest on similar definitions. Some may refer interchangeably to deeply divided societies and to ethnically divided societies. Overall, most studies do not distinguish between various types of divided societies, whether the society in question is segmented along ethnic, religious, or economic lines, or whether the division between groups is based on any other type of identity. Arend Lijphart and Donald Horowitz, for example, two leading scholars of comparative politics who have written extensively on divided societies, make no specific distinctions among types of societal divisions and the kind of identity conflict characterizing them (e.g., Lijphart 1968; Lijphart 1969; Lijphart 1996; Horowitz 1985; Horowitz 1991; see also McGarry, O’Leary, and Simeon 2008). By contrast, some recent studies of divided societies rest on the assumption that the nature of the schism matters. Indeed, given the difficulty of separating the different layers of identity, there is often an overlap between different identity components, such as nationality, religion, ethnicity, linguistic identity, race, class, or even geographical location (e.g., urban community versus periphery). Yet some scholars have identified unique features that characterize particular types of identity conflicts and affect how various institutional solutions manage to resolve these conflicts. Such studies focus their analysis on one specific type of identity conflict—for example, religious, linguistic, or national identity conflicts—and on the constitutional arrangements that may mitigate these tensions.4 4 See, e.g., Bâli and Lerner 2017 (on religiously divided societies); Leitin 2000 (on linguistically divided societies).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 3 /
Date: 11/7
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
102 Comparative judicial review Another subcategory of divided societies that has received recent theoretical attention, and which will be the focus of this chapter, are societies that see conflict concerning the vision of the state as a whole, reflecting deep disagreements over the fundamental values that should underpin the entire country. In many cases, the conflict is between those who adhere to the principles of political liberalism—defined in terms of distinction between individuals’ private cultural/religious/linguistic identity and the shared civic identity of the citizenry—and those who oppose it. These concerns go beyond those that involve distribution of resources or power allocation between competing identity groups, whether divided along religious, ethnic, or linguistic lines. Such frictions extend past the kind of tensions that could be bridged by “overlapping consensus” (Rawls 1996). They often concern deep disagreement over the shared norms that guide state policies for the entire population. Albert Hirschman termed these types of conflicts as “either-or” or “non-divisible,” characterized by an absolute unwillingness to compromise on the issues upon which the conflict is based, as opposed to “more-or-less” or “divisible” conflicts, which are easier to settle because the warring parties can agree to “split the difference” (Hirschman 1994, 203). The schism between the competing sets of values—for example between the liberal and illiberal camps—does not necessarily overlap with other religious, ethnic, or national fault lines of divided societies. Rather, the two types of division, in many cases, cut across each other. In other words, the conflicts may occur not only on the inter-ethnic, inter-religious, and inter-linguistic levels, but also in the intra-ethnic, intra-religious, and intra-linguistic realms. In Israel, for example, one of the most intense disputes of the principles of political liberalism exists between secular and Orthodox Jews. That is, the Jewish majority population, which is in tense relations with the minority Palestinian population, is deeply divided within itself between religious and secular visions of a Jewish state. This division is widely considered as one of the principal obstacles to drafting a constitution. Such cross-cutting cleavages can also be found in many Muslim majority countries, such as Egypt, Turkey, Tunisia, and Indonesia, where tensions exist between those who hold a fundamentalist/conservative world view and those who adhere to a more moderate/liberal/secular approach. Another example is India, where the controversy over the meaning of secularism does not correlate with the religious and ethnic divisions in the country. Hindus, as well as Muslims, hold competing perspectives regarding the relations between religion and state. When such deeply divided societies come to the task of drafting a constitution, the constitution’s foundational aspects typically attract more political attention than its procedural ones, and the lack of shared norms becomes a central obstacle to the writing of the constitution. This type of division poses a particular challenge to courts attempting to employ judicial review because the conflicts between two competing perspectives on the credo of the state—its fundamental norms and values—are often not resolved by the constitutional drafters.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 4 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Interpreting constitutions in divided societies 103
C. CONSTITUTION MAKING IN DEEPLY DIVIDED SOCIETIES: A HIGH-RISK MOMENT The process of constitutional design creates risks that may threaten the fragile stability of societies still grappling with foundational questions about the vision of their state. The act of writing a constitution brings non-divisible conflicts into the high-stakes arena of entrenched law, and places additional pressures on the political system. In cases of intense internal disagreements, constitutional debates risk turning into political battlegrounds, emphasizing the differences between the various positions rather than bridging them. Instead of being a vehicle for compromise, constitutional debate can become a source of escalating tensions. In the worst-case scenario, the intensification of the ideational conflict may lead to outbreak of violence, civil war, or even the partition of the territory. The failure of the pre-partitioned constituent assembly to draft a constitution for united India, between December 1946 and June 1947, provides an illuminating example (Lerner 2011, ch. 6). Another example is the failed attempt in Iraq to mitigate sectarian conflicts through the 2005 drafting of a formal constitution (Arato 2009; al-Ali and Fedtke 2010).5 Most studies on constitutional design in divided societies tend to focus on institutional aspects, suggesting various mechanisms for promoting democracy in conditions of internal identity conflicts. These range from institutions that attempt to promote integration between various identity groups to state accommodation of particular cultures or practices of minority identity groups.6 Some examples include consociational arrangements of power sharing among elites of the conflicting groups, mechanisms of electoral rules for advancing political integration across societal divisions, various degrees of federalism and devolution, and constitutional guarantees of special group rights. While these mechanisms may be useful tools in mitigating conflicts between identity groups, they can be applied only under particular geographical or societal circumstances, and they do not address the intricate conditions of ideational conflicts in deeply divided societies defined as non-divisible. Federal solutions, for example, may be effective when the various ethnic, national, or linguistic groups are territorially concentrated, as is the case in Belgium, Switzerland, and Canada. But these are less useful when the populations in question are geographically dispersed (Ghai 2000; Safran and Suarez 2000; Stepan 2001; Tarr, Williams, and Marko 2004; WachendorferSchmidt 2000). Similarly, consociational solutions based on power-sharing mechanisms such as coalition governments and veto rights may address conflicts between ethnic and national groups (Lijphart 1968; Lijphart 1977b). Yet these often fail to resolve disagreements over the normative principles that are to apply to the entire state and that may cut across ethnic or other lines, such as issues of church and state.7 This is also the 5
On the incompatibility between peace building and constitution making see also Ludsin
2011. 6
For a summary of the various positions, see Choudhry 2008. This is notable, for example, in Lijphart’s article “Constitutional Design in Divided Societies,” which lists a number of institutional recommendations regarding electoral systems 7
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
104 Comparative judicial review case with a more integrational approach to conflict resolution in divided societies, which focuses on the design of electoral rules (Horowitz 1985; Noel 2014; Reilly 2009; Wilkinson 2004). Such an approach is not an appropriate tool to address conflicts between competing perspectives on the character of the state, where the conflicting camps wish to imprint their vision in state symbols and national emblems—for example, conflict over whether the wording of the constitution should include a reference to god, as in post-World War II constitution drafting in Germany (Stein 2017). Finally, various theorists of multiculturalism have advocated for special group rights and formal recognition of the claims of national, religious, or ethnic minorities (e.g., Kymlicka 1995; Tully 1995). While these arrangements may indeed satisfy the demands of minority groups in liberal multicultural or multinational countries such as Canada and the United States, they are less relevant to countries in which the core conflict over the character of the state is between liberal and illiberal visions (Tamir 1995). Most of these proposals for institutional design rest on a revolutionary perception of constitution making rooted in the liberal constitutionalist world view. According to this approach, the moment of constitution making is generally perceived in terms of a “new beginning”; a foundational moment of radical reform. The drafting of a new constitution is expected not only to establish the institution of the state, but also to facilitate the redefinition of ideational issues such as national identity or relations between religion and state (Ackerman 1991; Preuss 1995).8 However, a brief historical observation reveals that, by contrast, constitutional drafters in deeply divided societies often prefer to refrain from making clear-cut choices on controversial foundational issues. Rather, they tend to balance democratic aspirations with deep disagreements over the vision of the state by adopting permissive constitutional arrangements.9
D. CONSTITUTIONAL PERMISSIVENESS Constitutional permissiveness represents an approach rather than a strict model because it may be manifested through various constitutional strategies. These include deferring controversial decisions, using ambiguous and vague language, and incorporating conflicting provisions in the formal constitution or nonjusticiable sections. Constitutional drafters often adopt permissive constitutional arrangements in order to give the
and the structure of the executive and legislative branches, yet ignores issues related to the normative and symbolic elements of the constitution (Lijphart 2004). For more recent discussion on the mechanism of power sharing for addressing ethnic conflicts see O’Flynn, Russel, and Horowitz 2005 and Roeder and Rothchild 2005. 8 For criticism on the liberal constitutionalist ideal see Bâli and Lerner 2016. 9 In this chapter I use the two terms “permissive” and “incrementalist” constitutional arrangements interchangeably. Both refer to the same set of constitutional strategies intended to circumvent ideational conflicts by deferring decisions to post-drafting legislatures/judiciaries, as elaborated below.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 6 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Interpreting constitutions in divided societies 105 political system greater flexibility for future decisions about controversial questions, particularly around issues of religious, national, or linguistic identity. Such strategies allow constituent assemblies to circumvent potentially explosive conflicts by shifting the burden of resolving—or at least further discussing—contentious debates to the new political institutions created by the constitution. Constitutional flexibility, in this context, does not refer to amendment rules or to the level of entrenchment or rigidity of the written constitutional provisions. Rather, flexibility refers to the degree to which the formal constitution limits the range of political possibilities to be decided by ordinary legislation. In other words, permissive constitutional formulations in the areas of religious, linguistic, or national identity transform controversial choices from the level of entrenched constitution to the level of ordinary legislation. Strategies of constitutional ambiguity and deferral have been documented by a growing number of scholars, who have recognized the advantages of “decisions not to decide” (Dixon and Ginsburg 2011), “gag rules” (Holmes 1988) or “incompletely theorized agreements” (Sunstein 2001, 50–56). Yet often such studies refrain from theorizing the difference between two types of incompletely theorized agreements— those that agree on the practicalities, particularly on institutional aspects of the governmental structure (e.g., electoral laws, structure of state institutions), and those that agree on general principles, on ideational or foundational issues. In deeply divided societies that grapple with conflicting visions of the state, the disagreement is often on both the symbolic and the practical level, and it is difficult to distinguish between the two. As Gary Jacobsohn has noted, referring to the difference between American and Israeli constitution writing, “it is one thing to compromise principle in the face of political exigency; quite another to achieve a viable constitutional result in the face of competing, potentially contradictory, visions” (Jacobsohn 1993, 105). In this chapter I mainly focus on permissive arrangements that have been adopted by constitutional drafters in order to address various types of identity conflicts.10 The Indian constituent assembly, for example, chose to defer choices about the contentious question of the country’s national language to future legislators. The constitution explicitly postponed the decision by 15 years, determining that at the end of the interim period a parliamentary committee would examine the issue (Article 344).11 Similarly, following three years of controversies over the formulation of the Hindu Code, which was meant to regulate Hindu family law, the drafters decided to leave this controversial issue to be further deliberated and decided upon by the Parliament, on the level of ordinary legislation (Som 1994). Ambiguous language with regard to the religious or secular identity of the state was intentionally used in the Constitutions
10
My discussion focuses on ideational conflicts for both reasons of economy and because the deferral of constitutional choices concerning institutional aspects usually yields a different set of consequences, as discussed, for example, by Dixon and Ginsburg 2011. 11 Meanwhile, Hindi was labeled the “official language of the Union” (Article 343), while English was to continue to be used “for all official purposes” (Article 351). In addition, the Constitution recognized 14 other languages for official use (listed in the Eighth Schedule of the Constitution).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 7 /
Date: 15/8
JOBNAME: Delaney PAGE: 9 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
106 Comparative judicial review of Tunisia (approved in 2014),12 Egypt (2012)13 and Sri Lanka (1972)14 as a form of compromise between the competing religious-fundamentalist and liberal-secular camps. Nonjusticiable provisions were adopted in the Constitutions of India, Sri Lanka and Pakistan as a separate section titled “Directive Principles of State Policy,” which addresses controversial socioeconomic and religious issues.15 Surely, it is often difficult to separate between debates over institutional and ideational aspects of the constitution. In many cases, drafters may leave controversial ideational issues undecided, yet may negotiate certain institutional aspects in order to increase the chances of decision making in line with their preferences. For example, by designing nomination procedures for appointment to a Supreme Court, drafters may influence future interpretation of the constitution. In such cases, the exportation of controversial issues from the constitution-drafting process does not rest on a genuine intention to pursue further political deliberation but rather represents an instrumental strategy aimed at guaranteeing favorite decisions in a more politically convenient setting. Whether drafters’ choices are underpinned by a genuine intention for further deliberation or by a more instrumental or strategic motivation is a question often difficult to investigate by empirical means. Furthermore, as discussed in the next Part, even when the adoption of vague constitutional formulations or the deferral of choices was initially motivated by instrumental intentions, the political or legal outcomes may not always meet the intended consequences predicted by the drafters. While the separation between ideational and institutional conflicts during the constitution-drafting debates is sometimes difficult to make, the adoption of the permissive approach concerning ideational issues does not necessarily mean that decisions about the structure of governmental institutions and regulation of power are deferred to the future. In many permissive constitutions, provisions concerning the institutional aspects are generally clear and allow for the democratic order to function. By contrast, controversial foundational issues—such as definition of national identity or 12
For a few examples from the Tunisian Constitution, see Section F below. Although drafted by a constituent assembly with an Islamic majority, the provisions concerning the role of Islam left much room for legislative and judicial interpretation. Article 2 defined Shari’a as the principal source of legislation, yet it was copied from the 1971 Constitution, which is considered a secular constitution. Similarly, while the new constitution also included Article 219, which widened the scope of the definition of the principles of Shari’a to include Sunni jurisprudence, in accordance with Salafi demands, the definition remained broad enough to “include various opinions (some moderate and others more severe) about most issues” (Brown 2017). 14 Article 6, known as “the Buddhist Chapter,” was intentionally designed as a compromise between two conflicting views regarding the role the state should take in protecting Buddhism: “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by section 18(1) (d).” See Schonthal 2016, ch. 4. 15 Notably, incrementalist arrangements are adopted most frequently with reference to particular identity conflicts. Regarding other issues, the same drafters may adopt a reformist approach, using the constitution as a vehicle for social reconstruction. In India, for example, B. K. Ambedkar, who supported the inclusion of the “directive principles” section, advocated for the inclusion of radical provisions concerning case equality. 13
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 8 /
Date: 15/8
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Interpreting constitutions in divided societies 107 relations between religious law and state law—are addressed by incrementalist strategies that avoid clear-cut decisions in order to circumvent overt conflict.16 In sum, permissive strategies may allow for the de-escalation of what could be explosive conflict. By defusing the pressure to make permanent decisions on divisive issues, strategies of deferral or constitutional ambiguity may allow the drafters to create consensus around institution-building measures and other elements in the formal constitution (Bâli and Lerner 2016). When the conflict is about non-divisible issues where none of the sides is willing to compromise, transferring the “hot-potato” of contentious identity-related choices from the constitutional to the more flexible arena of ordinary politics may avert fierce and even violent conflict. Furthermore, in accommodating the citizenry’s competing views, such formulations may promote consensual—rather than majoritarian—democracy. At the same time, while avoidance and ambiguity are useful facilitating tools, they also carry several potential dangers, some of which are inherent to the permissive approach. These consequences may create particular challenges for the judiciary, the institution tasked with interpreting the vague and sometimes inconsistent constitutional arrangements.
E. POTENTIAL POST-DRAFTING DANGERS: RIGHTS VIOLATION, RIGIDITY, AND OVERBURDENED JUDICIARY The adoption of permissive solutions to ideational conflicts during constitutional drafting may yield different consequences during the post-drafting stage of constitutional implementation by legislatures and constitutional interpretation by courts. First, as Rosalind Dixon and Tom Ginsburg show, one of the main risks of delegating high-stakes issues to legislatures is that the issues may not be addressed at all. “Without the pressure constitutions can create to reexamine such choices,” they argue, “there will often be little impetus for a polity to make progress towards realizing goals of liberal constitutional legitimacy” (Dixon and Ginsburg 2011, 664). Under certain circumstances, permissive strategies adopted by constitutional framers may yield pluralistic policy outcomes in the post-drafting era. In India, for example, the drafters’ decision to delegate the final choice concerning the country’s national language to a future parliamentary committee led to linguistic pluralism on the federal level and state recognition in over 20 different formal languages.17 Alternatively, when the conflict that framers are attempting to avoid has to do with religious issues, the deferral of clear and unequivocal decisions jeopardizes what is commonly viewed as a liberal constitution’s primary function: that is, to protect liberal values and basic rights (Friedrich 1968; Elster and Slagstad 1993). The religious traditions that are usually defended in such cases tend to be patriarchal in nature. Thus, 16 In that respect, the permissive approach differs from what had recently been termed “unstable constitutionalism” in South Asia, referring to a phenomenon by which participants in national politics who are sincerely committed to the idea of constitutionalism continue to struggle on settling a stable institutional structure for their state (Tushnet and Khosla 2015). 17 See Article 344 of the Indian Constitution. For details, see Lerner 2011.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 9 /
Date: 11/7
JOBNAME: Delaney PAGE: 11 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
108 Comparative judicial review accommodating them within the constitutional framework as part of the strategy of incrementalism is most likely to infringe women’s fundamental rights and legal personhood. India provides another example in this context. Article 44, calling for the promotion of a uniform civil code, is included in the nonjusticiable section of the constitution (the Directive Principles of State Policy), essentially leaving the task to future legislatures. Yet the drafters’ decision to refrain from applying the Uniform Civil Code to all religious communities meant that certain communities were governed by family law that is often patriarchal and inegalitarian. Similarly, in Israel, the emergence of an ambiguous “religious status quo” in lieu of a written constitution has led to the integration of religion and state in personal law, thereby infringing upon the basic liberties of hundreds of thousands of citizens who are barred from marriage (and occasionally divorce) by religious authorities. The violations of basic rights in both countries have stood at the center of intense public, legal, and political disputes for decades, and in both countries the constitutional arrangements that evolved in the early years of the state are criticized by many as missed opportunities to establish more robust rights-protective systems.18 The second risk involved with permissive constitutional strategies that delegate controversial choices to legislatures and courts is that existing policies may prove to be overly rigid as a result. Constitutional framers in deeply divided societies may believe that they can transfer decisions on contentious issues to the more flexible arena of ordinary politics. Although some argue that choices would evolve gradually in the political sphere as societal consensus changes (see Lerner 2011, ch. 6),19 this is not the case, as events have often proven. In some situations, arrangements that the framers assumed would be provisional have lasted for many decades and have turned out to be difficult to alter through ordinary legislation. In fact, ambiguous constitutional formulations have allowed the emergence of material constitutional arrangements—either unwritten or in the form of ordinary legislation—that seem more rigid than a formal constitution would have been. The emergence of “material” constitutions, in the absence of “formal” constitutions, raises an interesting question with regard to their rigidity. Material constitutions, unlike formal ones, do not include clear mechanisms of amendment. This is particularly true when constitutional principles are unwritten (for example, the prohibition on public transportation on the Sabbath in Israel). But ambiguous constitutional formulations may also allow for the enactment of ordinary laws that over time become very difficult to change, for various political reasons (Lerner 2014). In this way, permissive constitutional formulations open the door to a material entrenchment of the status quo, and, consequentially, to entrenched conservatism. 18
In India this line of criticism is voiced by both proponents and opponents of the Uniform Civil Code. For example, this was part of the Hindi-nationalist Bharatiya Janata Party’s campaign for national elections in 1996 and 1998 (Khilnani 1999). See also Agrawala 1975; Mahmood 1986; Yildirim 2004. In Israel, legal scholars Amnon Rubinstein and Barak Medina claim that Israeli leadership “missed an opportunity to enact a constitution at the ‘revolutionary moment’ of the establishment of the state” (Rubinstein and Medina 2005, 76). 19 On India, see also Lerner 2016.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 10 /
Date: 15/8
JOBNAME: Delaney PAGE: 12 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Interpreting constitutions in divided societies 109 The consequence of over-rigidity is a standard criticism of consociational accommodational arrangements, such as those that have emerged in Israel in the religious sphere in the absence of a written constitution. Critics argue that consociational solutions to conflicts between identity groups tend to build “systematic constraints” to rapid societal change (Stepan 1988). The question of rigidity may be even more acute when the accommodational arrangements are informal. India, for example, has failed to implement a uniform civil code in the six decades since the constitution was enacted, despite the constituent assembly’s explicit direction to do so (Article 44). Israel has been unable to enact a bill of rights or to draft a comprehensive constitution in the 60 years since its independence (Lerner 2014). These are revealing examples of the danger of the potential rigidity of material constitutional arrangements that have evolved in the absence of formal decisions on foundational issues. The third potential risk yielded by permissive constitutional arrangements concerns the judiciary and its relationship with the political system. If the legislature is unable to settle controversies around the fundamental norms or ultimate goals of the state, this may lead to the growing involvement of the judiciary—and primarily Supreme Courts, due to the need for nationwide uniformity—which may result in a conflict between the two branches of government. The prolonged public and political controversies over unresolved foundational issues may overburden the court and increase the tensions between the legislature and the judiciary, which some view as a weakening feature of democratic orders. The tension between the legislature and the judiciary is inherent in any democratic system.20 However, lack of constitutional clarity on contentious foundational issues can lead to confusion over which branch of government should take the lead in dealing with such issues. This is particularly problematic if the Supreme Court and the parliament hold opposing views regarding the foundational issues at stake. Supreme courts are generally expected to serve as the chief protectors of individual rights. Parliaments, by contrast, as representative bodies, are more responsive to particular demands of interest groups. Consequently, the judiciary and the legislature may attempt to advance competing visions of the state. The danger is that this difference between world views will result in a direct clash between the two institutions and may undermine their legitimacy and public support. The court may lose its legitimacy as a neutral arbitrator in legal issues, and the parliament may lose its legitimacy as a representative body of the various interests in society. This was the case in Israel, where attempts to advance unequivocal choices between conflicting visions of the state through judicial intervention elicited harsh political and public reaction and created new risks that may undermine other aspects of the democratic order. Given the great political power that religious parties hold in the Knesset (Israel’s parliament), the secular-liberal camp turned to the Israeli Supreme Court to rule against the existing religious regulations. However, the Court’s increasing intervention in the religious status quo (and the celebration in the 1990s of a “constitutional revolution” by the Supreme Court Chief Justice at that time, Aharon 20 As former Israeli Chief Justice Barak states, “tension between courts and other branches is natural and, in my opinion, also desirable” (Barak 2006, 215–17).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 11 /
Date: 15/8
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
110 Comparative judicial review Barak) led to what many have described as a harsh counter-revolution. This included a major demonstration attended by all religious groups against the Supreme Court in Jerusalem, the public refusal of religious leaders to abide by the Supreme Court’s decisions, and ultimately the obstruction of the constitution-making process. As one religious Knesset member said: “[E]ven if the Ten Commandments were proposed as a Basic Law, the religious parties would object. Because if the Ten Commandments became a law of the state, the Supreme Court would interpret them and change them.”21 These developments explain the lack of political will to complete the constitutiondrafting project initiated in the early 2000s.22 A comparison between Israel and India reveals that the level of polarization between the branches of government depends on various factors, among them the extent to which their Supreme Courts are willing to intervene in certain debates. For example, the Israeli and the Indian Supreme Courts differed in their attempt to alter various aspects of the informal (or material) constitutional arrangements pertaining to religious issues. While the Israeli Supreme Court identified with the secular side in the religious–secular conflict over the character of the state, the Indian Supreme Court was more ambivalent in its call to implement the Uniform Civil Code. This explains the difference in the intensity of the inter-institutional tensions in the two countries. The political reaction to the Supreme Court in Israel was much more vigorous than in India, and included not only regressive parliamentary legislation (as in India), but also harsh public condemnation of the Court by religious leaders (Lerner 2011, ch. 3). In sum, the application of judicial review under conditions of intense foundational conflicts involves not only legal and abstract normative considerations, but also political ones. Potential consequences regarding the court’s own legitimacy play an important role in the design of the delicate balance of power between the various branches of government. As Pratap Mehta claimed in the particular context of India, but with relevance to other divided societies: [The court system] must be viewed in the context of a messy political democracy. It is an institution that must be mindful of the fact that it is competing with other branches of government for broader public legitimacy and that its exercise of power is an intervention in an ongoing democratic discourse. Therefore, it will not often have classic rule-of-law characteristics; rather, it will be a messy compromise driven by competing concerns, values, and a sense of its own institutional possibilities. The Court’s role is more as conflict manager, 21
David Tal, Knesset Record 184, 537 (1999). As Supreme Court Justice Elyakim Rubinstein explained in the 2011 decision of HCJ 4908/10 MKRoni Bar-On v. The Israel Knesset: “I will state it somewhat bluntly and unequivocally: the main reason for the incompletion [of the constitution] so far, in my view—and we should recall that in the past two decades not a single basic law had been enacted, despite attempts to do so—is not the content of the constitution but rather the issue of who should interpret it. The last basic laws were created in 1992, yet in 1995 the constitutional authority was established in the United Mizrachi Bank case and since then, while various proposals for Basic Laws have been presented, a ‘constitutional silence’ has existed in the practical sense. It seems that some sectors in the Knesset are not happy with the constitutional authority of this court, and are concerned that additional constitutional texts would increase its powers.” Available in Hebrew at: http://elyon1.court.gov.il/files/10/080/049/n08/10049080.n08. pdf (translated by author). 22
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 12 /
Date: 11/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Interpreting constitutions in divided societies 111 and its interventions will be tailored to how it perceived that it can best manage conflict. (Mehta 2015, 234)
Lastly, beyond considerations of inter-institutional relations, the judicialization of politics in divided societies has recently generated some skepticism concerning the limited ability of constitutional law and courts to mitigate intense ideational conflicts due to the inherent nature of the legal practice (Mirjam, Lerner, and Shankar 2016). Under conditions of deep societal disagreement, the binary framework of legal language and the type of clear-cut decision making offered by the court may entrench or even further polarize existing conflicts, for example regarding religion–state relations or other identitarian issues. The judicialization of disputes on foundational issues, often perceived as a tool for moderating tensions,23 may lead to counterproductive dynamics, as documented in various religiously divided societies such as Sri Lanka, India, Malaysia, and Pakistan (Schonthal et al. 2016). The legal language that is used by litigators and court decisions is often more binary and rigid compared with the fluid and flexible traditions and beliefs held by the competing ideational camps (e.g., religious communities or ethnic groups) or with the ambiguous and ambivalent formulations achieved through political compromises (see also Schonthal 2016; Moustafa 2013; Jacobsohn 2010). When societies are still grappling with deep ideational tensions, courts may (even uninentionally) advance the perpetuation—rather then the mitigation—of social strifes.
F. CONCLUDING REMARKS: THE PARADOX OF JUDICIAL REVIEW IN DIVIDED SOCIETIES In both India and Israel—as in the country that invented judicial supremacy, the United States —the Supreme Courts’ central roles in debates over foundational issues were not intentionally designed by the constitutional drafters. Rather, in varying degrees in all three cases, the courts have emerged over decades as powerful organs of the state in addressing controversies previously perceived as “political.” In more recent projects of constitution making in divided societies, however, the constitutional drafters have facilitated a powerful court, placing high hopes in its ability to address controversial foundational issues that are unresolved at the constitution-making stage. As mentioned above, such an optimistic view of the role of the court can be found in the Constitution of Tunisia, which was debated for three years, between 2011 and 2014. Some of the central disagreements between the drafters revolved around questions of religion–state relations, such as whether Tunisia would be a secular or Islamic state, the role of Sharia and the extent of women’s rights protection. Observers have criticized the final constitutional document as a political compromise between the Islamist party ennahada and the more secular-liberal camp led by the Congress for the Republic and Ettakatol. Some have even accused it of being “schizophrenic.”24 23
For example, in the case of religion, see Hirschl 2010. Sarah Mersch, Tunisia’s Compromise Constitution, CARNEGIE ENDOWMENT NATIONAL PEACE (Jan. 21, 2014), http://carnegieendowment.org/sada/54260. 24
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
FOR INTER-
/Pg. Position: 13 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 6 OUTPUT: Thu Aug 23 10:51:28 2018
112 Comparative judicial review Alternatively, one could argue that the drafters of the Constitution intentionally embraced incrementalist or permissive arrangements, addressing controversial issues by adopting ambiguous language or even conflicting provisions. For example, while Article 1 formally recognizes Islam as the religion of the state, Article 2 defines Tunisia as “a civil state based on citizenship, the will of the people, and the supremacy of law.”25 Both Articles are entrenched by the Constitution as unamendable. The ambiguity over the role of religion is also reflected in the Preamble, which expresses the “[p]eople’s commitment to the teaching of Islam” but also includes reference to “the gains of human civilization.” Similarly, while Article 6 states that “[t]he state is the guardian of religion,” the Tunisian Constitution is the first in the region to include gender-sensitive provisions such as Article 40, which recognizes the right to work as “a right for every citizen, male and female,” and Article 73, which provides that “[e]very male and female voter” has a right to be elected as president.26 While the role of Islam is left somewhat ambiguous in the Tunisian Constitution, the document is clear on the institutional front, empowering the Constitutional Court with extensive authorities, such as the sole authority to oversee the constitutionality of draft legislation, laws referred by lower courts, and the rules of procedure of Parliament (Pickard 2015, 2). The drafters of the Tunisian Constitution carefully provided for a Constitutional Court with inclusive appointment procedures, which would likely promote the legitimacy of the Court in the eyes of multiple political factions (Lombardi 2015; Choudhry and Bass 2014). The drafters seemed to have high hopes in the judiciary’s ability to continue the country’s democratization while overcoming fundamental ideational disagreements over the vision of the state that were left ambiguous in the written Constitution. Some observers share this optimism in the Constitutional Court’s ability to harmonize conflicting provisions (Böckenförde 2016). Others, however, have expressed skepticism, particularly given the strict timeline limitations imposed on the Court by the Constitution (Pickard 2015).27 Yet the greatest challenge facing the Tunisian Constitutional Court seems to emerge from the potential paradox inherent in any attempt to resolve conflicts between competing visions of the state within a constitutional framework: In cases where there is profound disagreement over the character of the state, deferring controversial choices and adopting ambiguous constitutional formulations at the drafting stage enable democratic systems to establish a stable constitutional order. However, the same ambiguous constitutional formulations may give rise to inegalitarian or illiberal constitutional arrangements that may be difficult to alter through the political system. This paradoxical situation was revealed by the experiences of countries like Israel and India (Lerner 2013; Lerner 2014). Concurrently empowering the judicial system as the chief protector of both constitutionalism and liberalism 25 For the English language text of the 2014 Tunisian Constitution, see https://www. constituteproject.org/constitution/Tunisia_2014?lang=en. 26 Zaid Al-Ali and Donia Ben Romdhane, Tunisia’s new constitution: progress and challenges to come, OPENDEMOCRACY 5 (Feb. 16, 2014), https://www.opendemocracy.net/northafrica-west-asia/zaid-al-ali-donia-ben-romdhane/tunisia’s-new-constitution-progress-and-challengesto-. 27 Indeed, four years after the enactment of the constitution, the Constitutional Court is yet to be established in Tunisia.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 14 /
Date: 15/8
JOBNAME: Delaney PAGE: 16 SESS: 6 OUTPUT: Thu Aug 23 10:51:28 2018
Interpreting constitutions in divided societies 113 may be viewed by some segments of the population as threatening the delicate balance of power between the branches of government. If courts are perceived to be taking sides in the battle over the character of the state, their legitimacy may be undermined in the eyes of the opposing camp. Thus, in their very attempt to promote egalitarianism and liberalism through the language of constitutional law, the courts may weaken their own basis of legitimacy as politically neutral defenders of democratic procedures and the rule of law. The discussion on the paradox of judicial review in divided societies raises many unanswered questions and calls for broad conceptual and comparative research on a variety of puzzles. For example, one wonders whether researchers could identify a set of social, political, or cultural pre-conditions that affect the way courts may sustain judicial review given existing deep disagreements on a state’s basic norms and values. Are there minimum conditions of societal agreement or societal polarization that may allow the court to bear the weight of constitutional permissiveness in divided societies without risking complete loss of trust by the public? Another set of questions concerns the interplay between the institutional and the ideational aspects of constitutional design: To what degree is the empowerment of courts in divided societies impacted by institutional design and decisions made by constitutional drafters? Or, perhaps, do political developments outside the constitution and choices made by the court itself in the post-drafting stage have greater influence on the functioning of judicial review in divided societies? A wide and complex comparative study is required in order to address these and other questions, taking into account constitutional choices on both levels—those that were made by political actors during the drafting stage and those that were made by judges during the post-drafting stage of constitutional interpretation—and the political dynamics underpinning them. Moreover, whether constitutional experts could or should create a clear bluebook for constitutional design of constitutional courts may by itself be viewed as a controversial question, involving both normative and empirical considerations. One may wonder to what extent constitutional arrangements adopted under conditions of high-stakes political disagreements should be based on a priori solutions or rather evolve through constant political discussions and negotiations.28 This and other questions are left open for future debate.
REFERENCES Ackerman, Bruce. 1991. We the People: Foundations. New Haven, CT: Yale University Press. Agrawala, Rajkumari, ed. 1975. Uniform Civil Code: A Formula Not Solution, Family Law and Social Change. Bombay: MN Tripathy. al-Ali, Zaid and Jorg Fedtke. 2010. The Constitution of Iraq: A Contextual Analysis. Oxford: Hart Publishing. Arato, Andrew. 2009. Constitution Making Under Occupation: The Politics of Imposed Revolution in Iraq. New York, NY: Columbia University Press. 28
For a skeptical view on constitutional design see, e.g., Horowitz 2000. See also Landau
2013.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 15 /
Date: 15/8
JOBNAME: Delaney PAGE: 17 SESS: 6 OUTPUT: Thu Aug 23 10:51:28 2018
114 Comparative judicial review Bâli, Asli Ü. and Hanna Lerner. 2016. “Constitutional Design Without a Constitutional Moment: Lessons from Religiously Divided Societies.” Cornell Journal of International Law 49: 227–308. Bâli, Asli Ü. and Hanna Lerner, eds. 2017. Constitution Writing, Religion and Democracy. Cambridge: Cambridge University Press. Barak, Aharon. 2006. The Judge in a Democracy. Princeton, NJ: Princeton University Press. Böckenförde, Markus. 2016. “From Constructive Ambiguity to Harmonious Interpretation: Religion-related Provisions in the Tunisian Constitution.” American Behavioral Scientist 60: 919–40. Brown, Nathan. 2017. “Islam and Constitutionalism in the Arab World: the Puzzling Case of Islamic Inflation.” In Constitution Writing, Religion and Democracy, edited by Asli Ü. Bâli and Hanna Lerner. Cambridge: Cambridge University Press. Choudhry, Sujit, ed. 2008. Constitutional Design for Divided Societies: Integration or Accommodation? Oxford: Oxford University Press. Choudhry, Sujit and Katherine Glenn Bass. 2014. Constitutional Courts After the Arab Spring: Appointment Mechanisms and Relative Judicial Independence. Center for Constitutional Transitions at NYU Law and International Institute for Democracy and Electoral Assistance. Dixon, Rosalind and Tom Ginsburg. 2011. “Deciding not to Decide: Deferral in Constitutional Design.” International Journal of Constitutional Law 9: 636–72. Elster, Jon and Rune Slagstad, eds. 1993. Constitutionalism and Democracy. Cambridge: Cambridge University Press. Friedrich, Carl J. 1968. Constitutional Government and Democracy: Theory and Practice in Europe and America. Waltham, MA: Blaisdell Pub. Co. Ghai, Yash, ed. 2000. Autonomy and Ethnicity: Negotiating Competing Claims in Multi-Ethnic States. Cambridge: Cambridge University Press. Ginsburg, Tom. 2003. Judicial Review in New Democracies. Cambridge: Cambridge University Press. Glazer, Nathan. 2010. “Democracy and Deep Divides.” Journal of Democracy 21: 5–19. Harel, Alon. 2014. Why Law Matters. Oxford: Oxford University Press. Hirschl, Ran. 2004. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press. Hirschl, Ran. 2010. Constitutional Theocracy. Cambridge, MA: Harvard University Press. Hirschman, Albert O. 1994. “Social Conflicts as Pillars of Democratic Market Society.” Political Theory 22: 203–18. Holmes, Stephen. 1988. “Gag Rules of the Politics of Omission.” In Constitutionalism and Democracy, edited by Jon Elster and Rune Slagstad. Cambridge: Cambridge University Press. Horowitz, Donald L. 1985. Ethnic Groups in Conflict. Berkeley, CA: University of California Press. Horowitz, Donald L. 1991. A Democratic South Africa: Constitutional Engineering in a Divided Society. Berkeley, CA: University of California Press. Horowitz, Donald L. 1993. “Democracy in Divided Societies.” Journal of Democracy 4: 18–38. Issacharoff, Samuel. 2015. Fragile Democracies: Contested Power in the Era of Constitutional Courts. New York, NY: Cambridge University Press. Jacobsohn, Gary J. 1993. Apple of Gold: Constitutionalism in Israel and the United States. Princeton, NJ: Princeton University Press. Jacobsohn, Gary J. 2010. Constitutional Identity. Cambridge, MA: Harvard University Press. Khilnani, Sunil. 1999. The Idea of India. New York, NY: Farrar Straus and Giroux. Klug, Heinz. 2000. Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction. Cambridge: Cambridge University Press. Künkler, Mirjam, Hanna Lerner, and Shylashri Shankar. 2016. “Balancing Religious Accommodation and Human Rights in, through, and despite, the Law.” American Behavioral Scientist 80: 911–18. Kymlicka, Will. 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon Press. Landau, David. 2013. “Constitution-Making Gone Wrong.” Alabama Law Review 64: 923–80. Lerner, Hanna. 2011. Making Constitutions in Deeply Divided Societies. Cambridge: Cambridge University Press. Lerner, Hanna. 2013. “The Political Infeasibility of ‘Thin Constitutions’: Lessons from Israeli Constitutional Debates 2003–2006.” Journal of Transnational Law and Policy 22: 85–121. Lerner, Hanna. 2014. “Critical Junctures, Religion and Personal Law Regulations in India and Israel.” Law and Social Inquiry 39: 387–415.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 16 /
Date: 15/8
JOBNAME: Delaney PAGE: 18 SESS: 6 OUTPUT: Thu Aug 23 10:51:28 2018
Interpreting constitutions in divided societies 115 Lerner, Hanna. 2016. “The Indian Founding: A Comparative Perspective.” In Oxford Handbook on the Indian Constitution, edited by Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta. Oxford: Oxford University Press. Lijphart, Arend. 1968. The Politics of Accommodation: Pluralism and Democracy in the Netherlands. Berkeley, CA: University of California Press. Lijphart, Arend. 1969. “Consociational Democracy.” World Politics 21: 207–25. Lijphart, Arend. 1977a. Democracy in Plural Societies: A Comparative Exploration. New Haven, CT: Yale University Press. Lijphart, Arend. 1977b. “Majority Rule Versus Democracy in Deeply Divided Societies.” South African Journal of Political Studies 4: 113–26. Lijphart, Arend. 1996. “The Puzzle of Indian Democracy: A Consociational Interpretation” American Political Science Review 90: 258–68. Lijphart, Arend. 2004. “Constitutional Design for Divided Societies.” Journal of Democracy 15: 96–109. Lombardi, Clark B. 2015. “Constitutions of Arab Countries in Transition: Constitutional Review and Separation of Powers.” IE Med Mediterranean Yearbook 2014: 125–32. Ludsin, Hallie. 2011. “Peacemaking and Constitution-Drafting: A Dysfunctional Marriage.” Pennsylvania Journal of International Law 33: 239–311. Lustick, Ian. 1979. “Stability in Deeply Divided Societies: Consociationalism versus Control.” World Politics 31: 325–44. Mahmood, Tahir. 1986. Personal Law in Crisis. New Delhi: Manohar. McGarry, John, Branden O’Leary and Richard Simeon. 2008. “Integration or Accommodation? The Enduring Debate in Conflict Regulation.” In Constitutional Design for Divided Societies: Integration or Accommodation?, edited by Sujit Choudhry. Oxford: Oxford University Press. Mehta, Pratap Bhanu. 2015. “The Indian Supreme Court and the Art of Democratic Positioning.” In Unstable Constitutionalism: Law and Politics in South Asia, edited by Mark Tushnet and Madhav Khosla. Cambridge: Cambridge University Press. Moustafa, Tamir. 2013. “Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics.” Law and Society Review 47: 771–802. Noel, Sid, ed. 2014. From Power Sharing to Democracy: Post Conflict Institutions in Ethnically Divided Societies. Montréal: McGill-Queen’s University Press. Nordlinger, Eric A. 1972. Conflict Resolution in Divided Societies. Cambridge, MA: Center for International Affairs, Harvard University. O’Flynn, Ian, David Russell, and Donald Horowitz, eds. 2005. Power Sharing: New Challenges for Divided Societies. London: Pluto Press. Pickard, Duncan. 2015. Tunisia’s New Constitutional Court. Atlantic Council: Rafik Hariri Center for the Middle East. Preuss, Ulrich. 1995. Constitutional Revolution: The Link between Constitutionalism and Progress. Atlantic Highlands: Humanities Press. Rawls, John. 1996. Political Liberalism. New York, NY: Columbia University Press. Reilly, Benjamin. 2009. Democracy in Divided Societies: Electoral Engineering for Conflict Management. Cambridge: Cambridge University Press. Roeder, Philip G. and Donald Rothchild, eds. 2005. Sustainable Peace: Power and Democracy after Civil Wars. Ithaca, NY: Cornell University Press. Rubinstein, Amnon and Barak Medina. 2005. Constitutional Law of the State of Israel. Tel Aviv: Schocken. Safran, William and Ramon Maiz Suarez, eds. 2000. Identity and Territorial Autonomy in Plural Societies. London: Routledge. Schonthal, Benjamin. 2016. Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka. Cambridge: Cambridge University Press. Schonthal, Benjamin, Tamir Moustafa, Matthew Nelson, and Shylashri Shankar. 2016. “Is the Rule of Law an Antidote for Religious Tension? The Promise and Peril of Judicializing Religious Freedom.” American Behavioral Scientist 60: 966–86. Som, Reba. 1994. “Jawaharlal Nehru and the Hindu Code: A Victory of Symbol over Substance?” Modern Asian Studies 28: 165–94. Stein, Tine. 2017. “Constitution-Making and Religion in West Germany in the Shadow of State Failure.” In Constitution Writing, Religion and Democracy, edited by Asli Ü. Bâli and Hanna Lerner. Cambridge: Cambridge University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 17 /
Date: 15/8
JOBNAME: Delaney PAGE: 19 SESS: 6 OUTPUT: Thu Aug 23 10:51:28 2018
116 Comparative judicial review Stepan, Alfred. 1988. “Paths toward Redemocratization: Theoretical and Comparative Considerations.” In Transitions from Authoritarian Rule: Comparative Perspectives, edited by Guillermo O’Donnell, Philippe C. Schmitter, and Laurence Whitehead. London: The Johns Hopkins University Press. Stepan, Alfred. 2001. “Toward a New Comparative Politics of Federalism, (Multi)Nationalism, and Democracy: Beyond Rikerian Federalism.” In Arguing Comparative Politics. Oxford: Oxford University Press. Stone Sweet, Alec. 2000. Governing with the Judges: Constitutional Politics in Europe. Oxford: Oxford University Press. Sunstein, Cass. 2001. Designing Democracy: What Constitutions Do? Oxford: Oxford University Press. Tamir, Yael. 1995. “Two Concepts of Multiculturalism.” Journal of Philosophy of Education 29: 161–72. Tarr, George Alan, Robert Forrest Williams, and Joseph Marko, eds. 2004. Federalism, Subnational Constitutions and Minority Rights. Santa Barbara, CA: Greenwood Publishing Group. Tully, James. 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. Tushnet, Mark. 2008. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. Princeton, NJ: Princeton University Press. Tushnet, Mark and Nadhav Khosla. 2015. “Unstable Constitutionalism.” In Unstable Constitutionalism: Law and Politics in South Asia, edited by Mark Tushnet and Nadhav Khosla. Cambridge: Cambridge University Press. Versteeg, Mila and Emily Zackin. 2016. “Constitutions Un-Entrenched: Toward a New Theory of Constitutional Design.” American Political Science Review 110: 657–74. Wachendorfer-Schmidt, Ute, ed. 2000. Federalism and Political Performance. London: Routledge. Waldron, Jeremy. 1999. Law and Disagreement. Oxford: Oxford University Press. Wilkinson, Steven. 2004. Votes and Violence: Electoral Competition and Ethnic Violence in India, Cambridge Studies in Comparative Politics. New York, NY: Cambridge University Press. Yildirim, Seval. 2004. “Expanding Secularism’s Scope: An Indian Case Study.” American Journal of Comparative Law 52: 901–18.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 06_Chapter6_ts
/Pg. Position: 18 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
7. Judicial review in the context of constitutional Islam Salma Waheedi and Kristen Stilt*
A. INTRODUCTION The adoption of constitutional commitments to Islam has been a widespread and entrenched practice in the Muslim world since the 19th century. Most Muslim-majority countries today incorporate Islam or the Islamic Sharia in their constitutions in some way, and Islamic law continues to play a robust role in lawmaking. From North Africa and the Arab Gulf monarchies to Pakistan and Malaysia, popular waves of Islamic revivalism—including following the Arab Spring—continue to call for further integration of the Islamic Sharia into the constitutional systems of these countries.1 There are generally four types of clauses of constitutional Islam that appear in modern constitutions. The first is the Islamic establishment clause, which provides that Islam is the religion of the state and is by far the most common formulation. The second is a source of law clause, which typically declares the Islamic Sharia, or its principles, to be a source or the main source of legislation. The third type is the repugnancy clause, which declares that any law that conflicts with the Islamic Sharia is invalid. Finally, a few national constitutions include an Islamic state clause, which declares that a nation is an “Islamic State” (Stilt 2015). While there is no recognized hierarchy of the “Islamicity” of constitutions, it is generally the case that the Islamic establishment clause is the entry point into constitutional Islam; that is, it can be considered a symbolic gesture or a declaration of principles. A more concrete commitment to Islam would be the inclusion of a source of law clause, which can have a practical effect on the process of lawmaking, followed by a repugnancy clause, which further restricts lawmaking to ensure conformity with the * The authors thank Erin Delaney and Rosalind Dixon, the volume’s editors, for their very helpful comments on the chapter; the participants of the Comparative Judicial Review Conference held at Northwestern Law School, and David Fontana, the commentator on our paper, in particular; Tamir Moustafa, for his valuable insights on the Malaysian legal system; Maryam Khan, for her very helpful comments and suggestions on the part of the chapter on the Pakistani legal system; and Frank Vogel for sharing with us his vast knowledge of Saudi Arabia. 1 See, e.g., Feldman 2008 (examining Islam’s constitutional history and its propositions); Zubaida 2003 (discussing Islamic revivalism in the 1970s); Brown 2012 (on the dynamics of Islamist parties’ political participation and influence); Ahmed and Ginsberg 2014 (examining the forces behind the emergence of the Islamic supremacy clause); and Richard Wike, The Tahrir Square Legacy: Egyptians Want Democracy, a Better Economy, and a Major Role for Islam, PEW RESEARCH CENTER (Jan. 24, 2013), http://www.pewglobal.org/2013/01/24/thetahrir-square-legacy-egyptians-want-democracy-a-better-economy-and-a-major-role-for-islam/ (discussing the 2011 Egyptian revolution and demands for a greater role for Islam in the state).
117
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
118 Comparative judicial review Sharia. And finally, the Islamic state clause is seen only in the few countries that have adopted Islam as the essential identifying characteristic of the state and its institutions and laws, such as the Islamic Republic of Iran and Saudi Arabia.2 The inclusion of Islamic clauses in the constitution, particularly the source of law and repugnancy clauses, immediately gives rise to the critical institutional design questions of who may interpret these clauses and how these interpreters will ensure the compatibility of national legislation with the state’s commitment to Islam. While scholars have taken great interest in the interpretation of these clauses, there has been very little attention to these design questions.3 Our goal in this chapter is to survey and categorize the institutional structures of judicial review in countries with a constitutional commitment to Islam. Our interest in this chapter goes beyond the interpretation of the clauses of constitutional Islam and examines the constitutional review institutions and structures that interpret these (and other) constitutional clauses and also considers the status of these review institutions vis-à-vis other judicial and administrative institutions.4 We identify two fairly clear models: a secular judicial review model on one end of a spectrum, represented by Kuwait and Egypt in our discussion, and an Islamic judicial review on the other end, represented by Iran and Saudi Arabia. In between these two, we identify judicial review models that are best described as hybrid secular-Islamic judicial review mechanisms. The hybrid structures are not uniform but rather span the spectrum we have established, with Pakistan, for example, displaying hybrid judicial review that is closer to the Islamic judicial review model than it is to the secular model. Hybrid structures also tend to evolve over time, developing creative solutions to the complex problem of reconciling the competing jurisdictions of secular and Islamic judicial institutions. The chapter first provides a short background to Islamic law and constitutions in the Muslim world. It then turns to our classification system, presenting the secular review model first and the Islamic review model second. Most of the attention is then focused on the hybrid system, given its complex dynamics and many permutations. Throughout this discussion, we attempt to explain what accounts for these differences in judicial review. The existence of a clause of constitutional Islam raises the possibility that it will be given primacy over the rest of the constitution and even interpreted in a separate 2
Ahmed and Gouda developed an Islamic Constitutions Index to measure and rank constitutions according to their Islamicity and its correlation with commitments to certain rights protections (Ahmed and Gouda 2015, 4); see also Otto 2010 for a comparative overview of legal systems in 12 Muslim countries. 3 See, e.g., Hirschl 2010 (for a comparative analysis of constitutional jurisprudence across different jurisdictions with a commitment to religion); Lombardi 2006 (analyzing the Egyptian Supreme Constitutional Court’s incorporation of the Sharia into state law); Lombardi 2013a (discussing different permutations and interpretations of the source of law clause). 4 The constitutions of nearly all Muslim-majority nations, with the notable exception of Saudi Arabia, include protections of basic individual rights and freedoms. These typically include guarantees of the freedom of opinion, worship, expression, association, and assembly, in addition to various guarantees by the state of economic and social rights. Most of these constitutions provide for the separation of executive, legislative, and judicial powers and for the independence of the judiciary.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 2 /
Date: 15/8
JOBNAME: Delaney PAGE: 3 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 119 process, but there is no clear and consistent correlation between type of clause and type of judicial review, although there are some patterns. Instead, the clauses of constitutional Islam serve as a prompt for a discussion within a country about the appropriate institutional design to review those clauses, and domestic political actors continue to struggle and compete to influence the outcomes. As this chapter concludes, the judicial review mechanism is just one site of contestation over the place of religion in the state.
B. ISLAM AND SHARIA IN MODERN CONSTITUTIONS Sharia, which literally means “path” in Arabic, is the term generally used to describe the sources and methodologies of Islamic law. The primary textual sources of Islamic law are the Quran, believed to be the direct word of God transmitted to the Prophet Muhammad, and the Prophet’s normative practice (sunna), as indicated in the Prophet’s sayings (hadith). The Quran and hadith are accepted as the two textual sources of Islamic law. The third and fourth sources are consensus (ijma ) and ijtihad, the exercise of jurists’ own judgment in the elaboration of the law using analogical reasoning (qiyas). Over time, jurists joined prominent learned individuals to form methodological and doctrinal madhhabs, which is usually translated into English as “school”—“as an intellectual school it is a group of jurists loyal to the collective doctrine and the specific methodology worked out by the school and attributed to the school’s eponym” (Stilt 2011, 27). The Sunni schools that garnered enough support over time to survive and flourish are the Hanafi, Maliki, Shafii, and Hanbali. The most prominent Shia school is known as the Jafari (or Twelver) school.5 Constitutionalism in the modern Muslim world emerged in the early 19th century with the increasing global influence of the western colonial project and western political thought, and soon became the cornerstone of the Ottoman state reorganization and administrative centralization project.6 Tunisia promulgated its first constitution in 1861, the Ottoman Empire in 1876 and Egypt in 1882. Iran followed with its 1906 Constitution. Following World War I, emerging Muslim-majority nation states began to adopt constitutions that followed western models, including Syria (1920), Egypt (1923), Iraq (1925), and Lebanon (1926). Another wave of constitutions followed post-World War II independence from colonial powers in the late 1940s through the 1970s, which included Indonesia (1945), Libya (1951), Pakistan (1956), Sudan (1956), Malaysia (1957), Tunisia (1959), Kuwait (1962), Morocco (1962), Algeria (1963), Qatar (1970), the United Arab Emirates (1971), and Bahrain (1973). Oman and Saudi Arabia adopted their basic laws in 1992. For reasons including revolutions and coups and compromises that followed political crises, many of these countries subsequently amended their constitutions or adopted new constitutions altogether. The inclusion of specific commitments to Islam in the text of a constitution dates to the Ottoman Constitution of 1876, which contained the first Islamic establishment 5
See Hallaq 2005 for an introduction to the origins and development of Islamic law and the different schools within Islam. 6 For detailed discussions of constitutional history in the Muslim and Arab world, see, for example, Shaw and Shaw 1977; Brown 2001, 15–90; Redding 2004, 763–72; Stilt 2015.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 3 /
Date: 15/8
JOBNAME: Delaney PAGE: 4 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
120 Comparative judicial review clause.7 In addition to declaring Islam to be the religion of the state, the Ottoman Constitution included a myriad of Islamic references, including proclaiming the Sultan to be Supreme Caliph (religious and political leader of the Islamic state) and protector of the Islamic religion, and tasking him with carrying out the provisions of the Sharia.8 In Egypt, an Islamic establishment clause was included in the 1923 Constitution, promulgated by the Egyptian monarchy.9 The earliest specific reference to Islam as a basis for legislation appeared in the 1906 Constitution of Iran (then Persia), which—in addition to declaring Islam to be the religion of the state—provided that all laws must be approved by a committee of Shia clerics.10 The first constitution to explicitly include a source of law clause was the post-independence Syrian Constitution of 1950, which stated that Islamic fiqh (legal doctrine) was the main source of legislation.11 Since then, many Muslim-majority countries have followed suit, with the Islamic establishment clause being the most common, followed by the source of law clause.12 A number of important institutional design questions follow from the adoption of Islamic constitutional clauses, questions that apply generally to judicial review but take on a particular significance when the interpretation of religious law is part of the equation. Is the provision justiciable in court? If so, what institutional structure will conduct the review? Which actors will undertake the review and what Islamic legal training must they have, if any? And finally, is the Islamic clause treated like all other parts of the constitution, or is it given priority over others, effectively functioning as a constitutional trump? Classical Islamic jurisprudence offers little guidance on the question of judicial review. Historically, prior to the Ottoman tanzimat reforms13 and the introduction of a new source of law in the form of executive orders binding on the judiciary, judges generally applied Islamic law as they interpreted it, typically with guidance from the doctrinal books associated with their particular school of law. The production of law and its interpretation and application were within the power of the judges; they supplied and interpreted the most significant source of law. While there were issues of contention between the ruling elite and the Islamic scholarly establishment, which included scholars, judges, and some other officials, available sources from the
7
CONST. OF THE OTTOMAN EMPIRE (1876), art. 11. Id. at arts. 3–4, 7. 9 CONST. OF EGYPT (1923), art. 149. 10 CONST. OF PERSIA (1906), arts. 1–2. 11 CONST. OF SYRIA, art. 3. See Lombardi 2013a, 743–5 for a discussion of the circumstances leading to the adoption of the constitution and the influence of the Muslim Brotherhood. 12 See Brown and Sherif 2004 for examples of constitutional texts that include the Sharia as a source of law and the effects of these provisions; see also Ahmed and Gouda 2015 for an analysis of the level of Islamization across 56 different constitutions. 13 The term tanzimat refers to an Ottoman Empire-wide reform and modernization project launched in the 19th century with the overarching goals of creating greater legal coherence and efficiency and modernizing the legal system of the Ottoman Empire to meet the challenges of modern times (including keeping up with the social, political, and economic progress of European nations). For a discussion of the Ottoman tanzimat, see Shaw and Shaw 1977. 8
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 4 /
Date: 15/8
JOBNAME: Delaney PAGE: 5 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 121 pre-modern period indicate that these conflicts typically took place outside of the court and did not involve a process that resembles modern judicial review.14 As a result, the participants in modern discussions about judicial review rarely appeal to fiqh for precedent. Existing scholarship on the Islamic view of judicial structures and review continues to be largely confined to the academic exercise of showing that such designs are not contrary to Islamic jurisprudence.15 This stands in contrast to doctrinal issues such as family law, where fiqh discussions were extensive and continue to be influential in many countries.16 The design of institutions to interpret constitutions has thus been left to local political forces and is subject to a complex process of negotiation and compromise, as discussed in the next section.
C. JUDICIAL REVIEW IN THE MODERN CONTEXT 1. The Centralized Constitutional Court: Adoption of a “Western” and “Secular” Model This first model of constitutional review emerged alongside the post-colonial adoption of constitutions by most newly independent Muslim-majority states. It features a centralized constitutional court or constitutional council tasked with reviewing legislation—and in some cases executive actions—for compatibility with the constitution. Most typically, countries that follow this model have a specialized constitutional court with exclusive jurisdiction over constitutional interpretation, including interpretation of clauses involving the Sharia. The bodies responsible for constitutional review in this model conduct a review for compliance with rights and liberties guaranteed by the constitution, as well as interpret the meaning of the Islam-related clauses and their relation to other parts of the constitution. In this type of judicial review, interpretation of the clauses of constitutional Islam is treated as just one part of the constitutional interpretation mandate of a specialized constitutional court. Countries that follow this approach include Egypt, Jordan, Morocco, Kuwait, Bahrain, United Arab Emirates, and Iraq, among others.17 While this model of judicial review may seem obvious or inevitable from a western, secular perspective, it was not necessarily either for the countries that adopted it. In the Arab world, Kuwait’s early experience with the formation of a constitutional court is a prime example of this model and is also instructive of the elaborate process and the challenges that made the outcome not at all certain. The Kuwaiti 1962 Constitution included a specific provision on constitutional review, with a specialized constitutional 14 See Shapiro 1980 for a discussion of appellate review in Islamic law. See also Stilt 2011 on courts in Mamluk Egypt; Agmon 2006 on family courts in late Ottoman Palestine. 15 See, e.g., Shapiro 1980; Powers 1992; al-Omran et al. 2015. 16 See, e.g., Stilt, Waheedi, and Gandhavadi, forthcoming. 17 Jordan and Morocco only recently introduced independent constitutional courts to replace state councils to undertake the task of judicial review as part of their post-Arab Spring reform packages. See CONST. OF MOROCCO, Title VIII; the 2011 amendments to the CONST. OF JORDAN (1952), Ch. 5.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
122 Comparative judicial review court established in 1973. Kuwait’s main commitment to the Sharia is expressed in Article 2 of the Constitution, which states that “[t]he religion of the State is Islam, and the Islamic Sharia shall be a main source of legislation.” The use of the indefinite article before “main source” is indicative that other potentially equal sources of legislation may be used and that the constitutional drafters remained silent on the question of the supremacy of the Sharia over other constitutional principles or provisions. There is no repugnancy clause in Kuwait’s Constitution. The drafting of Kuwait’s Constitution dates to the end of the British mandate.18 The adoption of a constitution came as part of a wider plan by then-Emir Sheikh Abdullah al-Salem to modernize the country’s entire political and legal system and affirm the country’s independence at a time when Iraq was claiming that Kuwait was part of its Basra province (Brown 2001, 54–5). Starting in the 1950s, the Emir had enlisted Arab legal experts, including prominent Egyptian jurist Abd al-Razzaq al-Sanhuri and his colleague, Uthman Khalil Uthman, to draft legislation for Kuwait as part of his reform program.19 The first draft of the Kuwaiti Constitution, written by Uthman, formed the starting point for a complex process of constitution making and negotiation among popularly elected representatives and appointed government officials—who formed the Constituent Assembly—and the Emir.20 And even though the Egyptian legal system had not yet seen the establishment of a constitutional court, the inclusion of a judicial review provision in the Kuwaiti Constitution was a direct product of the influence of these Egyptian jurists. Al-Sanhuri, Uthman, and others had drafted a constitution for Egypt in 1952 that included a specialized constitutional court, but this draft was later rejected by Nasser’s regime (Brown 2006, 167–8). As Nathan Brown observes, Uthman was able to convince the Kuwaiti constitutional assembly to avoid what he saw as the uncertainties and complications arising from judicial review by multiple courts, as was the case in Egypt at that time (Brown 2006, 167). The Kuwaiti Constitution left the exact mechanism and jurisdiction of the judicial review body to be determined by legislation. Article 173 of the Constitution states that “[t]he law specifies the judicial body competent to decide disputes relating to the constitutionality of laws and regulations and determines its jurisdiction and procedure.” While the Constitution did not use the term “court,” the explanatory memorandum specifies a “specialized court” to rule on constitutional disputes.21 The memorandum also reveals a strong desire by the drafters to guarantee that an independent and centralized authority be empowered to review legislation, to avoid “conflict of opinions in interpreting legislation” and confusion that may result from “exposing laws to [the 18 Earlier, in 1938, Kuwait’s first elected legislative council drafted a five-article Basic Law of Governance, which was ratified by Emir Ahmed al-Jaber al-Sabah, but was in force only for six months. See Herb 2016, 12–14. 19 Sanhuri articulated his approach of legal reform in Le Califat: Son évolution vers une société des nations orientale (Sanhuri 1926). See Hill 1988; Shalakany 2001. 20 See al-Nakib 2006, 161–3 and Herb 2016 for a historical background of the Kuwaiti Constitution. 21 Introductory Memorandum to the CONST. OF KUWAIT, art. 173.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 6 /
Date: 15/8
JOBNAME: Delaney PAGE: 7 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 123 risk of] being struck down without taking into account different arguments and considerations.”22 The Kuwaiti Constitutional Court was not established until 11 years later, in 1973, with the enactment of Law No. 14 Establishing the Constitutional Court. The law provides that an independent court is to be established with the mandate of interpreting the Constitution and ruling on the constitutionality of laws and parliamentary election disputes, and that this court’s rulings are supreme and binding on other courts. While the law establishing the Constitutional Court was silent on the subject of reviewability of the Sharia provisions of the Constitution, the Constitutional Court soon established its jurisdiction over interpretation of Article 2.23 It is now established in its jurisprudence that reviewing the constitutionality of legislation may include review with respect to both compliance with constitutional provisions relating to matters such as individual rights and liberties, as well as review of legislation for compatibility with the Islamic Sharia, with all constitutional provisions receiving equal deference and weight. Notably, the Kuwaiti Constitutional Court is composed of professional judges trained in law, which includes both secular and Islamic law training, but who are not necessarily specialized Islamic jurists. The Constitutional Court Law does not specify the criteria for selecting judges for the Constitutional Court, except to say that they must be Kuwaiti nationals.24 There is no special provision in the law requiring the Court to consult with Islamic scholars in ruling on Sharia-related constitutional questions, and the meeting minutes of the Constituent Assembly show no contestation of this issue.25 Kuwait’s Constitutional Court has consistently held that Article 2 does not give it the duty or power to strike down laws simply because they may be deemed inconsistent with Sharia norms. It has taken this position despite strong opposition by Islamists who, since the late 1970s—with the demise of Nasser’s Arab nationalist project, the rise of Islamists in Iran, and the increasing influence and reach of Saudi-supported Salafist groups—have emerged as a major political force in Kuwait. In 1992, the Constitutional Court ruled on a case that challenged the constitutionality of a provision of the Kuwaiti Civil Code that permitted charging interest.26 The challenge argued that the provision was inconsistent with the Sharia, which prohibits interest as a form of riba (usury) and should therefore be struck down as a violation of Article 2 of the Constitution. The Constitutional Court, however, held that Article 2 made the Sharia “a” and not “the only” source, and thus the government may adopt rules even though they may be inconsistent with traditional interpretations of the Islamic Sharia.27 This line of reasoning has been used by the Court in many cases that followed.28 22
Id. See Case No. 3/1992/Constitutional Court, in which the court established that Article 2 of the Constitution did not preclude the legislator from enacting laws based on sources other than the Sharia. 24 Kuwait Constitutional Court Law, No. 14 of 1973, art. 2. 25 A full record of these discussions is available in Arabic at http://www.kna.kw/clt-html5/ run.asp?id=1568. 26 Kuwait Constitutional Court, Case No. 3 of 1992. 27 Id. 28 See Lombardi 2013a for a discussion of the interpretation of constitutional provisions making the Sharia “a” or “the” main source of legislation. 23
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
124 Comparative judicial review The Kuwaiti example also illustrates political tensions that arise from the adoption of a source of law clause and subsequent efforts by courts staffed by legal professionals, rather than Sharia scholars, to limit its reach. Islamists in Kuwait have repeatedly expressed their dismay at what they consider a “tenuous” commitment to the Islamic Sharia in the country’s Constitution and by the liberal interpretation of Article 2 by the Constitutional Court. Islamist blocs in Parliament, mainly the Muslim Brotherhood and Salafists, have repeatedly suggested that the Islamic Sharia should be made “the” main source of legislation in the Constitution, with the hope that it would have much greater force and influence. Major campaigns to amend the Constitution continue to be organized but have been unsuccessful to date, mainly due to a strong pushback by the government and secular nationalist forces.29 The Kuwaiti model was later replicated to a great extent elsewhere in the other Gulf emirates, with review of Sharia constitutional provisions included within the broader judicial review mandate of their constitutional courts. The Constitution of Bahrain establishes a constitutional court, while the constitutions of Qatar and Oman provide for the establishment of a “judicial body” to review the constitutionality of laws and regulations, leaving the details of the establishment of this body and the scope of its mandate to be specified by law.30 Bahrain and Qatar have adopted a centralized system of judicial review, similar to that in Kuwait, whereby a specialized constitutional court has the sole power to conduct both concrete and abstract constitutional review.31 The United Arab Emirates adopted a centralized system of review with a Supreme Court as the sole authority empowered to review constitutionality of legislation in the abstract, as a part of a wider mandate as the highest federal court of appeal.32 Egypt is another prominent case with an establishment clause and a source of law clause. The source of law provision was introduced in Article 2 of the Constitution of 1971, which stated that the “principles of the Islamic Sharia are a main source of legislation.” In 1980, this provision was strengthened to declare that the “principles of the Islamic Sharia are the main source of legislation.” Yet, despite stronger language than seen in Kuwait, the Supreme Constitutional Court, staffed by judges trained in the country’s national law schools, has limited the potentially expansive reach of Article 2 and defined a narrow set of Sharia principles to form the basis of the review. Further, and relatedly, the Supreme Constitutional Court has treated Article 2 as part of the Constitution without inherent supremacy over other provisions. As a result, very few laws have been struck down as unconstitutional on the basis of Article 2.33 In 2012, when the Muslim Brotherhood rose to power in Egypt following the 2011 revolution and the election of Brotherhood presidential candidate Mohammed Morsi, an Islamist-dominated constitutional drafting committee inserted into the new Constitution a provision mandating that the legislature consult the Council of Senior Scholars of 29 See Brown 2012 for a discussion of the historical shifts in the relative power and influence of Islamist movements in Kuwait and their evolving strategies. 30 CONST. OF BAHRAIN, art. 106; CONST. OF QATAR, art. 140; CONST. OF OMAN, art. 70. 31 CONST. OF BAHRAIN, art. 106; Qatar Constitutional Court Law, No. 12 of 2008. 32 CONST. OF THE UNITED ARAB EMIRATES, art. 99. 33 For more detailed accounts of the Egyptian Supreme Constitutional Court jurisprudence and Article 2 in particular, see Vogel 1999; Moustafa 2009; Lombardi 2006; Abu-Odeh 2011; Lombardi 2013a.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 8 /
Date: 15/8
JOBNAME: Delaney PAGE: 9 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 125 al-Azhar University on matters of Islamic law. Ultimately, this proposal was cut short by the military coup of 2013 and the amendment of the 2012 Constitution to produce the 2014 Constitution, currently in force, which does not contain such a provision.34 This new provision could have represented a step towards a version of a hybrid model (as discussed below) because this separate Islamic review process might have been binding and might have taken priority over the outcomes of the normal judicial review process. While it was not clear from the language of the constitutional article, it could have meant that a law approved by the Council as compliant with its view of Islamic law became immune from subsequent constitutional review. Following the events of the Arab Spring, Jordan and Morocco are the two most recent countries to establish specialized constitutional courts. Both courts follow the model of Egypt and Kuwait in structure and personnel; the constitutions provide for their judicial independence and for staffing by national law professionals.35 While both countries’ monarchical regimes managed to emerge in stable form from the wave of revolutions across the region, the establishment of (at least nominally) independent constitutional courts soon followed as part of larger initiatives aimed to signal willingness to reform and upgrade legal structures and to introduce additional checks and balances to their political systems (see, e.g., Choudhry and Bass 2014; Burgis 2007; Abu-Karaki, Faqir, and Marashdah 2011). 2. Constitutional Review by the Jurists: The Islamic Judicial Review Model The countries with Islamic judicial review—Saudi Arabia and Iran—have declared their aspirations to create an Islamic form of governance, as they define it. In this model of judicial review, Islamic scholars are granted broad constitutional review powers and are entrusted with monitoring Sharia compliance of all legislation above all other constitutional or other standards. These scholars, or jurists, are central to the process of judicial review, through which they are empowered to limit the ability of other political actors, whether elected or not, to make law and policy. Sunni Saudi Arabia and Shia Iran have been arch rivals in a battle for Islamic legitimacy and regional dominance, a conflict that has grown since the 1979 Iranian Revolution and the subsequent expansion of Iran’s regional influence, ambitions, and interference.36 In their struggle for Islamic dominance, both the Kingdom of Saudi Arabia and the Islamic Republic of Iran have pledged a strong set of commitments to the Sharia that is entrenched in their constitutions and translated into jurist-dominated legal systems where compatibility with the Sharia is the sole or primary purpose of judicial review. Saudi Arabia and Iran have very different judicial review mechanisms, but both can be considered examples of Islamic judicial review. 34 For a discussion of the 2012 Egyptian Constitution and the rise of Islamists to power following the 2011 revolution, see Abu-Odeh 2013; Ahmed Morsy and Nathan Brown, Egypt’s al-Azhar Steps Forward, CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE (Nov. 7, 2013), http://carnegieendowment.org/2013/11/07/egypt-s-al-azhar-steps-forward-pub-53536. 35 CONST. OF MOROCCO, Title VIII; Jordan’s 2011 amendments to the 1952 Constitution, Ch. 5. 36 See, e.g., Tom Poole, Iran and Saudi Arabia’s Great Rivalry Explained, BBC NEWS (Jan. 4, 2016), http://www.bbc.com/news/world-middle-east-35221569.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 9 /
Date: 15/8
JOBNAME: Delaney PAGE: 10 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
126 Comparative judicial review In Saudi Arabia, the Basic Law is often referred to as the country’s constitution, but the Basic Law explicitly states that it is not a constitution; rather, the Quran and Sunna of the Prophet are “the constitution.”37 Its Islamic establishment clause in Article 1 is followed by extensive references to the role of Islam in legislation, governance, and adjudication. Rights and duties of the monarch, government officials, and citizens are formulated with explicit recurrent indications of their Islamic basis, and the Basic Law “could hardly state more forcefully the principle that the constitution and supreme law of the kingdom is the Sharia” (Vogel 2000, 295). The Basic Law includes provisions throughout its text emphasizing the integral role of Islam in legislation and adjudication. Unlike the constitutions of nearly all Muslim-majority countries, the Saudi Basic Law contains very limited protections of rights and liberties. It guarantees the right of movement, the right to privacy in one’s home and secrecy of correspondence, the right to own property, and the right to education and employment. It does not include any mention of freedom of religion, expression, assembly, or demonstration, nor does it prohibit discrimination. Human rights according to the Basic Law are protected “according to the Islamic Sharia.” Saudi Arabia’s Basic Law also does not include any explicit mention of judicial review, but rather implicitly empowers judges to refrain from applying any law they deem contrary to the Islamic Sharia. Article 46 states that “the judiciary is an independent authority, and judges are not subject to any authority except to that of the Islamic Sharia.” Article 48 adds that “courts shall apply the tenets of the Islamic Sharia, as directed by the Quran and Sunna,” as well as apply laws decreed by the ruler that “do not contradict the Quran and Sunna.” Enshrined in these provisions is Saudi Arabia’s long-standing system of Sharia-based governance.38 Lawmaking in this system belongs to two domains, an Islamic fiqh domain—where law is judge-made and applied in accordance with the Sharia and no codified law exists—and a siyasa (policy) domain, where the ruler issues codified law within the permissible bounds of the Sharia. The codified law remains under the scrutiny of jurists and is applied only to the extent that it is not contradictory to the Sharia. A Saudi judge applies Islamic law as he interprets it, based mainly on the most authoritative treatises of the Hanbali school of law in practice. As a result, different judges may apply different rules of law to similar cases before them. There is no system of binding precedent. A judge may refrain from applying a law promulgated by the king—and such laws are technically referred to as “regulations” (nizams) to distinguish them from Islamic law, which alone merits the designation of “law”—if he deems it incompatible with the Quran and Sunna as interpreted by that particular judge. Refraining from applying such a regulation does not mean that the regulation is no longer generally applicable; rather, it is merely not applied in that particular case.39 37
Basic Law of Saudi Arabia, art. 1. See Vogel 2012 for a discussion of Saudi Arabia’s governance system and the role of the Sharia. 39 As Vogel notes, scholar-judges frequently refuse to apply the nizams that they believe the king has exceeded his power in issuing, leading the state to bypass the regular courts by including provisions in many of its laws that establish specialized tribunals within the executive branch to apply the nizams (Vogel 2012, 19). 38
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 10 /
Date: 15/8
JOBNAME: Delaney PAGE: 11 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 127 In 2007, King Abdullah enacted a decree that aimed to introduce a wide range of reforms to the judiciary, including the expansion of the courts of appeals and the creation of a High Court to replace the Supreme Judicial Council that had been controlled by the Ministry of Justice (Ansary 2015). The new structure was aimed in part at attempting to bring more uniformity and predictability into the judicial system, which has been criticized for being driven by the individual preferences of judges. At this point, however, the practical outcomes of these reforms are not yet clear. Court rulings are now published on the internet, which is a major development in the Saudi context, but there is no specific requirement for judges to follow the precedent of any other court.40 The specific powers of the High Court to strike down legislation either in full or in part remain uncertain and untested, and it is also not clear whether its decisions will be binding on lower courts or whether it can invalidate a regulation.41 Across the Persian Gulf, and the sectarian divide, stands the Islamic Republic of Iran, with an Islamic constitution that rivals only Saudi Arabia’s Basic Law in its staunch commitment to an Islamic legal system. As a republic, however, Iran’s structure of government is very different from that of Saudi Arabia. The Constitution of Iran includes both an Islamic establishment clause in Article 12—which states that Islam in accordance with the Twelver Shia interpretation is the religion of the state—and an Islamic state clause—which specifies that “the form of government of Iran is that of an Islamic Republic.” The religious-centric foundational principles of Article 2 are followed by a specific article on Islamic principles: “All civil, penal, financial, economic, administrative, cultural, military, political and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the constitution as well as to all other laws and regulations …”42 It further designates “the wise persons of the Guardian Council” to be “judges in this matter.” A repugnancy clause is included in Article 72, providing that the Islamic Consultative Assembly, which functions as the country’s legislature, “cannot enact laws contrary to the official religion of the country or to the Constitution.” In addition, an “Exigency Council” is established pursuant to Article 112 to resolve conflicts between the Guardian Council and the Consultative Assembly. The 1979 Constitution of the Islamic Republic of Iran was drafted by an assembly controlled by then-revolutionary Supreme Leader and Founder of the Islamic Republic, Ayatollah Khomeini, and was endorsed by public referendum in 1979. The 1979 Constitution adopted Khomeini’s political theory of wilayat al-faqih, a major innovation in Shia political thought, which provided for broad oversight powers concentrated in the hands of a learned jurist, the Supreme Leader, who, in the absence of the divinely inspired Imam, assumed political and religious leadership as custodian of his community.43 The powers of the Supreme Leader are broad and extensive, and include 40
Court rulings are published on the Ministry of Justice website at https://www.moj.gov.sa/ ar-sa/ministry/versions/Pages/Modona.aspx. 41 For a discussion of the concept of appeal in the Saudi context, see Vogel 2000, 83–117. See Vogel 2012 for a discussion of the politics of the Sharia judiciary. 42 CONST. OF IRAN, art. 4. 43 See Arjomand 2013 (discussing the role of Shia jurists in Iran’s legal and constitutional order).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 11 /
Date: 15/8
JOBNAME: Delaney PAGE: 12 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
128 Comparative judicial review delineation of general policies, decrees for national referenda, declaration of war and peace, mobilization of the armed forces, and the appointment of the Islamic jurists on the Guardian Council and the supreme commanders of the armed forces and revolutionary guard (Tezcür 2007). Khomeini devised the Guardian Council as a check on the elected Parliament to ensure that all legislation is reviewed by Islamic clerics for constitutional and Islamic compatibility before enactment. The Guardian Council is composed of six “religious men” selected by the Supreme Leader and six legally trained professionals, specializing in different areas of law, to be elected by the Islamic Consultative Assembly from the names nominated by the Head of the Judiciary.44 The determination of compatibility of legislation with Islam rests with the “religious men” on the Guardian Council, whereas the determination of its compatibility with the Constitution is made by all the members of the Council.45 If a bill is determined to be incompatible with the Sharia, the Guardian Council will send it back to the Consultative Assembly for review and amendment.46 The Exigency Council, itself appointed directly by the Supreme Leader, is called upon to resolve disputes “at any time the Guardian Council judges a proposed bill of the Islamic Consultative Assembly to be against the principles of Islam or the Constitution, and the Assembly is unable to meet the expectations of the Guardian Council.”47 The contestation over compliance of legislation with the Sharia thus takes place not in the courts but between the Guardian Council and the elected Consultative Assembly,48 with the Exigency Council acting as the final mediator.49 The language of the mandate of the Guardian Council to review legislation for compatibility with Islam is broad and leaves much discretion in the hands of six appointed Islamic jurists. Furthermore, the Guardian Council is not obligated to publish any explanation of its decisions, nor does it appear to be interested in standardizing the requirements of constitutionality or conformity with the Sharia (Arjomand 2013, 38). Under the Iranian judicial review system, therefore, Islam is given primacy over all other constitutional rights and commitments, and Islamic jurists are involved in all review of laws. The Guardian Council’s review of the legislative compatibility with the Sharia takes place as part of the legislative process, with no further post-enactment judicial review mechanism for primary legislation, either in the abstract or in the context of specific controversies. Once the religious oversight of the legislative outcome has been established, no further check or review is available.
44
CONST. OF THE ISLAMIC REPUBLIC OF IRAN, art. 91. Id. at art. 96. 46 Id. at art. 94. 47 Id. at art. 112. 48 Courts may review secondary legislation (bylaws) for compatibility with the Sharia. 49 Although it was introduced by a 1988 constitutional amendment as a means for Ayatollah Khomeini to expand and strengthen the powers of the office of the Supreme Leader, the Exigency Council later emerged as a rival to the Guardian Council. In 1993, Ayatollah Rafsanjani, then-president of the Exigency Council, managed to extract a confirmation from the Guardian Council that bills declared in conformity with the Sharia by the Exigency Council need not be returned to the Guardian Council for further review (Arjomand 2013, 36–9). 45
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 12 /
Date: 15/8
JOBNAME: Delaney PAGE: 13 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 129 3. Dual Constitutional Review: A Hybrid Model In this form of judicial review, a country adopts a review mechanism that is secular in its structure—a constitutional court—while also making a separate commitment to ensuring compliance with some understanding of the Islamic Sharia. The manifestation of this commitment to the Sharia, particularly in a system that defines itself to be a constitutional system, carries with it inherit complexities. The aim appears to be to retain a judicial review mechanism that conducts review of legislation for conformity with the constitution, while carving out a separate space for Sharia compliance review. There are a number of methods that countries use to reach this general goal, including: establishing a unique and often competing judicial structure with a Sharia-based jurisdiction to function alongside secular constitutional courts; integrating Sharia scholars into a constitutional court with a wider mandate and jurisdiction; and carving out specific areas of the law that may be subject to the exclusive jurisdiction of Sharia courts. The three examples we explore in this section offer three different varieties of hybridity, located along the spectrum we discussed above, with each taking a different approach to the incorporation of its commitment to the Sharia into its judicial review system. Closest to the secular model is the Malaysian case, where the Federal Constitution asserts its supremacy as the law of the land, but carves out certain areas of the law that are the exclusive domain of the Islamic Sharia. For those areas of law, separate Sharia courts conduct their own form of judicial review. In Afghanistan, the court structure is unified and there is one constitutional court and no role for Sharia courts in judicial review, but at the same time Afghanistan is hybrid in a fluid and flexible way since Sharia jurists are integrated into the composition of the court. Pakistan is the closest to the Islamic judicial review model, and the text of the constitution itself enshrines the supremacy of Sharia law. However, Pakistan’s system differs from that of Iran and Saudi Arabia in significant ways, making it a hybrid example and not an example of the Islamic model. The Constitution of Pakistan creates a dual review of legislation for Sharia compliance through a Federal Sharia Court and a Council of Islamic Ideology. They operate alongside the Supreme Court, which conducts a “secular” form of constitutional review. Turning to Malaysia, Article 3(1) of the Federal Constitution of Malaysia contains the textual expression of an Islamic establishment clause, providing that “Islam is the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation.” Article 3(4) emphasizes that “nothing in this article derogates from any other provision of this Constitution.” The relationship between the Sharia and the Constitution is further specified by Article 4, which establishes the Constitution as the supreme law of the Federation and voids any post-independence legislation that is inconsistent with the Federal Constitution. Several other articles in the Constitution include provisions applicable only to Muslims, including Article 121(1)(A), which establishes the independent jurisdiction of the Sharia courts.50 The 50 Federal Syariah (Sharia) courts were constituted and organized in accordance with the Administration of Islamic Law Act of 1993 (Part IV) for federal territories, and by parallel state enactments at the individual state levels.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 13 /
Date: 15/8
JOBNAME: Delaney PAGE: 14 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
130 Comparative judicial review Ninth Schedule, List II, Paragraph 1 of the Constitution permits state legislatures to apply Sharia law to Malaysian Muslims, mainly in areas relating to family law, inheritance, and the observation of Islamic rituals. State legislatures may also introduce Sharia-based offenses and punishments that are applicable to Muslims only. Malaysia has a diverse religious and ethnic composition. Ethnic Malays represent about 67 percent of the population, and Chinese and Indians are the two largest minorities, at about 24 percent and 7 percent, respectively. Muslims constitute 61.3 percent of the population.51 Most Chinese Malaysians are Buddhists and most Indians are Hindu, with some Christians and Muslims among the two. Different religious communities in Malaysia have long existed, but remain “institutionally separate,” within a system that emphasizes religious pluralism (Yaacob 2011). The process of drafting the Malaysian Constitution and the inclusion of the establishment clause came as a result of complex political calculations and compromises among the Malays and other key local and international political actors. A constitutional drafting commission formed in 1956 was led by an English judge, Lord Reid, and included four other legal experts—one British, one Australian, one Indian, and one Pakistani. It held 118 public and private hearings between June and October 1956 and submitted its recommendations in February 1957. Leading Malaysian political figures and the British made some significant changes to the Reid Commission’s Constitution, and further discussions and modifications occurred at the London Conference of 1957. This was followed by a ratification process that involved the Federal Legislative Council, the Assemblies of the Malay States, the United Kingdom Parliament, and the British Crown.52 The Malaysian Constitution specifies that Muslim citizens may be subject to a separate set of laws with respect to family matters and some aspects of criminal law.53 Sharia courts are responsible for interpreting these laws. This arrangement preserves the pre-independence legal system, which was largely secular and based on the common law, with Islam governing only personal status matters applicable only to the Malay community (Neo 2006, 101). Initially, this duality in the Malaysian Constitution did not affect the judicial review structure. Prior to a 1988 amendment discussed below, Article 121(1) stated that “the judicial power of the Federation shall be vested in the Federal High Court.” The Malaysian Federal High Court, established by way of a constitutional amendment in 1963, is the highest federal judicial authority empowered 51
See Population Distribution and Basic Demographic Characteristic Report 2010, MALAYDEP’T OF STAT., https://www.statistics.gov.my/index.php?r=column/ctheme&menu_id= L0pheU43NWJwRWVSZklWdzQ4TlhUUT09&bul_id=MDMxdHZjWTk1SjFzTzNkRXYzcVZj dz09. 52 For a general history of the constitutional process, see Fernando 2002. See also Neo 2006 for an analysis of the Malaysian approach of pragmatic partnership and compromise in constitutional bargaining. For a contextual approach to constitutional Islam and the making of the 1957 Malaysian Constitution, see Stilt 2015. 53 CONST. OF MALAYSIA, Ninth Schedule. Non-Muslim marriage and divorce is governed by the Law Reform (Marriage and Divorce) Act 1976 and is federal law, while Muslim family matters are governed by state-level Islamic law enactments. The Federal Government has developed a “model law” entitled the Islamic Family Law (Federal Territories) (IFL FT) Act 1984, which states can adopt either entirely or with modification. SIA
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 14 /
Date: 15/8
JOBNAME: Delaney PAGE: 15 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 131 to review legislation for compatibility with the Federal Constitution.54 It had functioned alongside Sharia courts at the state level, empowered to adjudicate matters of Sharia law, which were defined to include a narrow list of specific family, personal status, and inheritance law matters. Following independence, the Federal High Court generally avoided interference with the Sharia courts, but was not prevented explicitly by the Constitution from reviewing their rulings. With the global rise of Islamism and Islamic revivalism in the 1970s, Islamistleaning political factions in Malaysia began to call for an expansion of the role of the Sharia in Malaysia’s legal system. The political dynamics were shifting in favor of Islamist forces, and state governments, increasingly dominated by conservative Islamists, began to expand or attempt to expand the local Sharia court system and the associated Islamic statutes.55 In 1988, Article 121 of the Federal Constitution was amended to provide that the Federal High Court “shall have such jurisdiction and powers as may be conferred by or under federal law.” That is, the jurisdiction of the highest court became dependent upon Parliament, and thus was susceptible to the fluctuation of powers and alliances among the different political actors at any given time. The other significant amendment introduced in 1988 added clause (1)(A) to Article 121, which provides that the High Courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah (Sharia) courts.” As a result of these amendments, a hybrid judicial review model emerged such that there are two parallel judiciaries with jurisdiction over different aspects of the law. Judgments of Sharia courts, provided they fall within the defined mandate of these courts, appear to be essentially non-reviewable by civil courts. As a result, the power of the civil courts is limited when an issue of personal status or religious observance involves a Muslim citizen, thereby elevating the status of Sharia courts and creating some uncertainty as to their place in the hierarchy with respect to the Federal High Court (Mohamed 2010, 515).56 Nonetheless, there has been substantial litigation where fundamental constitutional rights of citizens are involved, and liberal rights activists continue to insist that the civil courts have the duty to intervene to protect these rights. Perhaps the most famous case resulting from these amendments involved the question of freedom of religion. Lina Joy, born Azalina Jailani in 1964 to Muslim parents of Javanese descent, converted to Christianity and applied to the National Registration Department to change her name and religious identity in 1997.57 After the Department refused to change her religious identity, she brought a court case challenging the decision, which reached the Federal High Court in 2007.58 Joy challenged the administrative decision as a violation of her constitutional right to practice her religion of choice freely. The Federal High Court dismissed her claim, 54
CONST. OF MALAYSIA, art. 122. See Neo 2006 and Shuaib 2012 on the “Islamization” of politics in Malaysia. See also Moustafa 2013 on how the binary of Islamic law versus liberal rights emerged in Malaysian political discourse and legal consciousness. 56 For a discussion of the amendments and the politics of Islamic law in Malaysia, see Moustafa 2013 and Neo 2006. 57 Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Ors [2005] 4 CLJ 666. 58 Lina Joy v. Majlis Agama Islam Wilayah Persekutuan & Yang Lain [2007] 3 CLJ 557 FC. 55
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 15 /
Date: 15/8
JOBNAME: Delaney PAGE: 16 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
132 Comparative judicial review stating that “one cannot at one’s whims and fancies renounce or embrace a religion” and declaring that it had no jurisdiction over the matter. The ruling continued: Therefore … if a Muslim wishes to leave the religion of Islam, he actually uses his right under the context of the Syariah law which has its own jurisprudence on the issue of apostasy. If a person professes and practices Islam, it would definitely mean that he must comply with the Islamic law which has prescribed the way to embrace Islam and converting out of Islam.
As a result, the Federal High Court recognized the Sharia Court as the court of final jurisdiction over personal status matters for Muslims. With the Lina Joy ruling, questions were raised as to whether the religious freedom clause, and other individual liberty clauses for that matter, are available only to non-Muslim citizens in the event that Sharia courts rule them essentially incompatible with Islam (Dawson and Thinu 2007). Recently, however, the High Court in Kuching, Sarawak (which sits below the Federal High Court in the judicial hierarchy) issued a controversial verdict that affirmed the supremacy of the Federal Constitution as supreme law.59 In the March 2016 case of Rooney Rebit, a Muslim from the state of Sarawak who had converted in 1999 and was seeking recognition of his status as a Christian, the High Court of Kuching, Sarawak upheld the right to convert from Islam to Christianity. The plaintiff had petitioned a civil court to declare that his belief in Jesus Christ was a fundamental human right. The Court ruled that since the Federal Constitution is supreme, Article 11 protects every Malaysian citizen’s right to freedom of religion. The Court further stated that “[s]ince the applicant had not professed his faith in Islam, he could not be considered as a person professing that particular faith.”60 The Court also emphasized that the issue presented by the case is not one of jurisdiction but rather of constitutional rights, and that “he is at liberty not only to exercise his constitutional religious right to choose his religion but he could also come to the courts to enforce his choice to be reflected in his identity card i.e., his name and religion.”61 This ruling was applauded by Malaysian Christian groups, as well as Muslim liberal groups and equal rights activists, including Sisters in Islam.62 The implications of this ruling will depend on whether it becomes a part of a wider movement to uphold the supremacy of liberal constitutional protections, or whether the more conservative approach of the Federal High Court continues to dominate the jurisprudence.63 59
Azmi Mohamad Azam v. Director of Jabatan Agama Islam Sarawak & Ors [2016] 3 CLJ
562. 60
Id. at ¶ 2. Id. at ¶ 3. 62 See Press Statement: Sarawak High Court judgment defends Freedom of Religion in Malaysia, SISTERS IN ISLAM (Mar. 28, 2017), http://www.sistersinislam.org.my/news.php?item. 1409.40. 63 The National Registration Department announced on May 3, 2016 that it had withdrawn its appeal of the ruling before the High Court, after reported intervention by Sarawak Chief Minister Adenan Satem. The announcement came shortly before Sarawak’s state elections and after churches in the state pressured Satem to stand by his previous pledge to protect religious freedoms. The fact that Sarawak is a particularly diverse state within Malaysia, with about 30 percent Christians, 24 percent Malays, and 24 percent Chinese, was likely relevant. See Najib 61
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 16 /
Date: 15/8
JOBNAME: Delaney PAGE: 17 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 133 Afghanistan is another example of a nation with a version of the hybrid system that was enabled, if not mandated, by the text of its Constitution. The Constitution establishes Afghanistan as an Islamic Republic, with Islam as the official religion of the state.64 The repugnancy clause, expressed in Article 3, provides that “[n]o law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.”65 In terms of constitutional review, the Constitution of Afghanistan established a Supreme Court, which, upon the request of the government or other courts, “can review compliance with the Constitution of laws, legislative decrees, international treaties, and international conventions, and interpret them …”66 The Constitution of Afghanistan, unlike the countries that follow the first, secular, model, explicitly allows the Supreme Court to include both judges who “have a higher education in law,” as well as Islamic scholars trained in Islamic jurisprudence.67 Members of the court are appointed by the president, subject to parliamentary approval.68 And while courts are instructed by Article 130 to apply the Constitution and statutory law in court proceedings, they are also authorized by the same article to apply the Sharia, as provided for in the jurisprudence of the Hanafi school, to cases under consideration when no existing constitutional or legal provision applies.69 The Supreme Court, which was established in 2004, was known in its early years to be dominated by Islamic jurists, who gave primacy to the clauses of constitutional Islam. Thus, in practice, Afghanistan looked more like a hybrid judicial review system than a secular one during that time. The Chief Justice between 2004 and 2006, Faisal Ahmed Shinwari, was a conservative cleric who consistently prioritized the Sharia provisions over other constitutionally guaranteed rights, advocating, for example, the banning of cable television and the shutting down of co-ed schools.70 During his tenure, the Court conducted constitutional review in line with strict Sharia interpretations. It ruled to ban a candidate from running for presidential elections for questioning whether polygamy was compatible with the spirit of Islam71 and banned women from singing on television.72 The hybridity in Afghanistan is not structural, since the Constitution does not mandate or authorize the establishment of a competing Islamic court structure, but rather is enabled by the possibility of Islamic jurists sitting on the Supreme Court and assures NRD won’t challenge Christian man’s bid, DAILY EXPRESS (May 3, 2016), http:// www.dailyexpress.com.my/news.cfm?NewsID=109308. 64 CONST. OF THE ISLAMIC REPUBLIC OF AFGHANISTAN, arts. 1–2. 65 Id. at art. 3. 66 Id. at art. 121. 67 Id. at arts. 116, 118. 68 Id. at art. 64(12). 69 The Constitution includes an exception for followers of the Shia school, where courts are instructed to apply Shia jurisprudence in cases involving Shia personal status matters. Id. at art. 131. 70 See Claudio Franco, Despite Karzai Election, Afghan Conservatives Soldier On, EURASIANET, (Dec. 6, 2004), http://www.eurasianet.org/departments/insight/articles/eav120704.shtml. 71 See Tony Cross, The first presidential elections, RFI (Sept. 27, 2004), http://www1.rfi.fr/ actuen/articles/116/article_4688.asp. 72 See Afghan TV U-Turn on Women Singers, BBC NEWS (Jan. 16, 2004), http://news.bbc. co.uk/2/hi/south_asia/3402283.stm.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 17 /
Date: 15/8
JOBNAME: Delaney PAGE: 18 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
134 Comparative judicial review potentially prioritizing an Islamic agenda. The experience in Afghanistan shows a correlation between the Islamic training of the jurists sitting on the Supreme Court and their approach to Islamic law in general, as well as its relationship to other sources of law in Afghanistan. The hybridity of the system is thus unstable, since the court’s composition depends upon the decision of the president and the political compromises involved in the appointment process. Currently, it appears that political factors, including a parliament dominated by conservative forces, have restricted the president’s ability to introduce a more liberal composition to the court. In 2015, President Ashraf Ghani’s nomination of Anisa Rassouli to the Court as the first female Supreme Court judge was overwhelmingly rejected by Parliament and condemned by the country’s powerful Council of Islamic Clerics as contrary to Islamic law.73 Pakistan is an example of a complex hybrid system, with a unique set of constitutional provisions that incorporate both secular constitutional adjudication and an elaborate, two-tier process of review for compliance with the Sharia. The current duality of the Pakistani system is enshrined in the 1973 Pakistani Constitution. Article 1 of the Constitution establishes an “Islamic Republic of Pakistan,” with Islam as the state religion. Article 227 includes a repugnancy clause, which prohibits the enactment of legislation that is repugnant to the injunctions of Islam, as laid down by the Quran and Sunnah. The Constitution also requires that the president, as well as the majority of members of the Parliament’s lower house, the Legislative Assembly, be Muslim.74 Article 61(1)(d)–(e) further requires that members of both houses of Parliament satisfy certain religious qualifications, including having “adequate knowledge of Islamic teachings” and practicing “obligatory duties prescribed by Islam …”75 The Constitution established a Supreme Court to serve as the highest court of appeal, which functions along a secular model and is staffed by professional judges. It also adjudicates constitutional disputes and cases involving constitutional interpretation.76 In addition, the Constitution established two mechanisms for Sharia-based review. Article 227 states that all existing laws “shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah and no law shall be enacted which is repugnant to such injunctions.” Article 203 establishes a Federal Sharia Court empowered to “examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the 73 See Sune Engel Rasmussen, First female Nominee Fails to Win Seat on Afghan Supreme Court, THE GUARDIAN (July 8, 2015), https://www.theguardian.com/world/2015/jul/08/afghansupreme-court-female-nominee-anisa-rassouli. 74 CONST. OF THE ISLAMIC REPUBLIC OF PAKISTAN, arts. 41(1), 51, 3rd Schedule. See Redding 2004, 767 for a brief explanation of the lack of clarity of the religion requirement for prime minister. 75 It should also be noted that the Pakistani Constitution incorporates a set of “Principles of Policy,” which are not judicially enforceable per se but have been used by courts as “interpretive guides” when complicated questions of constitutional or statutory interpretations are involved (Redding 2004, 766). These include striving to enable an “Islamic way of life,” endeavoring to make “teaching of the Holy Quran and Islamiat compulsory,” and promoting “the observance of the Islamic moral standards.” CONST. OF THE ISLAMIC REPUBLIC OF PAKISTAN, arts. 30–31. 76 CONST. OF THE ISLAMIC REPUBLIC OF PAKISTAN, arts. 176–85.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 18 /
Date: 15/8
JOBNAME: Delaney PAGE: 19 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 135 Sunnah of the Holy Prophet …”77 The Federal Sharia Court consists of eight Muslim judges: a chief judge, four judges qualified as High Court judges, and three religious scholars (ulema), each having at least 15 years of experience in Islamic law, research, or instruction. An additional pre-promulgation Islamic review mechanism, which operates in an advisory capacity, was established by Article 228, which provides that the Council of Islamic Ideology is to be comprised of Islamic ulema and is tasked with advising the government on Islamic legal matters. The Council of Islamic Ideology is responsible for advising the government on whether a proposed law is repugnant to the “Injunctions of Islam.”78 The Constitution also provides important guarantees of individual rights. Chapter 2 includes guarantees of fundamental rights protection, including equality before the law and protection from discrimination on the basis of “race, religion, caste, sex, residence or place of birth.” Yet it also includes some significant qualifications. Article 19, for example, states that the guarantee of free speech and freedom of the press is subject to, among other considerations, “any reasonable restrictions imposed by law in the interest of the glory of Islam … .” The role of Islam in the Pakistani legal system is significant, but its application is also marked by diversity and uncertainty and has evolved substantially since Pakistan achieved independence in 1947.79 Pakistan was carved out of British India as a home for the subcontinent’s Muslims. A commitment to a way of life for Muslims that is based on Islamic law was enshrined in the 1949 post-independence “Objectives Resolution” document, which contained guiding principles to inform constitution writing,80 but early constitutional drafters were divided on the question of Islamic judicial review. As a result, while Part 3 of the 1956 Constitution (Directives of State Principles) provided, for example, that “[s]teps shall be taken to enable the Muslims of Pakistan individually and collectively to order their lives in accordance with the Holy Quran and Sunnah,”81 this was treated as largely symbolic. It was made non-justiciable by Article 23(b), which provided that “the State shall be guided in the formulation of its policies by the provisions of this Part, but such provisions shall not be enforceable in any court.” Therefore, the country’s first Constitution was silent on the mechanism of enforcing the Sharia. The first Constitution was abrogated in 1958, but set a “pattern” that continued over 20 years in Pakistani constitutions of committing to legislate in accordance with Islamic law but denying courts the power to enforce this commitment (Lombardi 2013b, 625). This pattern continued with the 1962 Constitution, which reflected then-President Ayub Khan’s secular outlook (Lau 2006, 7). However, public pressure 77
Id. at art. 203(D). The Council of Islamic Ideology website is available at http://cii.gov.pk/aboutcii.aspx. 79 See Lau 2006 for a comprehensive study of the process of “Islamization” of the Pakistani legal system. 80 In 1949, the post-independence Constituent Assembly adopted an “Objectives Resolution” containing principles to inform constitution writing. These included commitments to a Muslim way of life that is based on Islamic law, which were later incorporated into the preambles of successive Pakistani constitutions. See Objective Resolution (1949), http://www.pakistani.org/ pakistan/constitution/annex.html. 81 CONST. OF THE ISLAMIC REPUBLIC OF PAKISTAN (1956), art. 25(1). 78
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 19 /
Date: 15/8
JOBNAME: Delaney PAGE: 20 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
136 Comparative judicial review and a shifting public mood away from the country’s colonial legacy and towards incorporating indigenous Islamic principles into lawmaking led to a subsequent 1963 amendment that introduced a repugnancy clause and established the Council on Islamic Ideology. The Council’s mandate, as retained later in the 1973 Constitution, was to ensure that all existing laws were brought into conformity with Islam. However, the Council only had an advisory capacity and no enforcement power.82 By the 1970s, it became clear that the existence of an almost exclusively secular court structure was causing friction and that traditionalist and Islamist forces were at odds with the military and the economic elite’s liberal and modernist version of Islam (Lombardi 2013b, 625).83 In its original form, the 1973 Constitution did not include provisions for judicial enforcement of Sharia provisions until the amendments of General Zia-ul-Haq. In 1977, Zia-ul-Haq staged a military coup that ousted a civilian government dominated by modernist elites. Against this backdrop of a divided Pakistan, Zia-ul-Haq introduced a set of “Islamization” measures as a means to build an alliance with conservative Islamist forces (Lombardi 2013b, 625). He declared martial law and introduced a set of sweeping reforms aimed at incorporating Islamic law into Pakistan’s legal system, including the enactment of hudood ordinances, which institute so-called Sharia-based criminal sanctions, and replaced provisions of the family law that were seen by conservatives as un-Islamic (Lombardi 2013b, 632). Most significantly, Zia-ul-Haq, for the first time in Pakistan’s history, introduced separate Sharia courts to review legislation for compatibility with Islamic injunctions. In 1979, he passed an order amending the Constitution and creating Sharia benches in Pakistan’s Superior Courts, including the Supreme Court.84 A year later, he abolished these benches, with the exception of the Supreme Court Sharia Appellate Bench, and created a centralized Federal Sharia Court, to which he transferred the jurisdiction of Sharia review.85 This newly created Federal Sharia Court was empowered to review ordinary legislation for compliance with the injunctions of Islam, as well as review the decisions of criminal courts in matters related to hudood ordinances, but was expressly prohibited from reviewing questions of Muslim personal law.86 The Sharia Appellate Bench of the Pakistan Supreme Court functions as the country’s highest authority on Sharia-based review of legislation, to which the decisions of the Federal Sharia Court may be appealed.87 82
CONST. OF THE ISLAMIC REPUBLIC OF PAKISTAN, arts. 227–331. The Supreme Court of Pakistan confirmed in Tanbir Ahmad Siddiky v. Province of East Pakistan (1968) that Islamic law could not be used to strike down a law as unconstitutional. See Lau 2006, 5–30 for an examination of the initial suppression and gradual emergence of Islamic law in Pakistan’s superior courts between independence and 1977. 83 See Lau 2006, 5–30 (discussing tensions between Islamists and modernists up to 1977). 84 Pakistan President’s Order No. 3 of 1979. 85 Pakistan President’s Order No. 1 of 1980. 86 Pakistan President’s Order No. 1 of 1980; CONST. OF THE ISLAMIC REPUBLIC OF PAKISTAN, arts. 203D–DD. For a discussion of the issue of the jurisdiction of Sharia courts over Muslim personal law and an overview of relevant cases, see Lau 2006, 138–9 and Redding 2004, 774–6. 87 See Lau 2006, 123–30 for a discussion of these orders and their political backdrop. It should also be noted that Zia-ul-Haq did not introduce the principle of reliance on Islamic law by courts, which emerged as a trend in the late 1960s, with the most visible example being the
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 20 /
Date: 15/8
JOBNAME: Delaney PAGE: 21 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 137 The functioning in Pakistan of this dual legal system with parallel jurisdictions of secular and Sharia courts—with the Supreme Court conducting a secular form of constitutional review and the Federal Sharia Court and then Sharia Appellate Bench of the Supreme Court conducting Sharia-based review of legislation—continues to be marked by a certain degree of complexity and uncertainty. The Constitution, in Article 203B(c), confines the jurisdiction of the Federal Sharia Court (and by extension the Sharia Appellate Bench of the Supreme Court) to ordinary law, while specifically excluding Muslim family law and interpretation of the text of the Constitution, which are assigned to the jurisdiction of secular courts. The Sharia court system, however, is empowered to review the decisions of the secular High Courts in cases that involve hudood punishments. The wording of the Constitution suggests that, in turn, Sharia Court rulings in these hudood cases may only be appealed to the Sharia Appellate Bench of the Supreme Court, rather than to the Supreme Court itself.88 Meanwhile, matters of constitutional review (concerning fundamental rights, for example) and matters of Muslim personal law remain within the jurisdiction of the secular court system, with the Supreme Court at its apex.89 This system of legal dualism—where both secular and Islamic laws coexist and where the Constitution sets up separate, yet intertwined, secular and Sharia court structures—left unanswered both the questions of the meaning of the Sharia and the hierarchy of principles that should guide the review of legislation. That is, it left unclear the grundnorm that is at the foundation of the country’s legal system. This is complicated further by a myriad of conflicting legal provisions and case law. The Enforcement of Sharia Act of 1991, for example, provides in Section 3 that the Sharia is the supreme law of Pakistan, yet includes very little in terms of concrete measures to enforce this commitment beyond what is constitutionally permissible.90 Section 4 provides that when interpreting law, if more than one interpretation is possible, the court shall adopt the one consistent with Islamic principles and jurisprudence. But the Act also provides in Article 20 that nothing in it shall affect the rights of women as guaranteed by the Constitution.91 Defining the contours and reach of the Sharia in Pakistan was largely left to the courts, with the Supreme Court taking the lead.92 The courts’ struggle with the place of Islam in Pakistan’s legal system preceded Zia-ul-Haq’s amendments. As early as 1972, in the landmark case of Asma Jilani v. The Government of the Punjab, Chief Justice Hamoodur Rahman declared Islam to be the 1972 Asma Jilani case, which expressly recognized Islam as the Pakistani legal system’s basic structure. Rather, Zia-ul-Haq formalized and institutionalized it. See Lau 2006, 31–46 for an examination of relevant case law. 88 The Supreme Court’s Sharia Appellate Bench consists of three Muslim judges of the Supreme Court and no more than three ulema to be appointed by the president to serve as ad hoc members. CONST. OF THE ISLAMIC REPUBLIC OF PAKISTAN, art. 203F. 89 Id. at art. 203B. 90 Enforcement of Sharia Act, Act X of 1991, S. 3. 91 See Lau 2006, 91–3 for an examination of the Act. 92 The Supreme Court has a long history dating to colonial times with a tradition of judicial activism that continues to the present. See Siddique 2015 for a discussion of the judicialization of politics in Pakistan and the Supreme Court after the Lawyers’ Movement of 2007–2009.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 21 /
Date: 15/8
JOBNAME: Delaney PAGE: 22 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
138 Comparative judicial review grundnorm of the Pakistani legal system.93 In the same ruling, Justice Yaqub Ali stated that the grundnorm was democracy.94 For nearly a decade afterwards, multiple contradictory court rulings emerged, with different judges applying different conceptions of the hierarchy of norms of constitutional interpretation,95 until the 1977 Begum Nusrat Bhutto v. Chief of the Army Staff case, where the Supreme Court explicitly rejected the view that the Objectives Resolution was the grundnorm.96 Previously, in State v. Zia-ur-Rehman (1973), and later in Hakim Khan v. Government of Pakistan (1992), the Supreme Court declared that the Objectives Resolution was not part of the Constitution and that no constitutional provision can be struck down for incompatibility with it as a result. The Court thereby rejected attempts to further “Islamize” the Constitution based on the Objectives Resolution.97 Since then, the Supreme Court has established that all parts of the Constitution must be interpreted in a harmonized fashion and that no provision of the Constitution trumps another. The debate continues over the basic structure of the Constitution and the meaning of the Sharia, which the Federal Sharia Court continues to enunciate.98
D. CONCLUSIONS In this chapter we have explained the three types of judicial review structures used in countries with a constitutional commitment to Islam and have offered some explanations for why countries have adopted the types that they have. A fuller explanation would involve an in-depth analysis of the internal dynamics around the place of religion in the state for each country and an examination of the actors in that debate, including monarchs, presidents, religious leaders, civil society, and members of the opposition. The choice of constitutional language concerning Islam is part of these same contestations and conversations, and as a result, there is naturally some correlation between the particular clauses of constitutional Islam and the judicial review structure. The declaration of an Islamic state and a repugnancy clause, as in Iran and Saudi Arabia, are strong indicators that a country will likely have an Islamic judicial review model, but the Islamic Republic of Pakistan has both and yet is best described as a hybrid, although one that leans towards the Islamic model. Kuwait and Egypt have an establishment clause and a source of law clause, and have adopted a secular model of judicial review. Most countries with just an establishment clause also have a secular model. Malaysia, which has a light version of an establishment clause, has a hybrid system, which is due in large part to the power of Islamism that emerged within Malaysia in the 1980s. Among many others, one 93 94 95 96
Asma Jilani v. The Government of the Punjab, PLD 1972 SC 139, 258. Id. at 237. See, e.g., Lau 2006, 5–19 and Munir 2008. Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC
657. 97
State v. Zia-ur-Rehman, PLD 1973 SC 49; Hakim Khan v. Government of Pakistan, PLD 1992 SC 595. 98 See Lau 2006, 131–74 and Munir 2008 for a discussion of Federal Sharia Court case precedent and Islamization of laws in practice.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 22 /
Date: 15/8
JOBNAME: Delaney PAGE: 23 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 139 achievement of Islamist politicians in Malaysia was the largely successful effort to immunize Sharia courts from review by the national court system, in effect creating a hybrid model. The Malaysian example shows how fluid and even fragile some judicial review structures can be and how they can change with shifting political power dynamics. A similar example of the effect of shifting power comes from the Egyptian case, in which the Muslim Brotherhood proposed, but never succeeded, to insert into the review process some kind of consultative function for the country’s senior scholars of Islamic law. Such a development could have edged Egypt towards a hybrid model. The structure of judicial review is both a cause and an effect in the debates and battles over the role of Islam in the state. A hybrid or Islamic judicial review structure can serve to privilege Islamic law and relegate to second place or even bypass other guarantees a country’s constitution may contain, further reinforcing an Islamic agenda. Likewise, political actors carrying out an Islamic agenda can act upon the judicial review structure, either amending it, as seen in Malaysia, or even bending it slightly and temporarily, as seen in Afghanistan. As with matters of substantive law and national policy more generally, the judicial review structures depend upon which actors with what kinds of beliefs about the role of Islam in the state have the upper hand in politics at any particular moment.
REFERENCES Abu-Karaki, Muddather, Raed S. A. Faqir, and Majed Ahmad K. Marashdah. 2011. “Democracy and Judicial Controlling in Jordan: A Constitutional Study.” Journal of Politics and Law 4: 180–95. Abu-Odeh, Lama. 2011. “The Supreme Constitutional Court of Egypt: The Limits of Liberal Political Science and CLS Analysis of Law Elsewhere.” American Journal of Comparative Law 59: 985–1008. Abu-Odeh, Lama. 2013. “Egypt’s New Constitution: The Islamist Difference.” Georgetown Public Law and Legal Theory Research Paper 13-053. Agmon, Iris. 2006. Family and Court: Legal Culture and Modernity in Late Ottoman Palestine. Syracuse, NY: Syracuse University Press. Ahmed, Dawood I. and Moamen Gouda. 2015. “Measuring Constitutional Islamization: The Islamic Constitutions Index.” Hastings Comparative & International Law Review 38: 1–76. Al-Nakib, Farah. 2006. “The Constitutionality of Discrimination: A Search for Women’s Political Equality in Kuwait.” In Constitutional Reform and Political Participation in the Gulf, edited by Abdulhadi Khalaf and Giacomo Luciani. Dubai: Gulf Research Center. Al-Omran, Nayel M. S., Thabet A. A. Abualhaj, Mohammad Yakub, and Zulkifli B. M. Yusoff. 2015. “Historical and Political Background of Judicial Review in the Islamic Legal System.” American Research Journal of History and Culture 1: 1–13. Ansary, Abdullah F. 2015. UPDATE: A Brief Overview of the Saudi Arabian Legal System. NYU Hauser Global Law School Program, http://www.nyulawglobal.org/globalex/Saudi_Arabia1.html. Arjomand, Said Amir. 2013. “Shiite Jurists and the Iranian Law and Constitutional Order in the Twentieth Century.” In Rule of Law, Islam, and Constitutional Politics in Egypt and Iran, edited by Said Amir Arjomand and Nathan Brown. Albany, NY: State University of New York Press. Brown, Nathan J. 2001. Constitutions in a Nonconstitutional World. Albany, NY: State University of New York Press. Brown, Nathan J. 2006. The Rule of Law in the Arab World: Courts in Egypt and the Gulf. Cambridge: Cambridge University Press. Brown, Nathan J. 2012. When Victory Is Not an Option: Islamist Movements in Arab Politics. Ithaca, NY: Cornell University Press. Brown, Nathan and Adel Omar Sherif. 2004. “Inscribing Islamic Shari’a in Arab Constitutions.” In Islamic Law and the Challenges of Modernity, edited by Yvonne Yazbeck Haddad and Barbara Freyer Stowasser. Walnut Creek, CA: AltaMira Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 23 /
Date: 15/8
JOBNAME: Delaney PAGE: 24 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
140 Comparative judicial review Burgis, Michelle. 2007. “Judicial Reform and the Possibility of Democratic Rule in Jordan: A Policy Perspective on Judicial Independence.” Arab Law Quarterly 21: 135–69. Choudhry, Sujit and Katherine Glenn Bass. 2014. Constitutional Courts After the Arab Spring: Appointment Mechanisms and Relative Judicial Independence. Center for Constitutional Transitions at NYU Law and International Institute for Democracy and Electoral Assistance. Dawson, Benjamin and Steven Thinu. 2007. “The Lina Joy Case and the Future of Religious Freedom in Malaysia.” Lawasia Journal 2007: 151–62. Feldman, Noah. 2008. The Fall and Rise of the Islamic State. Princeton, NJ: Princeton University Press. Fernando, Joseph. 2002. The Making of the Malayan Constitution. Kuala Lumpur: MBRAS. Hallaq, Wael B. 2005. The Origins and Evolution of Islamic Law. New York, NY: Cambridge University Press. Herb, Michael. 2016. “The Origins of Kuwait’s National Assembly.” LSE Kuwait Programme Paper Series 39. Hill, Enid. 1988. “Al-Sanhuri and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of Abd al-Razzaq Ahmad al-Sanhuri, Egyptian Jurist and Scholar, 1895–1971 [Part II].” Arab Law Quarterly 3: 182–218. Hirschl, Ran. 2010. Constitutional Theocracy. Cambridge, MA: Harvard University Press. Lau, Martin. 2006. The Role of Islam in the Legal System of Pakistan. Leiden: Martinus Nijhoff Publishers. Lombardi, Clark B. 2006. State Law as Islamic Law in Modern Egypt: The Incorporation of the Shari’a into Egyptian Constitutional Law. Leiden: Brill. Lombardi, Clark B. 2013a. “Constitutional Provisions Making Shari’a ‘A’ or ‘The’ Chief Source of Legislation: Where Do They Come from? What Do They Mean? Do They Matter?” American University International Law Review 28: 733–74. Lombardi, Clark B. 2013b. “Designing Islamic Constitutions: Past Trends and Options for a Democratic Future.” International Journal of Constitutional Law 3: 613–45. Mohamed, Maznah. 2010. “The Ascendance of Bureaucratic Islam and the Secularization of the Sharia in Malaysia.” Pacific Affairs 83: 505–24. Moustafa, Tamir. 2009. The Struggle for Constitutional Power; Law, Politics, and Economic Development in Egypt. New York, NY: Cambridge University Press. Moustafa, Tamir. 2013. “Liberal Rights versus Islamic Law? The Construction of a Binary in Malaysian Politics.” Law and Society Review 47: 771–802. Munir, Muhammad. 2008. “Precedent in Islamic Law with Special Reference to the Federal Shariat Court and the Legal System in Pakistan.” Islamic Studies 47: 445–82. Neo, Jaclyn Ling-Chien. 2006. “Malay Nationalism, Islamic Supremacy and the Constitutional Bargain in the Multi-ethnic Composition of Malaysia.” International Journal on Minority and Group Rights 13: 95–118. Otto, Jan Michiel. 2010. Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present. Leiden: Leiden University Press. Powers, David S. 1992. “On Judicial Review in Islamic Law.” Law and Society Review 26: 315–42. Redding, Jeffrey A. 2004. “Constitutionalizing Islam: Theory and Pakistan.” Virginia Journal of International Law 44: 759–828. Shalakany, Amr. 2001. “Between Identity and Redistribution: Sanhuri, Genealogy and the Will to Islamise.” Islamic Law and Society 8: 201–44. Shapiro, Martin. 1980. “Islam and Appeal.” California Law Review 68: 350–81. Shaw, Stanford J. and Ezel Kural Shaw. 1977. “The Era of Modern Reform: The Tanzimat, 1839–1876.” In History of the Ottoman Empire and Modern Turkey, Vol. 2: Reform, Revolution, and Republic: The Rise of Modern Turkey 1808–1975, edited by Stanford Shaw and Ezel Kural Shaw. New York, NY: Cambridge University Press. Shuaib, Farid S. 2012. “The Islamic Legal System in Malaysia.” Pacific Rim Law & Policy Journal 21: 85–114. Siddique, Osama. 2015. “The Judicialization of Politics in Pakistan: The Supreme Court after the Lawyers’ Movement.” In Unstable Constitutionalism: Law and Politics in South Asia, edited by Mark Tushnet and Madhav Khosla. New York, NY: Cambridge University Press. Stilt, Kristen. 2011. Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt. Oxford: Oxford University Press. Stilt, Kristen. 2015. “Contextualizing Constitutional Islam: The Malayan Experience.” International Journal of Constitutional Law 13: 407–33.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 24 /
Date: 15/8
JOBNAME: Delaney PAGE: 25 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review in the context of constitutional Islam 141 Stilt, Kristen, Salma Waheedi, and Swathi Gandhavadi Griffin. Forthcoming. “Ambitions of Muslim Family Law Reform.” Harvard Journal of Law & Gender. Tezcür, Günes¸ Murat. 2007. “Constitutionalism, Judiciary, and Democracy in Islamic Societies.” Polity 39: 479–501. Vogel, Frank E. 1999. “Conformity with Islamic Sharia and Constitutionality under Article 2: Some Issues of Theory, Practice, and Comparison.” In Democracy, the Rule of Law and Islam, edited by Eugene Cotran and Adel Omar Sherif. London: Kluwer Law International. Vogel, Frank E. 2000. Islamic Law and Legal System: Studies of Saudi Arabia. Leiden: Brill. Vogel, Frank E. 2012. “Sharia in the Politics of Saudi Arabia.” Review of Faith and International Affairs 10: 18–27. Yaacob, Mohamed Fauzi. 2011. “The Challenge of Religious Pluralism in Malaysia.” Journal of Oriental Studies 21: 166–77. Zubaida, Sami. 2003. Law and Power in the Islamic World. New York, NY: I.B. Tauris.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 07_Chapter7_ts
/Pg. Position: 25 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
8. New judicial roles in governance Robert A. Kagan, Diana Kapiszewski and Gordon Silverstein*
In many constitutional democracies, independent courts vested with powers of judicial review have become significant actors in governance.1 Politically consequential courts have emerged in newer democracies such as Hungary, South Africa, and Brazil. In long-established democracies such as Canada and New Zealand as well, courts have been given or have assumed more power to protect individual rights and invalidate government policies. And transnational institutions such as the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) have taken on dramatic roles not only in European governance, but also in member states (Stone Sweet and Brunell 2012). However, the political power of courts has ebbed as well as flowed. The Hungarian Constitutional Court, once hailed as one of the most significant new constitutional courts (Zifcak 1996), had its power significantly curtailed less than a decade after its debut in 1990 (Scheppele 1999). After a brief re-emergence in the 2000s, it received the same treatment—or perhaps worse—beginning in 2011 (Bánkuti, Halmai, and Scheppele 2012). Tamir Moustafa recounts a similar rise and fall of judicial activism in Egypt (Moustafa 2003). There has been a backlash against the growing authority of the Supreme Court in Israel (see, e.g., Cohen-Eliya 2014). And in the last three decades, as a result of a conservative political and legal movement (Teles 2008; Hollis-Brusky 2015), the US Supreme Court has issued many rulings designed to limit the use of litigation and courts to challenge governmental decisions and policies (Staszak 2010; Siegel 2006; Burbank and Farhang 2017). Clearly, there are significant political risks for courts that make politically significant rulings. This ebb and flow of judicial power—understood as both the power delegated to courts by political authorities and courts’ ability to influence politics—raises two broad questions that this chapter seeks to address. First, why do some high courts, but not others, become actively involved in politics and policy making? Second, what do politically involved courts actually do with their power? More specifically, in what arenas and to what effect are courts consequential actors in the political life of their nations?2 We begin by discussing the concept of “judicial roles,” distinguishing the * This chapter draws substantially on the authors’ introductory and concluding chapters in Kapiszewski, Silverstein, and Kagan 2013. 1 See, e.g., Tate and Vallinder 1997; Stone Sweet 2000; Hirschl 2006. 2 For other studies of judicial roles in politics, see, among others, Stone Sweet 1980 (France); Mandel 1994 (Canada); Alter 2001 (ECJ); and Reddy 2009 (India). For comparisons of how different courts handle similar challenges, see Epp 1998 and Tushnet 2009 (adjudicating social policy); Skach 2005 (constitutional design); Kende 2009 (individual rights); Kapiszewski 2012
142
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 1 /
Date: 15/8
JOBNAME: Delaney PAGE: 2 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 143 newer political functions that certain courts have begun to serve from the disputeresolution and law-enforcement roles that have traditionally been their bailiwick. We then describe the various political arenas in which courts have become more active, and the types of political-judicial roles that have emerged in some polities. Next, we offer a three-category framework for considering the factors and forces that affect judicial role expansion and contraction. Finally, we discuss the strategies, techniques, and tactics courts have employed in taking on new roles in governance.
A. EXPANDED JUDICIAL ROLES IN GOVERNANCE The concept of a judicial role has commonly been used with reference to how judges approach decision making in individual cases. Judges, it has been said, might have (1) a legalistic role conception (feeling obliged to protect or adhere closely to legal texts and precedents, regardless of consequences); (2) an activist role conception (prioritizing judicial flexibility and substantive justice); or (3) a deferential role conception (tending to defer, on democratic grounds, to legislative judgments in disputes over constitutional meaning). Our emphasis in this chapter, by contrast, is on the functional roles courts play in politics, governance, and society. Years ago, Martin Shapiro pointed out that one fundamental role courts play is to help maintain order by promoting the peaceful resolution of everyday disputes (Shapiro 1981). Second, Shapiro noted, the legitimacy attached to ostensibly neutral courts enables them to help the central government to control local governments, police, and bureaucrats by enforcing and legitimating dominant political leaders’ policies (as embodied in the laws they enact) (Shapiro 1981). Third, courts traditionally have helped legitimate existing systems of economic power by enforcing rules relating to property, contract, and, in many cases, restrictions on competition (Shapiro 1981). Fourth, Shapiro observed that by applying generally stated—and hence ambiguous—laws to individual cases, courts inevitably assume an interstitial lawmaking role (Shapiro 1981). Echoing some of Shapiro’s points, Ginsburg and Moustafa observe that by granting courts some degree of autonomy, political leaders, even in authoritarian polities, use courts to “(1) establish social control and sideline political opponents, (2) bolster a regime’s claim to ‘legal’ legitimacy, (3) strengthen administrative compliance within a state’s own bureaucratic machinery and solve coordination problems among competing factions within the regime, (4) facilitate trade and investment, and (5) implement controversial policies …” (Ginsburg and Moustafa 2008, 4). In playing the sociopolitical roles outlined by Shapiro and by Ginsburg and Moustafa, courts act primarily as agents of top political authorities, faithfully applying existing laws rather than making or changing them. However, as both established and newer democracies have empowered courts to declare laws and executive orders unconstitutional, there has been a marked increase in courts’ potential to make new law (economic governance); and Stotzky 1993, Teitel 2002, Elster 2004, and Czarnota, Krygier, and Sadurski 2005 (democratic transition). Most examples of judicial action mentioned in the present chapter are drawn from the various country studies in Kapiszewski, Silverstein, and Kagan 2013.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 2 /
Date: 15/8
JOBNAME: Delaney PAGE: 3 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
144 Comparative judicial review and apply existing law in new ways, thereby taking on new roles in governance. Our prior work, for example, features 12 studies of courts in countries from every world region, with varying legal traditions and varying histories of judicial independence. It shows that courts have (1) decided crucial disputes between political incumbents and challengers (including determining winners and losers in critical elections); (2) resolved constitutional disputes between units of government about the allocation of governing authority; (3) addressed legal conflicts arising from clashes between secular and religious beliefs; (4) responded to popular outcry about government maladministration, corruption, or political stasis; and (5) defined the scope of individual and minority rights and governmental obligations to protect them (Kapiszewski, Silverstein, and Kagan 2013). When the courts under consideration engaged in these activities in ways that departed from political leaders’ preferences, they exerted a significant, independent, and distinctively judicial influence on broad realms of public policy. That is, they demonstrated that courts can and do play consequential roles in governance. Judges’ willingness and ability to insert their courts in politics, however, depends on a number of factors. Scholars have suggested that those factors include (1) the extent to which the constitutional text and judicial precedents give the judges a clear duty or opportunity to decide assertively in a particular case (Trochev 2013); (2) judges’ political ideology and attitudes (Segal and Spaeth 1993); (3) the current political regime’s determination and capacity to squelch unwanted judicial challenges—or willingness to comply with them (Epstein, Knight, and Shvetsova 2001; Ginsburg 2003; Trochev 2008); (4) the extent to which an assertive court can expect political support from powerful allies (Vanberg 2001; Staton 2004; Staton 2006; Staton 2010); and (5) judicial culture or judges’ ideologies about judging and the proper roles for courts (e.g., Couso 2005; Hilbink 2007; Huneeus 2010). In addition, courts’ involvement in political conflicts depends upon demand for assertive judicial action—from political actors, civil society, or other corners of the polity. Importantly, this type of demand seems to be increasing around the globe. In modern political systems, citizens expect governments to protect human rights, promote equal treatment, and provide protection from bureaucratic arbitrariness and threats to their economic liberty and security (Friedman 1984). Accordingly, political activists, legal reformers, business firms, and ordinary litigants are increasingly seeking judicial remedies for more kinds of grievances, thus pushing courts to play new roles in governance. Why would political leaders empower judges to perform political functions, or even to overrule the government’s own decisions? Political scientists have identified a variety of explanatory scenarios. In the wake of a cruelly repressive regime, political leaders shaping a new democracy often act on the hope that strong, independent judges—armed with judicial review powers and constitutional bills of rights—will serve as barriers against a return to tyranny (Scheppele 2000; Klug 2013; Ferejohn 2013; Shapiro 2013). Sometimes a currently dominant political party whose support is fading seeks “political insurance” by establishing a new constitution that enshrines aspects of their political program and authorizes a constitutional court to enforce its provisions (including political rights) (Ginsburg 2003; Hirschl 2007; see also Ramseyer 1994; Magalhães 1999; Finkel 2008; Guarnieri 2013). Judicial empowerment sometimes reflects political leaders’ belief that by signaling their commitment to the rule of
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 3 /
Date: 15/8
JOBNAME: Delaney PAGE: 4 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 145 law they can attract support from other nations, prevent capital flight and/or encourage foreign investment (e.g., North and Weingast 1989; Farber 2002; Silverstein 2003; Moustafa 2003; Moustafa 2007; Silverstein 2008). Federal polities often empower a national high court in order to guarantee constitutional protections for subnational units, or to help the central government rein in subnational governments (e.g., Magaloni and Sanchez ND; Friedman and Delaney 2011; Shapiro 2013). As this list of constitutional scenarios implies, judges’ ability and willingness to respond to citizens’ (and politicians’) demands for more assertive rulings vary from polity to polity. Moreover, within a polity, judicial responsiveness is likely to vary over time, and even from issue to issue. However, in parts of the world where judges have been awarded powers that allow them to be more politically active, and where lawyers and political activists are concomitantly motivated to bring a widening array of grievances to court, judges have often grown more willing to use their powers, make assertive rulings, and adopt increasingly expansive interpretations of constitutional ideals, further expanding their roles in governance (Epp 1998; Stone Sweet 1999). The next section explores these roles.
B. POLITICAL ARENAS AND JUDICIAL ROLES Certain kinds of political disputes, conflicts, and tensions emerge—sooner or later—in virtually all complex polities. They often generate demands for judicial action and the expansion of judicial roles in governance. As noted on the previous page, in our prior work, we highlighted five prominent arenas of political contention: (1) conflicts between incumbent political regimes and their challengers; (2) conflicts between competing power centers within national governments or between central governments and culturally or politically divergent subnational governments; (3) conflicts between incumbents and citizens spurred by official corruption, or by governmental deadlock or stasis; (4) conflicts between proponents of secular versus religious values; and (5) conflicts between incumbents and citizens inspired by government failure to recognize or implement constitutionally or legally promised rights (Kapiszewski, Silverstein, and Kagan 2013). We reconsider each below. 1. Conflict Arena I: Disputes between Political Incumbents and Challengers After the displacement of an autocratic regime, new democracies often face controversial questions of transitional justice (construed broadly), such as those concerning the binding quality of laws or constitutional provisions promulgated by the old regime, or the legal culpability of its officials (Ginsburg 2013; Klug 2013). In addition, especially (but not exclusively) in newer and fragile democracies, disputes often arise between political incumbents and challengers concerning the legitimacy and fairness of potentially pivotal elections or concerning rights of political expression and organization. When such political controversies enter the dockets of high courts, judges face choices between strengthening or weakening aspirations for constitutional democracy, between supporting regime stalwarts or supporting challengers, between entrenching the interests and values of incumbents or of new majorities. Making such choices
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 4 /
Date: 15/8
JOBNAME: Delaney PAGE: 5 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
146 Comparative judicial review thrusts courts into a new role in governance: influencing the struggle for political power. The following are three examples of ways in which courts do so. (a) Facilitating democratic transitions In Korea, Taiwan, and Thailand, legal challenges to disputed elections (or as in Korea, impeachment proceedings) led to crucial judicial decisions that determined who shall rule (Ginsburg 2013). In Korea in particular, after its establishment in 1988, the Constitutional Court became “the embodiment of the new democratic constitutional order … routinely called on to resolve major political conflicts and issues of social policy …” (Ginsburg 2013, 53). In these contexts, judges acted as what Ginsburg calls “downstream [democratic] consolidators.” Trochev describes how high courts in Ukraine, Georgia, and Kyrgyzstan invalidated rigged elections, facilitating peaceful changes in government—although political stability there proved less enduring (Trochev 2013). In South Africa in 1994, the newly established Constitutional Court boldly denied certification of a new draft constitution (Klug 2013, 103), and soon thereafter issued additional assertive decisions that invalidated reviled laws of the old order and that signaled its commitment to constitutional principles rather than political expediency (Klug 2013, 99–100). Yet the Court also invalidated legislation passed by the new African National Congress-dominated Parliament and signed by President Nelson Mandela. The Court’s evenhandedness, Klug observes, enabled it to play an important political role: consolidating the core idea of constitutionalism and the rule of law as key elements of the national political culture. (b) Catalyzing antiauthoritarian movements In authoritarian or weakly democratic regimes in which judges have some measure of independence, court decisions can operate as focal points for political movements demanding democracy (or a return to democracy after authoritarian intervention). When courts declare repressive government action illegal or unconstitutional—even if doing so provokes retaliation from political leaders—their decisions “can provide clarity as to what constitutes a violation of the rules,” help “legitimate regime opposition,” and “raise the costs of oppression” (Ginsburg 2013, 48). Also, Mate recounts how in 1975, Indian Prime Minister Indira Gandhi retaliated against the Supreme Court for ruling against her: She declared a state of emergency, assumed broad emergency powers, packed the Court with allies, and suspended fundamental political and due process rights (Mate 2013). The subsequent showing of popular and professional legal support for the embattled Court and the constitutional values it had defended enabled previously weak opposition political parties to push Gandhi to end the period of untrammeled executive rule, and then to defeat her in the ensuing election (Mate 2013). (c) Resolving electoral conflicts in established democracies The denser the statutory and constitutional law governing democratic processes, the more easily disputes between political incumbents and their opponents, and between governments and their critics, can be transformed into plausible legal claims, enabling courts to play a significant role in determining political winners and losers. In the United States, the 2000 case Bush v. Gore provides a widely known example. Intense litigation over various issues in both the electoral law of Florida and the United States
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 5 /
Date: 15/8
JOBNAME: Delaney PAGE: 6 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 147 culminated in a US Supreme Court decision that propelled George W. Bush into office. To use another example from the United States, in Baker v. Carr (1962) and a series of follow-up cases, the US Supreme Court compelled legislatures to regularly redraw electoral district lines to equalize district population size. Those precedents, along with the Voting Rights Act of 1965, which forbids racial and ethnic discrimination, repeatedly have precipitated partisan electoral districting, litigation challenging those practices, and politically consequential judicial decisionmaking (Kagan 2013). 2. Conflict Arena II: Intragovernmental Disputes about Who Governs Conflicts over the allocation of governing power occur in every political system, but most prominently in systems with divided powers. As more countries have established judicial review, courts more often are asked to officiate tugs-of-war between the elected branches of government—and between the elected and judicial branches—over who defines policy. Likewise, many federal systems experience policy conflicts between national governments aiming to prescribe and enforce uniform rules and rights on the one hand, and subnational governments seeking to implement their own modes of government on the other. In these kinds of cases, national high courts must decide who has primary constitutional authority to govern with respect to particular issues and populations, potentially reshaping the distribution of authority among government institutions. Here are some examples. (a) Executive–legislative conflict In the wake of Chile’s transition to democracy in 1990, its Constitutional Tribunal (TC) has been implicated in tense executive–legislative battles generated by the 1980 Constitution. In particular, the TC has been repeatedly called on to resolve challenges to the constitutionality of presidential decrees, requiring it to “interpret and rearticulate the power relationships set out by the authoritarian regime under the new political conditions of competitive democracy” (Scribner 2013, 114). The way the TC played this power-distribution role changed over the post-transition period, but culminated in its articulation of a “co-legislative” role for the executive, reinforcing power inequities in Chile’s already strongly presidentialist system (Scribner 2013, 114–15). (b) Judicial–elected branch conflict The more courts venture into policy-making and power-distributing roles, the greater the risk of conflict among the judicial, executive, and legislative branches over who governs. In India, following the period of emergency rule from 1975 to 1977 and Prime Minister Indira Gandhi’s ensuing electoral defeat, the Indian Supreme Court, asserting that the independence of the judiciary is part of the basic structure of the constitution, wrested control over judicial appointments from the executive (Mate 2013). By doing so, it ensured a larger role for itself in the staffing process and correspondingly diminished partisan political leaders’ influence over the courts’ composition. (c) National–subnational government conflict In federal systems, courts often play a significant role in resolving disputes between levels of government. A well-known example is the US Supreme Court’s redefinition of
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 6 /
Date: 15/8
JOBNAME: Delaney PAGE: 7 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
148 Comparative judicial review the balance of power between Washington, D.C. and state capitals in the later 1930s. The Court reinterpreted Congress’s constitutional “spending power” and its regulatory power over interstate commerce so as to authorize the construction of an increasingly dominant national administrative and regulatory state (Kagan 2013, 200). In its rulings on another set of cases in the 1960s, the Court reinterpreted the post–Civil War 14th Amendment to make most provisions of the federal Constitution’s 1791 Bill of Rights binding on both state and local governments. This enabled federal courts (as well as cooperative state courts) “to help regulate unprofessional or repressive local criminal justice systems” especially, but not only, in the South (Kagan 2013, 201). The ECJ has played an analogous and similarly dramatic role in strengthening the EU Commission’s influence over member state law and policy (Alter 2001, although see also Garrett, Keleman, and Schulz 1998). 3. Conflict Arena III: Challenges to Government Stasis and Maladministration In many modern societies, rising public expectations for justice, good government, and particular policies or processes generate lawsuits that call on courts to remedy perceived government non-responsiveness or stasis, as well as maladministration of various kinds. New judicial roles can emerge as a result, as shown by the following examples. (a) Breaking political roadblocks In contemporary constitutional democracies, courts sometimes advance creative policy initiatives that political leaders and political majorities support but which they have been unable to implement due to constitutional restrictions or political constraints (Graber 1993; Paris 2001; Silverstein 2009; Dixon 2017). In the Netherlands, for example, a recalcitrant minority faction in the governing parliamentary coalition for years blocked legislation that would shield physicians who provide or aid in voluntary euthanasia for suffering, terminally ill patients (Huls 2013). By deciding individual euthanasia cases in a way that protected such physicians, the Dutch high court acted as a political “scout” for Dutch leaders: It blazed a legal trail into policy terrain riddled with political risk, allowing politicians to gauge political and public reaction before moving decisively to enact legislation codifying the Court’s rulings (Huls 2013). (b) Battling corruption and maladministration In a number of countries, and very prominently in Italy and India, courts have proactively provided new remedies against politicians and bureaucrats whose corruption or ineffectiveness had generated public frustration.3 In Italy, the primary judicial actors were lower court judges who, in the European civil law tradition, combined investigative and prosecutorial powers with their judicial powers. In the 1990s, they launched hundreds of corruption investigations and prosecutions against important political party leaders and government officials. This wave of initiatives thrust the 3 Several countries including Kenya, Indonesia, Pakistan, and the Philippines have established dedicated “anti-corruption courts.” See, for instance, Butt 2009 and Butt 2011 for information about the Indonesian Court for Corruption Crimes.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 7 /
Date: 15/8
JOBNAME: Delaney PAGE: 8 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 149 Italian judiciary—even if not completely successfully—into the role of imposing a moralistic kind of legal accountability on the political class (Guarnieri 2013). In India in the 1980s and 1990s, the Supreme Court sought to mobilize private citizens to file claims to seek legal redress for injury to the public caused by government breach of important public duties (Mate 2013, 272–3). A wave of “public interest litigation” (PIL) cases documenting governmental corruption and appalling maladministration ensued. In response, the Court mandated the creation of new watchdog institutions designed to clamp down on official corruption, spur better enforcement of environmental laws, remedy mass violations of criminal defendants’ rights, and more (Mate 2013, 273). 4. Conflict Arena IV: Cultural and Religious Cleavages Frequently, the legal issues that high courts face reflect deep cultural tensions— between religious and secular values in shaping law and public policy, for example, or between preferences for national cultural or religious uniformity and demands for subgroup autonomy. As antagonists in these clashes push their claims before the judiciary, high court judges must either find points of accommodation between conflicting worldviews, or else officially prioritize one view over another in national political, legal, and social life. Thus Hirschl describes how political pressures from religious fundamentalists in predominantly Islamic countries with secular rulers or ruling parties (Egypt, Kuwait, Pakistan, Malaysia) induced high courts—mostly staffed by judges professionally socialized to secular rule of law values—to adopt a new role in governance: protecting secular or moderate Islamic preferences from subordination to fundamentalist religiosity and practices (Hirschl 2013). For example, in holding that basic constitutional principles remained supreme over Shari’a law, the Pakistani Supreme Court blocked, at least formally, a coalition of Taliban-sympathizer parties in the North-West Frontier Province from enacting laws designed to “enforce Islamic morality” (Hirschl 2013, 320).4 Similarly, conflicts between secular liberal values and conservative Christian morality repeatedly have drawn the US Supreme Court into secular–religious cultural wars. It has issued rulings banning prayer and Bible reading in all public schools5 and restricted state laws that had criminalized pornography,6 abortion,7 consensual homosexual relations,8 and same-sex marriage.9 The Court’s decisions in these realms stimulated intense political backlash. In regions in which evangelical Christianity is politically strong, state and local legislatures have erected obstacles to the implementation of the rulings. Nonetheless, the Court’s opinions in these areas reflect a new judicial role: 4
As Waheedi and Stilt clearly demonstrate, protecting secular values represents just one point along a continuum of judicial decisions, running from more secular to more Islamic, that courts in the Muslim world may make as they engage in constitutional interpretation (Waheedi and Stilt, Chapter 7, this volume). 5 Engel v. Vitale (1962); Abington School District v. Schempp (1963). 6 Roth v. United States (1957); Miller v. California (1973). 7 Roe v. Wade (1973). 8 Lawrence v. Texas (2003). 9 Obergefell v. Hodges (2015).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 8 /
Date: 15/8
JOBNAME: Delaney PAGE: 9 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
150 Comparative judicial review helping frame the national political debate on controversial cultural issues, while generally endorsing practices and proponents of pluralism rather than sectarian orthodoxy. 5. Conflict Arena V: Disputes about Rights and Equality Many modern constitutions protect individual rights to due process and equal treatment, to voice controversial opinions and criticize the government, and to freedom of worship. But even in constitutional democracies, political leaders, law enforcers, and bureaucrats often restrict certain claims to these rights and freedoms, arguing that doing so is necessary for public order, national security, civility, or the realization of high-priority public objectives. The ensuing disputes draw judges into a particularly difficult role: crafting compromises between, and defining the reach and the limits of, constitutional rights and governance. Moreover, since the mid-20th century, new constitutions have often included not only procedural, civil, and political rights but social and economic rights as well. Such “positive rights” offer citizens and groups a legal foothold to demand public goods ranging from adequate housing to a fair wage, a decent education, and healthcare. While enforcing civil and political rights is of course not cost-free, enforcing positive rights can seem to carry a disproportionately large price tag for governments. Deciding cases in which they are called on to enforce such rights requires judges to navigate a national political path between fiscal prudence and constitutionalism. In South Africa, for instance, the Constitutional Court has been the “premier institution” defending human rights in the post-apartheid era, seeking both to foster racial equality and to fairly adjudicate white litigants’ claims to rights and protections threatened by black majority governments (Klug 2013). Castillejos-Aragón tells a similar story about the Mexican Supreme Court’s extraordinarily proactive promotion of a new rights jurisprudence following the advent of more competitive party politics in that country in the early 2000s (Castillejos-Aragón 2013).
C. CHANGING JUDICIAL ROLES: A FRAMEWORK OF CAUSAL FACTORS AND FORCES Judicial roles in governance are far from static. Epstein, Knight, and Shvetsova argue that when a constitutional court repeatedly makes decisions that fall within the “tolerance intervals” of important political power-holders, the court’s legitimacy can increase over time, making it riskier for politicians to defy it (Epstein, Knight, and Shvetsova 2001). Once strengthened, legitimacy allows a court to make assertive decisions on a broader array of issues and thus play an expanded set of roles. But Epstein, Knight, and Shvetsova also point out that politicians’ tolerance intervals can quickly narrow on particular issues, shrinking the court’s protective legitimacy shield and impelling it to play a role less boldly, or abandon a role entirely (Epstein, Knight, and Shvetsova 2001). In short, over time, courts can play more roles (and may play those roles more audaciously), or their roles can be superseded or stripped all together.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 9 /
Date: 15/8
JOBNAME: Delaney PAGE: 10 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 151 What causes these expansions and contractions in judicial roles? What political conditions, forces, and factors encourage, enable, or even compel some high court judges to breach the constraints of judicial tradition and risk political reprisal in order to impose their legal solutions on controversial issues of governance? What might discourage, impede, or prevent judicial actors from doing so? Existing studies of high courts in specific nations point to numerous factors that appear to influence shifts in judicial roles. But because these influential factors are numerous, interactive, and hard to measure precisely, it is very difficult to assign a relative causal weight to any one factor. For those reasons, a parsimonious causal model explaining shifts in judicial roles in governance—at least one with even minimal generalizability—is unlikely to emerge at this stage in our collective knowledge. Instead, we suggest a three-category analytic framework for organizing the numerous factors that scholars of comparative judicial politics have posited affect judicial roles: (a)
(b)
(c)
variation and change in relatively enduring national institutional and political structures (e.g., the degree to which political authority and power are fragmented rather than consolidated in a single, disciplined ruling party, or the strength of traditions of judicial independence and judicial review); variation and change in contemporary political dynamics (e.g., demands for courts to play new roles, and resistance to such shifts, arising from wars, political crises, economic crises and political movements); and variation and change in court-related factors that affect judicial willingness or ability to play new roles (e.g., shifts in judges’ political ideologies or judicial philosophies, the rise and fall of forceful, charismatic judicial leaders).
To provide a visual sense of this complex causal framework, we suggest a nautical metaphor in which high courts are visualized as sailing vessels, with their captain and officer corps seeking to navigate the political high seas. In our metaphor, the ocean and its currents reflect our first set of factors: the domestic institutional context—structural factors far beneath the surface. Ships constructed in politically stable, competitive constitutional democracies with long-standing traditions of judicial independence set out into calmer waters, facilitating their safe passage. By contrast, those ships built in fragile democracies, with less-institutionalized party systems and greater political instability, tend to have fewer resources and less dependable support—and thus face rougher, more challenging seas. Courts from authoritarian states often sail in turbulent waters that curtail their power and the roles they can play. In our suggested framework, the second (and equally important) set of causal factors—contemporary political dynamics—can be envisioned in terms of surges in political “winds of demand” for judicial intervention that propel judicial ships forward, as well as “winds of resistance” that impede or prevent judicial ships from sailing into more roles in governance, or push them back toward fewer roles. The winds of demand accelerate, for example, when litigation campaigns emerge seeking judicial remedies for social problems or governmental malfeasance, or when political leaders look to courts as a means of advancing politically difficult policy objectives. By contrast, the resistant winds may grow stronger when ships breach some political boundaries (in Epstein, Knight, and Shvetsova’s [2001] terms, exceed powerful political leaders’
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 10 /
Date: 15/8
JOBNAME: Delaney PAGE: 11 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
152 Comparative judicial review “tolerance intervals”; see also Epstein and Knight, Chapter 14, this volume), risking political backlash. When a court considers a case involving a highly controversial political issue, both sets of winds may blow strongly, making the seas dangerously turbulent. In order to adopt, preserve, or shed roles in governance, high court judges, like a ship’s captain and officer corps, must constantly consider the likely emergence and strength of such squalls, despite their fundamental unpredictability. Third, characteristics of the court itself affect its route and navigation. Even the most skilled captains (and Chief Justices) must contend with the worries, aspirations and conflicting views of their officers (and fellow Justices). Strategic timing and skilled crafting of rulings can sometimes make it possible to forge judicial consensus and navigate the judicial ship through threatening seas, emerging with new roles, powers, and responsibilities. Sometimes, retreating to an established, less activist safe harbor is more prudent. But on judicial ships with less persuasive and less savvy leaders, such foresight and flexibility may be absent, and those ships may wander indecisively, blunder into unsafe waters, or be driven into total retreat from a more expansive role in governance. The talents, proclivities, and interactions among all the officers on the judicial ship, then, represent a significant element in our suggested causal framework. The boundaries among the three categories of factors in our causal framework admittedly are blurry. For example, important changes in political structure (such as transition from autocracy to democratic government) are often triggered by (and often, in turn, trigger) shorter-term political pressures. Moreover, shifts in judicial roles are typically produced by an interaction among factors in at least two categories, if not all three. Hence, the implicit causal model is complex, and our attempt to disentwine causal factors and discuss them separately somewhat artificial. Further, inherent in our model is some endogeneity: each judicial ruling that is obeyed (or at least not fully defied)—particularly if it stands up to political and legal challenge—can add to a court’s legitimacy (that is, increase a judicial ship’s ballast), enabling it to better withstand countervailing pressures. In the rest of this section, we elaborate on each of the three categories, drawing illustrations primarily from the 12 case studies in our previous scholarship (Kapiszewski, Silverstein, and Kagan 2013). 1. Structural Factors Institutional and structural features of political systems vary in a number of ways that can influence courts’ capacities to take on new roles of governance. Among them are: (a)
(b)
Major domestic political regime features. Whether the regime is (i) autocratic or democratic, and if the latter, whether it is (ii) a unitary or federal system (and other ways in which political authority and power are concentrated or fragmented); (iii) a parliamentary or a separation of powers system; (iv) a new or established democracy; (v) an illiberal or fully consolidated democracy. The political status and legal powers of the judiciary. Most broadly: (i) courts’ historical degree of independence from political intervention or influence; (ii) whether the powers of judicial review of legislation are long-standing or only recently granted or ambiguous; (iii) the relative density and specificity of court-empowering provisions in the constitutional text; and (iv) courts’ degree of
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 11 /
Date: 15/8
JOBNAME: Delaney PAGE: 12 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 153
(c)
support from a politically active “legal complex” of lawyers, judges, and legal academics (Halliday, Karpik, and Feeley 2007). Supranational and international forces. The stringency of demands and constraints stemming from international treaty obligations, supranational structures, and the strength of national dependencies on foreign political, cultural, and economic actors.
While we define institutional and structural factors as relatively enduring features of the political landscape in which courts and judges act, such factors may be most potent as drivers of change in judicial roles when they undergo major changes themselves. Perhaps the most dramatic example is when the entire political regime shifts (e.g., from autocratic to some form of constitutional democracy). South Africa’s dramatic transition from apartheid to a new constitutional democracy, for instance, pushed its Constitutional Court into the roles of evaluating the constitutionality of a new draft constitution and making epochal decisions on controversial rights issues (Klug 2013). Some scholars have sought to identify the mechanisms underlying these dynamics. For instance, it is taken as a truism among public law scholars that in political regimes in which power is fragmented—for example, by divided government in a separation of powers system, by weak multiparty coalitions, or by factionalized ruling parties— political leaders are less able to swiftly nullify or reverse assertive judicial rulings (see, e.g., Ferejohn 2002; Ginsburg 2003; Ríos-Figueroa 2007). This offers courts greater opportunity to play active roles in governance. Transitions to democracy naturally stimulate such fragmentation, spurring the creation of new and more specialized governmental structures, multiple political parties, and more politically engaged news outlets. All of these trends can both inhibit coordinated action against judicial rulings and provide more potential supporters for assertive court decisions, thereby encouraging judicial role expansion. In Mexico, for instance, as Castillejos-Aragón notes, the emergence of a competitive party system in the later 1990s made it much harder for the party in power to dominate the Supreme Court, giving activist judges the political space to invite constitutional challenges to governmental policies and practices (Castillejos-Aragón 2013). Guarnieri describes how the collapse of the dominant Italian political parties in the 1990s and the resulting political fragmentation, which significantly diminished the potential for parliamentary resistance or retaliation, enabled judge-prosecutors to launch a massive wave of corruption prosecutions against high government and party officials (Guarnieri 2013, 168–9, 177). In the European Union, both lawmaking and adjudicative authority is fragmented among multiple European political institutions (e.g., the ECJ and ECHR), member state legislatures, and member state courts. Under those conditions, Dutch and French courts have created new rights and obligations in Dutch and French law through creative interpretations of European law and supranational court precedents—with minimal risk of reversal by the Dutch or French governments (Lasser 2009; Huls 2013). Another structural factor, the content of constitutional texts, can contribute to expanding (or restricting) opportunities for courts to play new roles. In a study of three post-Soviet polities, Trochev notes that explicit textual barriers against nondemocratic rule and intrusions on judicial independence, along with bills of rights, judicial review
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 12 /
Date: 20/8
JOBNAME: Delaney PAGE: 13 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
154 Comparative judicial review powers, and judicial jurisdiction over electoral disputes, enabled courts to play dramatic roles in critical elections (Trochev 2013, 70). Scribner posits that Chile’s Constitution—which specifically assigned the TC jurisdiction over legislative– executive conflicts while only vaguely prescribing the relative lawmaking authority of each branch—both drew the TC into the politically sensitive role of deciding “who governs” in particular cases and allowed it considerable latitude in playing that role (Scribner 2013, 116–17). A more general institutional factor supporting (while again, not guaranteeing) judicial assertiveness is the increasingly watchful and influential set of supranational and international actors, governmental and nongovernmental. These actors’ commitment to protecting and fostering democracy, and expanding human rights, can bolster domestic courts’ efforts to do the same, and complicate opposition thereto. Thus, Klug suggests that international recognition of the South African Constitutional Court’s rulings helped it develop and maintain a leading rights-defense role in that country in the post-apartheid era (Klug 2013, 94). Trochev suggests that Western election observers’ and negotiators’ well-publicized attention to electoral irregularities and the subsequent struggle over election results in Georgia in 2003 and Ukraine in 2004 helped Supreme Courts in those countries perform a vital mediating role (Trochev 2013, 82). 2. Proximate Political Dynamics Nested within relatively enduring structural conditions, shorter-term political pressures can generate demands for expanded judicial action or, conversely, winds of resistance that compel a court to retreat. Especially in democracies in which governing power is divided, political leaders sometimes rely on courts to resolve politically divisive issues (or at least reduce political pressures on the leaders). Here are just a few examples. In the famous case of Brown v. Board of Education (1954), both President Truman’s and President Eisenhower’s Attorneys General filed amicus briefs urging the US Supreme Court to overrule Plessy v. Ferguson (1896) and declare state-mandated school segregation on the basis of race unconstitutional (Kagan 2013). The Italian courts’ corruption-fighting role was supported by opposition political parties that were enthusiastic about shifting the responsibility for highlighting and investigating politicians’ transgressions to unelected judges who might be less politically constrained (Guarnieri 2013). Reichman writes that a “nod” from the Attorney General and tacit approval from politicians encouraged the Supreme Court of Israel to engage in some forms of judicial review decades before the country’s “constitutional revolution” in the 1990s (Reichman 2013, 239–40). Conversely, government and political leaders—driven by immediate political desires—can move aggressively to prevent, discourage, or limit judicial role expansion. In the post-Soviet country of Georgia, a newly elected president, Mikheil Saakashvili, turned on the very Supreme Court judges whose decisions helped propel him into office. He dismissed half of them, packed the court with partisan loyalists, removed its jurisdiction over electoral disputes, and constricted judicial review (Trochev 2013). Both Thailand’s and Pakistan’s high courts met similar fates under similar conditions (Ginsburg 2013).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 13 /
Date: 15/8
JOBNAME: Delaney PAGE: 14 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 155 In other cases, shifts in judicial roles are generated or encouraged by upsurges in demands from civil society actors and political movements. Reichman describes how, as Israel shifted toward a market-based economy, business interests demanded stronger judicial protection of economic rights (to property and freedom of vocation), thereby supporting the Supreme Court’s more general assertion of judicial review powers and adoption of a stronger rights-protection role (Reichman 2013, 242). Hirschl shows how the rapid rise of fundamentalist Islamic sentiments in Egypt, Kuwait, Pakistan, and Malaysia led to demands for broader application of Shari’a law, provoking high courts, as noted earlier, to take on the role of mediating conflicts between religious and secular groups and their values (Hirschl 2013). More recently in Malaysia, however, mass mobilization of Islamists induced the secular-minded Federal Court to pull back, “opting for a strategy of mixed measures and vagueness” (Hirschl 2013, 323). 3. Court-related Factors Institutions and political structures, and contemporary political dynamics, can tempt or encourage judges to cross the threshold into new judicial roles. However, judges themselves must decide whether to pass through the door, thereby potentially igniting criticism or political backlash. Judges’ own incentives, capacities, motivations, and strategies are thus crucial to judicial role expansion and contraction. Often, a key factor in judicial role expansion is the presence of galvanizing leaders within the court, or the court’s composition more generally (see, e.g., Hendrianto 2016; Dixon 2016). Mate shows how the political values and influence of Justices P.N. Bhagwati and Krishna Iyer were crucial to the Indian Supreme Court assuming the role of enhancing the legal rights and interests of the poor (Mate 2013, 281). In Pakistan, Judge Chaudhry’s courageous resistance to General Musharraf’s attacks led the Supreme Court to seek a role in triggering democracy (Ginsburg 2013, 60–62). Reichman argues that without the “intellectual prowess and leadership” of Israeli High Court Justice Barak, the self-empowering “constitutional revolution” the Israeli Supreme Court engineered beginning in the mid-1990s would not have occurred (Reichman 2013).10 Gradual change in court composition can also affect the roles a court plays. Ginsburg notes that through the 1990s, as more and more Justices born in Taiwan replaced those born on mainland China on Taiwan’s Council of Grand Justices, the institution’s internal motivations changed, leading it to systematically disassemble barriers to democratic participation erected by the Kuomintang regime (Ginsburg 2013, 56). Institutional legitimacy—or the desire to enhance it—can also affect judicial roles in governance. Klug, for instance, suggests that partly because of the failings of South Africa’s judiciary under apartheid, the new Constitutional Court sought to distinguish itself as “a completely new institution with a fundamentally different role in protecting 10 Barak had launched a “scholarly campaign” arguing that the country’s ambiguous Basic Laws had in fact empowered the Court to invalidate legislation violating basic human rights. Barak’s speeches and writings served as an invitation to the legal community to file petitions for judicial review—and offered it a “comprehensive manual” for how to do so (Reichman 2013, 244, 248).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 14 /
Date: 15/8
JOBNAME: Delaney PAGE: 15 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
156 Comparative judicial review individuals and promoting a culture of rights in a democratic South Africa” (Klug 2013, 96).11 In addition, judges often deploy a range of strategies, tactics, and techniques—and engage in procedural and interpretive creativity—in order to adopt (or avoid) new roles in governance. For instance, high courts (particularly in common law systems) have avoided politically controversial adjudication by forging doctrines that categorize some issues as “political questions” or “bureaucratic matters” that are inappropriate for judicial decision, or by restricting complainants’ standing to sue in claims against the constitutionality of governmental laws and practices. But judges also have innovated in procedural law in ways that invite litigation on important issues. In the late 1950s and early 1960s, for example, the US Supreme Court reinterpreted the Constitution’s habeas corpus clause, thereby facilitating petitions to federal courts by prisoners in state and local prisons and jails (Kagan 2013). The Court also reinterpreted the Constitution’s due process and right to counsel provisions to require states to provide free lawyers to indigent criminal defendants. These rulings generated a stream of cases and appeals that enabled the Supreme Court (and other federal courts) to take on the role of reshaping criminal procedure and police practices in states and localities. In 1979, as recounted by Mate, the Indian Supreme Court extended standing to sue to a journalist who had documented that the State of Bihar had been holding thousands of criminal suspects in jail for interminable periods pending trial. Moreover, in its ruling, the Court held that even a letter from an individual unable to hire a lawyer would be acceptable as a formal case filing, thereby stimulating the filing of large numbers of public interest claims that drew the Court into the role of governmental reformer (Mate 2013, 274). Once high court judges issue politically sensitive, role-expanding decisions, they are often at pains to assert that those rulings are not political judgments but merely decisions that flow logically, indeed inexorably, from legal imperatives rooted in the constitutional or statutory text or from the legal principles that underlie them. In so doing, they hope to dampen the threat of political backlash and facilitate their continued execution of the relevant role. Alternatively, and perhaps in times of national crisis specifically, high courts may create entirely new procedures in an attempt to bolster the political legitimacy of assertive rulings. In connection with Ukraine’s Orange Revolution, following the 2004 runoff presidential election between Viktor Yushchenko and Viktor Yanukovych, opposition and government actors filed multiple court cases accusing each other of voter fraud (Trochev 2013). When the dispute eventually reached the Supreme Court, the Court announced that it would depart from the established three-judge panel norm and that all 21 members of the Civil Chamber would hear the plaintiffs’ claims. The Court also aired the proceedings on national television, displaying the formally legal (rather than politically partisan) nature of the hearings. In addition, the Court asserted that the new remedy it “discovered” in its
11
Of course, as Roux highlights, how legitimate other actors believe courts to be, and prevailing understandings of the legitimate basis for judicial review and how it relates to state authority (as well as changes in those understandings), can also affect how courts play important political roles (Roux, Chapter 11, this volume).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 15 /
Date: 15/8
JOBNAME: Delaney PAGE: 16 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 157 ruling on the case—the holding of another second-round presidential election—derived from the people’s constitutional right to vote (Trochev 2013, 78–83). Finally, when judicial rulings on highly controversial cases might fall outside current political leaders’ “tolerance intervals,” one common tension-defusing judicial tactic, famously exemplified by the US Supreme Court in Marbury v. Madison (1803), is to assert a constitutionally important principle and hold that the government has violated it, but then to temper, delay, or deny the legal remedy sought by the government’s challengers in that particular case, or otherwise defer implementation of the ruling (see, e.g., Dixon and Issacharoff 2016).12 With the new principle thus formally embedded as a legal precedent, the court preserves the opportunity to apply and enforce it more assertively in subsequent cases that involve less risk of a governmental backlash. One example, Reichman shows, is the 1995 Bank Hamizrachi case in Israel (Reichman 2013). Creditors claimed in court that their “right to property,” established by a “Basic Law” enacted by the Knesset (parliament), should override a recent statute that granted a government agency the power to forgive the debts of nearly bankrupt rural settlements. Until then, the prevailing doctrine had been that even if the courts found a statute in conflict with a previously enacted basic law, the Knesset could explicitly exempt any statute from judicial review and could overrule any high court ruling that had used a basic law to nullify a governmental decision. But in Bank Hamizrachi, the Court boldly held “that all basic laws had … become supreme over ordinary legislation” (Reichman 2013, 246), implying that it was the Court that held the authority to have the last word on constitutional issues. In deciding the particular dispute, however, the Court upheld the questioned statute’s constitutionality, stating that its infringement of the right of property was “proportionate.” The government, with its policy still intact, did not protest the decision. Yet, the Bank Hamizrachi opinion stood as a precedent, available for use by the Court in subsequent cases to entrench and wield its judicial review power. The Court did just that, for example, to defend liberal individual rights from the demands of legislatively influential religious political parties (Hirschl 2013). A different kind of strategic assertiveness is described by Mate, who notes that in the 1980s, in its rulings on PIL cases, the Indian Supreme Court began to issue bold reform orders to government bureaucracies for failing to implement national laws, its targets were state and local bureaucracies, not central government agencies (Mate 2013). Only in the 1990s did the Court begin issuing bold reform orders to national bureaucratic bodies; at that point it faced more unstable, short-lived central government ruling coalitions in Parliament and was less worried about central government resistance.
12
Another strategy that courts can adopt is to delay deciding controversial cases altogether, as Delaney discusses in the contexts of Europe, South Africa, and Canada; courts that do so consistently, however, may well be less likely to play very consequential roles in governance (Delaney 2016).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 16 /
Date: 15/8
JOBNAME: Delaney PAGE: 17 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
158 Comparative judicial review
D. CONCLUSION: THE WINDS OF CHANGE The more roles in governance a high court takes on, the more likely it is to confront politically controversial cases, and thus to issue rulings that could result in resistance or backlash from political leaders or factions. Even clever judicial captains cannot always anticipate precisely how intense the political backlash to an assertive decision will be—or whether it will be outweighed by applause and political support. Nevertheless, the simple fact that in recent decades more and more high courts, in more and more countries, have successfully taken on and maintained new roles suggests that students of judicial politics may overemphasize the fragility of judicial power. In many places, even developing democracies, longer-term trends in politics and culture seem to have strengthened the winds of demand for judicial action and weakened the winds of resistance, smoothing the waters for well-constructed, well-operated judicial vessels. Political leaders’ deference to judicial authority is often attributed to a court’s legitimacy—i.e., “a belief in … the right of those elevated to authority under [settled legal] rules to issue commands” (Weber 1978, 215) and the widespread sense in a democratic society that duly elected or appointed officials ought to be obeyed. Epstein, Knight, and Shvetsova argue that constitutional courts can build up “reservoirs of public support that legislators and executives are loath (though not unwilling) to challenge” even when courts issue rulings those political leaders bitterly dislike (Epstein, Knight, and Shvetsova 2001, 155). How does a court’s reservoir of goodwill grow over time? Courts themselves, of course, can act in ways that enhance their legitimacy. The classic technique is to display the trappings of judicial neutrality, reinforcing the idea that judges are merely impersonal, unbiased mouthpieces of the law. In their written opinions, they justify outcomes by “giv[ing] reasons” based on specific constitutional and statutory provisions and judicial precedents (Shapiro 1992). As described above, courts can also exercise power strategically, for instance by deciding politically freighted legal disputes in ways that favor popular new majorities rather than incumbents (Ginsburg 2013; Trochev 2013), or issuing rulings that alternate in supporting different sides on critical issues (Klug 2013). Courts can also reach out for support, as Mate argues the Indian Supreme Court did by authorizing PIL and making reform-oriented decisions on PIL cases that were likely to meet with popular approval (Mate 2013). Judicial legitimacy can also grow as high courts make controversial decisions that support the policy preferences of current political leaders who, in turn, denounce critics of the court and extol the sacred importance of judicial supremacy (Whittington 2005). Judicial legitimacy also is built when political authorities comply with court rulings that ostensibly do not favor their interests. The more they do so, the less politically acceptable it becomes for successive leaders to defy courts or strive to reduce their powers. As Stone Sweet argues, the more that courts successfully resolve important disputes, the more useful or essential they are considered to be by political actors and substantial elements of society, and the more legal claims they thus attract (Stone Sweet 1999). Thus a cycle emerges in which judicial roles in governance expand. Most broadly, then, judicial legitimacy grows as politicians and the general public come to value the courts’ contributions to constitutionalism and the rule of law—as anchors of
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 17 /
Date: 15/8
JOBNAME: Delaney PAGE: 18 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 159 reason, trustworthiness, and stability amidst what Ferejohn aptly describes as the “institutionalized instability” of democratic politics (Ferejohn 2013). There is nothing inevitable about this legitimacy-expanding scenario, of course. Although it is a frequently observed pattern (Stone Sweet 1999), it is far from an iron law. Very popular transformative political leaders with new political agendas (especially in polities with a weaker tradition of rule of law) may defy or reconstitute assertive courts—even those that have begun to build legitimacy—as Venezuelan President Hugo Chávez did shortly after assuming office in 1999 (Sanchez Urribarri 2011). Nevertheless, due at least in part to several long-term global trends—and concomitant transformations in the attitudes of litigants, lawyers, judges, and politicians alike— courts increasingly seem to be envisioned not merely as dispute resolvers and preservers of legal stability, but as agents of governance and even agents of change. These conversions have strengthened the winds of demand and weakened the winds of resistance to judicial action, gradually—even if not universally—enhancing the legitimacy of courts and the stability of expanded judicial roles in governance. We briefly discuss three of the long-term trends that, in our view, help that process along: the spread of constitutional democracy; globalization and economic liberalization; and activist states and their evolving legal culture. Since the 1970s, in many parts of the world—Southern Europe, Latin America, Eastern Europe, South Africa, and East Asia—some authoritarian regimes have been replaced (often in practice and at least in form) by constitutional democracies. Many post-authoritarian constitutions reflect the ideal of constitutional rather than parliamentary supremacy (Ginsburg 2003, 1–3): They include specific constraints on elected leaders’ authority and bills of rights that are enforceable by new constitutional courts untainted by association with the previous regime. To be sure, the institutionalization and stabilization of liberal, law-constrained, constitutional democracy has been a halting and irregular process, far more successful in some contexts than in others. But as discussed above, the official establishment (or resuscitation) of courts with explicit powers of review and remediation at the very least creates one important institutional support for—and political expectations of—a more far-reaching judicial role in governance. Second, competitive pressures (and opportunities) have led many nations to liberalize economic governance, break up cartels and state monopolies, and open their economies to foreign trade and investment. In turn, more open markets and entrepreneurial activity generate greater risks of opportunistic business behavior, followed by attempts to control it via more elaborate bodies of regulatory law— reflecting Steven Vogel’s aphorism “freer markets, more rules” (Vogel 1996). The upshot is more litigation between businesses, between business and labor, and between business and governments—and hence insistent demands for competent, legally grounded adjudication. To respond to those demands and accentuate their nation’s “legal reliability,” leaders have both empowered the courts (including constitutional courts) and generally abided by their decisions on regulatory issues, drawing judges into larger roles in economic governance (North and Weingast 1989; Farber 2002; Silverstein 2003). Finally, we view the growth of new judicial roles in government as a concomitant to the rise of the activist state, particularly in economically advanced democracies but in
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 18 /
Date: 15/8
JOBNAME: Delaney PAGE: 19 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
160 Comparative judicial review many developing nations as well. The activist state, historian Lawrence Friedman has pointed out, reflects a century of unprecedented increases in economic growth, literacy, and governmental and corporate capacities to transform society—to bridge distances with telephones, motorways, motor vehicles, and airplanes; to bring about major improvements in sanitation and medicine; to provide systems of both private and public insurance; to bring electricity, literacy and education to whole societies (Friedman 1985). Correspondingly, Friedman argues, more educated citizenries have come to demand more active and responsive governments—governments that help realize citizens’ hopes for greater economic security, equal treatment and respect for human dignity and human rights (Friedman 1985). Governments have responded. They have enacted waves of statutes creating new social benefit and regulatory programs and built vastly expanded regulatory and administrative states. Law, in consequence, has come to be viewed not only as a means of maintaining order but as a mechanism for addressing social problems and advancing justice. In many countries, the legal complex of legal academics, lawyers, and judges has adopted this activist vision of law’s societal role. Law professors advocate new constitutional interpretations and doctrines. Lawyers—on their own and on behalf of the interests and associations they represent—seek to advance legal reforms through politics, bureaucracies, and courts. The very notion of law, in Nonet and Selznick’s terminology, has shifted from the ideal of procedural regularity and order toward the ideal of “responsive law” in which law is viewed as a mechanism of social problem solving, a way to provide substantive justice (Nonet and Selznick 1978). As these ideas spread, judges (particularly high court judges with judicial review authority) are more inclined to wield their powers as tools of governance, alert to political and social imperatives and willing to craft new doctrines and remedies. Social and political actors, for their part, often request, aid, and abet their efforts. The result, we suggest, are new judicial roles in governance.
REFERENCES Alter, Karen J. 2001. Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe. New York, NY: Oxford University Press. Bánkuti, Miklós, Gabor Halmai, and Kim Lane Scheppele. 2012. “Disabling the Constitution.” Journal of Democracy 23: 138–46. Burbank, Stephen and Sean Farhang. 2017. Rights and Retrenchment: The Counterrevolution against Federal Litigation. Cambridge: Cambridge University Press. Butt, Simon. 2009. “Indonesia’s Anti-Corruption Drive and the Constitutional Court.” Journal of Comparative Law 4: 186–204. Butt, Simon. 2011. “Anti-Corruption Reform in Indonesia: An Obituary?” Bulletin of Indonesian Economic Studies 47: 381–94. Castillejos-Aragón, Monica. 2013. “The Transformation of the Mexican Supreme Court into an Arena for Political Contestation.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Cohen-Eliya, Moshe. 2014. “The Israeli Case of a Transformative Constitutionalism.” In Israeli Constitutional Law in the Making, edited by Gideon Saphir, Daphne Barak-Erez, and Aharon Barak. Portland, OR: Hart Publishing. Couso, Javier A. 2005. “The Judicialization of Chilean Politics: The Rights Revolution that Never Was.” In The Judicialization of Politics in Latin America, edited by Rachel Sieder, Line Schjolden, and Alan Angell. New York, NY: Palgrave.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 19 /
Date: 15/8
JOBNAME: Delaney PAGE: 20 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 161 Czarnota, Adam, Martin Krygier, and Wojciech Sadurski, eds. 2005. Rethinking the Rule of Law after Communism. New York, NY: Central European University Press. Delaney, Erin F. 2016. “Analyzing Avoidance: Judicial Strategy in Comparative Perspective.” Duke Law Journal 66: 1–68. Dixon, Rosalind. 2016. “Constitutional Design Two-Ways: Drafters as Judges.” Virginia Journal of International Law. Dixon, Rosalind. 2017. “The Core Case for Weak-form Judicial Review.” Cardozo Law Review 38: 2193–232. Dixon, Rosalind and Samuel Issacharoff. 2016. “Living to Fight Another Day: Judicial Deferral in Defense of Democracy.” Wisconsin Law Review 2016: 683–732. Elster, Jon. 2004. Closing the Books: Transitional Justice in Historical Perspective. New York, NY: Cambridge University Press. Epp, Charles. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago, IL: University of Chicago Press. Epstein, Lee, Jack Knight, and Olga Shvetsova. 2001. “The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government.” Law & Society Review 35: 117–64. Farber, Daniel A. 2002. “Rights as Signals.” The Journal of Legal Studies 31: 83–98. Ferejohn, John. 2002. “Judicializing Politics, Politicizing Law.” Law and Contemporary Problems 65(3): 41–68. Ferejohn, John. 2013. “Judicial Power: Getting It and Keeping It.” In Consequential Courts: Judicial Roles in Global Perpsective, edited by Diana Kapiszewski, Gordon Silverstein and Robert A. Kagan. New York, NY: Cambridge University Press. Finkel, Jodi. 2008. Judicial Reform as Political Insurance: Argentina, Peru and Mexico in the 1990s. Notre Dame: University of Notre Dame Press. Friedman, Barry and Erin Delaney. 2011. “Becoming Supreme: The Federal Foundation of Judicial Supremacy.” Columbia Law Review 111: 1137–93. Friedman, Lawrence. 1985. Total Justice. New York: Russell Sage Foundation. Garrett, Geoffrey, R. Daniel Kelemen, and Heiner Schulz. 1998. “The European Court of Justice, National Governments, and Legal Integration in the European Union.” International Organization 52: 149–76. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. New York, NY: Cambridge University Press. Ginsburg, Tom. 2013. “The Politics of Courts in Democratization: Four Junctures in Asia.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Ginsburg, Tom and Tamir Moustafa, eds. 2008. Rule by Law: The Politics of Courts in Authoritarian Regimes. New York, NY: Cambridge University Press. Graber, Mark. 1993. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” Studies in American Political Development 7: 35–73. Guarnieri, Carlo. 2013. “Courts Enforcing Political Accountability: The Role of Criminal Justice in Italy.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Halliday, Terrence C., Lucien Karpik, and Malcolm M. Feeley. 2007. Fighting for Political Freedom: Comparative Studies of the Legal Complex in Political Liberalism. Portland, OR: Hart Publishing. Hendrianto, Stefanus. 2016. “The Rise and Fall of Heroic Chief Justices: Constitutional Politics and Judicial Leadership in Indonesia.” Washington International Law Journal 25: 498–563. Hilbink, Lisa. 2007. Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile. New York, NY: Cambridge University Press. Hirschl, Ran. 2006. “The New Constitutionalism and the Judicialization of Pure Politics Worldwide.” Fordham Law Review 75: 721–54. Hirschl, Ran. 2007. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press. Hirschl, Ran. 2013. “Constitutional Courts as Bulwarks of Secularism.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Hollis-Brusky, Amanda. 2015. Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. New York, NY: Oxford University Press. Huls, Nick. 2013. “The Dutch Hoge Raad: Judicial Roles Played, Lost, and Not Played.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 20 /
Date: 15/8
JOBNAME: Delaney PAGE: 21 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
162 Comparative judicial review Huneeus, Alexandra. 2010. “Judging with a Guilty Conscience: The Chilean Judiciary’s Human Rights Turn.” Law and Social Inquiry 35: 99–135. Kagan, Robert A. 2013. “A Consequential Court: The U.S. Supreme Court in the Twentieth Century.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Kapiszewski, Diana. 2012. High Courts and Economic Governance in Argentina and Brazil. New York, NY: Cambridge University Press. Kapiszewski, Diana, Gordon Silverstein, and Robert A. Kagan, eds. 2013. Consequential Courts: Judicial Roles in Global Perspective. New York, NY: Cambridge University Press. Kende, Mark. 2009. Constitutional Rights in Two Worlds: South Africa and the United States. New York, NY: Cambridge University Press. Klug, Heinz. 2013. “Constitutional Authority and Judicial Pragmatism: Politics and Law in the Evolution of South Africa’s Constitutional Court.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Lasser, Mitchel de S.-O.-l’E. 2009. Judicial Transformations: The Rights Revolution in the Courts of Europe. New York, NY: Oxford University Press. Magalhães, Pedro C. 1999. “The Politics of Judicial Reform in Eastern Europe.” Comparative Politics 31: 43–62. Magaloni, Beatriz and Arianna Sanchez. ND. “Institutional Origins of Supreme Court Power: Mexico 1994–2007.” Presented at “The Dilemmas of Judicial Power: A Sawyer Seminar at the University of California Berkeley,” February 14, 2008. Mandel, Michael. 1994. Charter of Rights and the Legalization of Politics in Canada. Toronto: Thompson Educational Publishing. Mate, Manoj. 2013. “Public Interest Litigation and the Transformation of the Supreme Court of India.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Moustafa, Tamir. 2003. “Law versus the State: The Judicialization of Politics in Egypt.” Law & Social Inquiry 28: 883–928. Moustafa, Tamir. 2007. The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. New York, NY: Cambridge University Press. Nonet, Philippe and Philip Selznick. 1978. Law and Society in Transition: Toward Responsive Law. New York, NY: Harper Colophon. North, Douglas and Barry Weingast. 1989. “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in 17th C. England.” Journal of Economic History 49: 803–32. Paris, Michael. 2001. “Legal Mobilization and the Politics of Reform: Lessons from School Finance Litigation in Kentucky.” Law and Social Inquiry 26: 631–84. Ramseyer, J. Mark. 1994. “The Puzzling Independence of Courts: A Comparative Approach.” Journal of Legal Studies 23: 721–47. Reddy, O. Chinnappa. 2009. The Court and the Constitution of India: Summits and Shallows. New York, NY: Oxford University Press. Reichman, Amnon. 2013. “Judicial Constitution Making in a Divided Society.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Ríos-Figueroa, Julio. 2007. “Fragmentation of Power and the Emergence of an Effective Judiciary in Mexico, 1994–2002.” Latin American Politics and Society 49: 31–57. Sanchez Urribarri, Raul. 2011. “Courts between Democracy and Hybrid Authoritarianism: Evidence from the Venezuelan Supreme Court.” Law and Social Inquiry 36: 854–84. Scheppele, Kim Lane. 1999. “The New Hungarian Constitutional Court.” Eastern European Constitutional Review 8: 81–7. Scheppele, Kim Lane. 2000. “Constitutional Interpretation after Regimes of Horror.” University of Pennsylvania Law School, Public Law Working Paper No. 05. Scribner, Druscilla. 2013. “Distributing Political Power: The Constitutional Tribunal in Post-Authoritarian Chile.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Segal, Jeffrey A. and Harold J. Spaeth. 1993. The Supreme Court and the Attitudinal Model. New York, NY: Cambridge University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 21 /
Date: 15/8
JOBNAME: Delaney PAGE: 22 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
New judicial roles in governance 163 Shapiro, Martin. 1981. Courts: A Comparative and Political Analysis. Chicago, IL: University of Chicago Press. Shapiro, Martin. 1992. “The Giving Reasons Requirement.” University of Chicago Legal Forum 1992: 179–221. Shapiro, Martin. 2013. “The Mighty Problem Continues.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Siegel, Andrew. 2006. “The Court Against Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court’s Jurisprudence.” Texas Law Review 84: 1097–202. Silverstein, Gordon. 2003. “Globalization and the Rule of Law: A Machine that Runs of Itself?” International Journal of Constitutional Law 1: 427–45. Silverstein, Gordon. 2008. “Singapore: The Exception that Proves Rules Matter.” In Rule by Law: The Politics of Courts in Authoritarian Regimes, edited by Tom Ginsburg and Tamir Moustafa. New York, NY: Cambridge University Press. Silverstein, Gordon. 2009. Law’s Allure: How Law Shapes, Constrains, Saves and Kills Politics. New York, NY: Cambridge University Press. Skach, Cindy. 2005. Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic. Princeton, NJ: Princeton University Press. Staszak, Sarah. 2010. “Institutions, Rulemaking and the Politics of Judicial Retrenchment.” Studies in American Political Development 24: 168–80. Staton, Jeffrey K. 2004. “Judicial Policy Implementation in Mexico City and Mérida.” Comparative Politics 37: 41–60. Staton, Jeffrey K. 2006. “Constitutional Review and the Selective Promotion of Case Results.” American Journal of Political Science 50: 98–112. Staton, Jeffrey K. 2010. Judicial Power and Strategic Communication in Mexico. New York, NY: Cambridge University Press. Stone Sweet, Alec. 1980. The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective. New York, NY: Oxford University Press. Stone Sweet, Alec. 1999. “Judicialization and the Construction of Governance.” Comparative Political Studies 31: 147–84. Stone Sweet, Alec. 2000. Governing with Judges: Constitutional Politics in Europe. New York, NY: Oxford University Press. Stone Sweet, Alec and Thomas Brunell. 2012. “The European Court of Justice, State Noncompliance, and the Politics of Override.” American Political Science Review 106: 204–13. Stotzky, Irwin P., ed. 1993. Transition to Democracy in Latin America: The Role of the Judiciary. Boulder, CO: Westview Press. Tate, C. Neal and Torbjorn Vallinder. 1997. The Global Expansion of Judicial Power. New York, NY: New York University Press. Teitel, Ruti. 2002. Transitional Justice. New York, NY: Oxford University Press. Teles, Steven. 2008. The Rise of the Conservative Legal Movement. Princeton, NJ: Princeton University Press. Trochev, Alexei. 2008. Judging Russia: The Role of Constitutional Courts in Russian Politics 1990–2006. New York, NY: Cambridge University Press. Trochev, Alexei. 2013. “Fragmentation? Defection? Legitimacy? Explaining Judicial Roles in PostCommunist ‘Colored Revolutions.’” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Tushnet, Mark. 2009. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. Princeton, NJ: Princeton University Press. Vanberg, Georg. 2001. “Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review.” American Journal of Political Science 45: 346–61. Vogel, Steven. 1996. Freer Markets, More Rules: Regulatory Reform in the Advanced Industrial Countries. Ithaca, NY: Cornell University Press. Weber, Max. 1978. Economy and Society. Berkeley, CA: University of California Press. Whittington, Keith E. 2005. “Interpose Your Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court.” American Political Science Review. 99: 583–96. Zifcak, Spencer. 1996. “Hungary’s Remarkable, Radical, Constitutional Court.” Journal of Constitutional Law in Eastern and Central Europe 3: 1–56.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 08_Chapter8_ts
/Pg. Position: 22 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
9. Competition or collaboration: constitutional review by multiple final courts Wen-Chen Chang and Yi-Li Lee
A. INTRODUCTION Following the waves of democratization, many countries have undertaken political and institutional reforms to tackle past authoritarian legacies. One popular reform has been to create a separate constitutional court outside the regular judiciary and to vest it with the power to invalidate legislation if found inconsistent with the new constitution. As reforming the entire judiciary to meet new challenges is often time consuming and requires enormous effort, creating a new constitutional court separate from the existing judiciary becomes a quick fix. This has been shown by the proliferation and spread of constitutional courts in new democracies around the world (see Ginsburg 2009). Countries in Asia are no exception to this development. For instance, South Korea created the Constitutional Court outside its ordinary judicial structure through the new Constitution of 1987 (see Yeh and Chang 2011). Similarly, Taiwan’s Constitutional Court, also known as the Council of Grand Justices, was formally established in 1948, but began effectively functioning after the democratization in the late 1980s (see Yeh and Chang 2011). With a new constitutional court separated from the existing system of courts, issues concerning the power relationship between the constitutional court and the ordinary judiciary—above which usually sits a supreme court—become crucial to their respective institutional designs and performances (see Garlicki 2007). To illustrate, consider these questions: Should the constitutional court be an exclusive institution to review constitutionality of legislation and other subsidiary rules? Or should ordinary courts share the power? Should the legal effect of decisions by the constitutional court be the same as that of decisions by ordinary courts? How should the judges to the constitutional court be appointed? Should it be different from the appointment mechanism of the top court(s) sitting in the regular judicial structure? In what ways and to what extent will these issues of institutional design affect the constitutional court’s performance and its relationship with the ordinary judiciary? Last but not least, how will other contextual dynamics further complicate the relationship between the constitutional court and the supreme court(s)? This chapter represents an attempt at analyzing the institutional design and contextual dynamics that may affect the exercise of constitutional review powers by the constitutional court and the supreme court(s) within a judicial system. The stories of South Korea and Taiwan are examined with comparative and contextual perspectives since they have both shared similar democratic developments (see Yeh and Chang 2011) and both have one independent constitutional court outside the ordinary judiciary. In South Korea, aside from the Constitutional Court, a Supreme Court serves 164
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Competition or collaboration 165 as the final court of appeals for all cases. In Taiwan, there is a Supreme Court of civil and criminal cases, a Supreme Administrative Court of administrative cases and the Constitutional Court. We seek to investigate how the differences in institutional designs, appointment mechanisms, and other contextual dynamics may influence the interactions between the constitutional court and the supreme courts in each country. In Section B, following this introduction, we examine those institutional designs, appointment mechanisms, and contextual dynamics through a broader theoretical lens. Section C presents the case studies of South Korea and Taiwan in which the interactions between these top courts in both countries are analyzed and compared. We find that competition or tension has emerged between the Constitutional Court and the Supreme Court in South Korea, whereas collaboration and reciprocity are exhibited among the Constitutional Court, the Supreme Court, and the Supreme Administrative Court in Taiwan. We conclude that the differences in appointment mechanisms and contextual dynamics of democratization have served as the key to shaping the different models of interactions—one competition, the other collaboration—between these top courts in South Korea and Taiwan.
B. CONSTITUTIONAL REVIEW, CONSTITUTIONAL COURT, AND SUPREME COURT(S) The establishment of a constitutional court within an existing judicial hierarchy involves complex institutional arrangements regarding powers, jurisdiction, and relationships between the constitutional court and the supreme court(s). If not dealt with properly, institutional rivalries may arise as the constitutional court and the supreme court(s) compete to expand their respective judicial authority. Tension or conflicts may lead to legal incoherence and destabilize the entire judiciary. Conversely, if these courts can cooperate with each other and mutually reinforce their respective duties to ensure the constitutional rule of law and to protect human rights, a win-win situation that enhances their respective powers and reputations may be observed. Institutional designs, appointment mechanisms, and contextual dynamics, among other components, are crucial to the development of a collegial relationship between the constitutional court and the supreme court(s). This section examines each in turn. 1. Institutional Designs To institutional designers, the allocation of power between the constitutional court and the supreme court(s) in the system of centralized judicial review is complex and dynamic. Such power distribution is a matter of institutional choices and may depend upon complex relationships between the executive, legislative, and judicial powers (see Chang et al. 2014). Different countries’ jurisdictions choose different judicial power arrangements, which affect interactions between the constitutional court and other highest courts. Division of power of constitutional review between the highest courts is usually decided by scope of jurisdiction, subject of review, and decisional effects. The following subsections address each factor individually.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 2 /
Date: 11/7
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
166 Comparative judicial review i. Scope of jurisdiction In the model of centralized judicial review, constitutional courts are established separately from the courts of general jurisdiction. They are typically created to review the constitutionality of parliamentary or executive enactments and to resolve competence disputes between central and local governments or between government agencies. Generally, four types of primary jurisdiction are exercised by constitutional courts. These four areas include abstract review, concrete review, individual complaints, and competence disputes (see Chang et al. 2014). While some powers of constitutional courts rarely produce any conflicts with other top courts, others may easily generate tension between constitutional courts and other highest courts. In the jurisdiction of abstract review, constitutional courts are usually vested with an exclusive power to review the constitutionality of legislation upon requests from the president, the parliament (or minority legislators), government agencies, or local governments, among others. The exercise of abstract review often takes place after legislation has been passed (ex post), but may also occur prior to promulgation (ex ante) (see Chang et al. 2014). When the legislation is under abstract review, tension may emerge between the constitutional court and the parliament, but rarely occurs between the constitutional court and other highest courts that have no power to review legislation. Intra-judicial conflicts between constitutional courts and other highest courts are more frequently seen when constitutional courts are provided with the jurisdictions of concrete review and individual complaints. In the jurisdiction of concrete review, constitutional courts are requested by other collegial or lower courts to review the constitutionality of legislation that is challenged in a concrete legal dispute. Because concrete review allows the constitutional court to directly consider issues in the context of real legal disputes, it may give the constitutional court institutional leverage to expand its reach beyond what it could typically do under abstract review. In addition, when requests for concrete review come frequently from lower courts of general jurisdiction, the supreme court(s) may feel their authority as a final court of appeal being challenged, resulting in a blurred division of labor between the constitutional court and the rest of the judiciary. As a result, the supreme court(s) of general jurisdiction may compete with the constitutional court for judicial authority and the constitutional court may invade traditional jurisdictions of ordinary courts (see Garoupa and Ginsburg 2011; Lin and Hsu 2017). In the jurisdiction of individual complaints, individuals may file a complaint with the constitutional court to challenge the constitutionality of legislation, administrative regulation, or even judicial decisions, with or without having exhausted available judicial remedies. Similar to concrete review, individual complaints allow the constitutional court to expand its power and may easily create tensions between the constitutional court and the supreme court(s), especially when the constitutional court considers the constitutionality of judicial decisions (over which supreme court(s) have the final say) (see Garlicki 2007; Visser 2014). Finally, competence dispute is a classic function of modern constitutional courts, allowing the central and local governments to petition the constitutional court for resolution if they enter into conflicts with each other or with other government organs regarding their respective powers. Because the constitutional court is usually vested with an exclusive power over competence
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 3 /
Date: 11/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Competition or collaboration 167 disputes, it is unlikely for tension to occur between the constitutional court and other highest courts regarding competence disputes. ii. Subject of review The division in subject of review between constitutional courts and other highest courts is also crucial to their complex relationships. A constitutional court may be provided with a very broad or very narrow list of its review subjects. On the broader side, a constitutional court may be provided with the power to review the constitutionality of all subjects, including constitutional amendments, legislation, treaties, emergency decrees, administrative regulations and judicial decisions (see Chang et al. 2014). The Federal Constitutional Court of Germany serves as a perfect example here. As the highest tribunal in the German judicial system, the Federal Constitutional Court is vested with an extensive power to review all constitutional issues regarding legislative, executive, and judicial acts (see Kommers and Miller 2012). On the narrower side, a constitutional court may be permitted to review the constitutionality only of legislation and not that of other instruments. Indonesia’s Constitutional Court offers an example here as it is only granted review over law based upon Article 24C (1) of the Indonesian Constitution. The broader the list of subjects reviewable by the constitutional court, the more likely it is that tension may arise between the constitutional court and the supreme court(s) of general jurisdictions. To illustrate, nearly all constitutional courts are vested with the power to review legislation, but not all of them have the power to review administrative regulations.1 When the subject of review overlaps between the constitutional court and the supreme court(s)—even when the subject of review is divided mutually exclusively between these courts, as in the case between the Indonesian Constitutional Court and Supreme Court—conflicts may still be inescapable if these courts actively enter into jurisdictional battles. For example, reviewing administrative rules delegated by vague or ambiguous statutes may cause a conflict between the constitutional court and the supreme court(s). A “positive conflict” is likely to occur when the constitutional court and the supreme court(s) both claim the authority of constitutional review. For the constitutional court with the exclusive power to review legislation, it may assert its power to review or even invalidate the statute that delegates excessively to administrative bodies or employs vague or ambiguous languages in such delegation. For the supreme court(s) with the exclusive power to review administrative rules, it may directly condemn the rules as having no lawful mandates or exceeding such mandates. Thus, despite having mutually exclusive division of review subjects, both the constitutional court and the supreme court(s) may still face tension with each other. Conversely, a “negative conflict” is also possible if neither court asserts its respective jurisdiction and both refuse to review a particular matter. Yet, negative conflicts are not seen as frequently as positive conflicts. 1
To return to the examples of Germany and Indonesia discussed above, the Federal Constitutional Court has the authority to review administrative regulations, whereas Indonesia’s Constitution gives the Supreme Court—not the Indonesian Constitutional Court—an exclusive power to review administrative ordinances and regulations. See Chang et al. 2014.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 4 /
Date: 11/7
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
168 Comparative judicial review Another example of jurisdictional conflict between the constitutional court and the supreme court(s) concerns the review of judicial decisions. As stated above, constitutional courts usually have the power to review laws or regulations in abstract and may not be granted the power to review judicial decisions rendered by ordinary courts. Nonetheless, constitutional courts may still find ways to review judicial decisions by means of constitutional complaints (see Visser 2014). Take Hungary as an example. According to Article 24(2) of the Hungarian Constitution, the Hungarian Constitutional Court does not have the power to review the constitutionality of judicial decisions rendered by the courts of ordinary jurisdiction. However, the Hungarian Constitutional Court has developed a few interpretative techniques to allow itself to consider the constitutionality of judicial decisions (see Solyom 1994).2 Tension with the Supreme Court, which felt its authority as a final court of general jurisdiction was seriously challenged, became inevitable and has since continued (see Halmai 2002). Spain offers another example. The Constitutional Court of Spain has no jurisdiction to review— factually or legally—the judgments of ordinary courts. However, tension arose when the Constitutional Court struck down a decision of the Supreme Court on the ground of privacy intrusion and provided compensation as a direct remedy.3 Unsurprisingly, the Supreme Court of Spain strongly opposed the Constitutional Court’s decision (see Comella 2013). iii. Decisional effects With either broad or narrow jurisdictions, the constitutional court typically can review legislation and/or even invalidate legislation in whole or in part if it contravenes the constitution. In contrast, ordinary courts, including the supreme court(s), decide on concrete legal disputes and their decisions are binding only on litigant parties. Without the principle of stare decisis, decisional effects of the supreme court(s) can never extend beyond judgments. If the courts of ordinary jurisdiction—including the supreme court(s)—find statutory or administrative rules unconstitutional, they can, depending upon institutional design, either refer such matters to the constitutional court or refuse to apply those impugned rules to the concrete legal disputes before them. While such a clear division in jurisdictional scopes and decisional effects may seem to generate no conflict between the constitutional court and the supreme court(s), tensions may still arise. To illustrate, take the review of administrative rules as an example. If the supreme court(s) review an administrative regulation in a concrete legal dispute without questioning its legality or constitutionality, the litigant party may file a constitutional complaint with the constitutional court to seek review. If the constitutional court invalidates that administrative regulation on the ground that it violates the law or the constitution, such a divergent reading of the regulation may generate tension between the supreme court(s) and the constitutional court. Conversely, conflicts may not arise if the highest courts do not have divergent readings of reviewed subjects. For example, 2
For example, the Hungarian Constitutional Court can review the judicial decisions of the lower courts by using fact-based individual complaints and strikes down the law at issue if the interpretation of the lower court is unconstitutional. 3 STC 186/2001.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Competition or collaboration 169 when litigant parties challenge the constitutionality of administrative regulation applied in a concrete legal dispute by the supreme court(s), the constitutional court may agree with the reading by the supreme court(s) and dismiss the complaint or uphold the constitutionality of that administrative regulation. When the constitutional court upholds rules applied in concrete legal disputes by the supreme court(s), it actually reinforces the power of the supreme court(s) and substantially extends specific readings of rules by the supreme court(s) beyond the context of concrete legal disputes to a much more general application. 2. Appointment Mechanisms The appointment mechanism shapes the relationship between the constitutional court and the supreme court(s). Countries around the world that have established a special constitutional court have developed different types of appointment mechanisms. Two types of appointment mechanisms to constitutional courts are popular: the cooperation model and the representation model (see Ginsburg 2002). The cooperation model requires the involvement of two government branches in deciding the appointment of justices to the constitutional court. Justices of the constitutional court are appointed by presidential nomination with parliamentary confirmation. In contrast, the representation model emphasizes a fair representation of different interests in government branches. In this model, usually the executive, legislature, and judiciary share the power to appoint constitutional justices (see Chang et al. 2014). The representation model provides the supreme court(s)—usually the chief justice— the power to appoint a few justices to the constitutional court. This mechanism, however, often leads to tension between the constitutional court and the supreme court(s). On the one hand, because the supreme court(s) or the chief justice are vested with the power to appoint a few constitutional court justices, it may give more institutional prestige to the supreme court(s)—which already sits atop the entire regular judiciary—than that held by the constitutional court. On the other hand, if the constitutional court is provided with the power to review and even invalidate judicial decisions including those rendered by the supreme court(s), it may imply an institutional hierarchy whereby the supreme court(s) must be bound by the constitutional court’s decisions. This paradox in institutional design under the representation model can easily create tension between the constitutional court and the supreme court(s) as both may compete fiercely for the ultimate judicial authority within the jurisdiction. The conflict of institutional prestige between the constitutional court and the supreme court(s) may also be complicated by judicial appointments between the two courts. If justices may be appointed to the supreme court(s) after their tenure on the constitutional court, it may imply an institutional hierarchy between the supreme court(s) and the constitutional court. Conversely, if supreme court(s) justices after their tenure are usually appointed to the constitutional court, it may suggest a higher institutional prestige of the constitutional court. As the following case studies of South Korea and Taiwan present, the impacts of judicial appointment between the constitutional court and the supreme court(s) on their mutual relationship are in no way insignificant.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 6 /
Date: 11/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
170 Comparative judicial review 3. Contextual Dynamics Contextual dynamics in the time of democratic transition and constitutional reform also influence interactions between the constitutional court and the supreme court(s). The development of democracy often boosts reforms within and outside the judiciary, which may alter the relationship between the constitutional court and the supreme court(s). Democratic principles and human rights rely heavily on courts to be maintained and protected (see Dworkin 1997). The strong need to reinstall constitutional rule of law at the time of profound transformation may give rise to an unparalleled institutional prestige of the constitutional court, which may generate tension with the existing judiciary atop of which sit the supreme court(s). Worse yet, if the constitutional court takes advantage of such institutional momentum to expand its own power, it may further escalate tension and trigger enormous resistance from the entire judiciary. Differences in legal culture between the constitutional court and the traditional judiciary may also affect their relationships with one another. Experiences of democratic transitions have shown that the existing judiciaries often lacked sufficient training or independence from the previous authoritarian regimes. Many courts “were found to lack the structure, procedures, and mentality” to exercise judicial powers (see Cappelletti 1970; Chen and Maduro 2013; Chang et al. 2014). Indeed, it was partly due to such distrust of the existing judiciary that many new democracies created a new constitutional court outside the ordinary courts. When these newly established constitutional courts actively exercise their powers, they may pose certain threats to the judicial authority of the existing courts and generate competition, if not tension, between them. Last but not least, divergent training and professional backgrounds may also influence the interplay between these top courts. Due the political nature of constitutional courts, their judges have diverse backgrounds and are appointed from politics, academia, and the judiciary (Chang et al. 2014).4 In contrast, judges of the ordinary courts, including supreme court(s) judges, are usually selected by a combination of meritocracy and seniority and spend most of their professional life within the judiciary (Chang et al. 2014).5 Differences in divergent backgrounds of these judges and their associated circles may sometimes trigger tension between these courts (see Garlicki 2007).
4
The qualifications for appointees to constitutional courts vary. Some countries do not require that constitutional court justices are necessarily appointed from among members of the legal profession. For example, Article 204(1)(4) of the Thailand Constitution provides that two out of the nine justices are selected from “qualified persons in the field of political science, public administration or other social science, who really possesses knowledge and expertise in the administration of the State affairs.” Another example is Taiwan. See infra Section C.2.i. 5 Judges of the supreme court(s) in many countries (particularly in Asia) start as young law school graduates who pass competitive judicial exams and gradually climb to judicial seniority on merit. Typical examples of countries in which this occurs are Japan, South Korea and Taiwan.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Competition or collaboration 171
C. CASE STUDIES: COMPETITION OR COLLABORATION Taiwan and South Korea established their respective Constitutional Courts outside the ordinary judicial systems. The Constitutional Court of Taiwan, known as the Council of Grand Justices, was formally established in 1948 (see Chang 2005). South Korea created the Constitutional Court through the new Constitution of 1987 (see Kim 2015). Along with the Constitutional Court, an ordinary system of courts exists in both countries, atop of which sits the Supreme Court in South Korea, and the Supreme Court and the Supreme Administrative Court in Taiwan. With the tremendous success of both Constitutional Courts in their active functions in the development of constitutional democracy (see Yeh and Chang 2011), how they have interacted with their respective judicial systems—especially with the supreme court(s)—is the key focus of the following subsections. 1. South Korea South Korea has two top judicial institutions, the Supreme Court and the Constitutional Court. The Supreme Court leads the lower courts in South Korea’s ordinary judicial system, established in a unitary and hierarchical order after World War II. At the beginning of democratic transition, the new democratic government revised the Korean Constitution in 1987, which created one new Constitutional Court in 1988 to adjudicate all constitutional matters. The 1987 South Korean Constitution defines the compositions and jurisdictions of these two courts. However, tension still emerges between the two courts, particularly regarding whether the Constitutional Court has power to decide the constitutionality of judicial decisions and administrative rules. i. Composition and jurisdiction The Supreme Court, as a final court of appeals, exercises its judicial power over civil, criminal, administrative, and military cases rendered by all lower courts (see Kim 2015). It has the power to review judgments made by lower courts. The Supreme Court is comprised of 14 justices. Article 104 of the South Korean Constitution provides that the chief justice of the Supreme Court be appointed by the president of the Republic with the approval of the National Assembly (Parliament). Other justices of the Supreme Court are appointed by the president of the Republic upon recommendation of the chief justice with the consent of the National Assembly. The term of office of the justices of the Supreme Court is six years, and they may be reappointed as prescribed by law. In contrast, the Constitutional Court of South Korea has nine justices. Three of them are appointed by the National Assembly, three by the chief justice of the Supreme Court, and three by the president of the Republic, as provided in Articles 111(2) and (3) of the South Korean Constitution. All justices must be prestigious jurists with at least 15 years of professional experience prior to their appointments. They serve a renewable term of six years. Article 111(1) of the South Korean Constitution provides that the Constitutional Court is vested with jurisdiction over the following matters: the constitutionality of a law (upon the request of court), impeachment, dissolution of a political party, constitutional complaints (by individuals), and competence disputes
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 8 /
Date: 11/7
JOBNAME: Delaney PAGE: 9 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
172 Comparative judicial review between government agencies, national and local governments, or between local governments. The 1987 Constitution clearly divides judicial powers between the Constitutional Court and the Supreme Court. Article 107(1) of the Constitution provides that the Constitutional Court review the constitutionality of laws. The Constitutional Court is the sole court empowered to declare statutes unconstitutional and invalidate statutes made by the National Assembly. The ordinary courts are barred from reviewing the constitutionality of statutes. Article 107(2) of the Constitution gives the Supreme Court the sole power to make a final review of the constitutionality of administrative decrees, regulations, or actions when their constitutionality or legality is at issue in a trial. Notwithstanding such a clearly, mutually exclusive division of power between the Constitutional Court and the Supreme Court, disputes still arise as to whether judicial decisions and administrative rules may be the subjects of constitutional review by the Constitutional Court through individual complaints (see Lim 2002; Chon 2015). ii. Examples of competition One instance of conflict between the South Korean Constitutional Court and the Supreme Court is whether an administrative decree or regulation can be subjected to constitutional review when it directly violates a person’s basic rights. As mentioned above, Article 107 of the Constitution separates judicial review of laws from judicial review of administrative rules. The former is vested with the Constitutional Court while the latter is within the powers of the Supreme Court. But Article 68(1) of the Constitutional Court Act further provides that “any person who claims that his basic right which is guaranteed by the Constitution has been violated by an exercise or non-exercise of governmental power may file a constitutional complaint, except the judgments of the ordinary courts.” Notably, however, this provision does not exclude administrative rules from the jurisdiction of the Constitutional Court. Hence, whether the Constitutional Court has the power to review constitutionality of administrative rules and regulations became an issue of dispute. The Constitutional Court in Rules implementing the Certified Judicial Scriveners Act Case asserted its own review power in the context of individual complaints.6 According to the Constitutional Court, while Article 107 of the Constitution separates judicial review of statutes by the Constitutional Court from judicial review of administrative rules by the Supreme Court, it does not bar the Constitutional Court from reviewing constitutionality of administrative rules in the context of individual complaints which are not pending in any trials. The Constitutional Court reasoned: Article 107(2) of the Constitution grants the Supreme Court the final review power over the constitutionality of rules and regulations. However, it only means that, when a trial depends on the constitutionality of rules or regulations, there should be no need for the issue to be referred to the Constitutional Court but, unlike statutes, it should remain within the Supreme Court’s jurisdiction and therefore subject to its final review. The provision does not apply to a constitutional complaint filed on grounds that basic rights have been violated by rules and regulations themselves. The “governmental power” subject to constitutional adjudication, as in Article 68(1) of the Constitutional Court Act, refers to all powers including legislative, 6
2 Korean Const. Ct. 365, 89 Hun-Ma 178 (1990).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 9 /
Date: 11/7
JOBNAME: Delaney PAGE: 10 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Competition or collaboration 173 judicial and administrative. Statutes enacted by the legislature, regulations and rules promulgated by the executive, and rules made by the judiciary may directly violate basic rights without awaiting any enforcement action, in which case they are immediately subject to constitutional adjudication.7
After this decision was issued, the Supreme Court published a report heavily criticizing the Constitutional Court and contending that its own power was gravely encroached upon (see Ginsburg 2011; Chon 2015). A second instance of conflict between the Constitutional Court and the Supreme Court concerns whether ordinary courts’ judgments may be subjected to the Constitutional Court’s review. As noted above, Article 68(1) of the Constitutional Court Act excludes the judgments of ordinary courts from the review of the Constitutional Court. Yet, in the Constitutional Review of Judgments Case, the Constitutional Court was faced with a request—brought by an individual complaint—to review a judgment of the Supreme Court, which refused to follow a constitutional interpretation of statutory provision made by the Constitutional Court.8 The complainant challenged the legality of a tax decision made by a government agency. While his case was pending before the Supreme Court, the Constitutional Court—in another case—found the impugned statutory provision, on which the tax decision was based, limitedly unconstitutional.9 Yet, the Supreme Court denied that it would be bound by the Constitutional Court’s decision in another case,10 and thus dismissed the complaint. The complainant then filed a constitutional complaint against the Supreme Court’s decision with the Constitutional Court. The Constitutional Court decided that it at least had the power to review judicial decisions that failed to comply with its own constitutional rulings as an exception, stating: Although making the ordinary courts’ judgments subject to review of the Constitutional Court would be more desirable to strengthen the protection of constitutional rights, the failure to do so in Article 68(1) does not amount to unconstitutionality since it does not clearly go beyond the legislative discretion. To the extent that the provision is interpreted to exclude from constitutional challenge those judgments that enforce the laws struck down in whole or part by the Constitutional Court and thereby infringe upon people’s basic rights, the provision in question should be unconstitutional … The judgment of the Supreme Court enforces the statutory provision invalidated by the Constitutional Court in a decision of limited unconstitutionality, and it violates the binding force of the Constitutional Court’s decisions. Therefore, the constitutional complaint against the Supreme Court’s judgment must be allowed as an exception.11
Understandably, the Supreme Court did not accept this decision, contending that the Constitutional Court had no authority over the judgments of ordinary courts, and that 7 8 9 10 11
Id. at 194. Korean S. Ct. 1995 Nu11405 (1996). Korean Const. Ct. 94 Hun-Ma 40 (1995). Korean S. Ct. 1995 Nu11405 (1996). 9–2 Korean Const. Ct. 842, 96 Hun-Ma 172, 315 (1997).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 10 /
Date: 15/8
JOBNAME: Delaney PAGE: 11 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
174 Comparative judicial review this decision substantially undermined the superior authority of the Supreme Court (see Ginsburg 2011; Chon 2015). This case also touches upon a third source of conflict between the Constitutional Court and the Supreme Court: decisional effects. Article 45 of the Constitutional Court Act provides that the Constitutional Court shall decide whether a statute is unconstitutional, the quorum for which requires six votes out of nine justices. For various reasons, the Constitutional Court has developed a variety of mechanisms to avoid complete invalidation of a statute (see Chang et al. 2014). These include declarations of unqualified unconstitutionality, limited constitutionality, limited unconstitutionality, and nonconformity with the Constitution (see Chang et al. 2014). Yet, these constitutional declarations usually involve new or altered readings of statutory provisions (the terrain of ordinary courts with the Supreme Court as the final authority). Tension inevitably arises when the Constitutional Court makes such declarations and when it is then up to the Supreme Court and the lower courts to enforce a particular reading of the statute. If the Constitutional Court’s reading departs substantially from the existing established principles in the case law of the Supreme Court, conflicts are inevitable (see Chon 2015). Finally, judicial review or interpretation of administrative action is also exemplary in demonstrating conflict between the Supreme Court and the Constitutional Court. In lawsuits against administrative action, the Supreme Court has often employed a very narrow reading of protectable interests, leading to case dismissals. Although the Constitutional Court is not mandated to review such decisions by the Supreme Court, it has found ways to directly review the constitutionality of administrative action brought in the context of individual complaints. For example, the Kukje Group was dissolved by the Ministry of Finance in the Fifth Republic, prior to 1987. Having failed to challenge such an administrative action in the ordinary courts, the complainant petitioned the Constitutional Court on the ground that the dissolution violated the principle of equality and freedom of entrepreneurship. In the Kukje Group Dissolution Case, the Constitutional Court agreed, and held such an administrative action of dissolution was unconstitutional.12 In so doing, the Constitutional Court again stepped into a jurisdictional space in which judicial review or interpretation of administrative actions is usually reserved for the ordinary courts. 2. Taiwan The judicial system in Taiwan has multiple final courts. The Supreme Court of civil and criminal trials was created even before the Constitution went into effect in 1947. The final court of appeal for administrative cases is the Supreme Administrative Court, under which two tiers of administrative trials are established. Aside from these two supreme courts, the Constitutional Court, also known as the Council of Grand Justices prior to 1993, was established in 1948. Unlike the South Korean Constitution, the Constitution does not expressly define the division of powers between the Supreme Court, the Supreme Administrative Court, and the Constitutional Court. As the following illuminates, the relationship between these courts has been collaborative— 12
5–2 Korean Const. Ct. 87, 89 Hun-Ma 31 (1993).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 11 /
Date: 11/7
JOBNAME: Delaney PAGE: 12 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Competition or collaboration 175 rather than confrontational—and has been largely due to accumulative efforts by the Constitutional Court. i. Composition and jurisdiction Since 2003, as a result of a constitutional amendment, the Constitutional Court has been composed of 15 justices with non-renewable terms of eight years (see Chang 2017).13 Prior to 2003, the Constitutional Court comprised 17 justices with a renewable term of nine years. Between 1948 and 2003, there were six rounds of appointments to the Constitutional Court altogether. In order to facilitate staggered appointments, eight justices were appointed for four-year terms in 2003. New justices have since been appointed to the Constitutional Court in 2007, 2008, 2011, 2015, and 2016, respectively. The appointment of justices to the Constitutional Court follows the cooperation model, requiring both the nomination of the president of the Republic and the consent of the Legislative Yuan (Parliament). Also as a result of the above-mentioned constitutional amendment, the chief justice and vice chief justice of the Constitutional Court have concurrently served as the president and vice president of the Judicial Yuan in charge of judicial administration since 2003. One of the primary tasks in judicial administration is the appointment of justices to the Supreme Court and the Supreme Administrative Court, as well as all of the subordinate courts. Judicial appointments are made by the Judicial Personnel Review Committee, which in turn is chaired by the president of the Judicial Yuan, the chief justice of the Constitutional Court. The Committee is comprised of 27 members, including the president of the Judicial Yuan, 11 members appointed by the president of the Judicial Yuan, 12 elected representatives elected by judges at all levels, and three independent experts recommended by prosecutors and bar associations. According to Article 14 of the Organic Act of the Judicial Yuan, the qualifications for a justice appointed to the Constitutional Court include: having served 15 years as a judge or prosecutor with distinction, having served 25 years as an attorney with distinction, having served 12 years as a law professor with distinction, or having served as a justice of the International Court of Justice or been recognized as an authority in public or comparative law. Thus far, the practice has been that half of the justices appointed to the Constitutional Court come from the judiciary and the other half from the scholarly community. Only in recent years have private attorneys been appointed to the Constitutional Court (see Chang 2015a). Articles 78 and 79 of the Constitution entrust the Constitutional Court with being the final interpreter of the Constitution (see Chang 2005). The Constitutional Court is vested with the power to review the constitutionality of statutes and administrative rules, to unify interpretative conflicts among government agencies, to adjudicate the dissolution of unconstitutional political parties, and to launch impeachment trials 13 The 2003 constitutional revision altered the term of the justices in the Constitutional Court. The justices’ term was amended from a renewable nine-year term to a non-renewable term of eight years by staggered appointments. See Article 5(1) of the Additional Articles of the Constitution of the Republic of China. An English translation is available at http://english. president.gov.tw/Page/95.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 12 /
Date: 15/8
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
176 Comparative judicial review against the president and vice president if the Legislative Yuan initiates such motions (see Chang et al. 2014). In contrast with the Constitutional Court, the Supreme Court—the final court of appeal for civil and criminal cases—is quite large, comprising eight civil benches and nine criminal benches with about 80 judges (see Chang 2015a). The Supreme Administrative Court—the final court of appeal for administrative cases—comprises about 20 judges. The selection criteria for the judges to the Supreme Court and the Supreme Administrative Court are merit and seniority. With the exception of Constitutional Court justices, all judges in Taiwan have to pass very competitive judicial exams followed by a two-year training program at the Judicial Training Institute (see Chang 2015a). They then gradually climb up to judicial seniority with security of life tenure. Compared to the Supreme Court, the source of judges at the Supreme Administrative Court is rather diverse. The qualification of the judges includes career judges, professors of public law, researchers of the Academia Sinica,14 experienced lawyers, and civil servants (see Chang 2015b). ii. Examples of collaboration As noted above, the Constitution does not provide the distribution of competence among the Supreme Court, the Supreme Administrative Court, and the Constitutional Court. Established in 1948, the Constitutional Court gained prominence as Taiwan’s authoritarian government loosened political control and gradually moved towards democratization. Notably, over the years, the Constitutional Court has rendered decisions to expand not only its own power, but also the power and jurisdictions of the ordinary courts (including the Supreme Court and the Supreme Administrative Court). First, while not expressly authorized by the Constitution, the Constitutional Court repeatedly affirmed that ordinary courts have the power to review the constitutionality and legality of administrative rules and regulations and, if found illegal or unconstitutional, to refuse to apply them to the concrete legal disputes before them. J.Y. Interpretation No. 38 was the first of such cases, in which ordinary courts were held to have the power to review whether administrative rules conform to a law or the Constitution.15 Later, the Constitutional Court in J.Y. Interpretation No. 137 decided that legal opinions of administrative agencies regarding specific laws or rules did not bind ordinary courts and that judges bound only by law can express their own legal opinions on the legality of administrative rules and regulations.16 The Constitutional Court in J.Y. Interpretation No. 216 repeated that ordinary courts have independent authority to review administrative rules regarding their consistency with the law and the Constitution and can refuse to apply them if found illegal or unconstitutional.17 Second, the mechanism of concrete review, in which lower court judges are permitted to refer to the Constitutional Court on the constitutionality of laws, was created by the Constitutional Court in J.Y. Interpretation No. 371, leading to power 14 Academia Sinica is a national academy in Taiwan, providing research supports for various disciplines. 15 Taiwan Const. Ct., Interpretation No. 38 (1954). 16 Taiwan Const. Ct., Interpretation No. 137 (1973). 17 Taiwan Const. Ct., Interpretation No. 216 (1987).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 13 /
Date: 11/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Competition or collaboration 177 expansion of all courts. As noted above, Taiwan’s Constitution did not create a system of concrete review or provide any specifics on how lower courts may follow if they have doubts on the constitutionality of laws they are about to apply. This question was brought to the Constitutional Court by minority legislators who debated whether the ordinary courts have the power to exercise the constitutional review of laws while adjudicating concrete legal disputes. The Constitutional Court agreed, stipulating the system of concrete review.18 In this decision, the Constitutional Court stated that the exclusive power to invalidate unconstitutional statutes was vested with itself, but that did not mean that ordinary courts—also bound by the Constitution—could not look into the constitutionality of statutes. Hence, if ordinary court judges have doubts as to the constitutionality of statutory provisions they are about to apply, they must suspend the proceeding in question and refer such a matter to the Constitutional Court. As a result of this decision, ordinary courts can make judicial referrals to the Constitutional Court if they suspect the constitutionality of statutes during the trial proceedings, but only the Constitutional Court has the power to eventually review and invalidate laws if found unconstitutional (see Chang et al. 2014). In addition, contrary to the tension between South Korea’s Constitutional Court and Supreme Court on judicial review of administrative action, Taiwan’s Constitutional Court has helped the administrative courts to expand their powers by employing a broad reading of administrative disposition. In J.Y. Interpretation No. 423, Taiwan’s Constitutional Court provided a definition of administrative disposition, making it possible for actions like official notification—if directly affecting rights and duties of individuals—to be litigated at the administrative courts.19 Also in J.Y. Interpretation No. 459, the Constitutional Court acknowledged that certain classifications profoundly affecting the rights of individuals or the legal relationship between individuals must be subjected to judicial review.20 In line with these decisions, the Constitutional Court also suspended the application of “special power theory” (see Chang 2015b), a doctrine which had long barred special classes of citizens such as civil servants, students, public school teachers, soldiers, or prison inmates from directly suing the government. Last but not least, the Constitutional Court also extended full judicial protection to interested parties to administrative contracts, whose disputes had not been permitted to be litigated at the administrative courts.21 Needless to say, these lawsuits flooded into the administrative courts (see Chang 2015b). The relationship between the Constitutional Court and other top courts, however, is not always cooperative. Tension sometimes emerges. One instance of tension occurred when the Constitutional Court decided to review Pan-li, a selection of judicial decisions published by the Supreme Court and the Supreme Administrative Court with binding
18
See Taiwan Const. Ct., Interpretation No. 371 (1995). Taiwan Const. Ct., Interpretation No. 423 (1997). 20 Taiwan Const. Ct., Interpretation No. 459 (1998). 21 See Taiwan Const. Ct., Interpretation No. 533 (2001); Taiwan Const. Ct., Interpretation No. 695 (2001). 19
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
178 Comparative judicial review effects on their supervisory lower courts.22 In J. Y. Interpretation No. 154, the Constitutional Court was requested to decide whether a selected judicial decision was the subject of its constitutional review.23 The Constitutional Court answered affirmatively, reasoning that if selected judicial decisions were applied to concrete legal disputes with a binding legal force similar to that of other rules, they should be subjected to constitutional review. Inevitably this decision was criticized by the two top courts, but the Constitutional Court continued its review of selected judicial decisions when challenged (see Wang 1997). The death penalty is another source of conflict between the Constitutional Court and the Supreme Court. Taiwan ratified the International Covenant on Civil and Political Rights (ICCPR) and incorporated it into the domestic legal system through an implementation law in 2009. Based on the right to life and the right to a fair trial enshrined in Article 6 and Article 14 of the ICCPR, the Supreme Court has sought to improve procedural and substantive requirements when imposing the death penalty. For example, albeit not legally required, the Supreme Court decided to hold oral arguments for all death penalty cases.24 In addition, relevant ICCPR provisions were also applied to spare those suffering mental illness/impairment from the imposition of death penalty.25 Interestingly, however, the Constitutional Court has not been as active as the Supreme Court in incorporating ICCPR guarantees into death penalty laws. A petition arguing that the imposition of the death penalty without oral argument in the final instance violated due process guarantees in both the Constitution and ICCPR was not admitted by the Constitutional Court (Chang et al. 2014). As the Supreme Court decided to initiate hearings without a constitutional ruling, it is expected that further application of ICCPR provisions to death penalty cases may generate a certain tension—or competition—between the two courts. 3. Comparative Analysis What accounts for the divergent relationships that both Taiwan’s and South Korea’s Constitutional Courts have developed with their other top courts? As illuminated above, the Constitutional Court of South Korea has emerged as a powerful and respected institution, but its relationship with the Supreme Court—the final court of appeal for all cases—has become competitive and even confrontational. In contrast, equally powerful and respected, the Constitutional Court of Taiwan has collaborated with the Supreme Court and the Supreme Administrative Court to gradually expand their respective powers through constitutional decisions. In Section B of this chapter, we identified three factors that may shape the relationships between collegial courts: institutional designs, appointment mechanisms, 22
In order to harmonize the application and interpretation of laws, the Supreme Court and the Supreme Administrative Court will hold meetings irregularly to select a group of decisions regarding the interpretation or application of certain laws or regulations. These selected decisions have binding status on the judges of the respective lower courts. 23 See Taiwan Const. Ct., Interpretation No. 154 (1978). 24 See Taiwan S. Ct. Criminal Division, 100 Tai-Shang No. 3790 Decision (2011). 25 See Taiwan S. Ct. Criminal Division, 102 Tai-Shang No. 4289 Decision (2013).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 15 /
Date: 11/7
JOBNAME: Delaney PAGE: 16 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Competition or collaboration 179 and contextual dynamics. Though the Constitutional Courts of South Korea and Taiwan are both the exclusive institutions to invalidate unconstitutional statutes, they nevertheless have varied institutional designs regarding their respective scopes of jurisdiction, subjects of review, and decisional effect. Further, the appointment mechanisms are different: Justices are appointed by a representation model in South Korea and a cooperation model in Taiwan. And finally, while both countries undertook democratic transitions in the late 1980s, each has had its own contextualized experience with political and constitutional change. We shall examine each factor in turn. i. Institutional designs In South Korea, Article 111 of the Constitution confers three primary jurisdictions on the Constitutional Court. These jurisdictions include concrete review, individual complaint, and competence disputes. As discussed above, tensions easily emerged between the Constitutional Court and the Supreme Court when the Constitutional Court decided to review administrative rules and decisions of ordinary courts in the context of constitutional complaints (see Ginsburg 2011). Since the review of ordinary judgments was well within the power of the Supreme Court, and the Constitution accorded the review of administrative rules with the Supreme Court, it was only reasonable for the Supreme Court to compete with the Constitutional Court and defend its superior authority (see Yune 2015). Unlike its South Korean counterpart, the Taiwanese Constitutional Court has four primary jurisdictions: abstract review, concrete review, individual complaint, and competence disputes. As discussed above, tension may easily arise between the Constitutional Court and the Supreme Court(s) if the former is provided with the powers of concrete review and individual complaint that substantially collide with the resolutions of concrete legal dispute exercised by the latter. Interestingly, however, while Taiwan’s Constitutional Court has these two powers, its exercise of these powers has not generated serious tension with the Supreme Court and the Supreme Administrative Court. Two further institutional variables are key here. First, in Taiwan, when dealing with individual complaints, the Constitutional Court can only review the constitutionality of laws and rules applied in those cases—it cannot deal with the cases themselves. Even if it finds the impugned provisions unconstitutional and invalidates them, the Constitutional Court cannot directly revoke or alter the judgments applying those impugned provisions. This institutional detail sets Taiwan’s Constitutional Court apart from courts such as Germany’s Federal Constitutional Court in the exercise of individual complaints. The complainants must return to the system of ordinary courts and request a retrial or extraordinary appeal. As the implementation of its own decisions requires the cooperation from other top courts, it is only understandable that the Constitutional Court has sought to collaborate with other collegial courts to avoid the possibility of inter-court conflicts. Second, as explained above, a system of concrete review was created by the Constitutional Court in J.Y. Interpretation No. 371, giving ordinary courts the power to look into the constitutionality of laws and to make constitutional referrals.26 In addition, the Constitutional Court also expanded the scope of reviewed subjects for the 26
See Taiwan Const. Ct., Interpretation No. 371 (1995).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 16 /
Date: 11/7
JOBNAME: Delaney PAGE: 17 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
180 Comparative judicial review ordinary courts in numerous decisions. Clearly, power sharing and expanding the judicial power of ordinary courts have proved to be effective strategies employed by Taiwan’s Constitutional Court, leading to a more collaborative relationship with other superior courts. ii. Appointment mechanisms South Korea and Taiwan have chosen different mechanisms for staffing the Constitutional Courts and the Supreme Courts. The 1987 Constitution of South Korea creates two separate appointment mechanisms for the Constitutional Court and the Supreme Court. Based on the cooperation model, the justices of the Supreme Court are appointed by the president of the Republic with consent of the National Assembly. In contrast, on the basis of the representation model, the power to appoint justices to the Constitutional Court is equally shared by the president, the National Assembly, and the chief justice of the Supreme Court. As both courts are accorded with certain levels of democratic legitimacy through their respective appointment mechanisms, they cannot be easily placed in a hierarchical order. In addition, the chief justice of the Supreme Court has the power to appoint a few justices to the Constitutional Court. This institutional design has provided a certain institutional prestige to the Supreme Court and exacerbated the quarrel regarding the superiority of the courts, inevitably leading to greater tension between the two. The story of Taiwan provides a different institutional scenario. The justices of the Constitutional Court are appointed by the president of the Republic with the consent of the Legislative Yuan. This power-sharing appointment mechanism gives higher democratic legitimacy to the Constitutional Court. In contrast, the justices of the Supreme Court are selected by the Judicial Personnel Review Committee, a non-political mechanism. The chief justice of the Constitutional Court, chairing that Committee in the capacity of the president of the Judicial Yuan, has control over the selection of the justices to the Supreme Court and the Supreme Administrative Court. Such an appointment mechanism clearly bestows institutional prestige on the Constitutional Court, paving the way for the Constitutional Court to seek cooperation with other collegial courts to ease tension or confrontation, if any. iii. Contextual dynamics South Korea and Taiwan have both experienced a decades-long authoritarian past. During those dark times, courts functioned as the pawns of the authoritarian regime (see Yeh and Chang 2011). In the late 1980s and 1990s, South Korea and Taiwan both underwent large-scale political, social, and economic reforms. Democratization in both countries triggered society becoming more open, transparent, and participatory while at the same time boosting the reforms within and outside the courts (see Yeh 2015). South Korea initiated its democratization in 1987 by creating one extensively revised Constitution (see Yeh and Chang 2011). Given the notorious record of the past judiciary and the distrust of the existing Supreme Court, all political parties at that time agreed to establish an independent Constitutional Court for adjudicating all constitutional matters (see Constitutional Court of Korea 2001; Park 2008; Chon 2015). The Constitutional Court has since become a key player in building a new constitutional order and protecting fundamental human rights of the people by addressing important issues such
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 17 /
Date: 11/7
JOBNAME: Delaney PAGE: 18 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Competition or collaboration 181 as equal rights to vote, free speech, gender equality, and labor rights as well as resolving political disputes such as electoral redistricting, transitional justice, and presidential impeachment (see Yeh and Chang 2011). However, as the Constitutional Court has gradually expanded its power to unassigned jurisdictions, the Supreme Court may not feel at ease. Tension easily arose when judicial decisions were reviewed by the Constitutional Court. As a long-standing institution, the Supreme Court has exercised its powers as the final court of appeal for all cases. It was hard for the Supreme Court and its lower courts to accept that their decisions were to be scrutinized by the Constitutional Court, a new and political institution (see Chon 2015). In addition, different training and professional backgrounds of their respective judges may also exacerbate the friction between the two highest courts. The justices of the Constitutional Court have diverse backgrounds, appointed from politics, academia, and the judiciary. The justices at the Supreme Court are career judges, spending most of their professional lives within the judicial system (see Kim 2015). In their own eyes, the justices of the Supreme Court are the most prestigious jurists in the Korean judicial system, and they are very suspicious of the institutional prestige accorded to the Constitutional Court by the new Constitution (see Chon 2015). In contrast, the interactions between Taiwan’s Supreme Court, Supreme Administrative Court, and Constitutional Court are much more cooperative. The Constitutional Court and other top courts have all been established for a long time and struggled to exercise their limited judicial power under the authoritarian rule. The Constitutional Court in its earlier decisions helped expand the power of ordinary courts (especially that of the Supreme Administrative Court) by liberalizing constraints on litigating administrative decisions. The subsequent democratization not only empowered the Constitutional Court to become an effective institution that safeguarded constitutional rule of law and fundamental rights, but also provided an opportunity for the Constitutional Court to expand and consolidate judicial powers for the entire judiciary. It is fair to conclude that the democratization in Taiwan has produced a win-win situation for both the Constitutional Court and other superior courts as it triggered collaborations between these courts in gaining institutional prestige against the context of democratization.
D. CONCLUSION Constitutional courts all over the world have become key institutional players in the development of democratic constitutionalism. The dynamic interactions between the constitutional court and the existing judiciary atop which sit the supreme court(s) are complex and dynamic—yet they have not received sufficient attention in the field of comparative constitutional law. This chapter uses institutional designs, appointment mechanisms, and contextual dynamics to examine the collegial relationships between the constitutional court and the supreme court(s) both conceptually and empirically. Our case studies find that competition or tension has emerged between the Constitutional Court and the Supreme Court in South Korea whereas collaboration and reciprocity have been exhibited among
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 18 /
Date: 11/7
JOBNAME: Delaney PAGE: 19 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
182 Comparative judicial review Taiwan’s Constitutional Court, Supreme Court, and Supreme Administrative Court. Having examined institutional and contextual variables, we find that institutional designs, appointment mechanisms, and contextual dynamics are the key to affecting power configuration between these top courts. In South Korea, the power to review administrative rules and judicial decisions is given to the Supreme Court but not the Constitutional Court. However, as previously discussed, the Constitutional Court may still review administrative rules and judicial decisions through adjudicating constitutional complaints brought by individuals, and this has produced tension between the Constitutional Court and the Supreme Court. In addition, the appointment mechanism has also triggered tension between the Constitutional Court and the Supreme Court. As both courts are accorded certain levels of democratic legitimacy through their respective appointment mechanisms, they cannot be easily placed in a hierarchical order. The active performance of the Constitutional Court since the democratization has not eliminated but only exacerbated the tension between the two courts. Conversely, in Taiwan, the exercise of abstract review and constitutional complaints has actually fostered cooperation between the Constitutional Court and other highest courts and avoided the possibility of inter-court conflicts. Furthermore, the appointment mechanism has ensured the superior authority resides with the Constitutional Court. The Supreme Court has no power to intervene in the composition or power reconfiguration of the Constitutional Court. Hence, conflicts do not emerge between them. More importantly, in the course of democratization, the Constitutional Court has sought to expand judicial power for courts as a whole but not only for itself, leading to a collaborative relationship between the Constitutional Court and other superior courts.
REFERENCES Cappelletti, Mauro. 1970. “Judicial Review in Comparative Perspective.” California Law Review 58: 1017–53. Chang, Wen-Chen. 2005. “The Role of Judicial Review in Consolidating Democracy: The Case of Taiwan.” Asia Law Review 2: 73–88. Chang, Wen-Chen. 2015a. “Courts and Judicial Reform in Taiwan: Gradual Transformation towards the Guardian of Constitutionalism and Rule of Law.” In Asian Courts in Context, edited by Jiunn-rong Yeh and Wen-Chen Chang. Cambridge: Cambridge University Press. Chang, Wen-Chen. 2015b. “The Evolution of Administrative Adjudication in Taiwan: A Model of Judicial Cooperation.” In The Functional Transformation of Courts: Taiwan and Korea in Comparison, edited by Jiunn-rong Yeh. Taipei: National Taiwan University Press. Chang, Wen-Chen. 2017. “The Constitutional Court of Taiwan.” In Comparative Constitutional Reasoning, edited by András Jakab, Arthur Dyevre, and Giulio Itzcovich. Cambridge: Cambridge University Press. Chang, Wen-Chen, David T. Johnson, Saul Lehrfreund, and Parvais Jabbar. 2014. The Death Penalty in Taiwan: A Report on Taiwan’s Legal Obligations under the International Covenant on Civil and Political Rights. The Death Penalty Project. Chang, Wen-Chen, Kevin YL Tan, Li-ann Thio, and Jiunn-rong Yeh. 2014. Constitutionalism in Asia: Cases and Materials. Oxford: Hart Publishing. Chen, H. Y. Albert and Miguel Poiares Maduro. 2013. “The Judiciary, Constitutional Review, and Constitutional Interpretation.” In Routledge Handbook of Constitutional Law, edited by Mark Tushnet, Thomas Fleiner, and Cheryl Saunders. New York, NY: Routledge.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 19 /
Date: 11/7
JOBNAME: Delaney PAGE: 20 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Competition or collaboration 183 Chon, Jong-ik. 2015. “The Effect of Constitutional Adjudication on the Judicial Branch: The Relationship between the Constitutional Court and the Ordinary Court.” In The Functional Transformation of Courts: Taiwan and Korea in Comparison, edited by Jiunn-rong Yeh. Taipei, Taiwan: National Taiwan University Press. Comella, Victor Ferreres. 2013. The Constitution of Spain: A Contextual Analysis. Oxford: Hart Publishing. Constitutional Court of Korea. 2001. The First Ten Years of the Korean Constitutional Court. Seoul: Korean Constitutional Court. Dworkin, Ronald. 1997. Freedom’s Law: The Moral Reading of the American Constitution, Cambridge, MA: Harvard University Press. Garlicki, Lech. 2007. “Constitutional Courts versus Supreme Courts.” International Journal of Constitutional Law 5: 44–68. Garoupa, Nuno and Tom Ginsburg 2011. “Building Reputation in Constitutional Courts: Political and Judicial Audiences.” Arizona Journal of International and Comparative Law 28: 539–68. Ginsburg, Tom. 2002. “Economic Analysis and the Design of Constitutional Courts.” Theoretical Inquiries in Law 3: 49–85. Ginsburg, Tom. 2009. “The Global Spread of Constitutional Review.” In The Oxford Handbook of Law and Politics, edited by Gregory A. Caldeira, R. Daniel Kelemen, and Keith E. Whittington. Oxford: Oxford University Press. Ginsburg, Tom. 2011. “The Constitutional Court and Judicialization of Korean Politics.” In New Courts in Asia, edited by Andrew Harding and Penelope Nicholson. New York, NY: Routledge. Halmai, Gabor. 2002. “The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court.” In Constitutional Justice, East and West. Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective, edited by Wojciech Sadurski. New York, NY: Kluwer International Law. Kim, Jongcheol. 2015. “Courts in the Republic of Korea: Featuring a Built-in Authoritarian Legacy of Centralization and Bureaucratization.” In Asian Courts in Context edited by Jiunn-rong Yeh and Wen-Chen Chang. Cambridge: Cambridge University Press. Kommers, Donald P. and Russell A. Miller. 2012. The Constitutional Jurisprudence of the Federal Republic of Germany: Third edition, Revised and Expanded. Durham, NC: Duke University Press. Lim, Jibong. 2002. “Comparative Study of the Constitutional Adjudication Systems of the U.S., Germany and Korea.” Tulsa Journal of Comparative and International Law 6: 123–62. Lim, Jibong. 2002. “Korean Constitutional Court Standing at the Crossroads: Focusing on Real Cases and Variational Types of Decisions.” Loyola of Los Angeles International and Comparative Law Review 24: 327–59. Lin, Chien-Chih and Ching-Fang Hsu. 2017. “An Inter-Court Struggle for Judicial Supremacy.” University of Pennsylvania Asian Law Review 11: 1–42. Park, Jonghyun. 2008. “The Judicialization of Politics in Korea.” Asian-Pacific Law & Policy Journal 10: 63–109. Solyom, Laszlo. 1994. “The Hungarian Constitutional Court and Social Change.” Yale Journal of International Law 19: 223–37. Wang, Wen. 1997. “The Power of the Grand Justice Council to Review Pan-Li and its Influence on Constitutional Development—the Cases of the Judicial Yuan Interpretation No. 154 and Interpretation No. 395.” Fu Jen Law Journal 16: 63–93. Visser, de Maartje. 2014. Constitutional Review in Europe: A Comparative Analysis. Oxford: Hart Publishing. Yeh, Jiunn-rong. 2015. “Introduction.” In The Functional Transformation of Courts: Taiwan and Korea in Comparison, edited by Jiunn-rong Yeh. Taipei: National Taiwan University Press. Yeh, Jiunn-rong and Wen-Chen Chang. 2011. “The Emergence of East Asian Constitutionalism: Features in Comparison.” American Journal of Comparative Law 59: 805–40.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 09_Chapter9_ts
/Pg. Position: 20 /
Date: 20/8
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
PART III THE STABILITY AND EFFECTIVENESS OF JUDICIAL REVIEW
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
10. Judicial review as a self-stabilizing constitutional mechanism Tonja Jacobi, Sonia Mittal and Barry R. Weingast*
A. INTRODUCTION Most constitutions fail in less than two decades (Elkins, Ginsburg, and Melton 2009, 129) yet the US Constitution has lasted for over 200 years—despite constitutional crises and the Civil War. The US Constitution is unusual not only in its duration, but also in the popular support it commands despite the size and diversity of the federation that it governs.1 In previous work, we have argued that the Constitution has endured because it is “self-stabilizing” (Jacobi, Mittal, and Weingast 2015; Weingast 2016; Mittal and Weingast 2013; Mittal, Rakove, and Weingast 2011, 25; Mittal and Weingast 2010; Mittal 2010)—that is, it structures incentives at a given time such that: (i) those in power honor the constitutional rules for protecting the rights of citizens and for transferring power when they have lost elections; and (ii) those out of power have incentives to support the constitutional system rather than attempt extra-constitutional action such as coups (Jacobi, Mittal, and Weingast 2015, 609; Przeworski 1991, 36–7). Constitutional systems face three fundamental difficulties that lead to constitutional failure; paralleling each potential problem is a corresponding solution that promotes constitutional stability (Mittal and Weingast 2013, 279–80). First, citizens rationally fear regimes that pose a threat to their lives, assets, or well-being (de Figueiredo Jr. and Weingast 1999, 261–302). When an incumbent regime threatens them, citizens often willingly support extra-constitutional action, such as coups, to protect themselves. Self-stabilizing constitutions address this problem by lowering the stakes of politics— that is, by limiting the realm of legitimate governmental action. When the stakes in politics are lower, citizens have less need to resort to extra-constitutional action because they have less to fear from the government. We call this the “limit condition.” Second, an important mechanism through which citizens ensure constitutional compliance is the ability to coordinate against political officials who attempt constitutional transgressions (Weingast 1997, 251–2; Myerson 2006, 5; Ordeshook 1992; * We thank Tom Daly for being an excellent discussant at the Comparative Judicial Review conference at Northwestern. We also thank Steven Calabresi, Alon Harel, and Andrew Koppelman for their thoughtful comments on this chapter and Evan Bianchi and Christopher White for research assistance. 1 For instance, in the August 2012 AP-National Constitution Center Poll 69% of respondents reported that the statement “The United States Constitution is an enduring document that remains relevant today” came closer to their view than the statement “The United States Constitution is an outdated document that needs to be modernized.” The AP-National Constitution Center Poll, available at http://constitutioncenter.org/media/files/data_GfK_APNCC_Poll_ August_GfK_2012_Topline_FINAL_1st_release.pdf.
185
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
186 Comparative judicial review Hardin 2007; Hadfield and Weingast 2014, 23). Citizens face a variety of difficulties in coordinating against a government that transgresses their rights. For instance, citizens typically disagree about the types of actions or policies that constitute a transgression. Self-stabilizing constitutions are therefore more likely to survive because they create focal points that help solve these coordination dilemmas. These focal points create consensus about citizen rights and constitutional procedures by guiding citizen coordination concerning constitutional transgressions. We call this the “consensus condition.” Third, environmental changes—including economic, technological, and social changes—continually present new problems and crises. These changes often reduce the short-run benefits of cooperation and render existing institutions unstable. Selfstabilizing constitutions confront environmental volatility by creating institutions that allow citizens and political officials to adjust to changing circumstances and solve their dilemmas and crises (Hayek 1960, 22–38; North 2005, 166–70; Mittal 2010, 1–8). We call this the “adaptation condition.” We discuss each of these problems and their solutions in Section B. In this chapter, we explore the complex role of the US Supreme Court in fostering constitutional stability by supporting these three conditions. In doing so, we recognize—but separate our work from—normative studies of judicial review and the countermajoritarian difficulty (Bickel 1962; Friedman 2009; Thayer 1893). These studies explore tensions created by judicial review of actions taken by popularly elected legislatures and executives (Bickel 1962; Friedman 2009; Tushnet 1995; Somin 2004; Adler 1997). Some normative scholars of judicial review conclude that the countermajoritarian difficulty is not as pernicious as it appears because the Court is generally incentivized to stay within the bounds of public opinion (Friedman 2009, 14–16). Others counter that courts do not (and should not) simply reflect public opinion; rather judges must sometimes take unpopular positions, especially when it comes to the protection of minority rights.2 Largely missing from this normative debate is the role that judges play in creating constitutional stability, which is surprising given the Constitution’s unusual endurance.3 Constitutional law scholars often take American constitutional stability for granted. But such stability does not simply arise by writing a constitution, as James Madison observed (Madison 1788c). Rather, stability must be actively constructed and maintained. We argue that the Supreme Court has played an increasingly important—if largely unrecognized—role in preserving constitutional stability over the course of American history. As Sections C–E describe, several features of the Constitution relating to judicial review enable the Court to promote the three conditions for constitutional stability. Although the design of the federal judiciary occupied relatively little of the Constitutional Convention’s time in 1787, the framers hoped—at a minimum—that it would promote constitutional stability. The Constitution vested broad, undefined judicial
2 United States v. Carolene Products, 304 U.S. 144, 152 n.4; Urofsky 2015, 100; Ely 1980; Horowitz 1993, 10. 3 See Alberts, Warshaw, and Weingast 2012.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 2 /
Date: 11/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review as a self-stabilizing constitutional mechanism 187 power in “one supreme Court.”4 By so empowering the Supreme Court, the Constitution enabled it to act as a potential check on the powerful (or at least anticipated to be powerful) Congress (Rakove 2002, 1513–14). Over the course of American history, the Court has asserted and consolidated powers of judicial review and adopted various institutional practices that have enhanced its capacity to support constitutional stability by lowering the stakes in politics, providing coordination mechanisms, and enabling adaptation. Section C specifically considers the Court’s role in preserving the limit condition. As Friedman and others have argued (Friedman 2009, 375; Ferejohn and Kramer 2002, 976–94), the Court rarely strays from the bounds of public opinion because it fears credible threats of punishment by the elected branches—including jurisdictionstripping, court-packing, or failure to enforce its orders. This induced behavioral feature of the Court helps preserve the limit condition by providing members of the Court with incentives to avoid unpopular decisions (Mittal and Weingast 2010, 343). This, in turn, lowers the stakes in politics for ordinary citizens (Mittal and Weingast 2010, 345). However, justices are not always motivated by stability or able to predict if a given decision will raise the stakes. Many of the Court’s most controversial decisions—such as McCulloch v. Maryland and Dred Scott—have been destabilizing precisely because they unexpectedly and significantly raised the stakes for large groups of citizens (Urofsky 2015, 32; Friedman 2009, 9). Over time, the Court consolidated its powers of judicial review (Kramer 2004, 95). In doing so, we argue in Section D that the Court has increasingly acted as the “coordinator-in-chief” by articulating core values and provisions of the Constitution. Practically speaking, the Court has discretion in how it decides cases. It can often resolve cases on one of several possible grounds, and it can define the nature of the interests at stake in a given case. In our language, the Court has discretion in choosing constitutional focal points. For instance, as Baird and Jacobi demonstrate, the Court has repeatedly chosen to frame cases around federalism rather than focusing on the substantive issue at the heart of a case (Baird and Jacobi 2009a, 189–97). In Section D, we describe how, using this discretion, the Court has crafted focal points that lower the stakes in politics and thus aid constitutional stability by supporting the consensus condition. Finally, in Section E, we show how the Court’s consolidation of judicial review also forms the basis of its role in maintaining the adaptation condition (Urofsky 2015, 45, 76). The Marshall Court laid the groundwork for interpreting federal powers with unanticipated future threats and crises in mind.5 But the sheer breadth of the Court’s interpretive power on display in those cases also illustrates how difficult it is to satisfy the three conditions—limit, consensus, and adaptation—at once. Lasting constitutional stability involves constant tradeoffs among the conditions. In this section, we also show how the Court has at times privileged certain conditions at the expense of others. For example, although McCulloch might have been decided with adaptation in mind, it certainly strained the limit condition by raising the stakes for proponents of states’ rights. 4 5
U.S. CONST. art. III, § 1. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 3 /
Date: 11/7
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
188 Comparative judicial review In assessing the role of the Supreme Court in advancing constitutional stability, we demonstrate that our framework for self-stabilizing constitutions provides a new, practical perspective on the Court’s day-to-day work. We eschew the rhetoric of normative studies of judicial review concerned primarily with the countermajoritarian difficulty. In focusing on the three conditions, we argue that the Court’s opinions do not merely explain the meaning of various constitutional and statutory provisions; rather, they encapsulate and stimulate meaningful debates across the branches and among citizens about the adequacy of constitutional limits in a given area, and provide the foundations for ongoing constitutional stability (see Kramer 2004).6 In doing so, we also shed new light on various Supreme Court practices and doctrines, including the use of dissenting opinions and stare decisis.
B. CONDITIONS OF CONSTITUTIONAL STABILITY Citizens rationally fear incumbent regimes that pose a threat to their assets, family, or well-being (de Figueiredo and Weingast 1999). Consequently, they may be willing to support extra-constitutional action, such as coups, to protect themselves. Support for extra-constitutional action can occur even when the government is acting legally and legitimately if it is sufficiently threatening. Self-stabilizing constitutions address this problem by lowering the stakes of politics by limiting the realm of governmental action. By taking certain governmental actions off the table, constitutions can lower stakes, giving citizens less need to resort to extra-constitutional action. We call this the limit condition. In order to ensure constitutional compliance by elected officials, citizens must be able to coordinate against officials who attempt to violate constitutional limits—often through various forms of resistance (Myerson 2006, 4–5; Mittal and Weingast 2013, 288). Citizens face a variety of difficulties in coordinating against a transgressing government. Because citizens’ situations and experiences differ considerably, their views of the constitution also differ. In particular, citizens typically disagree about the content of rights and government procedures. These differences imply that citizens will often disagree about whether a constitutional transgression has occurred. These disagreements perennially inhibit coordination against governmental transgressions. The solution to this problem lies in the creation of constitutional focal points that help solve these coordination dilemmas. Constitutional focal points create consensus about citizen rights and constitutional procedures. We call this the consensus condition. Because complex coordination games typically involve multiple solutions, the choice of a particular focal point matters and it is often the source of considerable political debate. For this reason, it is particularly important to have an unambiguous, common knowledge procedure for choosing focal points (Hadfield and Weingast 2012; Dixon, 4).7 In the nineteenth century, Congress created new focal points in the form of four compromises addressing various sectional crises in 1820, 1833, 1850, and 1877 (Mittal 6 7
Larry Kramer has written extensively on this aspect of “popular constitutionalism.” Hadfield and Weingast call such a mechanism a “legal steward” (Hadfield and Weingast
2012).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 4 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review as a self-stabilizing constitutional mechanism 189 and Weingast 2013, 292–8). The Supreme Court has taken an increasingly important role since the Civil War, typically in interaction with the political branches (Kramer 2004, 213). Finally, environmental changes continually present new problems and crises. An economic depression may occur, a new foreign threat suddenly emerges, or one region grows while another shrinks. These changes often reduce the short-run benefits of cooperation and render political institutions unstable. For instance, existing institutions may preclude a potential compromise given the way they allocate veto rights. Self-stabilizing constitutions address this problem of change by creating conditions for adaptive efficiency: That is, they create political institutions that allow citizens and political officials to adjust to changing circumstances and solve their dilemmas and crises. We call this the adaptive efficiency condition. Our research shows that constitutional clauses often serve a purpose that is not generally recognized in either the standard literature on democracy or the normative literature on constitutions: They facilitate the three conditions of constitutional stability. In this chapter, we illustrate how judicial review has become an increasingly important—though incomplete and imperfect—means of maintaining constitutional stability.
C. THE LIMIT CONDITION: THE ROLE OF JUDICIAL REVIEW IN SHAPING CONSTITUTIONAL LIMITS 1. Constitutional Text and Structure and the Limit Condition The framers’ overriding concern with constitutional stability is infused in each Article of the Constitution as well as unwritten elements of our constitutional tradition. As we have written elsewhere, the limiting effect of the text of the Constitution is both more widespread and more complex than is generally appreciated (Jacobi, Mittal, and Weingast 2015, 605). Most obviously, many Amendments—such as the Fifth Amendment’s prohibition on taking property without just compensation8 and the First Amendment’s prohibition on laws abridging the freedom of speech9—establish limits on governmental action. Other examples of the limiting power of the Constitution include the separation of powers system that creates multiple vetoes over legislation; the direct taxation clause;10 and the enumeration of Congress’s powers.11 The framers spent relatively little time during the Constitutional Convention discussing the federal judiciary (McCloskey 2005, 3; Kramer 2006, 705, 738–40), and many scholars suggest that they did not intend to establish judicial review as we understand it today (Farrand 1967, 156–7; Friedman 2009, 36–7; Kramer 2004, 73–92; McCloskey 2005, 4; Rakove 1997, 1047). But, at a minimum, the framers did suggest that the judicial power together with other features of the Constitution would serve as a limiting 8 9 10 11
U.S. U.S. U.S. U.S.
Columns Design XML Ltd
CONST. CONST. CONST. CONST.
/
amend. V. amend. I. art. I, § 2, cl. 3. art. I, § 8.
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
190 Comparative judicial review force in the new republic (Kramer 2006, 73–8). For Hamilton, it was the courts “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing” (Hamilton 1788). For Madison, whose distrust of legislative power extended to the state legislatures, the Court could play at least a modest role in resolving disputes between the federal government and the states (Rakove 2002, 1515; Friedman 2009, 34; Rakove 1996, 173–7). In his view, “some … tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact” (Madison 1788b). Although most of the framers did not conceive of the judiciary in Hamilton’s or Madison’s terms (Kramer 2004, 73), there appears to have been substantial agreement that the Court would serve as a guardian of rights and that judges would require “independence” from the political branches to discharge that role (Kramer 2006, 739–40; Amar 2005, 220). Consequently, Article III incorporates provisions for life tenure and protections against the diminishment of judicial salaries.12 According to Hamilton, “permanency” of judicial office was a critical element of judicial independence (Hamilton 1788).13 Yet the Constitution also renders the federal judiciary dependent on the political branches in important ways (Amar 2005, 212–13). For instance, the size and structure of the judiciary—and in some cases its jurisdiction—falls under congressional control (Amar 2005, 212–13). As Ferejohn and Kramer argue, “the balance between independence and accountability in the federal system is maintained through a system that protects individual judges from direct outside interference while making the institution in which they work vulnerable to control by the political branches of government” (Ferejohn and Kramer 2002, 964). In our view, this balance between judicial independence and dependence on the political branches created by the Constitution serves a purpose generally unrecognized in the normative literature: It creates incentives for the Court to preserve the limit condition. By adjudicating cases in a way that lowers the stakes in politics, the Court is less likely to provoke confrontations with the political branches—thereby making it easier to preserve its independence. 2. The Court as Guardian of the Limit Condition Has the consolidation of the Supreme Court’s power of judicial review contributed to or threatened constitutional stability? Arguably, it has done both. Many of the Court’s decisions have fostered stability—or at least they have not generated substantial popular backlash (Friedman 2009, 4; Post and Siegel 2007, 376). For instance, some have argued that in Bush v. Gore,14 the Court fostered stability at perhaps the most critical time in a democracy by bringing its settlement power to the result of a disputed presidential election (Friedman 2009, 16, 32). 12
U.S. CONST. art. III, § 1. These prescriptions had been a mainstay of constitutional theory throughout the eighteenth century, including in the theories of Montesquieu and Adam Smith. 14 531 U.S. 98 (2000). 13
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 6 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review as a self-stabilizing constitutional mechanism 191 But the Court’s decisions have also threatened constitutional stability at times. For example, the nationalizing decisions of the Marshall Court exacerbated the conflict over the topic that the framers most feared could lead to disunion—slavery—and eventually led some states down the path of nullification and civil war (Friedman 2009, 83–104; McCloskey 2005, 416–52; Whittington 1999, 76). As a result, simply surveying the Court’s landmark decisions leaves a muddled and incomplete impression of the Court’s role in creating constitutional stability, and more importantly, exactly how it fosters stability. To understand the Court’s role in preserving constitutional limits, it is important to shift focus away from the landmark majority opinions that often form the basis of many traditional studies of judicial review and consider the surprising extent to which all of the Court’s opinions—majority, concurring, and dissenting—have stimulated debate about the limit condition and whether it has been satisfied in a given instance. As the potentially destabilizing decisions of the Marshall Court suggest, justices are not always motivated first and foremost by short-run stability. But the Court’s practice of publishing multiple opinions has generated debate across the branches and among ordinary citizens about the existence and adequacy of constitutional limits at a given time (Kramer 2004; Post and Siegel 2009, 27; Post and Siegel 2007, 376; Sunstein 1993, 23). Credible threats of punishment, such as jurisdiction-stripping, court-packing, or non-compliance, provide the Court with incentives not to stray too far from public opinion (Mittal and Weingast 2010, 343). In this framework, successful popular deterrence of the Court contributes to constitutional stability by preserving the limit condition and lowering the stakes for ordinary citizens. When the Court has been unwilling or unable to defer to public opinion, the public has chosen to retaliate in a variety of ways that have the potential to threaten constitutional stability at the system-wide level (Mittal and Weingast 2010, 348). Indeed, many of the Court’s most controversial decisions have unexpectedly and significantly raised the stakes for large groups of citizens (Friedman 2009, 9). This dynamic is most clearly understood within the context of the development of federalism and the Court’s decisions from 1789 to the Civil War, particularly those consolidating judicial review of congressional and state legislation. Important aspects of the development of judicial review took shape in the context of federalism (Rakove 1997, 1031). During this period, the allocation of power between the federal government and the states was a perennial source of conflict (McCloskey 2005, 17; Whittington 1999, 76), and in decision after decision—from Cohens v. Virginia15 to Gibbons v. Ogden16—the Marshall Court took positions that enhanced the power of the Court and threatened states’ rights advocates (Whittington 1999, 76–7). McCulloch,17 which adopted an expansive interpretation of the Necessary and Proper Clause, stressed the limit condition more than any other decision of the time (Friedman 2009, 80). Although Marshall’s opinion in the case follows prior decisions in arguing that 15 16 17
19 U.S. (6 Wheat.) 264 (1821); see McCloskey 2005, 28. 22 U.S. (9 Wheat.) 1 (1824); see McCloskey 2005, 51. 17 U.S. (4 Wheat.) 316 (1819).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 7 /
Date: 15/8
JOBNAME: Delaney PAGE: 9 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
192 Comparative judicial review constitutional stability in a rapidly expanding nation required broader federal powers,18 states’ rights advocates saw in that argument a profound threat to their lives, liberty, and property (Friedman 2009, 83–9; Tushnet 2008, 17–29). Yet the nationalizing decisions of the Marshall Court are also notable in that they stimulated widespread debate across the branches and among citizens about constitutional limits within the context of federalism (Kramer 2004, 174). That tradition of catalyzing and channeling debate continues today, and also occurs within the Court itself through the publication of multiple opinions in a case. Because constitutional stability is often taken for granted, it is easy to overlook the considerable extent to which all of the Court’s opinions—particularly dissents—concern themselves with the limit condition.19 Today, the Court itself generates and reflects debate about the limit condition and whether it has been satisfied in a given context. Dissenting justices routinely appeal to the limit condition by highlighting how the majority’s ruling raises the stakes for certain groups of citizens. For instance, Justice Sotomayor’s well-publicized20 dissent in Utah v. Strieff21—a Fourth Amendment case holding that evidence found during an unlawful police stop was nonetheless admissible since officers subsequently discovered a valid outstanding arrest warrant—could not have been clearer in alleging a violation of the limit condition. While the majority largely failed to engage the subject of constitutional limits, Justice Sotomayor’s dissent focused squarely on how the Court’s opinion threatened ordinary citizens: [T]his case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.22
In doing so, it appeals to the limit condition and brings the stakes in politics to life in brutal terms. Dissents have also alleged violations of the limit condition in other prominent cases involving race relations,23 military discretion,24 gay rights,25 the right to die,26 and 18
Id. at 421. The literature on the use of so-called “slippery slope” arguments in Supreme Court opinions offers one window into the Court’s consideration of constitutional limits. See Sternglantz 2005; Volokh 2003. 20 See Matt Ford, Justice Sotomayor’s Ringing Dissent, THE ATLANTIC (June 20, 2016), available at http://www.theatlantic.com/politics/archive/2016/06/utah-streiff-sotomayor/487922/; Robert Barnes, Sotomayor’s Fierce Dissent Slams High Court’s Ruling on Evidence From Illegal Stops, THE WASH. POST. (June 20, 2016), available at https://www.washingtonpost.com/politics/ courts_law/supreme-court-rules-5-3-that-mistakes-by-officer-don’t-undermine-conviction/2016/06/ 20/f1f7d0d2-36f9-11e6-8f7c-d4c723a2becb_story.html. 21 136 S. Ct. 2056 (2016). 22 Id. at 2070–1 (Sotomayor, J., dissenting). 23 Plessy v. Ferguson, 163 U.S. 537, 557–8 (1896). 24 Korematsu v. United States, 323 U.S. 214, 234 (1944). 25 Lawrence v. Texas, 539 U.S. 558, 590 (2003). 26 Washington v. Glucksberg, 521 U.S. 702, 784–5 (1997). 19
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 8 /
Date: 11/7
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review as a self-stabilizing constitutional mechanism 193 contraception use.27 For example, in Obergefell v. Hodges28—a case holding that same-sex couples can exercise the fundamental right to marry—Justice Scalia’s dissent argued that the Court itself was threatening constitutional stability: I write separately to call attention to this Court’s threat to American democracy … Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.29
In attacking the Court, Justice Scalia’s dissent focused on how the Court’s reasoning or interpretation of the Constitution raised the stakes. He further argued that the Court’s use of judicial review in this and other cases potentially threatened all citizens.30 In conclusion, while the Court’s use of judicial review can lower the stakes, at times the Court has issued opinions that have threatened various groups of citizens. In that event, the Court’s practice of publishing concurring and dissenting opinions can provide the foundations for future constitutional focal points that lower the stakes over the long run. The next section shows how the Court uses its capacity to create focal points and guide citizen coordination in ways that might strain the limit condition in the short run while promoting stability over the long run by defining constitutional values and rights as new circumstances arise.
D. THE SUPREME COURT AS A SOLUTION TO THE COORDINATION DILEMMA 1. Constitutional Text and Structure and the Coordination Condition Several features of the Constitution enable the Court to take a central role in promoting citizen coordination against government transgressions. Most notably, the “vesting clause” of Article III says: “the judicial power of the United States shall be vested in one supreme Court.”31 Article III, Section 2, defines the jurisdiction of this “supreme” Court broadly—extending the judicial power to “all Cases” under the Constitution and 27
Tushnet 2008, 183. 135 S. Ct. 2584 (2015). 29 Id. at 2626–7 (Scalia, J., dissenting). 30 Id.; Tushnet 2008, xxiv–xxvi. 31 U.S. CONST. art. III, § 1. Amar suggests that the word “Supreme” referred to the Court’s position within the hierarchy of the federal judiciary, rather than its position vis-à-vis the other branches. However, as he argues, the Constitution gave the Supreme Court relatively few tools to impose control over lower courts, and an early draft of the Constitution proposed creating “one or more supreme tribunals” (Amar 2005, 209–10). 28
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 9 /
Date: 11/7
JOBNAME: Delaney PAGE: 11 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
194 Comparative judicial review federal law, among other things.32 Accordingly, once a case reaches the Supreme Court, no further appeal can be taken. In addition, the Constitution provides life tenure and protection of judicial compensation.33 Taken together, these features of the Constitution partially insulate the justices from external pressure from the other branches or groups of citizens and enable the Court to guide citizen coordination by articulating constitutional values and the meaning of constitutional provisions. Most importantly, from the perspective of our framework, they provide the institutional foundations for the justices to guide citizen coordination against an overreaching legislature or executive. Coordination was a virtue well understood in 1787, as reflected in The Federalist No. 22: Laws are a dead letter without courts to expound and define their true meaning and operation … To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. (Hamilton 1787)
Although it would take generations for the meaning of “supreme” and “the judicial power” to develop, Article III’s establishment of the Supreme Court laid the foundations for a Court capable of taking a leading role in coordinating expectations of when constitutional transgressions have occurred. By interpreting the Constitution over time—and in particular by defining rights and other limits on legitimate government action—the Court has become one of the central coordinating mechanisms of the constitutional system. However, sometimes the Court interprets the Constitution in a way that strains the limit condition, as was the case with the most controversial Marshall Court cases, discussed above.34 Those cases arguably stressed the limit condition in the short run but at the same time promoted stability over the long run by clarifying the contours of America’s developing federal system and promoting adaptation. Similarly, we have seen that sometimes the Court itself is perceived by some as presenting a threat to the community, and it is often the justices themselves who identify those threats—as Justice Scalia did in Obergefell, quoted above. Those dissenting opinions help clarify, and thus coordinate, opposition to judicial overreaching. 2. The Supreme Court as Coordinator-in-Chief Traditional constitutional scholars have overlooked the Court’s powerful role in coordinating expectations concerning constitutional transgressions. The Court has increasingly acted as the “coordinator-in-chief” when it comes to the meaning of the Constitution by extending existing focal points and creating new ones where warranted. Coordination is a perennial problem for constitutional stability because a single individual who objects to the actions of the government often has little power to stop that action, even if the government is acting illegally. Although the government is 32 33 34
U.S. CONST. art. III, § 2. U.S. CONST. art. III, § 1. See supra Section C.2.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 10 /
Date: 15/8
JOBNAME: Delaney PAGE: 12 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review as a self-stabilizing constitutional mechanism 195 necessarily stronger than any individual, if most individuals object to the government’s action, the government risks losing its legitimacy and support. As a consolidated group, the public can potentially force the government to back down from unconstitutional action. Constitutions facilitate this joining of forces. However, over time it is difficult to create and maintain agreement as to what constitutes a transgression. Citizens—and even judges—disagree. A constitution promotes stability when it creates focal points to help solve coordination dilemmas arising from citizen disagreement. For instance, in the context of takings of individual private property, the US Constitution provides that “just compensation” must be provided when a government takes private property for public use.35 By clarifying what a constitutional violation is—such as an uncompensated taking— and what procedures follow when such acts occur—such as when compensation must be provided—the Constitution promotes the consensus condition (Jacobi, Mittal, and Weingast 2015). The framers intended for the federal judiciary to provide one source of input as to whether a constitutional transgression has occurred (Hamilton 1788). But the Court’s current role matured out of its assertion of judicial review. As Marshall famously wrote in Marbury v. Madison, “[i]t is emphatically the province and duty of the judicial department to say what the law is.”36 Indeed, Riker argues that the Marshall Court’s opinions holding state laws unconstitutional helped habituate Americans to the idea of the Supreme Court as an arbiter of constitutional meaning more broadly, thereby making it easier for the Court to announce and enforce constitutional constraints on the national government (Riker 1965, 246). As the American economy became more integrated and as the national government took a greater role in regulating the economy, the Supreme Court exercised a more prominent role in reviewing federal laws. The change in Supreme Court behavior on this dimension is dramatic. The Court ruled unconstitutional: three federal laws in the 70 years between 1790 and 1859; 22 laws in the 40 years from 1860 to 1899; and 50 laws in the 40 years from 1900 to 1940.37 The Supreme Court’s increased scrutiny of federal legislation during the second half of the nineteenth century and throughout the twentieth century laid the foundations for its growing role in coordinating expectations of when a constitutional transgression has occurred. But choosing constitutional focal points is not easy, in part because multiple plausible options exist. As Hamilton emphasized in The Federalist No. 22 quoted above, judges often disagree on how to resolve cases. And sometimes they even disagree on the issues at play in a given case. Frequently, the Court has considerable power to frame the issue or issues upon which it decides. It often resolves cases on one of several possible grounds, and in doing so defines the nature of the interests at stake in a given case. Many constitutionally recognized interests cut across one another in some circumstances, and this gives the Court choice over which constitutional right to emphasize in its opinion of the Court. 35
U.S. CONST. amend. V. 5 U.S. (1 Cranch) 137, 177 (1803). 37 See Riker 1965, 240–1; W.C. Gilbert, PROVISIONS OF FEDERAL LAW HELD UNCONSTITUTIONAL BY THE SUPREME COURT OF THE UNITED STATES, GOVERNMENT PRINTING OFFICE. 36
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 11 /
Date: 11/7
JOBNAME: Delaney PAGE: 13 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
196 Comparative judicial review For instance, in Evans v. Newton38—a case concerning the desegregation of a park in Macon, Georgia—the Court pitted the Fourteenth Amendment’s Equal Protection Clause against freedom of association and respect for states’ rights: There are two complementary principles to be reconciled in this case. One is the right of the individual to pick his own associates so as to express his preferences and dislikes, and to fashion his private life by joining such clubs and groups as he chooses. The other is the constitutional ban in the Equal Protection Clause of the Fourteenth Amendment against state-sponsored racial inequality, which of course bars a city from acting as trustee under a private will that serves the racial segregation cause.39 (Baird and Jacobi 2009a, 189–96)
In our language, the choice of how to frame the case affords the Court the opportunity to choose among multiple constitutional focal points. By having the power to choose—and most importantly by choosing—the Court supports constitutional stability by facilitating coordination against government transgressions. And in doing so, it is sometimes able to deflect criticism that controversial decisions garner by framing a given decision not as a repudiation of one right but as a validation of another, thereby supporting the limit condition. Prior empirical work has shown that the Court has considerable discretion over how to frame issues, and that it regularly makes use of that choice in maximizing its support when facing controversial issues. For instance, Spiller and Tiller have illustrated that the Court often can choose to decide cases on substantive law grounds or, alternatively, on legal methodology, such as textualism or originalism (Spiller and Tiller 1996, 504). Fischman and Jacobi show that this is a real option in a large range of cases, from statutory interpretation to constitutional criminal procedure (Fischman and Jacobi 2016). Baird and Jacobi show that the Court often chooses to frame cases in terms of federalism, rather than emphasizing substantive issues (Baird and Jacobi 2009a, 183; Baird and Jacobi 2009b). And in the context of the First Amendment, Epstein and Segal show that—even among substantive issues—the Court can strategically emphasize or deemphasize free speech, press, assembly, and association on one hand, and antidiscrimination principles, equality, and privacy on the other (Epstein and Segal 2006). Together these studies show: (1) that the Court has discretion in deciding cases because of secondary crosscutting issues raised in cases; (2) that the Court uses those crosscutting issues to consider different focal points for each potential, opposing outcome; and (3) that justices decide issues in a way to promote new coalitions and mitigate criticism by framing decisions as the extension of one principle rather than the repudiation of another. For the purposes of constitutional stability, however, it often matters less which outcome the Supreme Court chooses—for instance, whether it decides in favor of religious liberty or free speech—than it does that the Court make a decision. Regardless of the ultimate result, the Supreme Court is acting as coordinator-in-chief simply by choosing. And in choosing, the Court is articulating the realm of legitimate 38 39
382 U.S. 296 (1966). Id. at 298–9.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 12 /
Date: 15/8
JOBNAME: Delaney PAGE: 14 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review as a self-stabilizing constitutional mechanism 197 governmental action and when a transgression has occurred.40 The Court’s justification of its choices in its opinions provides focal points that guide citizen coordination against the state. The next section shows how other institutional practices, including bedrock principles such as stare decisis, lower the stakes and facilitate coordination over time by promoting consistency and predictability in judicial decision-making.
E. THE SUPREME COURT AND THE ADAPTATION CONDITION: PROMOTING STABILITY OVER TIME 1. Constitutional Text and Structure and the Adaptation Condition The problem of change is fundamental to our concept of a self-stabilizing constitution. A constitution must have the ability to adapt on an ongoing basis in the face of the many economic, political, and social changes that inevitably confront every nation. But successful adaptation is difficult, and it involves much more than the cumbersome amendment process outlined in the US Constitution’s Article V. Constitutional features and laws designed to preserve limits or facilitate coordination at one time often fail as circumstances change. Take, for instance, the ultimate failure of the many constitutional features designed to lower the stakes for slaveholders, most notably, the three-fifths clause and equal representation in the Senate (Rakove 1996, 58, 68–9; Weingast 1998, 148). Despite the framers’ recognition of the serious threat that slavery posed to lasting constitutional stability (Rakove 1996, 73), those features (and others) ultimately proved insufficient to preserve the limit condition in the face of rapid demographic and territorial change, and the United States fell into civil war (Mittal and Weingast 2013, 292–7). While normative scholars of judicial review have generated vibrant debates concerning the Court’s role in constitutional interpretation (Dworkin 1986; Ely 1980; Breyer 2005; Scalia 1997; Strauss 2010), our consideration of the Court in this section focuses on its role in satisfying the adaptation condition by lowering the stakes in politics and facilitating coordination over time in response to changing circumstances. The dilemma is that, once again, the three conditions can be at odds with one another: Enabling change to respond to new challenges frequently involves flexibility, which is often antithetical to clearly defined limits and coordination mechanisms. Many framers appreciated that the judiciary would have some role in resolving inevitable ambiguities in constitutional text, or—in Madison’s language in Federalist 37—of “liquidating” the meaning of the law over time (Madison 1788a; Urofsky 2015; Rakove 2002, 1546). This “liquidating” conception of judicial review is central to understanding how constitutional adaptation has occurred in the United States.
40
Dixon and Ginsburg consider the ways in which the Court—acting as an updater of constitutional focal points—accrues error costs by imposing constitutional rules that are no longer optimal, and recommend heightened judicial deference to legislation designed to mitigate such error costs (Dixon 2009; Dixon and Ginsburg 2011).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 13 /
Date: 15/8
JOBNAME: Delaney PAGE: 15 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
198 Comparative judicial review 2. The Supreme Court’s Growing Role in Maintaining the Adaptation Condition Taken together, the Marshall Court’s decisions developed the Court’s interpretive powers by presenting the Court as the final, focal judge of what the Constitution means.41 As Marshall famously noted in Marbury, “[i]t is emphatically the province and duty of the judicial department to say what the law is.”42 By developing the power of judicial review in Marbury and its progeny (McCloskey 2005, 44), the Marshall Court asserted its role in coordinating expectations of what the Constitution meant (Urofsky 2015, 48–9). And its opinions, particularly McCulloch,43 illustrate the Court’s role in adaptation by interpreting constitutional provisions—such as the Necessary and Proper Clause—in a way to accommodate various economic, political, and social changes. In addition to interpreting constitutional provisions with future exigencies in mind, the Court’s increasingly common practice of publishing multiple opinions in a given case provides another powerful source of adaptation. As described in Section C, in order to preserve the limit condition, justices must assess likely reactions to their opinions. But sometimes the Court’s actions unexpectedly raise the stakes, straining the limit condition. The simultaneous publication of majority, dissenting, and concurring opinions generates animated debate across the branches and among ordinary citizens about whether the limit condition has been satisfied in a given instance—a debate that can end in legislative or executive action against the Court, or even with the Court overruling its own precedent (Urofsky 2015, 48–9). Kelo v. City of New London,44 which relaxed the “public use” limitation of the Takings Clause, illustrates the role that dissents play in stimulating adaptation. From the outset, Suzette Kelo and the other petitioners argued that weakening the public use limitation constituted a violation of the limit condition that raised the stakes for ordinary citizens by subjecting their homes and personal property to taking for economic development purposes.45 Although the Court ultimately ruled that the City of New London’s economic development plan constituted a valid public use, Justice O’Connor’s dissent alleged that the majority’s opinion raised the stakes for ordinary citizens, and therefore violated the limit condition: Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown, “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.”
41 42 43 44 45
Marbury v. Madison, 5 U.S (1 Cranch) 137, 177 (1803); Urofsky 2015, 76. Marbury, 5 U.S. at 177. 17 U.S. (4 Wheat.) 316, 421 (1819). 545 U.S. 459 (2005). Id. at 494.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 16 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review as a self-stabilizing constitutional mechanism 199 … This is why economic development takings “seriously jeopardiz[e] the security of all private property ownership.”46
Consistent with a violation of the limit condition, Kelo created a popular backlash in favor of reinvigorating the public use limitation on takings, and that backlash has been felt both at the federal and state levels (Merrill and Smith 2012, 1240). Outraged at the taking of Suzette Kelo’s “little pink house” and fearful for the security of their own property, many citizens and their representatives demanded action (Benedict 2009). After Kelo, federal legislation was introduced in both houses of Congress to discourage the use of eminent domain for economic development purposes (Merrill and Smith 2012, 1240). Arguably, the strongest reactions against Kelo came from the states themselves. According to one study, 43 states passed constitutional amendments or statutes that restrict the government’s ability to use eminent domain for public purposes (Somin 2009, 2102). In addition, many state supreme courts held that economic development was no longer a public use (Merrill and Smith 2012, 1240). While the strength of the response to Kelo certainly varied from state to state (Somin 2009, 2105), the backlash indisputably reached the Supreme Court. Justice Scalia—a proponent of using dissents to identify the Court’s “mistakes” (Urofsky 2015, 4)—suggested in a public appearance that Kelo would be overruled.47 Under our self-stabilizing approach, Kelo ultimately reflects the Court’s role in catalyzing and entrenching public discussion of important issues. Through the iterative process of judicial decision and popular and political response, the Court prompts the public to debate issues of fundamental interest and to find solutions and compromises that preserve the limit condition as circumstances change (Friedman 2009, 381). Intended or not, this process is an important function of the Court’s rulings and helps explain how it assists in maintaining the limit and consensus conditions over time (Friedman 2009). In fact, when the Court decides a case in a way that it anticipates will raise the stakes, the majority opinion may even explicitly invite state and congressional action to preserve the limit condition, as was the case in Kelo.48 For instance, Spiller and Tiller identify instances in which the Court has explicitly invited Congress to override its own decisions (Spiller and Tiller 1996, 503).49 In some instances, this process of deliberation and debate across the branches and within the states results in new Court precedent. For instance, Justice Harlan’s dissents in the Civil Rights Cases50 and Plessy v. Ferguson51—if not their specific reasoning— 46
Id. at 405–6 (O’Connor, J., dissenting). Ilya Somin, Scalia Predicts that Kelo will be Overruled, The Volokh Conspiracy (Oct. 19, 2011), available at http://www.volokh.com/2011/10/19/scalia-predicts-that-kelo-will-be-over ruled/. 48 545 U.S. at 489–90. 49 Courts also sometimes mandate legislative action, which incorporates the legislature in the process of adaptation and thus can lend legitimacy to judicial action, such as the development of the right to same-sex marriage (Jacobi 2006) and civil unions (Jacobi 2002). 50 109 U.S. 3 (1883). 51 163 U.S. 537 (1896). 47
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 15 /
Date: 11/7
JOBNAME: Delaney PAGE: 17 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
200 Comparative judicial review were ultimately vindicated in Brown v. Board of Education52 (Tushnet 2008, xxiv; Urofsky 2015, 25). Similarly, Jacobi and Baird have shown that dissenting opinions in another segregation case, Evans v. Newton53 (discussed above), resulted in new judicial precedent, and that dissents regularly create alternative focal points (Baird and Jacobi 2009a, 189–97). In addition, the Court has developed various mechanisms for controlling the pace of adaptation. Judicial decisions are not simply up or down votes. In their detailed opinions, the justices can set out not only why a case was decided in a particular way, but the likely extent to which future cases will come out in the same way (e.g., Payne v. Tennessee54). In doing so, the Court can shape both its own future agenda and the behavior of other actors. Stare decisis is perhaps the most important means of limiting change, as are various justiciability doctrines, such as standing. But the Court has various other ways of controlling the pace of change. For instance, the Court can articulate a strict rule or a flexible standard, thus rendering some areas of law largely determined, and others more open to case-by-case determination (Jacobi and Tiller 2007; Cohen and Spitzer 1994); it can suggest whether and why future cases might come out differently under different circumstances, thus signaling its interest in a particular type of case (Jacobi 2008); and it can also distinguish previous cases, indicating a new direction that the Court is developing. These are recognized tactics of the Court that signal the precedential value that a particular case is likely to have. The Court’s use of judicial review to maintain the adaptation condition illustrates how difficult it is to satisfy our three conditions—limit, consensus, and adaptation—at the same time. While the Court’s broader reading of the Necessary and Proper Clause in McCulloch and the Takings Clause in Kelo facilitated adaptation, they strained the limit condition and raised the stakes for key groups of citizens. Further, although the Court’s publication of multiple opinions facilitates adaptation by providing multiple potential focal points, the proliferation of opinions inevitably undermines the coordinating power of the Court (Tushnet 2008, xiii). Justices from Chief Justice Marshall to Chief Justice Roberts have wrestled with this tradeoff between fostering unanimity and facilitating adaptation (Tushnet 2008, xi). As Urofsky notes, the nationalizing decisions of the Marshall Court were certainly more powerful coming from a unanimous Court (Urofsky 2015, 46). Ultimately, each Court has balanced our three conditions in its own way as it has confronted the economic, political, social, and other environmental changes of the time.
F. CONCLUSION Constitutional survival for multiple generations is all too rare. In order to survive, constitutions must be self-stabilizing. We argue that constitutions provide for their own survival by satisfying three conditions: the limit condition, the consensus condition, and the adaptation condition. 52 53 54
347 U.S. 483 (1954). 382 U.S. 296 (1966). 501 U.S. 808, 827–8 (1991).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 16 /
Date: 15/8
JOBNAME: Delaney PAGE: 18 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review as a self-stabilizing constitutional mechanism 201 Above all, we hope to demonstrate that our three conditions for self-stabilizing constitutions are not merely theoretical. In the United States, as we have shown, the three conditions concern the Supreme Court in practical ways, as cases from McCulloch to Kelo demonstrate. In our view, important aspects of the Court’s day-to-day work can be understood as navigating the tradeoffs inherent in the three conditions and attempting to project constitutional stability forward in time. Moreover, failure to meet these conditions has at times jeopardized the nation’s—and the Supreme Court’s—future, as the negative reactions to Dred Scott illustrate. Our framework eschews the rhetoric of normative studies of judicial review concerned primarily with the countermajoritarian difficulty. We focus instead on how the Court has both succeeded and failed in lowering stakes, facilitating coordination, and enabling adaptation over the course of American history. The Court’s opinions do not merely explain the meaning of various constitutional and statutory provisions. Rather, they encapsulate and generate meaningful debates across the branches and among citizens about the adequacy of constitutional limits in a given area and should be read with their implications for constitutional stability in mind.
REFERENCES Adler, Matthew D. 1997. “Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty.” University of Pennsylvania Law Review, 145: 759–892. Alberts, Susan, Chris Warshaw, and Barry R. Weingast. 2012. “Democratization and Countermajoritarian Institutions: The Role of Power and Constitutional Design in Self-Enforcing Democracy.” In Comparative Constitutional Law and Politics, edited by Tom Ginsburg. New York, NY: Cambridge University Press. Amar, Akhil Reed. 2005. America’s Constitution: A Biography. New York, NY: Random House. Amar, Akhil Reed. 2012. America’s Unwritten Constitution: The Precedents And Principles We Live By. New York, NY: Basic Books. Baird, Vanessa A. and Tonja Jacobi. 2009a. “How the Dissent Becomes the Majority: Using Federalism to Transform Decisions in the U.S. Supreme Court.” Duke Law Journal, 59: 183–238. Baird, Vanessa A. and Tonja Jacobi. 2009b. “Judicial Agenda Setting Through Signaling and Strategic Litigant Responses.” Washington University Journal of Law & Policy, 29: 215–40. Benedict, Jeff. 2009. Little Pink House: A True Story of Defiance and Courage. New York, NY: Grand Central Publishing. Bickel, Alexander M. 1962. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis, IN: Bobbs-Merrill. Breyer, Stephen. 2005. Active Liberty: Interpreting our Democratic Constitution. New York, NY: Knopf. Cohen, Linda and Matthew Spitzer. 1994. “Solving the Chevron Puzzle.” Law and Contemporary Problems, 2: 65–110. de Figueiredo Jr., Rui J.P. and Barry R. Weingast. 1999. “The Rationality of Fear: Political Opportunism and Ethnic Conflict.” In Civil Wars, Insecurity, and Intervention, edited by Barbara F. Walter and Jack Snyder. New York, NY: Columbia University Press. Dixon, Rosalind. “Partial Constitutional Codes.” Working paper. Dixon, Rosalind. 2009. “Updating Constitutional Rules.” Supreme Court Review, 8: 319–46. Dixon, Rosalind and Tom Ginsburg. 2011. “Deciding not to Decide: Deferral in Constitutional Design.” International Journal of Constitutional Law, 9: 636–72. Dworkin, Ronald. 1986. Law’s Empire. Cambridge, MA: Belknap Press of Harvard University Press. Elkins, Zachary, Tom Ginsburg, and James Melton. 2009. The Endurance of National Constitutions. New York, NY: Cambridge University Press. Ely, John Hart. 1980. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press. Epstein, Lee and Jeffrey A. Segal. 2006. “Trumping the First Amendment.” Washington University Journal of Law & Policy, 21: 81–122.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 17 /
Date: 15/8
JOBNAME: Delaney PAGE: 19 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
202 Comparative judicial review Farrand, Max. 1967. The Framing of the Constitution of the United States. New Haven, CT: Yale University Press. Ferejohn, John A. and Larry D. Kramer. 2002. “Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint.” New York University Law Review, 77: 962–1039. Fischman, Joshua B. and Tonja Jacobi. 2016. “The Second Dimension of the Supreme Court.” William & Mary Law Review, 57: 1671–716. Friedman, Barry. 2009. The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. New York, NY: Farrar, Straus and Giroux. Hadfield, Gillian K. and Barry R. Weingast. 2012. “What Is Law? A Coordination Model of the Characteristics of Legal Order.” Journal of Legal Analysis, 4: 471–514. Hadfield, Gillian K. and Barry R. Weingast. 2014. “Microfoundations of the Rule of Law.” Annual Review of Political Science, 17: 21–42. Hamilton, Alexander. 1787. The Federalist No. 22. Hamilton, Alexander. 1788. The Federalist No. 78. Hardin, Russell. 2007. “Why a Constitution?” In The Federalist Papers and the New Institutionalism, edited by Bernard Grofman and Donald Wittman. New York, NY: Agathon Press. Hayek, F.A. 1960. The Constitution of Liberty. Chicago, IL: University of Chicago Press. Horowitz, Morton. 1993. “The Warren Court and the Pursuit of Justice.” Washington and Lee Law Review, 50: 5–14. Jacobi, Tonja. 2002. “Issues in Vermont Law: Same-Sex Marriage in Vermont: Implications of Legislative Remand for the Judiciary’s Role.” Vermont Law Review, 26: 381–406. Jacobi, Tonja. 2006. “How Massachusetts Got Gay Marriage: The Intersection of Popular Opinion, Legislative Action and Judicial Power.” Journal of Contemporary Legal Issues, 15: 219–42. Jacobi, Tonja. 2008. “The Judicial Signaling Game: How Judges Strategically Shape Their Dockets.” Supreme Court Economic Review, 16: 1–38. Jacobi, Tonja, Sonia Mittal, and Barry R. Weingast. 2015. “Creating a Self-Stabilizing Constitution: The Role of the Takings Clause.” Northwestern University Law Review, 109: 601–38. Jacobi, Tonja and Emerson H. Tiller. 2007. “Legal Doctrine and Political Control.” Journal of Law, Economics, and Organization, 23: 326–45. Kramer, Larry D. 2004. The People Themselves: Popular Constitutionalism and Judicial Review. New York, NY: Oxford University Press. Kramer, Larry D. 2006. “‘The Interest of the Man’: James Madison, Popular Constitutionalism, and the Theory of Deliberative Democracy.” Valparaiso University Law Review, 41: 697–754. Madison, James. 1788a. The Federalist No. 37. Madison, James. 1788b. The Federalist No. 39. Madison, James. 1788c. The Federalist No. 48. McCloskey, Robert G. 2005. The American Supreme Court. Chicago, IL: University of Chicago Press. Merrill, Thomas W. and Henry E. Smith. 2012. Property: Principles and Policies. St Paul, MN: West Academic. Mittal, Sonia. 2010. Dynamic Constitutional Stability (unpublished Ph.D. dissertation, Stanford University). Mittal, Sonia, Jack N. Rakove, and Barry Weingast. 2011. “The Constitutional Choices of 1787 and Their Consequences.” In Founding Choices, American Economic Policy in the 1790s, edited by Douglas A. Irwin and Richard Sylla. Chicago, IL: University of Chicago Press. Mittal, Sonia and Barry R. Weingast. 2010. “Constitutional Stability and the Deferential Court.” University of Pennsylvania Journal of Constitutional Law, 13: 337–52. Mittal, Sonia and Barry R. Weingast. 2013. “Self-Enforcing Constitutions: With an Application to Democratic Stability in America’s First Century.” Journal of Law, Economics, and Organization, 29: 278–302. Myerson, Roger B. 2006. “Federalism and Incentives for Success of Democracy.” Quarterly Journal of Political Science, 1: 3–23. North, Douglass C. 2005. Understanding the Process of Economic Change. Princeton, NJ: Princeton University Press. Ordeshook, Peter C. 1992. “Constitutional Stability.” Constitutional Political Economy, 3: 137–75. Post, Robert C. and Reva B. Siegel. 2007. “Roe Rage: Democratic Constitutionalism and Backlash.” Harvard Civil Rights-Civil Liberties Law Review, 42: 373–434. Post, Robert C. and Reva B. Siegel. 2009. “Democratic Constitutionalism.” In The Constitution in 2020, edited by Jack M. Balkin and Reva B. Siegel. New York, NY: Oxford University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 18 /
Date: 15/8
JOBNAME: Delaney PAGE: 20 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review as a self-stabilizing constitutional mechanism 203 Przeworski, Adam. 1991. Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America. New York, NY: Cambridge University Press. Rakove, Jack N. 1996. Original Meanings: Politics and Ideas in the Making of the Constitution. New York, NY: Knopf. Rakove, Jack N. 1997. “The Origins of Judicial Review: A Plea for New Contexts.” Stanford Law Review, 49: 1031–64. Rakove, Jack N. 2002. “Judicial Power in the Constitutional Theory of James Madison.” William & Mary Law Review, 43: 1513–48. Riker, William H. 1965. Democracy in the United States. New York, NY: Macmillan. Scalia, Antonin. 1997. A Matter of Interpretation: Federal Courts and the Law. Princeton, NJ: Princeton University Press. Somin, Ilya. 2004. “Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory.” Iowa Law Review, 87: 1287–371. Somin, Ilya. 2009. “The Limits of Backlash: Assessing the Political Response to Kelo.” Minnesota Law Review, 93: 2100–178. Spiller, Pablo T. and Emerson H. Tiller. 1996. “Invitations to Override: Congressional Reversals of Supreme Court Decisions.” International Review of Law and Economics, 16: 503–21. Sternglantz, Ruth E. 2005. “Raining on the Parade of Horribles: Of Slippery Slopes, Faux Slopes, and Justice Scalia’s Dissent in Lawrence v. Texas.” University of Pennsylvania Law Review, 153: 1097–120. Strauss, David A. 2010. The Living Constitution. New York, NY: Oxford University Press. Sunstein, Cass R. 1993. The Partial Constitution. Cambridge, MA: Harvard University Press. Thayer, James Bradley. 1893. “The Origins and Scope of the American Doctrine of Constitutional Law.” Harvard Law Review, 7: 129–56. Tushnet, Mark. 1995. “Policy Distortion and Democratic Deliberation: Comparative Illumination of the Countermajoritarian Difficulty.” Michigan Law Review, 94: 245–301. Tushnet, Mark, ed. 2008. I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston, MA: Beacon Press. Urofsky, Melvin I. 2015. Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue. New York, NY: Pantheon Books. Volokh, Eugene. 2003. “The Mechanisms of the Slippery Slope.” Harvard Law Review, 116: 1026–138. Weingast, Barry R. 1997. “The Political Foundations of Democracy and the Rule of Law.” American Political Science Review, 91: 245–63. Weingast, Barry R. 1998. “Political Stability and Civil War: Institutions, Commitment, and American Democracy.” In Analytic Narratives, edited by Robert Bates, Avner Greif, Margaret Levi, and JeanLaurent Rosenthal. Princeton, NJ: Princeton University Press. Weingast, Barry R. 2016. “Capitalism, Democracy and Countermajoritarian Institutions.” Supreme Court Economic Review, 23: 255–77. Whittington, Keith E. 1999. Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge, MA: Harvard University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 10_Chapter10_ts
/Pg. Position: 19 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
11. Losing faith in law’s autonomy: a comparative analysis Theunis Roux*
This chapter examines the conditions for a special kind of constitutional-cultural transformation—one in which a hegemonic ideology of law’s autonomy from politics weakens to be replaced by a conception of law, and judicial review in particular, as an adaptable instrument for the pursuit of political goals. A transformation of this sort is famously what is said to have occurred in the United States over the course of the last century. Driven first by the legal realists’ attack on formalism and then by the Warren Court’s liberal activism, public perceptions of the law/politics relation fundamentally changed. From an idea of constitutional decision-making as guided by technically rigorous, ideologically neutral reasoning methods, judicial review came instead to be seen as an institution through which the left and right sides of politics could pursue their competing visions of the American constitutional project. Though its causes and evolutionary dynamics were different, a broadly similar kind of constitutional-cultural transformation took place in India after the end of the 1975–1977 Emergency. There, the Supreme Court’s failure to stand up to the Congress Party’s repression of its political opponents badly damaged its reputation. Over the next decade, a group of politically progressive justices adapted many of the Court’s central doctrines, transforming it into an institutional voice for the poor. In the process, the legitimating ideology undergirding the Court’s authority changed—from an inherited colonial tradition of legal positivism to an understanding of the Court as a politically committed guardian of India’s democracy. What explains these two constitutional-cultural transformations, this chapter asks, and why, when similar transformations were mooted in Australia in the late 1980s and in South Africa in 1998, did they not occur? Why, in turn, did the German Federal Constitutional Court’s authority consolidate in the late 1950s and early 1960s around an understanding of the Basic Law as an “objective order of values” when the post-war transition to rights-based constitutional democracy might just as easily have triggered a move away from Germany’s long-standing tradition of legalism?1 The chapter uses a “comparative sequential method” (Falleti and Mahoney 2015) to answer these questions. Section A begins by setting out the five developments just * I thank the editors of this volume, Erin Delaney and Rosalind Dixon, for their comments on earlier drafts and also the participants in the October 2016 Northwestern Pritzker School of Law workshop. 1 “Legalism” is used here as a shorthand term for a legitimating ideology of law’s separability from politics. It is acknowledged that this is but one aspect of a rich concept. See Shklar 1964. On other definitions, US legal culture could be described as extremely “legalistic.” See, e.g., Kagan 2001.
204
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 205 mentioned, giving just enough detail to put the main variables in play. Section B then focuses on the dependent variable—the constitutional-cultural salience of the ideal of law’s autonomy—and classifies the five cases into instances of either successful (positive) or failed (negative) transformation of this ideal. Section C returns to the case studies to tease out the conditions for a successful transformation of this sort. Two conditions in particular are identified: (1) a significant exogenous shock to the complex of ideas through which the law/politics relation is understood; and (2) either a broad-based legal-cultural movement or a group of charismatic judges willing and able to drive the transformation forward. The absence of one or the other of these conditions, this section argues, explains the differences between the German, Australian, and South African cases, on the one hand, and the US and Indian cases, on the other. Section D presents a summing-up and conclusion.
A. FIVE DEVELOPMENTS Consider the following developments in the long-run constitutional politics of five countries: (1) the gradual weakening in the United States over the last century of the ideal of law’s autonomy from politics and the rise instead of a conception of judicial review as a site of political contestation over the meaning of core constitutional principles; (2) the German Federal Constitutional Court’s consolidation of its authority in the late 1950s and early 1960s around an understanding of the Basic Law as an “objective order of values”;2 (3) the rehabilitation of the Indian Supreme Court’s reputation after the 1975–1977 Emergency on the back of a politically progressive, pro-poor understanding of its mandate; (4) the “Mason Court revolution”3 in late1980s/early-1990s Australia during which a group of High Court justices attempted to introduce a more substantive, value-laden style of judicial reasoning; and (5) the South African Constitutional Court’s decision to keep faith with a liberal-legalist conception of law in the face of calls to treat the 1996 Constitution as a post-liberal project in radical social transformation. In their particulars, all these developments were products of the political circumstances, institutional dynamics, and legal traditions of the societies concerned. At a more abstract level, however, they were all species of a common phenomenon: the transformation—in some cases successful, in others not—in the constitutional-cultural salience of the ideal of law’s autonomy from politics. In the United States, several scholarly accounts point to a weakening over the last century of the ideal of law’s autonomy from politics. From a conception of law as “a structure of impartial and self-executing norms” (Horwitz 1992, 4), law has come instead to be seen as an instrument for the pursuit of substantive political goals (Summers 1981; Atiyah and Summers 1987; Kagan 2001; Tamanaha 2006). Most of these studies focus on the Lochner era from 1900 to 1937, when legal realists exploited the controversy surrounding the Supreme Court’s substantive due process reading of the Fourteenth Amendment to explode the myth of law’s neutrality. The full transformation 2 Lüth decision (BVerfGE 7, 198) as extracted and translated in Kommers and Miller 2012, 442–8. 3 This term was coined by Pierce 2006.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 2 /
Date: 11/7
JOBNAME: Delaney PAGE: 3 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
206 Comparative judicial review of US constitutional culture towards a more instrumentalist conception of law, however, was a more drawn-out process than this, with the new legitimating ideology really only stabilizing in the 1970s and 1980s. Part of the reason for this was that the legal realists were not themselves principally concerned with unmasking the politics of constitutional adjudication (Leiter 1997). Rather, their contribution was to critique the idea of law as a self-contained body of norms. The acceptance of this argument helped to destabilize “Classical Legal Thought” (Horwitz 1992), but it did not immediately suggest an alternative basis on which law’s claim to authority in a system of supreme-law judicial review might be justified. At least, the main implication of legal realist thought for that question—that judicial review might be justified by a combination of deference to majoritarian determinations of public policy and wise use of social science—never achieved hegemonic status.4 Instead, the conception of the law/politics relation that did eventually come to take hold was a product of the Warren Court era and, in particular, that Court’s account of constitutional adjudication as the search for the contemporary moral meaning of core political principles (Horwitz 1998; Powe 2000). While the Warren Court’s liberal activism was condemned as improperly political in conservative circles, there was no simple defaulting back to legalism after 1969. Rather, Republican presidents sought to appoint justices who would offer an originalist, but in reality no less ideologically inflected, reading of the Constitution. In this way, constitutional adjudication in the United States has come to be seen as a site of contestation between two opposing ideologies, each with its own preferred understanding of key precedents and each with its own preferred interpretive methodology (Kennedy 1997). While drawing on the legacy of legal realism, the stability of the system today depends less on the Supreme Court’s deference to social science-informed, democratic determinations of public policy and more on widespread public acceptance of the role of ideology in constitutional decision-making (Gibson and Caldeira 2011). In Germany, the Federal Constitutional Court’s decision in the 1958 Lüth case5 marked the beginning of an intense period of doctrinal development during which proportionality analysis, that seemingly most subjective of judicial reasoning methods, was transplanted from its origins in Prussian administrative law and used to give a rule-like structure to the review of constitutional rights (Cohen-Eliya and Porat 2013; Bomhoff 2013; Hailbronner 2015, 117–21). In 1949, when the Basic Law was adopted, this outcome was not foreordained. The inclusion of a comprehensive list of fundamental rights in an explicitly “never-again” constitution might conceivably have disrupted Germany’s long-standing tradition of legalism, especially given that tradition’s alleged role in the rise of National Socialism (Dyzenhaus 1997; Radbruch 2006). But this did not occur. Rather than being seen as extra-legal moral principles, the fundamental rights were treated in Lüth and subsequent cases as legally immanent values whose meaning could be objectively determined (Hailbronner 2015). In this instance, therefore, a significant transformation in constitutional form did not produce a 4
Of the Justices, Felix Frankfurter came closest to holding this view (Feldman 2010), but his conception of judicial review was quickly trumped by the Warren Court’s justice-seeking activism (White 1982, 173–90). 5 BVerfGE 7, 198.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 3 /
Date: 15/8
JOBNAME: Delaney PAGE: 4 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 207 concomitant transformation in constitutional culture. Rather, proportionality became the means through which Germany’s long-standing, but compromised, tradition of legalism was reinvigorated in a new institutional setting. In India, the Supreme Court’s failure to stand up to the suspension of habeas corpus in the 1976 Shukla case6 triggered an anxious reexamination of its doctrines that eventually led to profound changes in the Court’s role in national politics. From conservative defender of property rights against the zamindari abolition laws, the Court turned into an accessible forum for public discussion of all manner of social grievances and governance failures (Mehta 2005; Robinson 2009; Mate 2013). Canonical accounts of this process stress the role played by a core group of charismatic judges. Embarrassed by his performance in the Shukla case (Baxi 1985, 121 n.67) and motivated also by a sincere commitment to progressive politics, Justice P. N. Bhagwati set about developing a series of doctrines the authority of which rested less on their provenance in the constitutional text and more in their moral attractiveness as statements of the Constitution’s overriding purposes (Baxi 1985; Sathe 2002). Bhagwati was joined in this endeavor by Justice V. R. Krishna Iyer, who had not been party to the Shukla decision, but who had, like Bhagwati, been appointed by Indira Gandhi on the basis of his reputation as a politically “committed” judge (Austin 1999, 438 n.24). Together, Bhagwati and Krishna Iyer transformed both the Court’s reasoning style and its orientation towards democratic politics. In place of the originalism that had marked the Court’s early interpretation of the right to “life or personal liberty,”7 the Court read that provision as guaranteeing a “fair, just and reasonable” procedure.8 The Court’s approach to constitutional amendments, which had been part of the confrontation between it and the executive during the Emergency, also changed. Through the consolidation of the “basic structure” doctrine, the Court established itself as the final guarantor of the quality of India’s democracy. In the process, a constitutional culture that before independence had been shaped by “the British legacy of Austinian positivism” (Mate 2013: 63) took on a different character, one more willing to embrace the mutual interpenetration of law and politics. As in the United States after Lochner, the basis for law’s claim to authority shifted—from the assumed autonomy of law and legal reasoning processes to the moral attractiveness of the Court’s politically progressive reading of the Constitution. In Australia, Sir Anthony Mason, just before his appointment as Chief Justice in 1987, published an article exhorting his fellow judges to be more candid about the values informing their decisions (Mason 1986, 5). On assuming the leadership of the High Court, Mason and a group of like-minded judges set about developing a series of doctrines that depended on more substantive reasoning methods than the Court had previously used (Solomon 1999; Patapan 2000; Pierce 2006). In Nationwide News v. Wills9 and ACTV,10 the Court decided that the 1900 Australian Constitution contained 6 7 8 9 10
A.D.M. Jabalpur v. Shivkant Shukla (1976) 2 SCC 521. Article 21. See A.K. Gopalan v. State of Madras 1950 SCR 88. Maneka Gandhi v. Union of India (1978) 1 SCC 248 ¶ 40. Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1. Australian Capital Television Pty Ltd v. Commonwealth (1992) 177 CLR 106.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 4 /
Date: 15/8
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
208 Comparative judicial review an implied freedom of political communication that restricted the federal and state legislatures’ capacity to regulate the free flow of political ideas. Mason’s own judgment in Nationwide News went even further, holding that federal laws that were not directly in power, and which interfered with common-law freedoms, could be examined for means–end proportionality.11 In this way, the Mason Court attempted to transform not only the Court’s reasoning style, but also its role in Australian politics. Had this initiative succeeded, the Court would have changed from a primarily federalist review body to a forum for assessing the conformance of legislation to substantive principles of political morality. In this instance, however, the transformation stalled. Amidst a public outcry against the politicization of the Court’s role, a group of more traditionally minded justices mounted a rearguard action that drew on the Australian judiciary’s long-standing aversion to the making of political value judgments. In Lange,12 the Court eventually settled on an understanding of the implied freedom of political communication that reconciled it with the legalist reasoning methods endorsed in Engineers,13 the seminal 1920 decision around which the Court had first consolidated its authority (Galligan 1987). In South Africa, American critical legal studies scholar Karl Klare’s call to treat the 1996 Constitution as a “postliberal” project in radical social transformation (Klare 1998) likewise met with a mixed response. Many legal academics enthusiastically signed up for the project, and “transformative constitutionalism” became a kind of mantra that was ritually invoked in the footnotes of law journal articles (De Vos 2001, 58 n.23; Botha 2002, 613 n.9; Van der Walt 2006, 22 n.236; Liebenberg 2006, 6 n.2). The South African Constitutional Court was a little more skeptical, however, and its decisions generally remained true to the conception of law as anti-politics that had developed among the human rights community during the struggle against apartheid (Ellmann 1992; Roux 2013, 192–201). Some of the judges, to be sure, endorsed “transformation constitutionalism” as an apt term to describe the 1996 Constitution’s underlying philosophy (Moseneke 2002). But they tended to derive this philosophy from a principled reading of the Constitution rather than treating it as an ideological project that had to be superimposed from without. That ongoing commitment to legalism arguably had some drawbacks. In the United Democratic Movement case,14 for example, the Court failed to offer a substantive political analysis of the threat posed to South Africa’s democracy by the electoral dominance of the African National Congress. This disappointed some commentators, who saw the Court as missing a golden opportunity to address this pressing problem (Choudhry 2010; Issacharoff 2011). In other cases, however, the Court’s presentation of law as a social system distinct from politics had its advantages. In the Treatment Action Campaign case,15 the Court explicitly relied on that conception in a decision challenging then President Thabo Mbeki’s denialist views on HIV/AIDS. Less spectacularly, but just as significantly, 11
Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1, 31. Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520. 13 Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd (1920) 28 CLR 129. 14 United Democratic Movement v. President of the Republic of South Africa 2003 (1) SA 488 (CC). 15 Minister of Health v. Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) ¶¶ 20–22. 12
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 209 some of the formalist reasoning techniques that human rights lawyers had used to exploit loopholes in apartheid statutes reappeared in judgments enforcing constitutional rights.16 In this way, the Constitutional Court has generally resisted the call to declare the politicality of its function. Armed with a Constitution that does most of the substantive political theorizing for it, the Court has tended to go the German route of presenting fundamental rights as legal rights whose meaning may be objectively determined.
B. CHANGING CONCEPTIONS OF LAW’S AUTONOMY Constitutional cultures, as understood here, are clusters of ideas, shared beliefs, norms, and practices about the relationship between legal and political authority.17 Such cultures, like all cultures, are not static or uniform, and at any one time particular aspects of a constitutional culture may be in flux or in dispute. Constitutional cultures are also highly idiosyncratic, and no one constitutional culture is exactly like another. Nevertheless, it is possible for comparative purposes both to group constitutional cultures together according to their shared characteristics and to analyze common patterns in the evolution of constitutional cultures over time. At a sufficiently high level of abstraction, a finite number of ways of reconciling legal and political authority begins to emerge. These ways may be captured in the form of ideal types—stylized, and nowhere actually existing, legitimating ideologies whose characteristic features and evolutionary dynamics are amenable to comparative analysis.18 Thus, for example, authoritarian legalism describes a constitutional culture in which political authority is in part legitimated by the independence given to judges in defined areas of social life.19 Judges have final decision-making power in these areas, and may rule on such matters as contractual disputes or rights of inheritance without fear of regime interference. In areas more sensitive to the regime’s power-preserving interests, however, judges routinely defer to political prerogatives. The system as a whole is undergirded by a perverted ideology of law’s separation from politics. “Perverted” because, instead of providing the basis on which law speaks truth to political power, legalism in such constitutional cultures functions to legitimate the distinction between the sphere of private relations, in which law reigns, and the no-go area of regime-sensitive politics. To the extent that political rights, like freedom of speech and security from arbitrary detention, are unreliably enforced in such constitutional systems, authoritarian legalism holds that this is necessitated by the regime’s 16
See, e.g., Minister of Public Works v. Kyalami Ridge Environmental Association (Mukhwevho Intervening) 2001 (3) SA 1151 (CC) ¶¶ 59, 64–5, 83, 89, 117. 17 On the idea of legal culture, from which the concept of constitutional culture used here is derived, see Cotterrell 1997, Nelken 2004, Cotterrell 2006, and Nelken 2016. For a related definition of constitutional culture, see Siegel 2006, 1325. 18 For a more thorough explanation of this approach, see Roux, forthcoming. 19 Rajah 2012 uses the term “authoritarian rule of law” to mean roughly what is meant by authoritarian legalism here. See also Tushnet 2015 (using the term “authoritarian constitutionalism”).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 6 /
Date: 16/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
210 Comparative judicial review special role in promoting some or other overarching societal interest, such as national security, economic prosperity, or ethnic harmony.20 In the same way, it is possible to classify the five constitutional cultures considered here according to certain shared characteristics and to analyze changes in those characteristics over time. As functioning liberal democracies, political authority in all five societies was premised on the existence of an electoral mandate won under conditions of free and fair political competition. There were distinct differences, however, in the legitimating ideology undergirding law’s claim to authority, both between these societies and within these societies over time. In both the United States and India, as we have seen, a formerly hegemonic ideology of law’s autonomy from politics weakened. In both cases, too, an alternative legitimating ideology arose to take its place—the notion that judicial review, though deeply implicated in politics, is nevertheless (indeed, precisely for this reason) a useful device for pursuing political goals. The precise nature of this alternative legitimating ideology was different in each case. In India, the idea that the main purpose of judicial review was to transform Indian society along more egalitarian lines took hold, whereas in the United States the pursuit of competing left-right visions of the constitutional project lay at the heart of the new understanding. For comparative purposes, however, the common characteristic was a decline in the constitutional-cultural salience of the ideal of law’s autonomy from politics. This transformation has not been complete or completely uniform. In the United States, prospective Supreme Court justices still appeal to the idea of the Court as a neutral umpire during Senate confirmation hearings (Gibson and Caldeira 2011, 197; Tushnet 2013, ix). Such appeals evidently have some purchase in American constitutional culture or else they would not be made (Leiter 2010, 112). The late Justice Antonin Scalia’s promotion of originalism as an interpretive method may also be seen as an attempt (whether genuinely or strategically) to invoke a legalist conception of law’s authority. This suggests that the transformation to a more instrumentalist conception of law may have progressed further in certain sections of the constitutionalcultural community than others. To the extent that social survey data can be taken as a reflection of ideological salience, however, there does now appear to be public acceptance of the idea that ideology plays a legitimate role in constitutional adjudication (Gibson and Caldeira 2011). Further, as a matter of elite academic opinion, the proposition that US constitutional culture has undergone a fundamental transformation towards a more instrumentalist conception of law is today relatively uncontroversial (Summers 1981; Atiyah and Summers 1987; Kagan 2001, 56; Tamanaha 2006). Similarly, in India, the weakening of the ideal of law’s autonomy from politics and the shift to a more instrumentalist conception of law has been a slow-moving, 20
We might think here, for example, of Chile under General Augusto Pinochet and Singapore under Prime Minister Lee Kuan Yew as societies that developed an authoritarian legalist constitutional culture of this sort. In both those cases, courts were given significant autonomy to resolve private disputes, but desisted from enforcing political rights in ways that would have threatened the regime’s hold on power (Hilbink 2007; Rajah 2012). In Zimbabwe, the ruling ZANU-PF party draws its legitimacy primarily by presenting itself as the sole heir to that country’s tradition of revolutionary nationalism (Southall 2013).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 211 incomplete, but nevertheless clearly discernible process. Initially, the rejection of legalism in the 1980s might have been thought to be a temporary phenomenon that was contingent on particular judges’ pro-poor commitments. Over time, however, a more durable change has occurred so that Indian constitutional culture’s tolerance for ideologically motivated decision-making is today independent of the particular judicial ideology at issue. Indian Supreme Court justices are thus not uniformly leftprogressive, as the Court’s recent decision on sexual orientation rights illustrates.21 The Court’s interpretation of environmental rights likewise tends to favor middle-class rather than pro-poor concerns (Rosencranz and Jackson 2003). To be sure, these variations in the Court’s ideological direction are not as structured as they are in the United States. That is because in India, smaller benches make the development of coherent ideological blocs difficult (Robinson 2013; Chandrachud 2016). The fact that the Supreme Court still controls the judicial appointments process also suggests that the ideologies being reflected are not those of the dominant political coalition but of the New Delhi bar.22 Nevertheless, there is a broad similarity between the United States and India in so far as their constitutional cultures appear to tolerate a much higher degree of ideologically motivated decision-making than is the case elsewhere in the world. In Australia, the constitutional-cultural transformation that Sir Anthony Mason called for in the late 1980s was not realized. But the fact that the change he saw as being necessary was a change towards greater acceptance of the influence of extra-legal values on judicial decision-making supports the contention that this is a crucial distinguishing factor between constitutional cultures. Mason did not, it is true, go so far as to say that judges should have recourse to their own ideological values. Rather, he argued that they should take “community values” into account, which he assumed would be uniform enough to stabilize decision-making (Mason 1986, 5). Skepticism about that assumption was part of the reason why his call was resisted by more traditionally minded justices. Faced with a choice between a legalist suspension of disbelief in judicial review’s imperviousness to ideological influence and US-style alternating left-right ideological projects, the Australian High Court fell back on the formula that had served it so well in the past (Roux 2015). The Australian case thus provides a clear counter-example to the US and Indian cases, and invites consideration of the factors that hindered the transformation to a more instrumentalist conception of law. Likewise, there is a certain similarity between the constitutional-cultural transformation that Karl Klare argued was a precondition for the realization of the 1996 South African Constitution’s moral vision and the transformation that occurred in the United States. That correspondence was not coincidental. Klare is an American critical legal 21
Suresh Kumar Koushal v. NAZ Foundation (2014) 1 SCC 1; AIR 2014 SC 563. This has not always been true. Before the Supreme Court wrested control of the judicial appointments process from the executive in the Second and Third Judges Cases (Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441 and In re Special Reference No. 1 of 1998 (1998) 7 SCC 739; AIR 1999 SC 1) justices like Bhagwati and Krishna Iyer were seen as ideologically loyal to the prime minister who appointed them (Indira Gandhi, in this case). 22
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 8 /
Date: 11/7
JOBNAME: Delaney PAGE: 9 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
212 Comparative judicial review studies scholar who endorses Kennedy’s conception of constitutional adjudication as the pursuit of “ideological projects”—not just as a descriptive claim about the US but also as a normative claim about how South African judges should approach their task (Kennedy 1997; Klare 1998). What Klare saw in South Africa was a jarring contradiction between an entrenched culture of liberal legalism and the country’s state-of-the-art “postliberal” Constitution (Klare 1998, 151–6, 170). His solution for that perceived contradiction was to call on South African judges openly to declare the politics of constitutional adjudication. As Klare saw things, the “best interpretation” of the 1996 Constitution necessarily entailed this interpretive stance (Klare 1998, 187–8). That argument was plainly flawed, however. The 1996 Constitution’s clear textual commitment to progressive political values meant that a legalist posture was in fact quite well suited to drawing out its moral vision (Roux 2009). As happened in Australia, therefore, the transformation to a more instrumentalist conception of law never got off the ground. But the fact that Klare articulated his call in these terms again lends support to the idea that the strength of the ideal of law’s autonomy is a key distinguishing feature between constitutional cultures. In Germany, there was no widespread demand for a more instrumental conception of law and thus no failed transformation in that sense. In the debate over the direction of German constitutionalism after the end of the Second World War, only one prominent scholar advocated something resembling legal realism (Hailbronner 2015, 81). Nevertheless, the adoption of a supreme-law Constitution with a long list of fundamental rights in theory constituted a profound challenge to existing public understandings of the law/politics relation. As Hailbronner puts the point, the revival of legalism was “by no means a foregone conclusion. Chances were that the [Federal Constitutional] Court might have turned into a more political institution” (Hailbronner 2015, 79). The role of Germany in this comparison is thus that it represents a case where a weakening in the ideal of law’s autonomy was one possible trajectory opened up by a significant formal change to the constitutional system. The fact that this path was not taken makes Germany an interesting additional empirical setting for considering the conditions for this kind of constitutional-cultural transformation.
C. TWO CONDITIONS The common theme connecting the five developments considered in the previous section is that they all involved a potential change to the constitutional-cultural salience of the ideal of law’s autonomy. Where they differ is in the extent to which a change of that kind occurred. In two cases, the United States and India, legalism’s ideological hold significantly weakened. Not just that, but another complex of legitimating ideas, one premised on law’s instrumental usefulness in the pursuit of substantive political goals, came to replace it. In the three other cases—Germany, Australia, and South Africa—a transformation of this kind was either proposed or plausibly entailed by a
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 9 /
Date: 15/8
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 213 formal change to the constitutional system, yet did not occur.23 What accounts for this difference? Consider the five developments again, this time focusing on the role played by the following two factors: (1) the impact of an exogenous shock on the complex of legitimating ideas through which the ideal of law’s autonomy from politics had been maintained; and (2) the role played by judges and/or other prominent legal-cultural actors in either resisting the proposed change or promoting it and fashioning an alternative legitimating ideology. 1. The Exogenous Shock Condition In economics, an “exogenous shock” is an event that occurs outside an economic system in the sense that it is not cognizable as a change to one or more variables ordinarily making up that system. In the same way, we might think of an exogenous shock to a constitutional culture as an event that occurs outside the complex of legitimating ideas that ordinarily gives that culture a measure of stability. Such developments might include, for example, a major structural change to the economy, the outbreak of war or another kind of national security crisis, or a significant political realignment that introduces a formerly repressed group into the political process. When events like that occur, they have the potential to trigger a significant change in public understandings of the law/politics relation, either by driving a formal change to the constitutional system or by triggering public discussion of the legitimate scope of law’s authority and its relationship to political authority. Were such developments present in any of the five case studies and, if so, what role did they play? One of the most influential accounts of the “transformation of American law” that occurred over the course of the last century points to the presence of just such an exogenous shock (Horwitz 1992). According to Morton Horwitz, the initial drivers for the destabilization of “Classical Legal Thought” were the profound structural changes to the US economy that occurred during the latter part of the 19th century (Horwitz 1992, 9–31). Rapid urbanization and industrialization after the end of the Civil War, Horwitz argues, prompted state legislatures to intrude into what had previously been thought to be the private sphere of contractual relations (Horwitz 1992, 4). Responding to the dire working and living conditions of the new urban underclass, state legislatures from the 1880s onwards began enacting various types of welfare legislation, including laws regulating the basic conditions of employment. That development in turn produced a tension between received doctrinal understandings of the scope of the police power and state legislatures’ democratic mandates. As further explained by Howard Gillman, state courts during the latter part of the 19th century had grappled to develop a clear doctrinal distinction between genuinely public purpose-regarding regulations and “class legislation,” which merely adjusted market outcomes to favor one special interest group 23 In formal methodological terms, the US and India are positive cases that may be contrasted with the three negative cases of Australia, South Africa, and Germany. This allows for a combination of John Stuart Mill’s methods of agreement and difference and within-case process-tracing to explore the reason for these divergent outcomes. See Mill (1843) as discussed in Skocpol and Somers 1980, 183.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 10 /
Date: 11/7
JOBNAME: Delaney PAGE: 11 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
214 Comparative judicial review over another (Gillman 1993). When the Supreme Court started to become involved in these disputes in the 1890s, it took over this distinction in its substantive due process reading of the Fourteenth Amendment. It was the seeming artificiality of that reading that gave proto-realists like Pound and Justice Oliver Wendell Holmes Jr. the target they needed for their attack on formalism (Pound 1908, 615–16). Legal realism itself, as Brian Leiter has been at pains to argue, was not centrally concerned with demystifying the politics of constitutional adjudication (Leiter 1997). Rather, it was about demonstrating the indeterminacy of rule-based decision-making and showing how various extra-legal norms, such as the norms prevailing in the business community, influenced judicial decisions. The legal realist movement, therefore, was not solely responsible for driving the transformation in public conceptions of the law/politics relation that occurred over the last century. As noted earlier, it was not until the bipartisan acceptance of ideologically motivated decision-making in the 1970s and 1980s that this transformation was completed. But the legal realist assault on formalism was clearly a crucial step in this broader transformation process. Without that assault, the Warren Court would not have been able to present the Constitution as the continually evolving meaning of fundamental American political values. It is in this specific sense, then, that the economic changes to which Horwitz points may be said to have been a necessary condition for the broader transformation process (Horwitz 1992). By destabilizing the premises of Classical Legal Thought, these changes triggered a long-run process of constitutional-cultural development whose end point was the consolidation of a new conception of the law/politics relation. In the same way, the post-1980 transformation of Indian constitutional culture could be said to have been triggered by an exogenous shock. In this instance, the shock was a profound political realignment that saw the Congress Party’s rule seriously challenged for the first time. The entire sequence of events is too complex to relate here. The key point is that, despite her resounding 1971 election victory, widespread popular opposition to Prime Minister Indira Gandhi’s rule began to develop in 1974 (Guha 2007, 447–88). The reason for this rapid deterioration in Gandhi’s fortunes had to do partly with a downturn in India’s economy following the 1973 oil crisis, and partly with her failure to address corruption within the Congress Party, particularly at state level (Guha 2007, 475). In January 1974, a student uprising began in Gujarat (Guha 2007, 477). This spread rapidly to Bihar and other northern states. In March 1974, the students asked Jayaprakash Narayan, an old Congress Party stalwart, to head their movement. The protests rolled on for a further year under Narayan’s leadership, culminating in a mass rally in Delhi attended by 750,000 people (Guha 2007, 477). While all of this was going on, the Allahabad High Court had been hearing a challenge to Gandhi’s 1971 election to the Lok Sabha (the Indian Parliament’s lower house) that had been brought by her losing opponent, Raj Narain (Austin 1999, 314–19). The alleged wrongdoing—the use of government vehicles and other state resources to assist her in her campaign—hardly seemed significant in light of the ease of Gandhi’s election victory. In June of 1975, however, the Allahabad High Court ruled in Narain’s favor, thereby throwing the continuation of Gandhi’s prime ministership into doubt. Encouraged by her son, Sanjay, Gandhi moved to declare an internal state of emergency on June 25, 1975. A list of her political opponents had by this time already been drawn up, and thousands of arrests—mostly on very thin pretexts—were
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 11 /
Date: 15/8
JOBNAME: Delaney PAGE: 12 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 215 made. Two days afterwards, a presidential order was issued suspending the right to approach a court for enforcement of Article 21 of the Constitution, which guarantees due process (Baxi 1980, 80). The Supreme Court decided the central legal challenge to the denial of habeas corpus in Shukla.24 Of the ten High Court cases considered in the appeal, seven had softened the impact of the presidential order by holding that it did not override the ordinary administrative-law grounds for challenging a detention order (Baxi 1980, 79–80). Judge Hans Raj Khanna, in his famous dissent, took a different but equally plausible approach, arguing that Article 21 was not the sole repository of the right to personal liberty. Rather, there were various statutory rights against arbitrary deprivation of liberty that had survived both the presidential order and the Maintenance of Internal Security Act (which purported to override all existing common law and natural rights). Since it did not apply to these rights, Khanna concluded, the presidential order could not be said to have completely ousted the High Courts’ power under Article 226 to issue writs of habeas corpus (Baxi 1980, 79–80). The existence of these plausible alternative arguments fuelled the public’s sense that the majority’s decision in Shukla upholding the presidential order was motivated by political considerations—at worst, a craven capitulation to political pressure, at best, a strategic attempt to protect the Court from attack. While not justified by a fair reading of the majority judgments (Baxi 1980, 79–116), the general feeling that the majority had sought refuge in legal technicalities when the substantive injustice of the denial of rights was clear badly damaged the Court’s reputation. In January 1978, for example, the Times of India published a statement on its front page by a group of concerned Bombay lawyers and public intellectuals claiming that neither Chief Justice P. N. Bhagwati nor Y. V. Chandrachud, the judge next in line for the chief justiceship, was a fit and proper person for the job. Their opinions in Shukla, it was argued, had been “arrive[d] at … in total [dis]regard to precedent, by reasoning manifestly unsound, and [dressed up] by expressions that will testify only to a marked inclination to rule in favour of the State” (Austin 1999, 338). Such direct public criticisms of sitting judges had never been heard (Gadbois 2011, 254). It was in these circumstances that Bhagwati and Krishna Iyer set about constructing an alternative basis for the Court’s authority. Without directly attributing the Court’s failure in Shukla to legalism, these two justices used the space created by the destabilizing impact of that decision to drive a transformation, first in the Court’s doctrines and reasoning processes, and then in public conceptions of the Court’s legitimate role in national politics. As the Court’s new role became institutionalized and publicly accepted, a new understanding of the law/politics relation, one more tolerant of ideologically motivated decision-making, consolidated around it. Rather than the work of a broad-based intellectual movement, legalism’s hold on the constitutionalcultural imagination in India was thus weakened through the work of a group of charismatic judges. The dynamics of the transformation process were in this sense quite different from the equivalent US process. As in the United States, however, a crucial initial condition for the transformation was an exogenous shock to the existing 24
A.D.M. Jabalpur v. Shivkant Shukla (1976) 2 SCC 521.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 12 /
Date: 11/7
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
216 Comparative judicial review legitimating ideology. In both cases, the transformation from legalism to instrumentalism was not simply the working through of legalism’s internal developmental logic (cf. Nonet and Selznick 2001). It was precipitated by events that had their origins outside this complex of legitimating ideas. In the German case, the distinction between external political developments and legalism’s internal developmental logic is harder to draw. On standard accounts, legalism was both impacted by, and a facilitating cause of, the rise of National Socialism. In the best-known version of this analysis, Gustav Radbruch argued that “positivism, with its principle that ‘a law is a law,’ [had] … rendered the German legal profession defenseless against statutes that are arbitrary and criminal” (Radbruch 2006, 6). This was more than just a failure of intellectual resources in Radbruch’s view. It was that the positivist mindset had made it easier for the legal profession to separate out the obvious injustice of Nazi law from the question of its validity. In this way, legalism did not just fail to prevent, it also in some sense aided and abetted the collapse of the Weimar Republic. Twelve years later, Radbruch’s argument was at the center of the famous Hart-Fuller debate (see Hart 1958; Fuller 1958). There, H. L. A. Hart defended legal positivism against Radbruch’s charge that it had facilitated the rise of National Socialism. That view, Hart argued, overlooked the fundamentally liberal intuition behind legal positivism; namely, that the separation of law and morality allows an uncluttered examination of the moral worth of laws (Hart 1958, 615–21). To this, Lon Fuller replied that Hart had failed to see the enormity of Nazi Germany’s interference with ordinary principles of legality. A more morally laden conception of law, in Fuller’s view, would have prevented the legal profession from becoming the “ramparts” that so easily fell to the National Socialist assault (Fuller 1958, 648–61). In analytic legal philosophy, Hart is generally taken to have had the better of this exchange. In Germany, too, legal positivism is seen as having survived the challenge from natural law (Bomhoff 2013, 223). At least, legal positivism has evolved into a more sophisticated “value formalism” that, on the one hand, has assimilated the lesson that law, to qualify as such, should conform to minimum principles of political morality but, on the other, treats those principles as objective legal norms that may be enforced in ideologically neutral terms (Hailbronner 2015, 111–14). This outcome relates to the factor considered in the next section—the need for either a broad-based intellectual movement or a group of charismatic justices willing and able to exploit the crisis of legalism to drive the transformation to a different conception of the law/politics relation. For the moment, the point is that the convulsions of the Second World War clearly did pose a significant challenge to the German tradition of legalism, but that the legitimating power of this ideology did not in the end collapse. In combination with the US and Indian cases, this suggests that an exogenous shock may be a necessary but not sufficient condition for the kind of constitutional-cultural transformation considered here. In direct contrast with the German case, the second condition was clearly satisfied in Australia. What was missing was an exogenous shock comparable to those that occurred in the United States, India, and Germany. To be sure, when Sir Anthony Mason issued his call for judges to be more open about the role of extra-legal values in decision-making, the institutional and cultural setting in which the High Court was
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 13 /
Date: 11/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 217 operating was changing in certain respects. These changes included: the passage of the Australia Acts in 1986, which saw the High Court clearly identified for the first time as the final court of appeal in Australia (Solomon 1999; Patapan 2000, 18; Pierce 2006); the adoption elsewhere in the world of charters of fundamental rights, which was starting to trigger a global conversation about the role of constitutional courts in enforcing substantive political values (Patapan 2000, 19); and the appointment to the High Court of judges who had been exposed to a more sociological, policy-oriented style of legal reasoning by Sydney law professor Julius Stone (Patapan 2000, 20–4). These changes were not insignificant. None of them, however, was anything like the external economic or political developments that had challenged legalism’s hold in the United States, India, and Germany. Rather, they were all either slowly developing contextual changes or internal legal-cultural influences. The adoption of the Australia Acts in 1986 was thus the culmination of a gradual process that had been going on since 1968 when appeals from the High Court in federal matters were abolished. The rise of global constitutionalism, too, was a gradual process, in which Australia’s national identity could be said to have been defined precisely by its refusal to produce a constitutional statement of core political values. Finally, Professor Stone’s impact as a charismatic teacher of students who later went on to serve on the High Court was an internal legal-cultural factor rather than an external political development. While his teachings influenced the motivations of the Mason Court judges in calling for a constitutional-cultural transformation, Stone’s legal realist conception of constitutional adjudication did not on its own discredit the existing tradition of legalism. That work was left to the reformist justices themselves, who struggled to find any obviously existing crisis of legalism to which they could point (Roux 2015). Of the five cases, therefore, Australia is the one in which the exogenous shock condition was most clearly not satisfied. In South Africa, the collapse of apartheid—which had a legal system that, like Nazi Germany’s, had been associated with a debased version of legal positivism—in theory constituted a profound challenge to legalism. Many of the same debates that had taken place in Nazi Germany in the aftermath of the Second World War thus played themselves out in South Africa in the 1980s as the apartheid regime was beginning to weaken. The Hart–Fuller debate, for example, was prescribed reading for law students at the University of Cape Town, and every major South African legal philosopher was required to develop their own position on the implications of this debate for the South African case (Dugard 1971; Wacks 1984; Cameron 1987; Mureinik 1988). When the 1996 Constitution came to be drafted, there was a clear sense, as had been the case in post-war Germany, that the legal system needed to be “remoralized” and, as in Germany, a never-again Constitution was adopted with a comprehensive list of fundamental rights. In this sense, a new constitutional-cultural path opened up, one in which the law/politics relation might plausibly have been reimagined. In truth, however, legalism was never fully discredited in South Africa. The main reason for this was that the struggle against apartheid was in part waged through law—not by invoking a natural-law morality to which apartheid laws should conform, but by presenting common-law principles of freedom from arbitrary detention, equal treatment, and the like as legally immanent values conditioning the interpretation of apartheid statutes (Dyzenhaus 1991; Ellmann 1992). In this way, a sense of law as an
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
218 Comparative judicial review autonomous realm of principles that could be used to control the abuse of political power was preserved (Meierhenrich 2008). Indeed, that understanding became very powerful in the human rights community and appeared to have been vindicated by the fall of the apartheid regime. In the South African case, therefore, while the circumstances of the transition to constitutional democracy clearly presented an opportunity to interrogate legalism, there are doubts about whether that legitimating ideology was truly destabilized. In summary, in four of the five cases (the United States, India, Germany, and South Africa) there were circumstances—such as war, profound economic changes, or a significant political realignment—that, in theory, threatened public confidence in the ideal of law’s autonomy from politics. However, the strength of that ideal only declined in two of those cases (the United States and India). This suggests that an exogenous shock is a necessary but not sufficient condition for a constitutional-cultural transformation from legalism to a more instrumentalist conception of law. An exogenous shock, we might say, puts the ideal of law’s autonomy from politics under scrutiny and unleashes a public debate about how the law/politics relation might be reconceived. How that debate turns out, however, depends on whether there are legal-cultural actors willing and able to drive the transformation forward. It is to this second condition that the discussion now turns. 2. The Broad-based Legal-cultural Movement or Charismatic Judicial Actor Condition Constitutional-cultural transformations, the previous section has argued, begin with an exogenous shock—an external development that challenges the hegemonic complex of ideas through which the law/politics relation is understood. A shock of this kind is a necessary condition for the transformation, but it is not sufficient. Since legitimating ideologies are complexes of ideas, exogenous shocks are not self-identifying—they need to be constructed by legal-cultural actors with an interest in challenging the status quo. In the same way that successful social revolutions begin with “overtly political crises,” but are then driven by “a purposive, mass-based movement” (Skocpol 1979, 14, 24), constitutional-cultural transformations depend on actors willing and able to drive the transformation forward. In the United States, as we have seen, the economic changes identified by Horwitz triggered a growing tension between law’s claim to authority as a technically rigorous, scientific discipline and political authority claims based on popular democratic mandates (Horwitz 1992). Doctrinal norms relating to the scope of the police power, which were based on a principled, historically well-founded understanding of the US Constitution as a political contract for limited government, began to rub up against state electoral mandates to enact welfare legislation (Horwitz 1992; Gillman 1993). The tension between these two authority claims was real enough, but it needed explaining. For the “crisis of Classical Legal Thought” (Horwitz 1992) to develop into a more thoroughgoing challenge to legalism, someone or some group had to exploit it and propose a plausible alternative conception of the law/politics relation. The role played by the legal realist movement in this respect has been so well documented as to make any brief restatement appear superficial (Twining 1973;
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 15 /
Date: 11/7
JOBNAME: Delaney PAGE: 16 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 219 Horwitz 1992; Duxbury 1995; Leiter 1997; Tamanaha 2010). Even to describe legal realism as a “movement” is to invite charges of ignorance about just how organized its members were or what their self-conception as a group of legal academics, practicing lawyers, and judges was (Horwitz 1992, 169). The purpose here, however, is not to say anything new about legal realism, but simply to offer a brief account that can be used for comparative purposes. The key point to stress is the way in which both Progressive-Era thinkers and the legal realists constructed the crisis of Classical Legal Thought to suit their purposes. In his famous dissent in Lochner, the acknowledged “intellectual godfather” of the legal realist movement, Justice Oliver Wendell Holmes Jr., thus identified the source of the problem as being the majority justices’ formalism—their presentation of their private economic ideology as the necessary linguistic meaning of the Fourteenth Amendment.25 “The Fourteenth Amendment does not enact,” Holmes famously stated, “Mr. Herbert Spencer’s Social Statics.”26 Roscoe Pound, in his equally famous critique of “mechanical jurisprudence,” essentially repeated this argument: “The conception of freedom of contract,” he wrote, “is made the basis of a logical deduction … [but the] court does not inquire what the effect of such a deduction will be, when applied to the actual situation” (Pound 1908, 616). While forceful and effective, neither of these criticisms of Lochner was entirely accurate. The real problem with the decision, as Gillman demonstrates, was not the majority justices’ strained deductive logic, but their attempt to remain true to the reigning doctrinal understanding of the Fourteenth Amendment at a time when the economic premise for that understanding had collapsed (Gillman 1993). Justice Peckham’s majority opinion in Lochner thus shows very little trace of the textual formalism with which it has been charged. Indeed, the text of the Fourteenth Amendment is nowhere even cited.27 Rather, the opinion is a straightforward application of settled precedents relating to the scope of the police power, holding that state legislatures have the right to prohibit contracts only where such laws may reasonably be construed as conserving public morals, health, safety, and general welfare.28 Whether Justice Peckham was correct in deciding that the maximum-hours law in Lochner failed this test is open for debate. The charge that his application of the test was formalistic, however, is overblown. Holmes and Pound’s critique of Lochner, it is now clear, had more to do with the opportunity it presented to set out their own distinctive conception of law and judicial decision-making than with the actual crisis in Classical Legal Thought. Though breaking with Pound on a personal level, Karl Llewellyn, Jerome Frank, and the other leading legal realists essentially built on his criticisms of the alleged conceptualism of Lochner when developing their own critique of formalism (Horwitz 1992). Rather than the application of a gapless system of rules, they famously argued, judicial decisions should be seen as discretionary choices influenced by extra-legal norms. Since legal rules, such as those governing the interpretation of statutes, could be 25 26 27 28
See Lochner v. New York, 198 U.S. 45, 75 (1906) (Holmes, J., dissenting). Id. at 75. See id. at 45–65 (Peckham, J., majority). Id. at 53.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 16 /
Date: 11/7
JOBNAME: Delaney PAGE: 17 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
220 Comparative judicial review manipulated to justify either outcome, what mattered was the judge’s intuitive sense, based on his or her practical experience, of what justice required (Twining 1973; Duxbury 1995). These criticisms downplayed the determinacy of law in the vast number of cases that are not litigated. They also underplayed the role of background norms of legal culture in stabilizing judicial decision-making, a point on which Llewellyn later recanted (Llewellyn 1960). Nevertheless, the legal realist movement was largely successful in its principal aim of drawing attention to the discretionary nature of judicial decisionmaking. Building on the platform created by Holmes and Pound and drawing further support from other intellectual currents—such as Deweyan pragmatism—the legal realists successfully exposed law’s pretensions to being a determinate science. For a broad-based legal-cultural movement to exploit a crisis in the complex of legitimating ideas undergirding a system of judicial review, this brief account suggests, it is not necessary for that crisis to be accurately identified. Provided there is a crisis of some kind, the diagnosis at the time need not conform to what we, with the wisdom of hindsight, would now say was its actual nature. Equally and relatedly, the path followed by a constitutional culture in response to such a crisis need not correspond to what we might now think was a logical solution to the crisis. Broad-based legal-cultural reform movements inevitably have their own intellectual agendas, and may be influenced by contemporaneous developments that have little to do with the crisis that provides the initial space for their activities. What matters is whether the existing tradition of thinking about the legitimate basis for law’s authority is indeed destabilized, and whether the movement is able effectively to capitalize on this for its own purposes. Standard accounts of the transformation of Indian constitutional culture after the 1975–1977 Emergency do not attribute a significant role to a broad-based legal-cultural movement. Rather, the central figures in the Indian drama are said to be judges acting as legal-cultural vanguardists—exploiting the crisis of legalism triggered by the Court’s performance in the Shukla case to drive a new conception of the law/politics relation. The leading role of Justices Bhagwati and Krishna Iyer in this respect has already been mentioned. Both had been appointed by Indira Gandhi before the Emergency on the strength of their reputations as politically committed judges. When she returned to power in 1980, they were given the space to reinvent the Supreme Court as an institutional voice for the poor and other marginalized groups. While Gandhi’s own pro-poor populism was arguably cynical (Austin 1999), Bhagwati and Krishna Iyer’s political convictions were by all accounts sincere (Baxi 1985, 113). Rather than a strategic bid for curial power, therefore, their development of such doctrines as the Court’s epistolary jurisdiction and justiciable rights to livelihood must be viewed as a principled re-imagining of the Court’s role in national politics. In Germany, as we have seen, there was little intellectual support for a more instrumentalist conception of law. Martin Drath was the most prominent of only a few legal scholars committed to a more “legal realist” understanding of constitutional adjudication (Hailbronner 2015, 80–82). In her analysis of the Federal Constitutional Court’s post-war record, Michaela Hailbronner argues that this might have been because legal positivism provided German legal professionals with a way of avoiding moral culpability for their part in the evils of National Socialism: “By blaming positivism, lawyers could shift responsibility to existing structures rather than accept
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 17 /
Date: 11/7
JOBNAME: Delaney PAGE: 18 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 221 their individual guilt” (Hailbronner 2015, 76). Another factor, Hailbronner suggests, was the idea that the problem in Nazi Germany had been the instrumentalization of law in service to authoritarian ends—i.e., law had not been separate enough to provide a bulwark against the rise of National Socialism. On that analysis, the logical way forward was that “[l]aw should one again serve as a guideline for politics rather than merely its handmaiden” (Hailbronner 2015, 76). In this way, an exogenous shock that might have served as a trigger for a thorough re-examination of legalism in fact provided momentum for the re-invigoration of that tradition, albeit with the difference that positive legal norms were seen to be infused with the values emanating from the Bill of Rights. In South Africa and Australia, by contrast, there were strong voices calling for the adoption of a more instrumentalist conception of law. In the former case, Klare specifically pitched his call for “transformative constitutionalism” as a call for the transformation of South Africa’s prevailing culture of liberal legalism (Klare 1998). In Australia, several well-placed judges, including at one point a majority of the High Court, openly supported a move to recognize the role of extra-legal values in constitutional adjudication. Although neither of these initiatives could be described as a broad-based legal-cultural movement, these calls were at least as strong as the charismatic leadership provided by Bhagwati and Krishna Iyer in India. And yet both failed to produce the desired transformation. The explanation for this outcome lies both in a certain weakness in the initial condition for the transformation and in the absence of a supportive environment once the call had been made. In the Australian case, as we have seen, there was no real exogenous shock to the prevailing ideology of legalism, which by the 1980s had become very established (Pierce 2006). In the absence of that condition, Mason and his fellow justices had to invent a crisis where none really existed. In doing so, they ran into a severe (and characteristically Australian) “if it ain’t broke don’t fix it” problem. More than this, their intervention appeared to generate a crisis of its own as the Mason Court’s doctrinal innovations inevitably triggered a degree of public controversy about the Court’s role. All these factors helped to contain Mason’s transformative call and drive a return under subsequent chief justices to the safe haven of legalism. The Australian case thus strongly suggests that the mere existence of a sympathetic judiciary is not a sufficient condition for the kind of constitutional-cultural transformation considered here. The existing tradition of legalism needs to be destabilized by a significant exogenous shock if legal-cultural actors intent on driving the transformation are to succeed. The earlier discussion of South Africa has already pointed to the survival of a nobler vision of law as anti-politics under apartheid. Thus, there are doubts here, too, about the significance of the exogenous shock to legalism. In addition, South Africa in 1996 was at a very different stage of legal and political development compared to the United States in either the 1920s or the 1970s. Although legalism was well entrenched as a hegemonic discourse (Chanock 2001), the transition to democracy raised the question of whether the rule-of-law state that had served white sub-society could be spread to benefit the majority black population (Meierhenrich 2008). There had also been a strong socialist tradition within the ruling African National Congress, which was inclined to a crude instrumentalist conception of law. Under those conditions, the South
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 18 /
Date: 11/7
JOBNAME: Delaney PAGE: 19 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
222 Comparative judicial review African Constitutional Court under Chief Justice Arthur Chaskalson decided that liberal rule-of-law institutions were fragile and that the ideal of law’s autonomy from politics needed to be preserved (Roux 2013). As a result, while enthusiastically endorsed by legal academics, there was little elite judicial support for implementing Klare’s call to declare the politics of constitutional adjudication. While endorsing the idea of the 1996 Constitution as a transformative document, the judges of the Chaskalson Court, in their extra-curial statements and judicial practices, presented the Constitution as a body of legal norms whose meaning could be discerned through an ideologically neutral reasoning process. The fact that the 1996 Constitution was not just plausibly open to a politically progressive, pro-poor reading, but in fact could not be interpreted in any other way (Roux 2009), helped to sustain this fundamentally legalist conception of the Court’s role. South Africa for these reasons represents a case where neither of the conditions for a successful transformation to a more instrumentalist conception of law was fully satisfied: the first because a nobler vision of law as anti-politics survived the transition to democracy, and the second because, though mooted in academic circles, the most powerful legal-cultural actor—the Constitutional Court—had little inclination to drive the change.
D. CONCLUSION The preceding discussion may be summarized in the form of Table 11.1. Table 11.1 Conditions for loss of faith in law’s autonomy
Significant exogenous shock to prevailing ideology of legalism? Broad-based legal-cultural movement with interest in exploiting crisis? Judges capable and willing to drive transformation to new legitimating ideology? Transformation achieved
US
India
Germany
Australia
Yes
Yes
Yes
No
South Africa No
Yes
No
No
No
No
Yes
Yes
No
Yes
No
Yes
Yes
No
No
No
The findings captured in Table 11.1 support an inductively derived theoretical conjecture that, in societies that have adopted a system of strong-from judicial review, a durable weakening in the ideal of law’s autonomy from politics—and its substitution by a more instrumentalist conception of law—occurs when (1) the existing ideology of legalism is destabilized by a significant exogenous shock; and (2) there exists either a broad-based legal-cultural movement or a group of charismatic judges willing and able
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 19 /
Date: 11/7
JOBNAME: Delaney PAGE: 20 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 223 to drive the transformation forward. Further research is required to test this conjecture and to explore the dynamics of this kind of constitutional-cultural change in different settings.
REFERENCES Atiyah, P. S. and Robert S. Summers. 1987. Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions. Oxford: Clarendon Press. Austin, Granville. 1999. Working a Democratic Constitution: A History of the Indian Experience. Oxford: Oxford University Press. Baxi, Upendra. 1980. The Indian Supreme Court and Politics. Lucknow: Eastern Book Co. Baxi, Upendra. 1985. “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India.” Third World Legal Studies 4: 107–32. Bomhoff, Jacco. 2013. Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse. Cambridge: Cambridge University Press. Botha, Henk. 2002. “Metaphoric Reasoning and Transformative Constitutionalism (Part 1).” Tydskrif vir Suid-Afrikaanse Reg 2002: 612–27. Cameron, Edwin. 1987. “Nude Monarchy: The Case of South Africa’s Judges.” South African Journal on Human Rights 3: 338–46. Chandrachud, Chintan. 2016. “Measuring Constitutional Case Salience in the Indian Supreme Court.” Journal of Indian Law and Society 6: 42–73. Chanock, Martin. 2001. The Making of South African Legal Culture 1902–1936: Fear, Favour and Prejudice. Cambridge: Cambridge University Press. Choudhry, Sujit. 2010. “‘He had a Mandate’: The South African Constitutional Court and the African National Congress in a Dominant Party Democracy.” Constitutional Court Review 2: 1–86. Cohen-Eliya, Moshe and Iddo Porat. 2013. Proportionality and Constitutional Culture. Cambridge: Cambridge University Press. Cotterrell, Roger. 1997. “The Concept of Legal Culture.” In Comparing Legal Cultures, edited by David Nelken. Aldershot: Dartmouth. Cotterrell, Roger. 2006. “Comparative Law and Legal Culture.” In The Oxford Handbook of Comparative Law, edited by Mattias Riemann and Reinhard Zimmermann. Oxford: Oxford University Press. De Vos, Pierre. 2001. “Substantive Equality after Grootboom: The Emergence of Social and Economic Context as a Guiding Value in Equality Jurisprudence.” Acta Juridica 2001: 52–69. Dugard, John. 1971. “The Judicial Process, Positivism and Civil Liberty.” South African Law Journal 88: 181–200. Duxbury, Neil. 1995. Patterns of American Jurisprudence. Oxford: Clarendon Press. Dyzenhaus, David. 1991. Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy. Oxford: Clarendon Press. Dyzenhaus, David. 1997. Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar. Oxford: Oxford University Press. Ellmann, Stephen. 1992. In a Time of Trouble: Law and Liberty in South Africa’s State of Emergency. Oxford: Clarendon Press. Falleti, Tulia G. and James Mahoney. 2015. “The Comparative Sequential Method.” In Advances in Comparative-Historical Analysis, edited by James Mahoney and Kathleen Thelen. New York, NY: Cambridge University Press. Feldman, Noah. 2010. Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices. New York, NY: Twelve. Fuller, Lon L. 1958. “Positivism and Fidelity to Law—A Reply to Professor Hart.” Harvard Law Review 71: 630–72. Gadbois, George H., Jr. 2011. Judges of the Supreme Court of India: 1950–1989. Oxford: Oxford University Press. Galligan, Brian. 1987. The Politics of the High Court. Brisbane: University of Queensland Press. Gibson, James L. and Gregory A. Caldeira. 2011. “Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?” Law & Society Review 45: 195–219.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 20 /
Date: 11/7
JOBNAME: Delaney PAGE: 21 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
224 Comparative judicial review Gillman, Howard. 1993. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Durham, NC: Duke University Press. Guha, Ramachandra. 2007. India after Gandhi: The History of the World’s Largest Democracy. London: Macmillan. Hailbronner, Michaela. 2015. Traditions and Transformations: The Rise of German Constitutionalism. Oxford: Oxford University Press. Hart, H. L. A. 1958. “Positivism and the Separation of Law and Morals.” Harvard Law Review 71: 593–629. Hilbink, Lisa. 2007. Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile. New York, NY: Cambridge University Press. Horwitz, Morton J. 1992. The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy. New York, NY: Oxford University Press. Horwitz, Morton J. 1998. The Warren Court and the Pursuit of Justice. New York, NY: Hill and Wang. Issacharoff, Samuel. 2011. “Constitutional Courts and Democratic Hedging.” Georgetown Law Journal 99: 961–1012. Kagan, Robert A. 2001. Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard University Press. Kennedy, Duncan. 1997. A Critique of Adjudication (Fin de Siècle). Cambridge, MA: Harvard University Press. Klare, Karl E. 1998. “Legal Culture and Transformative Constitutionalism.” South African Journal on Human Rights 12: 146–88. Kommers, Donald P. and Russell A. Miller. 2012. The Constitutional Jurisprudence of the Federal Republic of Germany. Durham, NC: Duke University Press. Leiter, Brian. 1997. “Rethinking Legal Realism: Toward a Naturalized Jurisprudence.” Texas Law Review 76: 267–315. Leiter, Brian. 2010. “Legal Formalism and Legal Realism: What Is the Issue?” Legal Theory 16: 111–33. Liebenberg, Sandra. 2006. “Needs, Rights and Transformation: Adjudicating Social Rights.” Stellenbosch Law Review 17: 5–36. Llewellyn, Karl. 1960. The Common Law Tradition: Deciding Appeals. Boston, MA: Little Brown. Mason, Anthony. 1986. “The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience.” Federal Law Review 16: 1–28. Mate, Manoj. 2013. “Public Interest Litigation and the Transformation of the Supreme Court of India.” In Consequential Courts: Judicial Roles in Global Perspective, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. New York, NY: Cambridge University Press. Mehta, Pratap Bhanu. 2005. “India’s Judiciary: The Promise of Uncertainty.” In Public Institutions in India: Performance and Design, edited by Devesh Kapur and Pratap Bhana Mehta. Delhi: Oxford University Press. Meierhenrich, Jens. 2008. The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652–2000. Cambridge: Cambridge University Press. Mill, John Stuart. 1843. A System of Logic, Ratiocinative and Inductive. Moseneke, Dikgang. 2002. “Fourth Bram Fischer Memorial Lecture: Transformative Adjudication.” South African Journal on Human Rights 18: 309–19. Mureinik, Etienne. 1988. “Dworkin and Apartheid.” In Essays on Law and Social Practice in South Africa, edited by Hugh Corder. Cape Town: Juta. Nelken, David. 2004. “Using the Concept of Legal Culture.” Australian Journal of Legal Philosophy 29: 1–25. Nelken, David. 2016. “Comparative Legal Research and Legal Culture: Facts, Approaches and Values.” Annual Review of Law and Social Science 12: 45–62. Nonet, Philippe and Philip Selznick. 2001. Toward Responsive Law: Law and Society in Transition. New Brunswick, NJ: Transaction Publishers. Patapan, Haig. 2000. Judging Democracy: The New Politics of the High Court of Australia. New York, NY: Cambridge University Press. Pierce, Jason L. 2006. Inside the Mason Court Revolution: The High Court of Australia Transformed. Durham, NC: Carolina Academic Press. Pound, Roscoe. 1908. “Mechanical Jurisprudence.” Columbia Law Review. 8: 605–23. Powe, Lucas A. 2000. The Warren Court and American Politics. Cambridge, MA: Harvard University Press. Radbruch, Gustav. 2006. “Statutory Lawlessness and Supra-Statutory Law (1946).” Oxford Journal of Legal Studies 26: 1–11.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 21 /
Date: 11/7
JOBNAME: Delaney PAGE: 22 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Losing faith in law’s autonomy 225 Rajah, Jothie. 2012. Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore. Cambridge: Cambridge University Press. Robinson, Nick. 2009. “Expanding Judiciaries: India and the Rise of the Good Governance Court.” Washington University Global Studies Law Review 8: 1–69. Robinson, Nick. 2013. “Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts.” American Journal of Comparative Law 61: 173–208. Rosencranz, Armin and Michael Jackson. 2003. “The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power.” Columbia Journal of Environmental Law 28: 223–54. Roux, Theunis. 2009. “Transformative Constitutionalism and the Best Interpretation of the 1996 South African Constitution: Distinction without a Difference?” Stellenbosch Law Review 20: 258–85. Roux, Theunis. 2013. The Politics of Principle: The First South African Constitutional Court, 1995–2005. Cambridge: Cambridge University Press. Roux, Theunis. 2015. “Reinterpreting the Mason Court Revolution: An Historical Institutionalist Account of Judge-Driven Constitutional Transformation in Australia.” Federal Law Review 43: 1–25. Roux, Theunis. Forthcoming. The Politico-Legal Dynamics of Judicial Review: A Comparative Analysis. Cambridge: Cambridge University Press. Sathe, S.P. 2002. Judicial Activism in India: Transgressing Borders and Enforcing Limits. Delhi: Oxford University Press. Shklar, Judith N. 1964. Legalism: Law, Morals, and Political Trials. Cambridge, MA: Harvard University Press. Siegel, Reva B. 2006. “Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA.” California Law Review 94: 1323–419. Skocpol, Theda. 1979. States and Social Revolutions: A Comparative Analysis of France, Russia and China. New York, NY: Cambridge University Press. Skocpol, Theda and Margaret Somers. 1980. “The Uses of Comparative History in Macrosocial Inquiry.” Comparative Studies in Society and History 22: 174–97. Solomon, David. 1999. The Political High Court: How the High Court Shapes Politics. Sydney: Allen & Unwin. Southall, Roger. 2013. Liberation Movements in Power: Party & State in Southern Africa. Woodbridge: James Currey. Summers, Robert S. 1981. “Pragmatic Instrumentalism in Twentieth Century American Legal Thought—A Synthesis and Critique of our Dominant Theory of Law and its Use.” Cornell Law Review 66: 861–948. Tamanaha, Brian Z. 2006. Law as a Means to an End: Threat to the Rule of Law. New York, NY: Cambridge University Press. Tamanaha, Brian Z. 2010. Beyond the Formalist-Realist Divide: The Role of Politics in Judging. Princeton, NJ: Princeton University Press. Tushnet, Mark. 2013. In the Balance: Law and Politics on the Roberts Court. New York, NY: W. W. Norton & Company. Tushnet, Mark. 2015. “Authoritarian Constitutionalism.” Cornell Law Review 100: 391–461. Twining, William. 1973. Karl Llewellyn and the Realist Movement. Cambridge: Cambridge University Press. Van der Walt, A. J. 2006. “Transformative Constitutionalism and the Development of South African Property Law (Part 2).” Tydskrif vir Suid-Afrikaanse Reg 2006: 1–31. Wacks, Raymond. 1984. “Judges and Injustice.” South African Law Journal 101: 266–85. White, G. Edward. 1982. Earl Warren: A Public Life. New York, NY: Oxford University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 11_Chapter11_ts
/Pg. Position: 22 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
12. Courts and support structures: beyond the classic narrative David Landau
In the seminal book The Rights Revolution, Charles Epp argues based on comparative analysis that courts trying to carry out rights revolutions will only succeed when they enjoy the support of strong civil society communities (Epp 1998). These groups both feed courts cases and help implement their judgments. Without such a support structure, courts may be able to issue isolated revolutionary judgments, but they will not succeed in carrying out projects of social change. Epp’s claim is part of a broader literature on the ways in which the exercise of judicial power depends on the nature of political and social context. This work has rightly refocused scholarly attention in comparative constitutional law away from courts themselves and towards the myriad of actors and institutions that shape courts and their judgments. It is a useful corrective for scholarship, which still sometimes fixates too much on judges and their jurisprudence, and not enough on viewing judicial review as a social and political institution. This chapter builds on Epp’s canonical contribution, suggesting ways in which his work and that of others working on support structures might be expanded upon for comparative research. I focus on two related points. The first is that support structures are best envisioned as heterogeneous rather than homogeneous. There is often an array of possible groups on which judges might depend or with whom they might ally: political parties, ordinary court judges, domestic civil society groups, international NGOs, and the general public, among others. Rather than asking whether a court has external support, one might ask with which groups a court or its judges are most closely linked. A close examination of these ties may reveal much about a court’s behavior and its success in carrying out different kinds of agendas. The second point is that judges have some ability to shape their external support structures. Their decisions can influence the cohesion of civil society groups, as well as those groups’ leverage over state officials and their willingness to rally behind the court or its agendas. Some forms of judicial review can strengthen civil society, while others may increase the popularity of courts with the public. Both of these arguments point in the same general direction: Judges depend heavily on their support structures, as Epp pointed out, but their jurisprudential choices also have some ability to influence the shape and strength of these support structures. Judges are neither unconstrained heroes nor wholly passive objects of their context. This chapter relies on a number of different examples from comparative constitutional law and politics to support these two arguments. The payoff of this line of inquiry, in turn, is multifaceted and both descriptive and normative. Understanding the heterogeneity of support structures may help us build more nuanced theories of judicial behavior and success by giving us different accounts of why judges act the way they 226
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 1 /
Date: 15/8
JOBNAME: Delaney PAGE: 2 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Courts and support structures 227 do. Working ideas of judicial agency into theories that emphasize social or political environment may help us build more realistic theories of judicial review. It may also help us to explain cases where courts gain power despite an inhospitable environment, such as where the party system is non-competitive or where civil society is weak. For normative theorists, understanding the ways in which courts can influence their political environments, even under constrained conditions, may enrich the advice that those theorists offer judiciaries seeking to build up power. The rest of this chapter is organized as follows. Section A briefly outlines the basic story of courts and support structures, focusing on Epp’s lasting contribution to the field. Section B draws upon a number of comparative examples to explore heterogeneity in support structures, while Section C marshals similar evidence for the claim that courts can take actions to influence the power and shape of their support structures. Finally, Section D concludes by noting that understanding the ways in which courts influence a number of different kinds of actors in their external environment may help us build more nuanced understandings of the effects of judicial power. Rather than simply asking whether courts are independent, the kinds of analysis explored in this chapter may be helpful in determining more precisely why courts behave in different ways.
A. SUPPORT STRUCTURES: THE BASIC STORY Charles Epp famously argues that courts are dependent on “support structures” from civil society and elsewhere in order to carry out many goals (Epp 1998, 17–18). Based on a comparative study of attempted rights revolutions in four contexts—the United States, Canada, India, and the UK—Epp argues that even very determined courts (like the Indian Supreme Court) can achieve little if they do not enjoy backing from civil society. He points out that the Indian Supreme Court developed an aggressive form of judicial activism on certain issues and even developed extreme procedural measures to invite claims, but argues that it was able to achieve relatively little because it was not surrounded by a robust and supportive civil society community (Epp 1998, 108–10). In contrast, countries like Canada and the UK achieved more, despite a judiciary that was less inclined to judicial activism, because civil society support existed in those countries. In short, Epp claims that success in carrying out rights revolutions is less about the legal tradition of the country and internal culture of activism within the judiciary (where the Indian Supreme Court was far more aggressive than the other courts studied), than about the nature and density of civil society in each of the countries at issue (Epp 1998, 11–17). Epp argues that courts are dependent on support structures to carry out a number of different tasks. First, courts depend on these groups to bring them a steady stream of the right cases. In the United States, for example, public interest groups strategically select cases to bring to the courts, helping to ensure that victories build on each other rather than remaining isolated. Since courts are normally reactive rather than proactive institutions, they are in part dependent on outside groups for their agenda (Epp 1998, 18). Epp argues that even creative and aggressive attempts by courts to invite claims—such as the Indian practice of allowing claims in virtually any form, including
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 2 /
Date: 11/7
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
228 Comparative judicial review handwritten notes—cannot fully substitute for the agenda-setting function of civil society groups. Although Epp himself does not emphasize the point in The Rights Revolution, courts also rely heavily on civil society groups after judgments have been issued. These groups may, for example, aid a court in monitoring compliance with judicial decisions, helping to ensure that judicial pronouncements are actually carried out. This function may be particularly important in cases where courts issue structural or dialogical remedies, and therefore where compliance is a time-consuming and difficult-to-measure process. Furthermore, and as Epp has explored in more depth in subsequent work, civil society groups and other support structures can help to carry victories earned in the courtroom into the political sphere, helping to expand on these achievements by enshrining them in laws or bureaucratic programs (Epp 2009, 15–18). Epp’s work is related to a broader literature suggesting that courts are dependent on their political context in many different ways. Other scholars have shown the way in which the design of courts and their behavior is dependent on the nature of the political context. An influential line of scholarship, for example, argues that the competitiveness of the party system affects the likelihood that judiciaries will rule against incumbent governments (Stephenson 2003; Ginsburg 2003). The argument here is that political actors are more likely to tolerate independent judiciaries as a form of insurance where they do not expect to be in power forever. Yet other work sees judicial empowerment as fulfilling the agenda of particular political actors to maintain their power when it is threatened in the political sphere (Hirschl 2004) or to carry out other goals such as holding together fragile political coalitions (Graber 1993) or finding alternative routes for the achievement of political goals (Whittington 2005). Finally, a third vein of work argues that courts often rule in accordance with public opinion, or that they rely heavily on popular support in order to be effective and to be protected against political backlash against their decisions (Friedman 2009). In short, Epp’s contribution is part of a massive literature on the ways in which judicial design, performance, and effectiveness depend on aspects of the political and social context. An important contribution of this work has thus been to shift the focus of the inquiry away from judicial decisions themselves and towards their impact on politics and society. While courts may appear to be relatively autonomous and powerful if attention is focused solely on the moment of decision, their relative weaknesses appear much more apparent if one focuses on compliance and, beyond compliance, on the impact of judgments. At the very least, these issues deserve sustained empirical attention. The basic claim of the support structure literature, of course, raises important continuing questions suitable for comparative research. One is the extent to which the dependence of courts on support structures renders them ineffective or even counterproductive at carrying out projects of social change. An extreme version of the claim is the one made by Rosenberg with respect to the United States: Depending on courts for projects of social change is a “hollow hope” because the only conditions where courts will be successful in those projects is where they have so much political and social support that the projects would have occurred anyway (Rosenberg 1991). In other words, the independent contribution of courts to these projects is either very low or zero. Beyond this, some work suggests that courts actually frustrate projects of social
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 3 /
Date: 11/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Courts and support structures 229 change by pushing actors towards courts and law rather than towards less glamorous but ultimately more promising routes of political change (Scheingold 2004). Put differently, the false allure of the law may siphon off resources that would otherwise have been productively used to carry out political projects. In a comparative context as in the United States, these arguments are theoretically possible but of course logically quite distinct from Epp’s own claim. It may be—as much scholarship working on the relationship between courts and social movements points out—that these movements turn to courts because the judiciary offers the promise of fulfilling goals for those movements that cannot easily be replicated by other paths. Framing struggles as rights disputes in a litigation context may, for example, offer symbolic benefits, helping social movements to organize (McCann 1994). Courts may also offer a viable route for movements that are otherwise having trouble getting their voices heard, given the different attitudes and rules of access for the judiciary as opposed to other institutions. Another important comparative issue raised by Epp’s claim is its variance according to context. To a degree, for example, judicial design may be able to ameliorate some of the harms associated with having a weak support structure. Where access to the judiciary is very easy because of the design of individual complaint mechanisms and other devices, courts may be more likely to get access to information about a wide range of social problems and may be less dependent on support structures to curate cases and therefore to carry out rights revolutions. Wilson suggests that this is the case in both Costa Rica and Colombia, where he suggests that explosions of rights litigation occurred despite the relative weakness of support structures and because judiciaries were designed to be extremely easy to access (Wilson 2009, 61). Where courts have better docket control, they may also be able to screen cases themselves rather than relying so heavily on civil society groups to screen cases. Of course, Epp argues that there are limits on the ability of judicial design to substitute for strong external support. The Indian Supreme Court, for example, developed tools to aggressively invite claims, but the weakness of civil society lessened its ability to enforce those claims or to turn legal victories into broader public policies (Epp 1998, 15). The importance of support structures may also vary according to issue area or according to the remedial strategy selected by a court. Certain issue areas may require more sustained and active aid from civil society groups than others, because compliance is particularly complex in those areas. One possible example would be socioeconomic rights, where enforcement often requires the creation of new bureaucracies and programs or the judicial management of old ones (as opposed to same-sex marriage, where judicial rulings may need less aid from civil society). Both issues, of course, pose challenges outside the courtroom, but judicial activism on the latter issue may be more feasible where civil society is relatively weak. Similarly, different judicial strategies may place different degrees of pressure on civil society. Where courts issue a large number of individual remedies to claimants, the aid of civil society for compliance may in some cases be unnecessary; where judiciaries instead issue structural remedies, the aid of social movements may be indispensable in order to achieve progress from recalcitrant bureaucracies. These questions are amenable to comparative analysis and their answers matter because they bear on the ability of courts
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 4 /
Date: 11/7
JOBNAME: Delaney PAGE: 5 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
230 Comparative judicial review to operate in contexts with relatively weak support structures, as is true in much of the developing world. The remainder of this chapter focuses on two other ways in which Epp’s claim is being and could continue to be built upon in comparative work. The first is to notice the heterogeneity of judicial support structures, which include not only the domestic civil society groups focused on by Epp, but also other actors such as political parties, other judges, the general public, and international actors. The second is to notice the ways in which judges, although highly constrained, might be able to take actions that impact the shape and strength of their support structures. Epp’s contribution, like that of many of the other political science theories noted above, envisions courts mainly as dependent on their political and social environments. This is a useful corrective for legal accounts that have sometimes overemphasized the importance of autonomous and even heroic judges in explaining outcomes. But at the same time as courts are dependent on their support structures, they are not powerless to choose between different forms of support and they can also take measures that will actually construct or strengthen that support. Both of these points are useful for building more nuanced descriptive theories of judicial behavior as well as normative theories of how courts (especially those working in ostensibly unfavorable political and social environments) can be more effective.
B. THE HETEROGENEITY OF SUPPORT STRUCTURES High courts everywhere, at least ones not in danger of imminent collapse, would seem to be reliant on the support of external actors of some kind. But the kind of support analyzed by Epp—domestic civil society groups—is not the only form of support that courts can have. Instead, courts could rely on the support of a number of different forms of actors, both inside and outside of the state: for example, political parties, ordinary court judges, domestic civil society groups of different types, international NGOs or various slices of the public. Rather than asking simply whether a court is insulated or independent, one might ask which groups have influenced its behavior and on which groups it has been particularly dependent. Or, what are the core audiences for a court (Baum 2006)? Design will serve as a constraint: The appointment procedures for courts will often play a significant role in determining with which groups judges have strong ties. For example, some appointment systems give a significant role to political actors like legislatures, others allow the ordinary judicial or similar actors to play a substantial role, and yet a third type may give a disproportionate power to members of the national bar or other civil society groups (Stone Sweet 2000, 48–9). It would be surprising if appointment mechanisms did not have an impact on determining the groups which judges regarded as their core audiences. Furthermore, even after appointment, the political context within which courts work would often be expected to influence the choice of judicial alliances. That environment may require judges to ally themselves with certain kinds of actors while ruling out other possibilities. The exact form of this influence, of course, may depend on other details of judicial design and its surrounding
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 5 /
Date: 15/8
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Courts and support structures 231 context, such as the terms served by judges, whether they can be reappointed to the bench after their terms have expired, and other potential career paths open to them. The shape and strength of the party system will also play a significant role in determining the answer to this question. In a one-party dominant state, judges will almost unavoidably have a close relationship with at least some political actors found in the dominant party. In such a system, appointment processes, regardless of their details, are likely to produce judges closely tied to whichever party is running the state. Strategic factors will probably produce a similar outcome: It is unwise for both individual judges and the court as an institution to take actions that would run strongly against the interests of the dominant party. The South African Constitutional Court, in the account of Roux, may provide some support for this idea. As he notes, the Court has had strong links with the ruling African National Congress and has found space for action largely by working in areas in which it could exploit factional divisions between more or less progressive wings of the party, such as on social rights (Roux 2006, 137). In contrast, the Court has been timid when acting on issues that threaten the core interests of the party head-on, such as those dealing with the rights of political minorities (Roux 2013, 335). Other audiences for the Court seem to be less developed. For example, while civil society groups have used the Court in some significant cases, the Court is less well known to the public (Roux 2006, 111). Even where the party system is competitive, judges may nevertheless tend to have strong links to politicians in a party system where parties are well institutionalized, with durability and clearly-defined ideologies. Modern-day Mexico may be an example of such a dynamic—the country transitioned in the 1990s from a one-party state into a multiparty political regime with fairly institutionalized political parties. In 1994, a coalition of the ruling Institutionalized Revolutionary Party (PRI) and opposition National Action Party (PAN) agreed on major reforms to the Supreme Court that aimed particularly at strengthening its ability to mediate conflicts between conflicting political parties, branches, and levels of government (Finkel 2008). Decisions that had previously been made internally by the PRI (and often unilaterally by the president) would now need to be determined in a more neutral way that was acceptable to both parties. Most of the judges on the new Court had links to either the PRI or the PAN (the latter of which would hold the presidency between 2000 and 2012), and party affiliation exercised a significant influence on the voting behavior of justices (Castagnola and Noriega 2017, 104–5). The Court took on a greatly increased role in adjudicating structural disputes regarding the relative powers of the branches of government and in increasing the powers of the states in Mexico’s historically dormant federalism. But there were fewer changes to the judicial role regarding rights disputes, where the Court remained less active and even issued important decisions that restricted rights (Ansolabehere 2010, 105). Where parties are weaker or less institutionalized, political parties may be less likely to be a major audience for judges. In Latin America, for example, Brazil and Colombia offer good examples of political systems where parties tend to be poorly institutionalized—parties come and go with great frequency and have only weak ideological definition or roots in society (Mainwaring and Torcal 2006; Leongómez 2006). In the systems of both countries, political parties themselves are somewhat de-emphasized as audiences. Selection processes do not tend to produce judges with
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 6 /
Date: 11/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
232 Comparative judicial review strong partisan ties, and judges once on the Court do not appear to be tightly constrained by partisan goals. This creates more space for a range of other influences on the high courts of the two systems, such as ordinary judges, varying sectors of domestic and international civil society, and the direct impact of the general public. At the same time, it makes sense to view the constraints here as relative rather than absolute. In most political systems, even those with very strong or dominant political parties, judges will have some room to make choices that will affect the composition of their allies, and these choices may prove consequential. In the case of South Africa, for example, a body of work has critiqued the Constitutional Court for not adopting stronger remedies on the enforcement of social rights (Bilchitz 2007; Liebenberg 2010). As regards such rights, for example, the Court has generally preferred “weak-form” remedies that require parliamentary action to fix problems, or “engagement” remedies that require state officials to consult with affected groups before issuing eviction orders (Ray 2016). The Court has also tended to uphold state action so long as it is reasonable. This approach is partly a response to the political environment in which the Court operates—the dominant-party system arguably makes the Court less able or willing to undertake aggressive approaches for fear of political backlash (Roux 2006). However, it is also worth noting that these kinds of remedies may not build much support for the Court from the general public or from civil society groups. Cases that rely on statutory or sub-statutory interpretation rather than interpreting constitutional rights, as the South African Court has often tended to prefer, may slip under the public radar. Moreover, the Court’s focus on pressing “engagement” between contending parties in order to resolve cases, and for process-based remedies like requiring the state to undertake more findings before evictions can occur, may also do relatively little to raise the public visibility of the Court. In contrast, an approach to socioeconomic rights that provided individual remedies to individual plaintiffs (which was soundly rejected by the Court in the early Soobramoney case involving the right to health), might be more effective in building up public support if done on a mass scale because it would provide direct material benefits to a large number of claimants. The same might be true of stronger structural injunctions that sought to actively supervise government programs in order to reshape bureaucracies. Moreover, the Court could consider designing remedies that offer civil society groups more of a role in formulating state policy and monitoring compliance with judgments. All of these approaches, despite being rejected in South Africa, have precedents elsewhere. If adopted in South Africa, they might help the Court to some degree shift its base of support and main alliance away from the dominant political party itself and towards other actors like the public and domestic civil society groups. The broad point is not that the Court is unconstrained—a dominant-party system is a significant constraint—it is that, despite those constraints, scholars have sought to outline alternative approaches that may be feasible. One consequence of those approaches may be to strengthen alternative sources of support for the Court. Mexico offers an example of such a strategy of shifting support structures in action. As noted above, judges following the 1994 reforms to the Court appeared to have very strong ties to the political parties (particularly the PRI and the right-wing PAN). These ties both empowered the judiciary to resolve structural disputes, but also limited its
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Courts and support structures 233 agenda to those issues—as during the one-party regime, rights jurisprudence was limited and sporadic. Little change to the Supreme Court’s rights jurisprudence occurred after the transition, and the major instrument of rights protection, the amparo, did not go through major reforms even as the Court created a new mechanism for abstract review (the action of unconstitutionality) and made major reforms to a third device allowing the Court to review conflicts between levels or branches of government (the constitutional controversy) (Ansolabehere 2010). But in recent years, a group of progressive justices on the Court have sought to implement major reforms to the Court’s rights jurisprudence. These justices have pushed jurisprudence on issues such as same-sex marriage, indigenous consultation, and marijuana legalization (Landau 2017). These cases have been promoted by progressive civil society groups. Moreover, the same group of justices, working with the same civil society actors, have pushed through significant changes to the amparo. For example, in 2011 they promoted constitutional reforms that gave human rights treaties constitutional status, which has helped to reinvigorate the dormant rights provisions found in the 1917 Constitution (Fix-Zamudio 2011). In 2013, they championed legal reforms that loosened standing rules and increased the systemic effect of amparo judgments in certain cases, a departure from the country’s long-standing Otero formula, which limited the benefits of a judgment only to the petitioner (Cardenas 2013, 383). These changes, of course, can fruitfully be examined in jurisprudential terms as ways to increase the weight of rights jurisprudence. But beneath this is a story about a group of justices seeking to achieve political and jurisprudential goals by shifting the support structure of the Court somewhat away from its original coalition of political parties and towards elements of progressive civil society and the public. The varying relationships between support structures and judicial behavior are also elucidated through cross-national comparisons. A comparison of Brazil and Colombia is useful to highlight the impact that differences in the composition of a court’s support structure can make. The countries make an apt comparison for our purposes because parties are relatively weak and non-institutionalized in both places. Thus, in both countries judges have more space to seek alliances with groups outside of the political system. To some degree and at some moments, they have made similar choices. Both courts have had moments of “judicial populism,” where courts make decisions that seem aimed at courting direct support from the middle class. Both countries, for example, have a well-developed jurisprudence granting individual remedies to plaintiffs alleging violations of socioeconomic rights. This is particularly true of the right to health, where the jurisprudence in both countries is extensive and persists despite critiques targeting its intrusiveness on political spending priorities, allegedly perverse equity effects, and failure to alter bureaucratic failures (Yamin and Parra-Vera 2010; Ferraz 2011). Moreover, during moments of economic crisis, high courts in both countries have issued major decisions striking down or modifying macroeconomic austerity measures (Brinks 2011; Landau 2012). In each case, these measures were popular in opinion polls but heavily criticized within the political system.1 In both 1 Hungary in the 1990s offers a third example of this form of “populism” in the face of a weak party system. The Hungarian Constitutional Court in 1995 issued a series of decisions modifying, slowing, or striking down parts of a sweeping austerity package. As Scheppele has
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 8 /
Date: 11/7
JOBNAME: Delaney PAGE: 9 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
234 Comparative judicial review countries, the weakness of the party system played a role in creating a context where direct appeals to the middle class made sense. Where parties are weak, judges will pay a lower price for defying political movements and may score points for acting as “political entrepreneurs” that gain popular reputations. In Colombia, for example, the justice who was most assertive during the economic crisis of the late 1990s, and credited with forcing the state to step in to bail out middle class homeowners, gained considerable notoriety as “the housing justice” and shortly thereafter was named the vice-presidential candidate on the unsuccessful Liberal Party ticket for the 2002 presidential election (Landau 2014b, 266). In other ways, though, judges on the two high courts rely on strikingly different forms of external support. The selection system for the Brazilian Supreme Federal Tribunal, as well as its culture, favors the influence of the career judiciary, which sees itself largely as an arm of the civil service. As Brinks explains, these elements of selection and culture mean that the Court has a distinctly “corporatist” outlook (Brinks 2011, 143). As he explains, one of the chief determinants of the Court’s willingness to intervene is the effect of a given program on the civil service class. Where pension cuts or other measures impact civil service groups, the Court has at times struck down or modified the measures. The Court has also been aggressive when legal changes threaten the jurisdiction or powers of the courts more directly. Otherwise, the Court has been heavily influenced by the caution on constitutional matters that is characteristic of a civil law ordinary judiciary. It has been reluctant, for example, to issue relief on collective claims which threaten its traditionalistic vision of the judicial role (Hoffmann and Bentes 2008, 100). At first glance, the design of the Colombian Constitutional Court would seem to point in the same direction: Career judges from the ordinary judiciary (the Council of State and Supreme Court) play a disproportionate role in constituting the Court, since they compose two-thirds of its lists (the president composes the other one-third of lists and the Senate selects the chosen justice from the lists). And indeed, in biographical terms a large number of justices on the Court have come directly from the high ordinary courts or other judicial bodies. But despite this, in practice the influence of the career judiciary on the jurisprudence of the Court has been more muted than has been the case in Brazil.2 The reasons why are complex, and I have summarized them at much greater length elsewhere (Landau 2014b).
argued, these decisions were issued in a context where political parties were considered to be poorly reflective of social demands, and moreover where domestic institutions were under the influence of international organizations such as the International Monetary Fund (IMF) (Scheppele 2004). The Court’s decisions greatly increased the visibility and popularity of the Court as an institution, while also making it a more salient target for political attack. 2 This influence has not been non-existent, however. Where issues directly threaten the core interests of the ordinary judiciary, those bodies tend to have sufficient votes on the Colombian Court to overturn or weaken the measures. For example, for many years ordinary court judges on the Constitutional Court have worked to weaken the circumstances under which a constitutional complaint or tutela can be taken against judicial decisions of the other courts. More recently and more dramatically, in 2016 the Court struck down two large pieces of a constitutional reform that weakened the powers of the ordinary judiciary and their autonomy to police their own affairs. The Court held that the new reforms were unconstitutional constitutional amendments
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 9 /
Date: 11/7
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Courts and support structures 235 A key influence on the Court from its inception in 1991 has been a progressive community composed of academics, coupled with domestic and international actors from civil society. The community has consistently defended the Court at moments where it has faced political or social attacks, but it has also pushed it towards greater activism by steering certain kinds of cases towards the Court. This community has exercised a dramatic influence on the institution of the Court largely through its staff: Most of the clerks on the Court are drawn from the graduates and, in many cases, professoriate at a small number of elite law schools (Landau 2014b, 175–7). These clerks routinely remain on the Court for many years and span multiple justices. Indeed, because of the technical skill required to master the Court’s lines of jurisprudence, new entrants often have no choice but to rely on the knowledge of experienced staff. Thus, rather than the culture of the ordinary judiciary shaping the Constitutional Court, the primary lines of influence have gone in the other direction: The culture of the progressive academic community surrounding the Court has influenced incoming justices. This is similar to Gillman’s argument involving the US Supreme Court: He argues that historically new entrants have been changed in key respects by the culture of the Court (Gillman 1999). In Colombia, this influence has helped institutionalize a high level of judicial activism across a broad range of issues. For example, the Colombian Court has been more willing to undertake structural interventions on socioeconomic issues, as well as to strike down constitutional amendments themselves for colliding with core constitutional principles. Ultimately, the influence has made the Colombian Supreme Court more activist and less traditional in its conception of judicial role than the Brazilian Supreme Federal Tribunal. This analysis is not of course meant to be exhaustive. Its broad purpose is merely to show that the concept of a support structure can usefully be unpacked. From close up, courts rely on the support of a coalition of external actors, and we can ask with which kinds of actors they have particularly close links. Descriptively, the answer to this question should help to explain why judges act in certain ways; it may also help to explain their levels of success in carrying out different kinds of projects. Normatively, considering comparative experiences with judicial review may help scholars critique courts by exploring how they can ameliorate the impact of various forms of political constraint through the pursuit of various forms of alliances. Further, studying judicial decision-making through this lens may show that judicial decisions can impact the willingness and strength of external coalitions to protect a court or to advance its agendas. The next section examines this possibility in more detail.
because of the scope of their effects—they replaced rather than merely amending the existing text. See Mario Cajas Sarria, The Unconstitutional Constitutional Amendment Doctrine and the Reform of the Judiciary in Colombia, INT’L J. CONST. L. BLOG (Sept. 1, 2016), http://www. iconnectblog.com/2016/09/the-unconstitutional-constitutional-amendment-doctrine-and-the-reformof-the-judiciary-in-colombia/; Colombian Constitutional Court, Decision C-285 of 2016; Colombian Constitutional Court, Decision C-373 of 2016.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 10 /
Date: 11/7
JOBNAME: Delaney PAGE: 11 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
236 Comparative judicial review
C. COURTS AND THE CONSTRUCTION OF SUPPORT STRUCTURES The previous section noted that judges may have some ability, through their decisions and other devices, to find new sources of political and social support for their agendas. This section goes a bit further: It argues that judicial decisions may also have an impact on the strength of that support structure. This power, of course, is limited: My intent is not to argue that courts can magically conjure up sources of support to advance their agendas and ward off political attacks. It is simply to point out that while the reliance of courts on external support has been well documented, their ability to influence the shape of these structures has been less well examined. And once noticed, this power has meaningful descriptive and normative implications. The idea that civil society groups may use courts to gain more visibility or to strengthen themselves is not new. McCann, for example, in a classic work, shows how the women’s equal pay movement in the United States turned to the judiciary largely as a way to increase the size and cohesion of their movement (McCann 1994). Filing cases allowed the cause to gain more visibility and served as an organizing tool. The movement was generally unsuccessful in the courts, but its efforts resulted in a strengthening of civil society that would eventually allow it to gain successes through political means. Civil society groups thus may turn to the courts to fulfill their goals, even though they will often regard the judiciary as only one tool among many. But just as civil society groups can use courts to strengthen themselves, judges may be able to take steps that will increase the power of these groups and their leverage over the state. Moreover, and as Young notes with respect to socioeconomic rights, the success of judicial projects will often depend on a court’s ability to “catalyze” civil society groups so that they monitor enforcement of judgments and seek further political changes that will reinforce judicial decisions (Young 2012). Under certain conditions, courts may have both the incentive and ability to strengthen civil society groups. An example is given by structural remedies for socioeconomic rights violations in both India and Colombia. In two well-known cases—the right-to-food litigation in India and the internally displaced persons (IDP) litigation in Colombia3—high courts drafted structural remedies that included a prominent role for civil society groups. Both cases originated in part because civil society groups sought to use the courts to achieve their goals. In the right-to-food case in India, for example, the People’s Union for Civil Liberties (PUCL) filed the case after observing systematic deficiencies in the food distribution system (Birchfield and Corsi 2010, 698–9). In the IDP case in Colombia, domestic NGOs working closely with the population coordinated a series of tutela or individual complaint judgments aimed at demonstrating the plight of a massive population that was receiving virtually no aid from the state (Rodriguez-Garavito and Rodriguez-Franco 2016, 38). In each of these cases, the court issued a broad structural remedy and maintained jurisdiction over the case. The ability of structural remedies to effect change in the bureaucracy depends in part on the ability of courts to find external political or social allies. Structural cases in the 3 People’s Union for Civil Liberties (PUCL) v. Union of India, Writ Petition (Civil) No.196 of 2001; Colombian Constitutional Court, Decision T-025 of 2004.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 11 /
Date: 15/8
JOBNAME: Delaney PAGE: 12 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Courts and support structures 237 United States, for instance, have often been most successful when federal judges found supportive officials who wanted to use judicial orders as a way to promote agendas that they favored. Prison reform litigation worked, for example, in part because judges found change agents within local and state bureaucracies who favored modernization of the prison system (Feeley and Rubin 1998). Similarly, while the Indian and Colombian cases noted above were spurred by the efforts of civil society groups, courts have also sought to harness the power of civil society groups to aid the formulation and implementation of their judgments. In the Colombian case, the Constitutional Court institutionalized a substantial role for civil society during the enforcement process. In a subsequent order, the Court organized a Monitoring Commission composed of civil society groups, along with others, such as ex-members of the Court. The Commission was charged with filing reports with the Court regarding implementation of the Court’s orders, communicating information about the impact of judicial orders on the affected community, and developing suggestions for future orders (Rodriguez-Garavito and Rodriguez-Franco 2016, 56). One of the first orders set by the Court involved the construction of a set of statistical indicators to measure the enjoyment of rights by the IDP community. The Court requested proposals for indicators by the state, but also asked the Monitoring Commission to give comments on the state’s proposed indicators and to develop alternatives. In the ensuing dialogue, the Court used the comments of the Commission to reject many of the state’s proposed indicators and ultimately accepted many of those proposed by the Commission. Subsequently, while the state carried out surveys of these indicators within the IDP population, the Commission carried out its own shadow survey, often showing much graver problems. The Court again tended to rely on the evidence of the Commission. Furthermore, the members of the Commission have been a key presence at periodic public audiences, often challenging the state’s assertions about levels of compliance or the impact of particular programs. The model in the Indian right-to-food case is somewhat similar. The Supreme Court has relied heavily on a small group of appointed legal Commissioners to formulate orders and monitor their compliance. These orders have ranged far beyond the initial focus on distribution systems to include other issues such as school lunch programs for impoverished children. In both formulating and monitoring these orders, the Commission in turn has relied on the PUCL and other civil society groups. These groups have fed the Court information about other issues related to the human right to food in India, have kept the Commissioners and the Court informed with respect to the progress of those programs, and have publicized issues regarding the right to food with the general public (Hertel 2014, 82). In both cases, civil society helped to expand the limited capacity of the Court. At the same time, the design of the remedy in these cases has helped to increase the power of civil society. By institutionalizing a role for these groups as a source of policy ideas and information about compliance, both courts have plausibly increased the visibility of civil society groups and their leverage over the state. The result has been a stronger and more organized civil society presence in these sectors. In both cases, the empowered civil society groups were subsequently able to win political victories through other routes. Civil society groups built on their leverage in the courts to pressure legislative actors for important reforms—in Colombia, a Victim’s Law defining the rights of those
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 12 /
Date: 11/7
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
238 Comparative judicial review displaced due to internal armed conflict and, in India, a Food Security Act outlining the contours of the right to food (Cepeda Espinosa and Landau 2017, 225–6; Birchfield and Corsi 2010, 752–4).4 Judicial intervention helped to strengthen political movements for reform in tangible ways, causing judicial interventions eventually to bleed over into the political system. Structural injunctions are one obvious way in which courts can take steps to increase the power of support structures, but they are not the only way. Judges can also, for example, modify standing rules or other procedural requirements to invite claims and to make them easier to bring by either affected individuals themselves or public interest groups representing those individuals. Both India and Colombia demonstrate this dynamic (Deva 2009; Landau 2014a, 1529–30). Epp is correct that merely loosening standing rules may not automatically result in a flood of new claims (Epp 1998)—but a court signaling openness to public interest litigation at least creates the possibility of an alternative arena in which individuals and groups can operate. Where individuals and groups are not only able to bring claims, but also to win, they are likely to keep returning to the judiciary. The design of remedies for socioeconomic rights within Latin America offers an example. In some countries, such as Mexico and Chile, judges have generally interpreted the relevant instruments for rights protection as excluding the enforcement of socioeconomic rights such as the rights to health, social security, and housing. The precise arguments vary depending on the constitutional texts and legal cultures involved but may rest in part on the philosophical nature of positive rights and their supposed exclusion from “fundamental” status, or on the “abstract” nature of the interest involved and thus a lack of standing (Landau 2017). Elsewhere, as in both Brazil and Colombia, courts have advanced different interpretations of constitutional-procedural instruments in order to allow them to be used to enforce social rights. In these countries, for example, the courts have enabled constitutional devices to be used to protect the right to health on a massive scale. This is a product not simply of the constitutional or legal texts defining the instruments and the rights involved, but also of choices made by judges about how those rights should be interpreted and enforced. In Colombia (as in India), the Constitutional Court initially established enforceability of social rights by linking them to “fundamental” rights like the right to life or to dignity. More recently, courts there have taken the approach (similar to Brazil) of establishing that social rights—in at least some of their aspects—can be enforced directly because they are on the same footing as other constitutional rights (Young and Lemaitre 2013, 187). Beyond mere enforceability, courts can also impact the utility of using legal instruments to enforce these rights by determining whether petitioners must meet specific criteria in order to make use of the instruments. The Colombian path shows more variation on this point than the Brazilian one, but in both cases the courts 4 A similar dynamic occurred in structural litigation involving the right to health in Colombia. In this case (although with greater difficulty), the Court made similar efforts to strengthen civil society and increase its leverage over the state. These efforts eventually helped to result in new legislation that recognized health as a fundamental right, rather than merely as a public service or regulatory program (Young and Lemaitre 2013, 196).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 13 /
Date: 11/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Courts and support structures 239 eventually settled on a position that often allowed the instrument to be used irrespective of the socioeconomic status of the petitioner; in other words, for middle class petitioners as well as for very poor ones. Finally, and perhaps most obviously, the adjudication of these claims on the merits makes a difference—in both Brazil and Colombia, petitioners can not only easily bring claims on the right to health, but their success rate in those cases is quite high (Hoffmann and Bentes 2008, 119; Landau 2012, 212). The resulting court orders require healthcare providers to provide treatments or medicines to the victorious petitioner. In both Brazil and Colombia, then, what has occurred is not simply a spontaneous demand from the public for judicial review of health and related issues. If that were the case, a similar demand would exist in many other countries, especially those with poorly functioning bureaucracies. Instead, courts in both countries have constructed procedural instruments to make them attractive to litigants. Once members of the public understood that they could turn to the courts to resolve these claims, they started arriving in droves, leading to a very large number of lawsuits. Furthermore, the spigot for health issues has been turned on for a long time in both countries; courts have not taken steps to turn it off despite critiques from political actors and economists about the systematic effects of health claims on budgets and their equity effects in allowing some patients (those with the willingness and ability to sue) to jump to the front of the queue. Scholars have critically analyzed these claims from the standpoint of their effect on the healthcare systems and budgets in both countries as well as their distributive impact on the poor versus the middle class. For example, some work has argued that individual judicialization of the right to health may distort the purposes of the healthcare system by providing individual litigants with expensive treatments that the system cannot afford (Ferraz 2011). Others have argued that many petitioners in both countries seem to come from relatively middle class backgrounds rather than constituting the truly poor (Ferraz 2011; Landau 2012). Beyond these systemic and distributive impacts, however, courts in both cases have also created the middle class as a constituency for social rights, which may have several significant political effects. First, these dynamics may make a reversal of the courts’ jurisprudence particularly difficult, because attempts by judiciaries to scale back their social rights litigation may prove highly unpopular (Landau and Dixon, forthcoming). Second, they may increase a court’s ability to undertake judicial activism on other social rights questions by providing popular support for those measures, or they may increase political support for measures that favor social rights. In other words, and although the point needs empirical testing, it may be that providing middle class citizens with social rights deepens their support for these rights more generally, by whatever means. Finally, the construction of a broad-based group of beneficiaries of social rights may provide greater political support for the court more generally, helping it to ward off political attacks against the institution. A long line of work in political science has posited that courts enjoy higher levels of protection against political retaliation when they enjoy higher levels of popular support (Vanberg 2005). As shown here, courts have at least some ability to influence this support: To a limited degree, they can construct
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
240 Comparative judicial review their own shield by shaping jurisprudence.5 My previous work suggests support for such an argument, at least in the Colombian case: On many occasions where the Constitutional Court has faced attacks against its jurisdiction or powers, its allies have rallied popular support against the measures by framing them as attacks on the instruments of constitutional protection and on the popular socioeconomic rights jurisprudence of the Court (Landau 2014b). As a result, even when promoted by powerful political actors, very few court-curbing measures have actually made it to a vote. The analysis carried out in this section suggests several questions for future work. The first—of which this section barely scratches the surface—regards the different ways in which courts could intentionally or inadvertently take actions that would impact their external support structures. For example, it would be useful to examine the extent and different pathways through which courts operating in difficult domestic environments could increase their visibility and garner support from international actors. It may be that by writing opinions in certain ways, or by emphasizing certain aspects of a case, courts can make problems more salient to international organizations or NGOs and thus win allies in circumstances where domestic support for a given judicial decision is scarce. Second, while courts sometimes aggressively seem to gather support from the general public or civil society, in other cases they take measures actively discouraging such support. In some cases, courts interpret procedural instruments very broadly in order to invite a wide variety of claims. In other cases, courts do the opposite: They give procedural instruments narrow definitions on standing and related issues in order to make claims quite difficult to bring. In a third class of cases, courts seem to take positions in between these two extremes; they invite certain kinds of claims while discouraging others. The Brazilian Court, for example, has been very welcoming of individual socioeconomic rights claims, but generally hostile towards collective claims (Hoffmann and Bentes 2008). The shape of the political system is one likely determinant of these dynamics. It is probably no accident that in Latin America, a large-scale individualized social rights enforcement was undertaken in Colombia and Brazil, two countries with fragmented and non-institutionalized party systems. In these kinds of systems, as analyzed in the previous section, judges may have political and institutional incentives to garner popular support. Where parties are stronger, the incentives to carry out these forms of populism may be reduced. Judges working in these systems may try to dialogue with the parties or the bureaucracy, but should be less likely to offer direct relief to individuals. 5 Staton suggests one way in which this was done in Mexico, showing how the Supreme Court strategically issued press releases as a way to gain public support for certain decisions facing political opposition (Staton 2006). But as this section argues, the mechanisms examined by Staton are a small part of a much bigger phenomenon: In addition to manipulating press or popular coverage of their decisions, courts may be able to shape lines of jurisprudence in order to attract the support of different groups. Logically, in other words, the dynamics identified by Staton should affect not only how decisions are publicized, but whether and how they are written in the first place.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 15 /
Date: 11/7
JOBNAME: Delaney PAGE: 16 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Courts and support structures 241 Beyond this, the historical role of the judiciary or the historical relationship between the courts and the political system may also play a role. For example, patterns of procedural development in India and Colombia are strikingly similar: In both countries, courts aggressively shaped constitutional instruments to invite claims from civil society groups and the public, and to construct barriers to entry that are as low as possible on those claims. In both countries as well, judges have capitalized on a popular disdain for politics and used that disdain as a justification for judicial activism (Robinson 2009; Landau 2014a). Thus, procedural reform emerges as a way for judges to market themselves as alternatives to a dysfunctional political system. In contrast, Brazilian judges continue to operate under a more “traditional” conception of their role—they are comfortable issuing individual relief (even on a large scale), but not stepping into the self-conscious policymaking role implied by collective or structural jurisprudence. Scholars should be attuned to the possibility that courts may sometimes issue or maintain lines of jurisprudence because of their effects on external support communities and should study the implications of these dynamics. For example, the Brazilian and Colombian individual healthcare jurisprudence has been heavily criticized by domestic politicians and lawyers. It may be that courts have maintained this jurisprudence despite these critiques because it helps to marshal political support for the courts from the general public. Normatively, of course, this may lead to some interesting and perhaps troubling conclusions. In some cases, the means that courts use to establish external support may distort the purpose of rights and distract courts from other goals. One possible implication of reliance on large-scale individualized social rights enforcement in both countries, for example, has perhaps been to make social rights less “transformational” in nature than assumed by some scholarship in the field (Gloppen 2006). On the other hand, judicial efforts to increase the “base” for judicial action may also deepen support for rights, potentially advancing projects through a number of judicial and non-judicial means (Landau and Dixon, forthcoming). Which effects will dominate in a given context can only be determined through careful empirical study.
D. CONCLUSION This chapter has argued that theories of judicial power must contend more squarely with the agency of courts and, in particular, the ways in which their actions can influence their political environments. Like any political institution, courts are not only products of their environments but also have some limited ability to shape them. As I have suggested throughout, this point has both descriptive and normative payoffs. It may help us build more complete theories of the sources of judicial power, as well as helping theorists explore the ways in which courts could construct power even in constrained political environments. Moreover, it may help us build more nuanced definitions of judicial power. Rather than asking simply whether a court is strong or weak, or whether or not it is independent, we need better explanations of why courts serve certain interests and agendas and not others. In other words, the question is not simply whether a court is strong but also how it uses its power. Close attention to the ways in which courts interact with a number of different external groups—political
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 16 /
Date: 15/8
JOBNAME: Delaney PAGE: 17 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
242 Comparative judicial review parties, bureaucrats, ordinary judges, and both domestic and international civil society—may help to provide better answers.
REFERENCES Ansolabehere, Karina. 2010. “More Power, More Rights?” In Cultures of Legality: Judicialization and Political Activism in Latin America, edited by Javier A. Couso, Alexandra Huneeus, and Rachel Sieder. New York, NY: Cambridge University Press. Baum, Lawrence. 2006. Judges and their Audiences: A Perspective on Judicial Behavior. Princeton, NJ: Princeton University Press. Bilchitz, David. 2007. Poverty and Fundamental Rights: The Justification and Enforcement of SocioEconomic Rights. New York, NY: Oxford University Press. Birchfield, Lauren and Jessica Corsi. 2010. “Between Starvation and Globalization: Realizing the Right to Food in India.” Michigan Journal of International Law 31: 691–764. Brinks, Daniel M. 2011. “Faithful Servants of the Regime: The Brazilian Constitutional Court’s Role Under the 1988 Constitution.” In Courts in Latin America, edited by Gretchen Helmke and Julio Rios-Figueroa. New York, NY: Cambridge University Press. Cardenas, Jaime. 2013. “La Nueva Ley de Amparo.” Cuestiones Constitucionales 29: 383–409. Castagnola, Andrea and San Lopez Noriega. 2017. “Are Mexican Justices True Arbiters Among the Political Elites? An Empirical Analysis of the Court’s Rulings 2000–2011.” In Judicial Politics in Mexico: The Supreme Court and the Transition to Democracy. New York, NY: Routledge. Cepeda Espinosa, Manuel Jose, and David Landau. 2017. Colombian Constitutional Law: Leading Cases. Oxford: Oxford University Press. Deva, Surya. 2009. “Public Interest Litigation in India: A Critical Review.” Civil Justice Quarterly 28: 19–40. Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago, IL: University of Chicago Press. Epp, Charles R. 2009. Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State. Chicago, IL: University of Chicago Press. Feeley, Malcom M. and Edward L. Rubin. 1998. Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons. New York, NY: Cambridge University Press. Ferraz, Octavio Luiz Motta. 2011. “Harming the Poor Through Social Rights Litigation: Lessons from Brazil.” Texas Law Review 89: 1643–68. Finkel, Jodi. 2008. Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s. Notre Dame: University of Notre Dame Press. Fix-Zamudio, Héctor. 2011. “Las reformas constitucionales mexicanas de junio de 2011 y sus efectos en el sistema interamericana de derechos humanos.” Revista Iberoamericana de derecho publico 11: 232–55. Friedman, Barry. 2009. The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. New York, NY: Farrar, Straus and Giroux. Gillman, Howard. 1999. “The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making.” In Supreme Court Decision-Making: New Institutionalist Approaches, edited by Cornell W. Clayton and Howard Gillman. Chicago, IL: University of Chicago Press. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. New York, NY: Cambridge University Press. Gloppen, Siri. 2006. “Courts and Social Transformation: An Analytic Framework.” In Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor?, edited by Roberto Gargarella, Pilar Domingo, and Theunis Roux. Burlington, VT: Ashgate. Graber, Mark A. 1993. “The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary.” Studies in American Political Development 7: 35–73. Hertel, Shareen. 2014. “Hungry for Justice: Social Mobilization on the Right to Food in India.” Development and Change 46: 72–94. Hirschl, Ran. 2004. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 17 /
Date: 11/7
JOBNAME: Delaney PAGE: 18 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Courts and support structures 243 Hoffmann, Florian and Fernando R.N.M. Bentes. 2008. “Accountability for Social and Economic Rights in Brazil.” In Courting Social Justice: Social and Economic Rights in the Developing World, edited by Varun Gauri and Daniel M. Brinks. New York, NY: Cambridge University Press. Landau, David. 2012. “The Reality of Social Rights Enforcement.” Harvard International Law Journal 53: 189–247. Landau, David. 2014a. “A Dynamic Theory of Judicial Role.” Boston College Law Review 55: 1501–62. Landau, David. 2014b. “Beyond Judicial Independence: The Construction of Judicial Power in Colombia.” Ph.D. dissertation, Harvard University. Landau, David. 2017. “Judicial Role and the Limits of Constitutional Convergence in Latin America.” In Handbook on Latin American Constitutionalism, edited by Rosalind Dixon and Tom Ginsburg. Cheltenham: Edward Elgar Publishing. Landau, David and Rosalind Dixon. Forthcoming. “Constitutional Non-Transformation? Socioeconomic Rights beyond the Poor.” In The Future of Social and Economic Rights, edited by Katharine G. Young. New York, NY: Cambridge University Press. Leongómez, Eduardo Pizarro. 2006. “Giants with Feet of Clay: Political Parties in Colombia.” In The Crisis of Democratic Representation in the Andes, edited by Scott Mainwaring, Ana Maria Bejarano, and Eduardo Pizarro Leongómez. Stanford, CA: Stanford University Press. Liebenberg, Sandra. 2010. Socio-Economic Rights: Adjudication Under a Transformative Constitution. Cape Town: Juta. Mainwaring, Scott and Mariano Torcal. 2006. “Party System Institutionalization and Party System Theory: After the Third Wave of Democratization.” In Handbook of Party Politics, edited by Richard S. Katz and William Crotty. London: Sage Publications. McCann, Michael. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago, IL: University of Chicago Press. Ray, Brian. 2016. Engaging with Social Rights: Procedure, Participation, and Democracy in South Africa’s Second Wave. New York, NY: Cambridge University Press. Robinson, Nick. 2009. “Expanding Judiciaries: India and the Rise of the Good Governance Court.” Washington University Global Legal Studies Law Review 8: 1–70. Rodriguez-Garavito, Cesar A. and Diana Rodriguez-Franco. 2016. Radical Deprivation on Trial: The Impact of Judicial Activism on Socioeconomic Rights in the Global South. New York, NY: Cambridge University Press. Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring about Social Change? Chicago, IL: University of Chicago Press. Roux, Theunis. 2006. “Principle and Pragmatism on the Constitutional Court of South Africa.” International Journal of Constitutional Law 7: 106–38. Roux, Theunis. 2013. The Politics of Principle: The First South African Constitutional Court, 1995–2005. New York, NY: Cambridge University Press. Scheingold, Stuart A. 2004. The Politics of Rights: Lawyers, Public Policy, and Social Change. Ann Arbor, MI: University of Michigan Press. Scheppele, Kim Lane. 2004. “A Realpolitik Defense of Social Rights.” Texas Law Review 82: 1921–61. Staton, Jeffrey K. 2006. “Constitutional Review and the Selective Promotion of Case Results.” American Journal of Political Science 50: 98–112. Stephenson, Matthew C. 2003. “‘When the Devil Turns …’: The Political Foundations of Independent Judicial Review.” Journal of Legal Studies 32: 59–89. Stone Sweet, Alec. 2000. Governing with Judges: Constitutional Politics in Europe. New York, NY: Oxford University Press. Vanberg, Georg. 2005. The Politics of Constitutional Review in Germany. New York, NY: Cambridge University Press. Whittington, Keith E. 2005. “Interpose Your Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court.” American Political Science Review 99: 583–96. Wilson, Bruce. 2009. “Institutional Reform and Rights Revolutions in Latin America.” Journal of Politics in Latin America 2: 59–85. Yamin, Alicia ad Oscar Parra-Vera. 2010. “Judicial Protection of the Right to Health in Colombia: From Social Demands to Individual Claims to Public Debates.” Hastings International and Comparative Law Review 33: 431–59. Young, Katharine G. 2012. Constituting Economic and Social Rights. Oxford: Oxford University Press. Young, Katharine G. and Julieta Lemaitre. 2013. “The Comparative Fortunes of the Right to Health: Two Tales of Justiciability in Colombia and South Africa.” Harvard Human Rights Journal 26: 179–216.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 12_Chapter12_ts
/Pg. Position: 18 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
13. National perspectives on international constitutional review: diverging optics Karen J. Alter*
This chapter adds international courts to conversations about comparative judicial review. Today, with the rise of authoritarian leaders who demonstrate a declining respect for the rule of law, the external check that is judicial review by international courts (ICs) may be especially important.1 I focus in this chapter on constitutional review, a variant of judicial review. Questions about whether domestic actions violate international law can present unusual clashes that emerge from the varied sources and types of “higher order” laws—international law, jus cogens, human rights obligations, customary international law, and constitutional provisions. Thus, with respect to international law, judicial review often has constitutional attributes. If constitutional review is the judicial authority to invalidate laws and government acts on the basis of a conflict with higher-order legal obligations (Stone Sweet 2000, 21), then many ICs are reviewing the legality of state acts under international law, and thus conducting constitutional review of international and state acts by explicit design.2 Yet since judges control neither the sword nor the purse, a court’s ability to effectively exercise its constitutional review power—with respect to either national constitutional or international law—depends on political acquiescence. Cultures of constitutional obedience provide judges with the political leverage to pressure politicians to acquiesce. National cultures of constitutional obedience can transfer to international law, creating a culture of constitutional obedience to international law that enables international judges to inhabit formally delegated constitutional review roles. Where national judges view international law as supreme and/or see respect for international court rulings as legally obligatory, a national culture of constitutional obedience to international law is more * Thanks to Erin Delaney, Zuzanna Godzimirska, Madhav Khosla, Cristina Lafont, and Mariana Velasco Rivera for their helpful comments. Thanks to Evan Bianchi for his excellent editing. 1 There are 23 operational permanent international courts. Examples include the International Court of Justice, the European Court of Human Rights, the African Court on Human and Peoples’ Rights, the Inter-American Court of Justice, and the Court of Justice of the European Union. 2 The notion of higher-order international law does not mean that international law is generally or necessarily natural law. All that matters is that constitutional, treaty-based or other international law is seen as legally binding and trumping conflicting “lower-order” domestic laws. To be sure, not all international law will be seen as higher order law. Binding international criminal and human rights law, law regulating the global commons (oceans, Antarctica, etc.) and law associated with regional economic communities may come to be viewed as either higher-order laws or areas where international and/or regional community law should be dispositive.
244
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 245 likely to emerge. One might even say that national judicial support is a necessary condition for a national legal and political culture of constitutional obedience to international law. Why might national judges facilitate or tacitly undermine state respect for international law and IC legal rulings? This chapter explores this question in depth. Having studied national court–international court interactions in many countries, with respect to many different international courts and legal issues, I observe two diverging predilections—what I will call the “luxury good” and the “fail-safe” optics—through which national judges approach international law and IC review of state actions. I use these optics as heuristics to capture what is implicit in the legal arguments made by parties, and then tacitly endorsed by judicial rulings. The luxury good optic suggests that although ICs may exercise valid legal authority to generate binding legal rulings, IC rulings are external and domestically superfluous, providing neither binding nor guiding jurisprudence relevant in the national realm. The fail-safe optic, by contrast, insists that IC rulings must guide and perhaps even bind national legal review. Actors espousing these competing perspectives are present everywhere. When the luxury good or fail-safe perspective becomes embedded into national high court doctrine and practice, the optic comes to define the national legal culture of constitutional obedience to international law. This legal culture can then translate into a political culture of constitutional obedience or of disinclination towards international law. Inasmuch as IC constitutional review is fairly new, Section A briefly explains the legal bases for international courts conducting constitutional review. Section B develops my argument regarding cultures of constitutional obedience to international law. Section C identifies the luxury good and fail-safe optics, providing illustrations of how each predisposition supports or undermines national respect for international law and IC rulings. Section D identifies an intermediate position, where national supreme courts defend the supremacy of the national constitution while using their constitutional authority to support national adherence to international law as interpreted by ICs. This section also demonstrates how a national legal culture can contribute to a national political culture of constitutional obedience to international law. Section E concludes by returning to the political motives that underpin the optics, considering constitutional obedience in a time of authoritarian populism.
A. INTERNATIONAL COURTS AND CONSTITUTIONAL REVIEW OF INTERNATIONAL AND STATE ACTS Before the advent of what I have dubbed new-style international courts—ICs with compulsory jurisdiction and access for non-state actors to initiate litigation—ICs were mostly interstate dispute settlement bodies, invoked when two countries wanted a legal ruling to resolve a disagreement.3 For all other alleged violations of international law,
3 Most International Court of Justice (ICJ) decisions and mass claims bodies (e.g., the US–Iran Claims Tribunal) fit into this category. ICJ rulings include territorial disagreements, questions about treaty interpretation, and questions about customary international law. States
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 2 /
Date: 11/7
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
246 Comparative judicial review international judicial review was mostly non-existent. This situation has changed. Today, ICs resolve disputes between states, conduct administrative review of state and international acts, review state compliance with international law, and conduct constitutional review of international and state legal acts (Alter 2014). Although this chapter is most interested in ICs conducting constitutional review of state acts, which raises the highest level of concern for national supreme courts, this section discusses how IC gained a constitutional review role vis-à-vis both international and state acts. ICs did not invent for themselves a constitutional review role; ICs were both delegated and asked to assume this role. Recognizing that a number of international institutions have growing unchecked legislative capabilities, some ICs were authorized by their founding charters to review the legality of international acts.4 In other cases, ICs assumed a constitutional review role vis-à-vis an international institution because national judges insisted that some judicial actor be able to review the legality of international acts.5 Some ICs have also been authorized in their founding charters to review state compliance with international law, and some ICs have developed jurisprudence that insists on the supremacy of international law over conflicting national law.6 The growing role of ICs in reviewing international and state acts has transformed what was once a mostly academic jurisprudential debate about whether or not international law should be seen as domestically binding and supreme into a legal situation where ICs declare violations of international law. These international judicial declarations can be embarrassing and politically inconvenient, demanding some sort of political or legal response. International constitutional review comes into play when international legal texts are granted a higher-order legal status. There may be a textual basis supporting this higher-order legal status. For example, the United Nations Charter states that “in the event of conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”;7 the Colombian Constitution states: “International treaties and agreements ratified by Congress that recognize human rights and prohibit their limitation in states of emergency have domestic priority”;8 and the US Constitution states: “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every
either pre-consent via an optional protocol or within a treaty to the ICJ’s jurisdiction, or they agree on a case-by-case basis to submit a dispute to the ICJ. 4 The Court of Justice of the European Union (CJEU), and most of the ICs that copy the CJEU model generally include a delegated role to review the legality of supranational acts (nine in all, given that the SADC review competence has been removed). See Alter 2012, 139. 5 This is the traditional explanation for why the CJEU granted itself a human rights review competence. It is also the classical explanation for the CJEU’s Kadi ruling. See De Búrca 2011; De Búrca 2012. 6 To see which of the 24 operational ICs have which delegated roles, see the discussion of Type I (international acts) and Type II (state acts) constitutional review in Alter 2014, 285–9. 7 United Nations Charter Article 103. 8 CONST. POL. COL. art. 93.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 3 /
Date: 11/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 247 State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”9 The formal legal basis of IC constitutional review is important to acknowledge because it means that states have knowingly assented to IC constitutional review and to the supremacy of international law within the domestic realm. But, notwithstanding this formalism, the supremacy of international law is ultimately always under contestation because not all international law should or will have a higher-order legal status and because sovereign actors dislike subordination. International constitutional review is doubly controversial because it involves foreign judges telling state actors that their actions are illegal. The rest of this chapter focuses on IC review of state acts. Where state intentions and acts are suspect, IC review can provide an important factual assessment regarding whether a specific policy or action is compatible with a specific international law. IC affirmations of the contested policy can help to end the dispute. Findings of noncompliance can generate a requirement to cease the violating behavior and/or compensate harmed parties. This type of review is the everyday fare of ICs engaged in dispute resolution and the review of state compliance with international law.10 International legal review may even be welcomed if the judicial ruling adds an aura of credibility to otherwise suspect state policies and actions. Although international legal review is quite often uncontroversial, when ICs conduct judicial review of state actions (through either a constitutional or factual lens), they break state institutions’ monopoly on defining what international law means at home. In questioning state practices, IC review disrupts national narratives regarding what international law means and requires in the domestic realm. In doing so, they bring to the fore the questions of whether, when, and how international law should supplant state laws and practices. My argument is that cultures of constitutional obedience to international law end up constituting both international law’s and an IC’s legal authority. Since ratified international law becomes part of domestic law, as a formal matter there are sound legal arguments judges can use if they choose to enforce international law in the domestic realm. But there are also legally defensible counter-arguments, which is why I see the issue of constitutional obedience to international law as a choice that is made by the judiciary, albeit a choice that is influenced by legal attitudes and traditions that are socially entrenched (Alter 2014, 293–4). Where domestic legal cultures consider violations of international law to be domestically illegal, violating international law is more likely to be seen as politically illegitimate. Alternatively, where domestic legal cultures question the binding nature of international legal obligations, the legal and political authority of international law and ICs and state respect for international law can be undermined. This argument suggests that national supreme courts are lynchpins
9
U.S. CONST., art. VI, cl. 2. See the discussion of the ICJ’s Qatar v. Bahrain Territorial Dispute, the ITLOS Japan v. Russia Seizing of vessels, the WTO “seizing foreign assets,” and the ECOWAS “modern day slavery” case studies in Alter, 2014. 10
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 4 /
Date: 11/7
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
248 Comparative judicial review supporting or undermining international court authority.11 It also suggests supreme court positions are not determined by formal national constitutional provisions that supposedly establish or explain a monist or dualist approach to international law.
B. CULTURES OF CONSTITUTIONAL OBEDIENCE TO INTERNATIONAL LAW I define a culture of “constitutional obedience” as “a political culture in which any legislative text or government action found to violate higher order law becomes inherently illegitimate” (Alter 2014, 290).12 I call constitutional obedience a culture because it is a shared expectation within a polity that is socially enforced. A government that demonstrates to its citizens a clear indifference to the law violates a taboo, conveying to the larger public its unwillingness to adhere to constitutionally articulated legal and political rules of the game: Where cultures of constitutional obedience exist, constitutional review becomes a tool political actors use to defend the validity of their positions. Influential constitutional courts insert themselves as essential arbiters of disagreements about what is and is not constitutional. Through their constitutional interpretations, judges help define legitimate political action and determine whether specific contested acts are “constitutional.” (Alter 2014, 290)
Constitutional obedience in the domestic realm contributes to the rule of law, and it gives constitutional courts the political power to inhabit a formally delegated constitutional review role. Domestic cultures of constitutional obedience can transfer into a culture of constitutional obedience to international law, at which point violating international law may be seen as a violation of the rule of law and even of the national constitution. Episodes of great government abuse contribute to such a transference. European countries are generally more supportive of international law because of the experience of WWII, when Nazi and fascist regimes used law and state institutions to deport and kill millions of Europeans (Moravcsik 2000). Nazi actions depended on the complicity of national judges, who were far too willing to side with fascist and collaborationist governments. Endorsing the creation of a European Court of Human Rights, France’s Former Minister of Justice Pierre-Henri Teitigen argued: “A conscience must exist somewhere which will sound the alarm to the minds of a nation … to warn them of the 11 National judges are not the only actors contributing to domestic respect for international law. I have identified a range of compliance partners, including judges, administrators, government officials, and military leaders (Alter 2014). Supreme courts, however, decisively shape national legal cultures and thus they are lynchpins supporting or undermining constitutional obedience to international law. 12 The term “constitutional obedience” comes from Phelan 2008. Phelan does not really define the term, but he notes that scholars discuss how the CJEU have transformed the Treaty of Rome into a sort of constitution, and member states display an unusual level of obedience to CJEU. Presumably, obedience to the EU constitution is what Phelan means by the term. My definition is somewhat different.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 249 peril and to show them that they are progressing down a long road which leads far, sometimes even to Buchenwald or Dachau” (quoted in Bates 2011, 7). In Latin America, abuses by military dictatorships contributed to the creation of the Inter-American Court of Human Rights (Sikkink 2005, 43–7). Some countries, such as Colombia, even incorporated into their constitutions the requirement that legal priority be conferred on international human rights treaties.13 More recently, revulsion in the face of mass atrocities generated support for international adjudication of international criminal law violations and the creation of the International Criminal Court (Alter 2014, 144–8). Another factor contributing to support for international legal review is mass corruption and the actions of authoritarian governments that suppress freedom of the press, political opposition, and national judicial checks. Where the population has lost faith in the national judicial system, there may be greater faith in ICs. Meanwhile, in countries with strong rule of law systems, public faith in domestic courts (which is often higher than public faith in political bodies) can transfer uncritically into faith in ICs.14 Cultures are never static. Cultures of constitutional obedience can change over time even if the constitution itself stays the same. In France, judges at first interpreted their Constitution’s supremacy clause as binding on Parliament but as not creating any corresponding role for French courts to review state respect for international law. Over time French judges came to believe that they must uphold the supremacy of certain international laws, even though the relevant provisions of the French constitution did not change.15 Doctrinal change in the United States went in the opposite direction. According to David Sloss, the fairly recent understanding that treaties are only binding in the US legal order if they are explicitly “self-executing” does not find its origin in the Constitution, but rather in a relatively recent academic reassessment of foreign relations law in the United States.16 Cultural change with respect to international law has many causes. Over time, the political influence of international law and international courts has grown, contributing to the growing criticism of IC rulings and in some cases political resistance to international courts. Yet it is hard to know whether it is the growing intrusiveness of international law and ICs or a rise in nationalist sentiment more generally that is 13 See art. 93 of Colombia’s 1991 Constitution, referenced in the previous section. Mila Versteeg and Pierre Verdier show that Colombia’s Constitution is not unique (Verdier and Versteeg 2015). 14 For studies of this transference see Gibson and Caldeira 1995, Gibson and Caldeira 1993, and Gibson, Caldeira, and Baird 1998. 15 Article 55 of the France’s Fifth Republic Constitution (adopted October 4, 1958) states: “Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party.” On the changing French relationship to international law, see Alter 2001, ch. 4, especially 135–7. 16 See Sloss 2009 (discussing Restatement (Third) of Foreign Relations Law § 115(3) (1987)); see also Sloss 2016. Jens Ohlin suggests that the US culture of constitutional obedience to international law may be changing yet again, driven by legal conservatives who are trying to reverse the Supreme Court’s ruling in Missouri v. Holland, 252 U.S. 416 (1920), which placed the federal government’s treaty implementation powers over state concerns about enumerated powers. See Ohlin 2015, 208–12.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 6 /
Date: 11/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
250 Comparative judicial review responsible for the increasingly loud complaints with respect to international law. These complaints are voiced most loudly by authoritarian and populist leaders, by political conservatives, and by supporters of policies that are publicly cast as violations of international law. Cultures of constitutional obedience have both legal and political dimensions. Elites within the legal field—judges, law professors, legal advocates within governments, and bar associations—shape national legal cultures by using their positions of power to define and reshape national legal understandings about international law. Legal cultures of constitutional obedience to international law transfer into the political domain because rule of law norms are important legitimators of governments. Even authoritarian and repressive leaders display a surprising degree of formal fidelity to the rule of law.17 Where national high courts insist on respect for binding international law, governments will be constrained by domestic and international rule of law requirements. Where national high courts justify disobedience of international law as required by domestic law, governments can simultaneously break international law and be seen as respecting the rule of law.
C. DIVERGING OPTICS: INTERNATIONAL LAW AS A LUXURY GOOD OR A FAIL-SAFE The previous section suggested that national supreme courts have a choice: They can oppose, contest, or ignore—and thereby tacitly undermine—the legal authority of ICs and international law within the domestic legal realm; or they can see themselves as bound by IC rulings condemning state acts, thus supporting the notion that state actors are obliged to respect international law. The choice national supreme courts embrace depends on the optics through which national judges view international law and IC judicial review. I label the two approaches to international law the “luxury good” and “fail-safe” optics. Luxury goods are more or less inessential items. Referring to international law as a luxury good is intentionally jarring. Luxury can connote quality and status, but it can also convey frivolity, expendability, and arrogance. If international law comes to be seen as disruptive to the pursuit of national objectives, international legal agreements can be recast as superfluous and expendable. Indeed, the mere existence of certain international laws can be reframed as unnecessary at best and perversely counterproductive at worst. To be clear, I do not believe that international law is a luxury good. International law is often the only law regulating international interactions and the global commons, and there are usually good reasons for international law to prohibit certain behaviors. Because much international law is seen as universally desirous and helpful, no responsible legal and political actor would openly or categorically claim that international law is a luxury good. The luxury good optic, however, treats international 17 See, e.g., Hawkins 2002 (discussing legal underpinnings of the Pinochet regime’s policies, which ran afoul of international human rights law). For a more critical view of how authoritarian leaders use law, see Solomon 2008.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 251 law as if it is easily expendable, like a pair of pointlessly fancy shoes that the profligate previous government purchased but which the new government now casts as impracticable. Treating specific international laws as luxury goods is the strategy of affluent populists and sovereigntists, those who might concede that international law and international adjudication are important for some countries and some situations, but not for their country or their particular situation. When wielded by highly legitimated actors—democratic governments or supreme courts—the luxury good perspective lends credence to the cruder and more categorical authoritarian rejections of international law as an invasion of national sovereignty. The fail-safe perspective, by contrast, recognizes that international law may be legally redundant—this is because, as a formal matter, national legal rules may also protect against the types of violations envisioned by international treaties.18 The external status of international law, however, provides a helpful extra check. Domestic statutes and constitutions can be changed and national judiciaries reformed into subservience. International law is not easily changed, and renouncing international legal obligations brings external costs. For these reasons, IC review provides an important fail-safe for moments when domestic law and institutions prove inadequate in ensuring state respect for domestic law, international law, or the rule of law. The rest of this section illustrates these two optics by examining diverse political and legal responses to rulings of the International Court of Justice, the Andean Tribunal of Justice, the Inter-American Court of Justice, the Southern African Development Community Tribunal, and the Court of Justice of the European Union.19 1. The Luxury Good Optic in Action: Constructing National Judicial Barriers to the Applicability of International Law and IC Rulings The luxury good optic has been generated by supreme courts in well-functioning democracies. I provide two examples where national supreme courts treated international law as a superfluous luxury good—the United States and the International Court of Justice, and Colombia and the Andean Tribunal, respectively—undermining national respect for international law. The obstructing supreme courts defended their disregard of pertinent international law in constitutional terms. In doing so, the supreme courts suggest that any constitutionally allowable national act will be deemed domestically valid even if it violates an international legal obligation. Such a position eliminates the possibility that international law can serve as a fail-safe should national political or legal protections break down. I chose the examples of the United States and Colombia because supreme courts in other countries (Germany and Ecuador, respectively) faced with substantively similar IC rulings took the opposite tack of using IC 18 See, e.g., the UK’s Human Rights Act 1998 (c. 42), making violations of the European Convention on Human Rights actionable in UK courts. 19 My arguments are consistent with scholars (e.g., Keller and Stone Sweet 2008; Krisch 2008; Benvenisti and Harel 2017) who have compared national jurisprudence regarding the supremacy of the European Convention on Human Rights and the rulings of the European Court of Human Rights in the national legal order.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 8 /
Date: 11/7
JOBNAME: Delaney PAGE: 9 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
252 Comparative judicial review jurisprudence as a guide. We thus see how compliance with international law can turn on the willingness of national judges to treat international law as supreme in the national realm. i. The United States, Germany, and the International Court of Justice: litigation involving the Vienna Convention on Consular Relations The International Court of Justice (ICJ) does not have an explicitly delegated constitutional review jurisdiction. Rather states may raise whatever disputes they like. As a general rule, the ICJ has jurisdiction only if both litigating states consent, or if the two states are signatories of the ICJ’s optional protocol. Specific treaties may also designate the ICJ as the relevant legal body should a dispute arise.20 Where ICJ judges are satisfied that they have jurisdiction and the case is admissible, the ICJ can find a country in violation of an international treaty. If domestic courts treat the ICJ’s ruling as factually dispositive with respect to questions of international law, the ICJ’s decision may thereby guide national judicial interpretations and enforcement of international law. Do national courts offer constitutional obedience to ICJ rulings finding treaty violations? I investigate this question by analyzing responses to ICJ rulings where countries inadvertently failed to provide criminal defendants with access to national counsel, as required by the Vienna Convention on Consular Relations (VCCR). This Convention includes an optional protocol concerning the compulsory settlement of disputes related to the Convention; the United States agreed to the ICJ’s compulsory jurisdiction for such disputes in 1969.21 The failure of officials to notify litigants of and accord them their consular rights under the VCCR was not in dispute in any of the cases litigated by the ICJ. Instead, the questions centered on what remedy should follow from a violation. US federal law limits the timing and types of appeals that can be made in death penalty cases, insisting that criminal plaintiffs only appeal to the Supreme Court arguments that were first raised in state court (the “procedural default” rule).22 In two separate cases presented to the ICJ, the criminal defendants had not raised the VCCR violation during the initial proceedings. The ICJ’s LaGrand case concerned an Arizona conviction of two brothers, both German nationals.23 Following the execution of the first brother, Germany asked the ICJ to order a provisional ruling in the hopes of delaying the execution of the second brother. The ICJ ordered a provisional measure in March 1999, which Germany tried to enforce in front of the US Supreme Court. The Supreme Court refused to hear the case, however. The US government conveyed the ICJ’s provisional measure to the Governor 20
The ICJ’s jurisdiction for these treaties may be compulsory for all state parties, or there may be an opt-in clause as was the case for the Vienna Convention on Consular Relations. 21 Vienna Convention on Consular Relations, 596 U.N.T.S. 261. 22 The procedural default rule is a legal practice. See Wainwright v. Sykes, 433 U.S. 72 (1977). I refer only briefly and partially to the detailed litigation about the procedural default rule and the VCCR. 23 LaGrand Case (Germany v. United States), Judgment, Jurisdiction, Admissibility, Merits, ICJ GL No 104, [2001] ICJ Rep 466, ICGJ 51 (ICJ 2001), (2001) 40 ILM 1069, 27 June 2001, International Court of Justice [ICJ].
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 9 /
Date: 15/8
JOBNAME: Delaney PAGE: 10 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 253 of Arizona without comment, and LaGrand was executed.24 In its subsequent rulings, the ICJ held that it was incumbent on the “United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.”25 The United States argued that the remedy of a clemency appeal to the governor sufficed. During the merits phase of the LaGrand litigation, Germany made numerous submissions to counter various American arguments. By the time the ICJ made its determination in favor of Germany, however, both litigants had been executed. ICJ judges had different views regarding whether the United States had made a sufficient effort to comply with the provisional ruling, although a strong majority sided with Germany in its legal claims. ICJ judges also disagreed regarding the types of remedies that were required, especially given that both brothers had been executed (Dupuy and Hoss 2009). The ICJ was clear in its 2001 ruling, however, that its provisional and final rulings were binding. In 2003, Mexico raised a similar case in front of the ICJ on behalf of 54 Mexican nationals on death row in the United States. In its Avena ruling, the ICJ found a variety of violations and it ordered the United States to provide “review and reconsideration” of the convictions and sentences of 51 Mexican nationals.26 The United States disagreed with the ICJ’s interpretation of the VCCR and the remedies the court ordered. Indeed, the United States withdrew its consent to ICJ jurisdiction to hear future disputes relating to the VCCR. Yet in 2005, President George W. Bush issued a memorandum asserting that “the United States will discharge its international obligations under [the Avena judgment] by having State courts give effect to the decision … in cases filed by the 51 Mexican nationals addressed in that decision.”27 How were the various ICJ rulings regarding the VCCR applied by domestic judges? The US Supreme Court had numerous opportunities to revisit state and federal precedents involving violations of the VCCR. In one case, the Solicitor General of Texas challenged President Bush’s order requiring a state-level legal review, arguing that President Bush had exceeded his executive authority.28 In Medellín, the Supreme Court held that the ICJ’s Avena judgment was legally binding only at the international level and that the President’s directive was unconstitutional.29 The Supreme Court’s Medellín decision prevented all 51 Mexican nationals from receiving automatic review and reconsideration of their convictions and sentences. Nevertheless, a few state courts 24
These details are recounted in Dupuy and Haas 2009. Id. at ¶¶ 138–41. This aspect of the ruling was unanimous. 26 Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, 2004 I.C.J. Rep. 559, ¶ 121 (March 31). 27 Memorandum from President George W. Bush to the Attorney General on Compliance with the Decision of the International Court of Justice in Avena (Feb. 28, 2005), http:// georgewbush-whitehouse.archives.gov/news/releases/2005/02/20050228-18.html. 28 Medellín v. Texas, 552 U.S. 491 (2008). 29 According to the Supreme Court, only a federal statute could compel state courts to comply with the ICJ judgment. Id. at 496. The Avena Case Implementation Act of 2008, H.R. 6481, 110th Cong. 2d Sess. (2008) and other Bills introduced to require compliance have yet to be enacted by Congress. 25
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 10 /
Date: 15/8
JOBNAME: Delaney PAGE: 11 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
254 Comparative judicial review and officials have relied on Avena to grant such relief and to commute the death sentence of at least one defendant.30 Meanwhile, Germany’s Constitutional Court (GCC) took a different stance. In 2006, the GCC was asked to review a Federal Court (Bundesgerichtshof) ruling that had refused to review some criminal convictions where foreign nationals had been denied their rights under the VCCR. The GCC found that in rejecting the appeal, the Supreme Court had violated the plaintiffs’ civil rights guaranteed by the Constitution. The GCC ordered the Federal Court to reconsider the consequences of the violation for the criminal conviction (Garditz 2007, 628). Given the LaGrand cases, it is perhaps unsurprising that the GCC was more open to applying ICJ precedent. But the GCC went further than it had to, making the denial of rights guaranteed by the VCCR a violation of German Basic Law (Garditz 2007, 628). Like the United States, Germany has a federal political system, and questions regarding the enumerated powers of states and other German political institutions are hotly contested. I will shortly explain that the GCC has unequivocally stated that the German Constitution trumps conflicting international law. But the GCC also demands constitutional obedience to international law, and it accepts as binding international judicial interpretations of this law. The GCC’s position thus contrasts with the US Supreme Court’s Medellín ruling. Jens Ohlin argues that legal conservatives in the United States have led an “Assault on International Law,” using academic arguments and positions of power—in the Office of the Legal Counsel and judicial offices—to challenge established US legal doctrines that are more open to international law (Ohlin 2015).31 Especially in light of Ohlin’s analysis, it is interesting to note that the advocates for Mexico were American lawyers opposed to the death penalty and the Solicitor General of Texas was Ted Cruz, who, as a candidate for the US Senate and then the US Presidency, championed his involvement in the Medellín case as evidence of his anti-establishment bone fides.32 We can thus see in the United States a fight within the legal and political field over the extent to which national judges owe constitutional obedience to ICJ rulings and to executive acts implementing these rulings. ii. Colombia, Ecuador, and the Andean Tribunal of Justice: letting municipal practices trump Andean Community law The original Andean Community (then named the Andean Pact) was silent regarding the relationship among the Pact’s founding Cartagena Agreement, Decisiones adopted by the Pact’s legislative body (the Comisión) and national law. This silence generated concern when the Colombian Supreme Court, responding to domestic suits challenging the incorporation of Andean law via presidential decrees, suggested that Andean 30
See Gutierrez v. State, No. 53506, 2012 WL 4355518 (Nev. 2012); Babcock 2012. Pamela Bookman focuses on other types of US Supreme Court “avoidance strategies” based on the “foreignness” of the case, arguing that “litigation isolationism” does not actually achieve the stated objectives of protecting the separation of powers (promoting judicial comity and making litigation more convenient for defendants). See Bookman 2015. 32 See Jeffrey Toobin, The Absolutist: Ted Cruz is an unyielding debater—and the far right’s most formidable advocate, THE NEW YORKER (June 30, 2014), http://www.newyorker.com/ magazine/2014/06/30/the-absolutist-2. 31
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 11 /
Date: 11/7
JOBNAME: Delaney PAGE: 12 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 255 Decisiones might not be seen as legally valid and binding in the Colombian legal system.33 In response, Andean member states created the Andean Tribunal of Justice (ATJ), modeling the Tribunal on the European Community’s Court of Justice. The ATJ can rule on preliminary ruling references from national courts as well as noncompliance suits raised by member states, the Andean Secretariat, or private litigants.34 The multiple access points allow states, individuals, and the Andean Secretariat to challenge state respect for Andean law in front of the domestic courts and the ATJ. Private litigants can also turn to national courts to enforce Andean law and ATJ rulings.35 At the same time that Andean states agreed to create a tribunal, they agreed that Andean Decisiones are directly effective and supreme within national legal systems. Although the supremacy and direct effect of Andean law is not embedded in any treaty or statute, it was noted in an early ATJ ruling (Alter and Helfer 2017, 39–40, 92–3). The ATJ’s supremacy claim and the direct effect of Andean law have never been challenged, and the ATJ has repeatedly asserted and applied the supremacy of Andean law over conflicting national law.36 Here, I discuss Colombia’s violation of Article 75 of the Cartagena Agreement, which requires that products from other member states be treated in the same way as Colombian products.37 Colombia’s alcohol policies were the subject of two ATJ noncompliance suits and a preliminary ruling reference from Colombia’s Council of State. In addition, Colombian and Ecuadorian courts adjudicated suits involving Colombia’s alcohol policy, Andean law, and Ecuador’s retaliatory response to Colombia’s Andean law violations. For more than a century, the Constitution of Colombia has authorized the central government to create monopolies over alcohol products that enable municipalities to raise revenue for health and social services. The constitutional provisions do not themselves violate Andean law; the question instead asked whether municipal practices regulating alcohol violated Andean law. Venezuela and Ecuador filed complaints against Colombia’s municipal practices, leading to reasoned opinions issued by the Andean Secretariat finding Colombia in violation of Andean law. The case then proceeded to the ATJ for review.38 33
See Alter and Helfer 2017, 36–7 for a discussion of the Colombian Supreme Court’s ruling of July 26, 1971, published in Derecho de la Integración No. 10, 160–80. 34 For more on how the ATJ copied the model of the European Court of Justice, and on the jurisdiction of the ATJ, see Alter and Helfer 2017, ch. 2. 35 Id. at ch. 4. 36 The ATJ’s supremacy doctrine allows that conflicting national law may remain on the books so long as it is not applied, and that member states may adopt additional laws, policies, and procedures to complement Andean law so long as this legislation does not conflict with Andean law. Alter and Helfer 2017, 98–101. 37 ATJ Noncompliance Judgment 03-AI-97. At the time of the ATJ ruling, the national treatment provision was Article 74 of the Cartagena agreement. These legal procedures and the alcohol dispute are discussed in more detail in Alter and Helfer 2017, 159–63. 38 ATJ Noncompliance Judgment 03-AI-97. Details, including the relevant legal cases, can be found in Alter and Helfer 2017, 159–63.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 12 /
Date: 11/7
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
256 Comparative judicial review While the noncompliance case was pending, a private litigant raised a legal suit in front of the Colombian Constitutional Court. The suit did not directly challenge the questionable municipal practices, and the Constitutional Court eschewed the option of sending a preliminary reference to the ATJ for guidance. The Constitutional Court did, however, speak to the relevance of Andean law in its ruling. The Constitutional Court insisted that Andean law is not part of the constitutional bloc of higher-order law.39 The Constitutional Court accepted, however, that Andean law has “primacy” over domestic law, a concept that the court interpreted to mean that Community law “displaces but does not abrogate or render non-executable” conflicting national legislation.40 This ruling came down before the ATJ issued its finding that Colombia’s municipal alcohol pricing practices violated Andean law.41 A subsequent challenge to the implementation of Colombia’s alcohol monopoly appeared before Colombia’s highest administrative court, the Consejo de Estado. Again the legal case was not squarely aimed at the criticized municipal practices. The Consejo referred the legal case to the ATJ, and the ATJ answered its question. The reference could perhaps have been used as an opportunity to address Colombia’s violation of Andean law, but the ATJ did not demand that the Consejo help enforce its noncompliance ruling (Alter and Helfer 2017, 161). The ATJ tends to be legally formalist, avoiding expansionist lawmaking (Alter and Helfer 2017, ch. 8). While the litigation against Colombia was proceeding, alcohol exporters convinced Ecuadorian agencies to retaliate against Colombia’s municipal alcohol price restrictions. This retaliation violated Andean law because it was a unilateral act that had not been explicitly authorized by the Andean Secretariat or the ATJ. A noncompliance complaint against this retaliation proceeded simultaneously with the Colombian noncompliance suit, leading the ATJ to also condemn Ecuador’s retaliation. In addition to demanding the retraction of the retaliatory acts, the ATJ ordered Ecuadorian officials to refrain from future unilateral acts. When litigants then asked Ecuadorian judges to invalidate the retaliatory acts, Ecuador’s Supreme Court accepted the “preeminence of Community over national law,” which it interpreted as “requir[ing] that national regulations not conflict with the higher-level legal norms” of Andean law.42 Later, a different Ecuadorian agency issued a new restriction on Colombian alcohol imports in explicit contravention of the ATJ ruling.43 This new restriction triggered a fresh judicial challenge, which this time was 39
See Colombian Constitutional Court, Sentencia C- 256/ 98 of May 27, 1998, Section 3.1. The Constitutional Court ruling notes that international human rights agreements ratified by Colombia are part of a bloque de constitucionalidad, which gives them a status superior to the national law. See Colombian Constitutional Court, Sentencia C-256/98 of 27 May 1998, Section 3.1. 41 There were two simultaneous cases, one against Colombia’s municipal practices, and another against Ecuador’s retaliation against Colombia for its municipal practices. ATJ Noncompliance Judgment 02-AI-97 (Sept. 24, 1998) (finding violations by Ecuador); ATJ Noncompliance Judgment 3-AI-97 (Dec. 8, 1998) (finding violations by Colombia). 42 Judgment of May 15, 1998, cited in ATJ Noncompliance Judgment 02- AI- 97: section XIII. 43 Resolución No. 004, Ecuador Board of Foreign Trade and Investment (COMEX), published in Gaceta Oficial No. 372 (July 30, 1998). 40
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 13 /
Date: 11/7
JOBNAME: Delaney PAGE: 14 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 257 appealed to the Constitutional Tribunal of Ecuador. Ecuador’s Constitutional Tribunal embraced the supremacy of Andean law, and it invalidated the illegal administrative regulation. These different approaches to Andean law have generated conflicting high court precedents regarding the supremacy of Andean law in substantively related cases from Colombia and Ecuador. The broader picture, however, is even more complicated. These complications illustrate how legal cultures can change. While Colombia persists in its violation of Andean law in the alcohol cases, in other cases Colombian courts have applied Andean law to invalidate contested Colombian acts.44 Thus, although Colombia’s Constitutional Court does not see Andean law as a higher-order law that displaces conflicting national law, Colombian courts will nullify decisions and actions of Colombian government officials that violate Andean law. Moreover, any international treaty that becomes part of the constitutional bloc will be accorded domestic supremacy. The larger problem is that in the case detailed above, the Constitutional Court refused to fully consider the legal implications of membership in the Andean Community. In doing so, it undermined the legal status of Andean law and the ATJ’s rulings. The fact that Colombian courts nonetheless tend to apply Andean law also illustrates how the luxury good perspective does not mean that national courts never apply international law. Meanwhile, the Ecuadorian decisions enforcing an ATJ noncompliance ruling occurred at a moment of significant judicial independence in Ecuador. Since these rulings, Ecuador’s presidents have purged and “reformed” the judiciary numerous times, arguably undermining its judicial independence.45 Since these reforms, one finds fewer examples of private litigants turning to Ecuadorian courts to enforce Andean law. Litigation challenging Ecuador’s compliance with Andean law proceeds, however, via the ATJ’s noncompliance procedure (Alter and Helfer 2017, 167–9, 87–92). National judges usually apply Andean law as the ATJ interprets it; indeed, I know of no ATJ preliminary ruling that has been ignored. Yet it is clear that the ATJ cannot count on national judges to show constitutional obedience to Andean law. Governments will do as their national courts require, but where noncompliance suits are not backed by national judicial enforcement, compliance with ATJ rulings remains problematic.46 2. What are the Political Roots of the Luxury Good Perspective? Pierre-Hugues Verdier and Mila Versteeg show that national constitutions vary greatly in how they define the place of international law within the national legal order (Verdier and Versteeg 2015). These differences may generate variability in national 44
In 2005, the ATJ twice condemned Colombia for lowering the tariff on rice. ATJ Preliminary Ruling 115-IP- 2005. The Colombian Consejo de Estado enforced the ATJ’s ruling in a 2010 decision. Dorian Rocha Avila v. Decreto 635 of 2001; Alter and Helfer 2017, 186). 45 See Ecuador: Supreme Court Purged: President and Congress Thwart Judicial Independence, HUMAN RIGHTS WATCH (Dec. 16, 2004), https://www.hrw.org/news/2004/12/16/ecuadorsupreme-court-purged; Luis Pásara, Executive Summary Report: Judicial Independence in Ecuador’s Judicial Reform Process, DUE PROCESS OF LAW FOUNDATION (2014), http://www. dplf.org/sites/default/files/indjud_ecuador_executivereport_eng.pdf. 46 These cases are all discussed in Alter and Helfer 2017, chs. 6–7.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 14 /
Date: 15/8
JOBNAME: Delaney PAGE: 15 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
258 Comparative judicial review judicial enforcement of international treaty obligations, but my argument about cultures of constitutional obedience suggests that we must look beyond constitutional texts. The luxury good perspective renders specific categories of international law domestically superfluous. Given that countries negotiated the treaties in question and voluntarily ratified the international legal agreements, why would judges create limits on the reach of international law within the domestic realm? Part of the answer has to do with separation of power concerns. It is generally the executive branch that participates in the drafting of treaties. Since legislative actors usually cannot reopen and amend treaties, a ratification decision may involve legislative actors being compelled to accept parts of the agreements that they dislike. Legislatures may add their own qualifications to the domestic legislation during ratification and as part of the domestic incorporation of the international treaty—but if judges then draw directly on international law or IC rulings, these qualifications may be circumvented. Part of the answer involves turf concerns. Supreme courts understandably fear that they might be displaced or subordinated to the forces of globalization, including the jurisdiction of ICs (Alter 2001; Huneeus 2011; Benvenisti 2008). Another part of the answer is related to how international law locks in political agendas, binding future governments to the preferences of past governments. We can see this lock-in logic at play in the United States, where a key factor animating the luxury good perspective is party politics.47 International treaties lock in political preferences for human rights, free trade, environmental protection, and multilateralism. Opponents of these policies worry that international law may be used by internal advocates to oppose domestic policies they prefer. This concern is reflected in suggestions that international law may threaten cherished national policies,48 as well as in the argument that incorporating international law will only deepen a double standard—incorporation means that well-functioning democracies will be held to international law at the same time that less rule of law-oriented states continue to ignore their international legal obligations (Koh, 2003, 1484). Because not all international law is or should be seen as supreme to conflicting domestic law, there will always be legal room for national judges to find prudential limitations on the direct effect and supremacy of international law within the national legal order. That said, categorical arguments suggesting that part or all of international law is inherently extrinsic provide a ready legal means for political leaders to reject the binding nature of inconvenient international laws.
47
On the role of party politics in shaping US ratification decisions, see Nzelibe 2011. For example, opponents of the UN Convention on the Rights of the Child suggest that ratification would imperil the right to home-school children. See Why won’t America Ratify the UN Convention on Child Rights? Because some senators believe it would impinge on American sovereignty, THE ECONOMIST (Oct. 7, 2013), http://www.economist.com/blogs/economistexplains/2013/10/economist-explains-2. 48
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 15 /
Date: 11/7
JOBNAME: Delaney PAGE: 16 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 259 3. The Fail-safe Optic in Practice: International Judicial Review as a Backstop to National Legal Review Especially in authoritarian and fragile democratic contexts, international constitutional review provides an external check and a legal lifeline should national judges lack sufficient independence or courage to challenge government officials and questionable legal acts. Nationalist leaders often fill state institutions with political friends, using their control of the domestic political system to pass laws that may violate international legal commitments (Scheppele, forthcoming). Because these reforms are subject to a legal reversal, an additional part of the authoritarian playbook includes undermining judicial independence by retiring, firing, and replacing independent judges and by creating statutory and constitutional provisions that render new judicial appointees politically subservient (Scheppele, forthcoming; Solomon 2008). In these ways, political and legal checks on government may be quickly unraveled. Although nationalist leaders may fully control the domestic legal and political system, disentangling from international legal obligations may be procedurally and politically more difficult, although not impossible.49 Withdrawal can bring external costs, and it may take years for a government to follow the many procedural steps required to fully disengage from an international legal commitment. While states remain bound, the states’ formal commitment to international law can create a lifeline for domestic lawyers and judges resisting the authoritarian turn. This section discusses two land rights disputes where the international legal review compensated for limitations in national law and the unwillingness of domestic judges to look beyond the letter of domestic law. In the first example, an international court required that Nicaragua enact positive legislation protecting the land rights of indigenous people. In the second example, white land owners appealed to an international tribunal to counter Zimbabwe President Robert Mugabe’s seizure of their land. In both cases, international judicial review provided litigants with a fail-safe. i. Nicaragua, the Inter-American Court of Human Rights, and indigenous land rights The Inter-American Court of Human Rights (IACtHR) oversees enforcement actions associated with the Inter-American Convention on Human Rights. This regional human rights body has demanded extensive remedies for human rights violations that can include remuneration, apologies, cancelling national legal rulings, ordering prosecutions, and demands for the passage of new laws and statutes. The extensive nature of the IACtHR’s remedial rulings has generated pushback by executives and national judges, and the multiple and varied remedial demands contribute to the record of partial compliance with IACtHR rulings (Cavallaro and Brewer 2008; Huneeus 2011; Hawkins and Jacoby 2010). The Awas Tingni are a group of indigenous families in Nicaragua that hold land communally, farming and then idling land while maintaining claims to traditional hunting and burial grounds (Alter 2014, 315–19). Working with international anthropologists and NGOs, the Awas Tingni mapped their land claims. While filing the legal 49
For an analysis of how and where exit can occur, see Helfer 2005 and Helfer 2010.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 16 /
Date: 11/7
JOBNAME: Delaney PAGE: 17 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
260 Comparative judicial review papers, the community learned that the Nicaraguan government had granted to a foreign firm a timber concession for their lands. Notwithstanding constitutional promises affirming indigenous rights to communal land and natural resources—and vague statutes designed to help implement this promise—the Awas Tingni could not secure an official acknowledgement of their land claims.50 After numerous legal appeals, eventually the Nicaraguan Supreme Court annulled the contested timber concession (Anaya and Campbell, 2009, 268–9). But the Awas Tingni’s claim to the land remained in legal limbo. The problem was the Nicaraguan “amparo” system, which provided a tool to annul illegal state acts but could not compel the government to recognize the land ownership of the Awas Tingni. Nicaragua’s government repeatedly claimed that it lacked proof of land ownership, and that overlapping land claims would take years to resolve. This claim persisted despite the existence of both a World Bank-funded study that mapped land rights in the region and arguments of advocates that overlapping land claims could be resolved if only the government would create a process to do so (Anaya and Campbell, 2009, 277). Because of this gap in Nicaraguan law, the Awas Tingni appealed to the InterAmerican legal system for help. The IACtHR drew on the Inter-American Convention of Human Rights, which includes a legal requirement of recognition of indigenous rights, finding that the Nicaraguan government failed to provide rights to property guaranteed by its own Constitution and that the national legal remedies were insufficient. Whereas the Nicaraguan Supreme Court had considered only the validity of the contested foreign land concession, the IACtHR ordered the government to abstain from any acts that “affect[ed] the existence, value, use or enjoyment of the property located in the geographic area where the members of the [Awas Tingni] Community live[d] and carr[ied] out their activities” and to create a process for all indigenous groups to demarcate their lands (Alter 2014, 318). In response to the IACtHR’s ruling, the Nicaraguan government compensated the Awas Tingni but was slow to take the steps needed to demarcate the land rights. A change in government helped to overcome the foot-dragging. Eventually, Nicaragua’s government complied in full with the IACtHR’s legal ruling, creating a system to map and confer indigenous land rights. Indigenous groups in other Latin American countries followed a similar strategy of appealing to the Inter-American system to press for land rights (Alter 2014, 318). This example shows international law providing remedies that were simply unavailable within the domestic legal system. The IACtHR and Inter-American Commission have further developed this law into a set of legal demands for protection of indigenous land rights in member states.51
50 The requirement to recognize land rights was inscribed into Nicaragua’s 1985 Constitution. A 1987 statute passed by the National Assembly also promised autonomy for the country’s Atlantic coast. 51 See Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System OEA/Ser.L/ V/II. Doc. 56/09 30 December 2009, http://cidh.org/countryrep/Indigenous-Lands09/TOC.htm.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 17 /
Date: 11/7
JOBNAME: Delaney PAGE: 18 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 261 ii. Zimbabwe, the Southern African Development Community Tribunal and land reform In a very different context, and with very different results, the Southern African Development Community (SADC) Tribunal reviewed Zimbabwe’s seizing of farms owned by white land owners. The SADC Tribunal, modeled on the European Union’s Court of Justice (CJEU), had even more extensive jurisdictional powers than the CJEU. This jurisdiction included adjudication of disputes between states and national legal persons, provided that domestic remedies had first been exhausted.52 The Treaty Establishing the SADC also stated as a founding principle that member states would act in accordance with human rights, democracy, and the rule of law.53 Zimbabwe’s President Mugabe had made the seizing of white-owned farmlands a central part of his political platform. President Mugabe had ensured the domestic legality of his government’s land seizures by forcing a constitutional amendment which confirmed past land seizures, vested rights over certain lands with Zimbabwe’s government, and barred national judges from reviewing decisions related to Zimbabwe’s land reform (Moyo 2013, 33–4). White land-owner Michael Campbell tried and failed to challenge the seizing of the land in front of the Zimbabwean Supreme Court.54 Campbell turned simultaneously to the SADC Tribunal, winning a series of legal decisions in his favor. The Tribunal’s early rulings included a preliminary injunction against seizing land, and a decision to allow 77 other farmers to join the suit. These decisions mobilized Zimbabwe’s government to undertake a no-holds-barred attack on Campbell and the Tribunal. President Mugabe used every tactic in the authoritarian playbook, with great effect. He maligned the Tribunal and its rulings, suggesting that the SADC Tribunal judges were funded by and promoted the will of European actors (a.k.a. former colonial masters). Michael Campbell was kidnapped and roughed up and his farm was burned. Mugabe then tasked Patrick Chinamasa, his Minister of Justice and Legal Affairs, with unseating the ruling and eliminating the SADC Tribunal. Both Mugabe and Chinamasa repeatedly sowed disinformation and disarray at and following regional meetings of Attorneys General and Ministers of Justice that had been convened to discuss the Tribunal and its land rights rulings. With considerable effort, Mugabe won his battle against Campbell and the SADC Tribunal.55 Campell’s land was seized and redistributed, and the SADC Tribunal was effectively suspended and dismantled. President Mugabe never managed, however, to unseat the validity of the contested international legal rulings. His government’s 52 Article 15 of Declaration and Treaty Establishing the Southern African Development Community, Protocol on Tribunal and Rules of Procedure thereof (2000/2001); Ebobrah and Tanoh 2010, 339. 53 Article 4, Treaty of the Southern African Development Community of August 17, 1992. 32 ILM 116, 5 AJICL 418. 54 Minister of National Security Responsible for Land, Land Reform and Resettlement, Constitutional Application No. 124/06, Judgment No. SC 49/07, at 2 (Jan. 22, 2008), www. zimlii.org/zw/judgment/supreme-court/2008/1. 55 In previous scholarship, Laurence Helfer, James Gathii, and I discuss the ultimately successful political strategy that led to the Tribunal’s suspension and dismemberment (Alter, Helfer, and Gathii 2016, 306–18).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 18 /
Date: 11/7
JOBNAME: Delaney PAGE: 19 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
262 Comparative judicial review numerous legal claims (e.g., that the Tribunal was illegally constituted, that Zimbabwe had never assented to the Tribunal’s jurisdiction, or that the Tribunal’s actions were ultra vires) repeatedly failed to gain any traction. Behind-the-scenes accounts suggest that Mugabe also never gained a positive vote of support for disbanding the Tribunal, and that official reports of SADC meetings which suggested otherwise were doctored. But, by letting every appointment to the Tribunal expire, Mugabe did ultimately achieve his objective of eliminating the Tribunal. This is a rare example of a successful backlash against an international court (Alter, Helfer, and Gathii 2016, 306–18). President Mugabe did not, however, unseat the sense that Zimbabwe’s land seizure policy violated international law. The SADC Tribunal’s rulings were enforced in South Africa, leading to the forced selling of Zimbabwean assets to compensate Campell’s lawyers.56 As I write, Mugabe’s failing government is forcing Zimbabwean officials back to the negotiating table with international institutions and foreign donors. Foreign institutions are demanding that white farmers be compensated (probably with funds that they provide). Responding to this pressure, Zimbabwe’s government has signaled that it will start to compensate white farmers whose lands were seized in violation of international law.57 Thus far, it appears that actual compensation is delayed by protests and legal wrangling.58 4. The Political Roots of the Fail-Safe Perspective A number of governments clearly dislike international judicial review. Russian President Vladimir Putin, for example, has long been frustrated by international judicial rulings against his government,59 and in light of the arbitral ruling against China’s land claims in the South China Seas, China’s government has also become frustrated with
56
See SA: Zim govt property auctioned for 300k, ZIMBABWE SITUATION (Sept. 15, 2015), http://www.zimbabwesituation.com/news/zimsit-m-sa-zim-govt-property-auctioned-for-300k/. 57 See Brian Latham and Godfrey Marawanyika, Zimbabwe Sets Up Fund to Compensate Farmers for Seized Land, BLOOMBERG (Mar. 8, 2016), http://www.bloomberg.com/news/articles/ 2016-03-08/zimbabwe-sets-up-fund-to-compensate-farmers-for-seized-land. 58 See Moses Mudzwiti, New twist in compensation for dispossessed Zimbabwe farmers, BUSINESS REPORT (May 10, 2017), http://www.iol.co.za/business-report/economy/new-twist-incompensation-for-dispossessed-zimbabwe-farmers-9044299; Brett Chulu, Zim’s land law allows for TBs compensation, ZIMBABWE INDEPENDENT (March 17, 2017), https://www.theindependent. co.zw/2017/03/17/zims-land-law-allows-tbs-compensation/. 59 Russia’s seizing of a Greenpeace vessel, Arctic Sunrise, and the arrest of its crew was condemned by the International Tribunal for the Law of the Sea; the takeover of the Russian energy company Yukos has been the subject of multi-country legal reviews and of international arbitration; Russia has been condemned many times by the European Court of Human Rights (ECtHR); and both Georgia and the Ukraine have brought legal challenges to Russian actions in their countries to the ECtHR. These irritations are now eclipsed by Russia’s frustrations regarding sanctions imposed after Russia’s annexation of Crimea. In Russia’s view, the condemned policies are a legitimate exercise of Russian influence in its near neighborhood. See Kirk Bennett, Russia and the West: Condemned to Frustration, THE AMERICAN INTEREST (April 1, 2016), https://www.the-american-interest.com/2016/04/01/condemned-to-frustration.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 19 /
Date: 11/7
JOBNAME: Delaney PAGE: 20 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 263 international judicial review.60 News articles report meetings where heads of states collectively denounce ICs but few governments follow their denunciations with actions. In Latin America, Venezuela’s President Hugo Chavez denounced and departed the jurisdiction of the IACtHR.61 Leftist Latin American leaders in Ecuador, Argentina, and Bolivia have repeatedly voiced support for Chavez’ concerns,62 but they have not then withdrawn from the IACtHR’s jurisdiction. In Southern Africa, it took Mugabe nearly four years to dismantle the SADC Tribunal and he never managed to convince other governments that the Tribunal or the contested rulings were legally invalid. African countries also complain about the International Criminal Court, threatening mass withdrawal, but few African countries have managed to legally withdraw from the Court’s jurisdiction. This suggests that angry authoritarian leaders who can capture the bully pulpit and the tools of governance can project a magnified voice. But most authoritarian governments are reluctant to act in ways that suggest a fundamental disrespect for international law and the rule of law. Moreover, the actions of authoritarian leaders can be reversed when new reform leaders are elected. This is why national supreme court support for international law remains so important: It removes the veneer of legality that authoritarian leaders seek. Why would domestic judges grasp onto or reject a lifeline offered by an international court? Eyal Benvenisti expects domestic judges to resist international law to protect domestic democracy against the forces of globalization (Benvenisti 2008). While this concern may animate some judges in some contexts, Benvenisti fails to consider that regional courts may provide a means to resist the forces of globalization.63 He also fails to consider that in many developing countries, domestic political leaders buoyed by populism or the outright stealing of elections may be the greater threat. Where the tenure of a domestic judge is precarious, I would not expect domestic judges to challenge a president who rejects the authority of an international court. Indeed, unsurprisingly the SADC Tribunal rulings have had no influence within the Zimbabwean judiciary. But when constitutional movements take hold, national judges may become compliance partners emboldened by the backing of an international court. Alexandra Huneeus explains how this occurs as she explores the variable authority of the IACtHR within national legal systems (Huneeus 2016). 60
Feng Zhang, The Paradox at the Heart of the South China Seas Ruling, FOREIGN POLICY (July 28, 2016), http://foreignpolicy.com/2016/07/28/can-china-actually-be-benefiting-fromsouth-china-sea-ruling-paradox-hague-philippines/. 61 Rachel Boothroyd, Chavez Announces “Immediate” withdrawal from the Inter American Court of Human Rights, VENEZUELANALYSIS.COM (July 26, 2012), https://venezuelanalysis.com/ news/7131. 62 Kurt Weyland, Why Latin America Is Becoming Less Democratic, THE ATLANTIC (July 15, 2013), https://www.theatlantic.com/international/archive/2013/07/why-latin-america-is-becomingless-democratic/277803/. 63 The ATJ has helped Andean countries resist the relentless pressure of American and European governments lobbying for greater protection of intellectual property rights (Alter and Helfer 2017, ch. 5). In Africa, some human rights advocates hope that regional courts will create the political space to develop more regionally attuned human rights and international criminal law standards.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 20 /
Date: 11/7
JOBNAME: Delaney PAGE: 21 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
264 Comparative judicial review Agreeing that international law and IC legal rulings are binding within the national legal system does not mean that national courts must accept everything the IC says and does. The next section identifies an intermediate position based on the supremacy of national constitution over international law. More fundamentally, domestic judicial questioning and pushback is part of the normal give-and-take in all legal systems—it is to be expected where there is mutual respect and a dialogue among equals. Such pushback helps to develop and improve support for international court jurisprudence.64
D. AN INTERMEDIATE POSITION: PROTECTOR OF THE CONSTITUTION AND INTERNATIONAL LAW The luxury good and fail-safe optics present divergent perspectives, but there is a middle road. National supreme courts can both ensure that national constitutional values and federalism are fully protected while promoting constitutional obedience to international law. The GCC exemplifies this middle option: It has both strengthened the binding effect of international law while creating domestic constitutional checks.65 The GCC’s doctrine was developed over years of considering the legal consequences of European Community membership. Here I explain the GCC’s doctrine more fully, showing how it has affected the larger political culture in Germany. This discussion helps to explain why the GCC and the US Supreme Court adopted such different positions regarding the ICJ’s rulings pertaining to violations of the VCCR. 1. The Court of Justice of the European Union: Germany and Women in Combat Roles The European Union’s Court of Justice (then ECJ, now CJEU) established the supremacy of European law in its landmark 1964 Costa v. ENEL ruling.66 The ECJ’s doctrine was legally audacious and iconoclastic, and it generated a heated debate within national legal systems. German lawyers and judges worried that membership in the European Community might undermine the basic rights protection of Germany’s Basic Law. Beginning in the 1960s, German judges raised serious questions about the reach of European law within the German legal order (Alter 2001, 74–87). The GCC has always insisted that the German Constitution is supreme law of the land, and it is the only arbiter of what is constitutional in Germany.67 The GCC will bar 64 Elsewhere I explain how domestic legal checks on international court authority are important for democratic accountability (Alter 2014, ch. 9). Thus, I essentially agree with Benvenisti and Harel that substantive legal disagreements between national and international courts regarding specific legal questions can provide a helpful tension (Benvenisti and Harel 2017). 65 National judges accommodate IC rulings within the national legal order in numerous ways. I focus on the GCC because it has been considering this issue for a very long time. 66 Case 6/64, Flaminio Costa v. ENEL [1964] ECR 585. 67 Brunner and others v. The European Union Treaty, “Maastricht decision,” BVerfG decision 2 BvR 2134/92 and 2 BvR 2159/92 of January 11, 1994 [1994] 1 EuR 95, [1994] CMLR 57.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 21 /
Date: 11/7
JOBNAME: Delaney PAGE: 22 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 265 the application of international law that violates the German Constitution, but it demands that the government and other German courts respect international legal obligations that are consistent with the German Constitution.68 This strong backing of international law has translated into the political realm, creating a sense that Germany must uphold its international legal commitments. The GCC’s legal doctrine has evolved over 50 years as the German judiciary has adjusted to European Community, and now European Union, membership (Alter 2001, ch 3). The direct effect of European law introduced a concern that European law might escape constitutional review within Germany. In 1976, the German Constitutional Court enunciated its “Solange” doctrine where it insisted that “[o]nly the [GCC] is entitled, within the framework of the powers granted to it in the Constitution, to protect fundamental rights guaranteed in the Constitution. No other court can deprive it of this duty imposed by constitutional law.”69 The GCC promised to exercise legal review of European acts, “[a]s long as the integration process has not progressed so far that Community law also receives a catalogue of fundamental rights decided on by a parliament of settled validity, which is adequate in comparison to the catalogue of fundamental rights contained in the Constitution.”70 At the time, the demand that the European Community have a charter of rights protections and allow greater democratic input seemed like an impossible hurdle. But in 1979 the European Community added the direct election of state representatives to the European Parliament, and the ECJ developed its human rights jurisprudence (De Búrca 2011). In 1986, the GCC declared that the European Community had progressed to a point that the GCC would let the ECJ hear all constitutional challenges involving European law (Alter 2001, 91–8). A year later, in 1987, the GCC condemned the highest-level German tax court for failing to refer to the ECJ in a case involving European tax law, ruling that the German tax court had denied the plaintiff their constitutional right to their legal judge.71 These decisions have instilled within Germany a constitutional obedience to European law. This constitutional obedience to European law has been put to the test many times. Symbolically important was the ECJ ruling requiring a change in the German Beer Purity Law to allow for the sale of foreign beers.72 Germany implemented this ruling, subjecting German beer to its beer purity rules while allowing imported beer to deviate. From a legal perspective, an even greater test occurred when the ECJ condemned as a violation of European law a provision of the German Constitution limiting the types of positions that women could serve in the military. 68 Wünsche Handelsgesellschaft “Solange II,” BVerfG decision of October 22, 1986, 2 BvR 197/83, 73 BVerfGE 339, [1987] 3 CMLR 225. The discussion of the GCC’s decisions regarding the VCCR provide another more recent example. 69 “Solange I,” BVerfG decision 2 BvR 52/71 of May 29, 1976, 37 BVerfGE 271, [1974] 2 CMLR 540. 70 Id. at 551. 71 In the case at hand, the ECJ was deemed the appropriate legal judge for the case. Kloppenburg decision, BVerfG decision 2 BvR 687/85 of April 8, 1987, BVerfGE 75 [1988] 3 CMLR 1. 72 Case 178/84, Commission v. Germany (Reinheitsgebot für Bier), Judgment of March 12, 1987, [1987] ECR 1227.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 22 /
Date: 15/8
JOBNAME: Delaney PAGE: 23 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
266 Comparative judicial review The German Constitution expressly forbade women from military positions involving armaments.73 Tanja Kreil challenged this provision after she was denied a job in the German armed forces in weapon electronics maintenance. During legal proceedings, the German, Italian and United Kingdom governments argued that decisions concerning the organization and combat capacity of the armed forces lay outside the scope of Community law.74 The European Court rejected this argument, asserting: “Although it is for the Member States … to take decisions on the organization of their armed forces, it does not follow that such decisions must fall entirely outside the scope of Community law.”75 The ECJ found that the exclusion of women from working with armaments violated the European Communities’ Equal Treatment Directive.76 The ECJ’s ruling in Tanja Kreil v. Bundesrepublik Deutschland contributed to the full integration of women in the German military.77 Writing in Die Zeit in the week of the decision, Constanze Stelzenmüller argued that it was not a question of if Germany would change its Constitution—since it must in light of the ECJ ruling—but rather how Germany would change its Constitution.78 Gerhard Kümmel concurred: “[R]ecent steps to open the Bundeswehr [armed forces] to women do not stem from genuinely political initiatives as one may have thought, but from a court ruling that required the political sphere to take some action” (Kümmel 2003, 4). Indeed most observers credit the ECJ’s Kreil ruling with provoking the change in the German Constitution. And most observers saw the change as required by the ECJ’s ruling (see Alter 2014, 306–10). Of course, given the GCC’s doctrine regarding the supremacy of the German Constitution, this change was not strictly speaking required. Litigants chose not to fight the ruling because Germany’s government was happy to see itself as bound by the ECJ’s ruling. German opinion on the role of women in the military had been evolving and German participation in NATO deployments had put the military under new resource constraints. If the German government wanted to participate in more international missions, it needed to grow its volunteer army. While the German military initially opposed a broader role for women, participation in NATO deployments also contributed to attitudinal shifts within the military. The constitutional question was soon moot because legislators changed the constitutional provision that violated EU law.
73
The German Basic Law stated: “If, while a state of defense exists, civilian service requirements in the civilian public health and medical system or in the stationary military hospital organization cannot be met on a voluntary basis, women between eighteen and fifty-five years of age may be assigned to such services by or pursuant to a law. They may on no account render service involving the use of arms.” Basic Law art. 12a (4). 74 “Kreil Case” Tanja Kreil v. Bundesrepublik Deutschland, Case C-285/98, 2000 E.C.R. I-69. Points 12–13. 75 Id. Point 15. 76 Id. This argument replicated the ECJ’s ruling in a similar British case. See Sirdar v. Army Board, Case C-273/97, 1999 E.C.R. I-7403, [1999] 3 C.M.L.R. 559 (1999). 77 Kreil, Case C-285/98. Points 31–2. 78 Constanze Stelzenmüller, Bürgerin in Uniform, DIE ZEIT (Jan. 5, 2000).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 23 /
Date: 11/7
JOBNAME: Delaney PAGE: 24 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 267 The GCC continues to boldly threaten to find European law inapplicable in Germany.79 But in the 40 years since it first announced its Solange doctrine, the GCC has rarely executed this threat. In 1993, the GCC’s legally extended the Solange doctrine, asserting in a ruling regarding the legal validity of the Maastricht Treaty that the GCC would monitor the expansion of European Union legal authority via ECJ jurisprudence.80 This decision, like the initial articulation of the Solange doctrine, engendered strong criticism. But it also helped to reassure domestic actors who feared that German sovereignty was being overly compromised. The GCC has further insisted that it will protect Germany’s constitutional identity, and it has, in fact, found limits to the European Union’s authority to issue arrest warrants.81 Yet most recently, the GCC tacitly upheld a European Court ruling supporting the European Central Bank, finding that the European Central Bank’s management of the Euro crisis did not impair the Bundestag’s (Germany’s principal legislative chamber) budgetary responsibility or exceed the authority of the European Central Bank.82 2. The Political Origins of this Intermediate Position The GCC’s position makes all international law part of the German constitutional order. The constitutional basis for this doctrine began with Article 24 of the German Constitution, which allowed the German government by legislation to transfer sovereign powers to international institutions.83 This provision was designed to facilitate Germany’s participation in the North Atlantic Treaty Alliance, but the GCC has expanded it to allow participation in other types of international organizations. This provision did not mean that international law had to be seen as supreme within Germany; indeed, Article 25 of the Basic Law made international law an “integral part of federal law,” but did not speak to international law’s supremacy within the national legal order (Alter 2001, ch. 3, 72–3).84 The GCC has decided, however, to facilitate European Community membership. It stuck to and developed its doctrine, notwithstanding repeated challenges by lower court judges, litigants, and legal academics who have questioned whether European Community membership might become a way to undermine German democracy and circumvent German constitutional protections.
79
More recently, the GCC threatened to rule against the Lisbon Treaty and actions undertaken by the European Central Bank. See Spiegel Staff, Is Germany’s High Court Anti-European?, SPIEGEL ONLINE (March 13, 2014), http://www.spiegel.de/international/ germany/the-eu-critical-course-of-the-german-high-court-a-958018.html. 80 Brunner and others v. The European Union Treaty, “Maastricht decision,” BVerfG decision 2 BvR 2134/92 and 2 BvR 2159/92 of January 11, 1994 [1994] 1 EuR 95, [1994] CMLR 57. 81 See the European Parliamentary Research Services’ discussion of the GCC’s jurisprudence regarding European Arrest Warrants at http://www.europarl.europa.eu/thinktank/en/ document.html?reference=EPRS_ATA(2016)573959. 82 See Mehreen Khan, German high court rejects case against ECB crisis tool, FINANCIAL TIMES (June 21, 2016), https://www.ft.com/content/ac3a89c2-f382-388f-b4e6-d1b657361db8. 83 Basic Law art. 24. 84 Basic Law art. 25.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 24 /
Date: 16/7
JOBNAME: Delaney PAGE: 25 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
268 Comparative judicial review The GCC’s fierce defense of the German constitutional order has been credited with generating a political means for Germans to channel their national love in a way that is not evocative of the nationalist sentiment that contributed to the rise of Hitler. The word for this love is “constitutional patriotism” (Müller 2007). Although not without its critics,85 the GCC’s position balances the protection of German democracy and respect for international law, while maintaining a high standard for basic rights protection. The GCC thus shows that one can both defend the constitutional order and contribute to a culture of constitutional obedience to international law.
E. CONCLUSION: CONSTITUTIONAL OBEDIENCE IN A TIME OF AUTHORITARIAN POPULISM International constitutional review is an artifact of the decision of governments. States created the international laws that ICs apply and they created ICs with jurisdiction to adjudicate state compliance with international law. These decisions, however, did not speak to how international law might be treated within the domestic legal system. National supreme courts are the guardians of legality in the domestic system; their decisions regarding the domestic applicability of international law and IC rulings will determine whether governments can simultaneously violate international law and maintain their domestic claim to being a rule of law actor. I have sought in this chapter to present a selection of ways in which national judges respond to constitutional review by a range of ICs. I also took the opportunity to develop an argument that I previously only discussed in public talks, naming the opposing perspectives of the “luxury good” and “fail-safe” optics. Politicians are notoriously fickle, liking IC legal review when they can win in litigation and disliking IC rulings when they lose. Cultures of constitutional obedience to international law reside within legal communities, and they can be both harder and slower to change. Whereas the luxury good perspective venerates national sovereignty while ignoring competing objectives, the fail-safe optic embeds respect for international law into the national legal fabric, which can then protect both international law and the domestic rule of law. In the 1990s, there was very much a sense that international judicial review mattered more for democratizing countries than it did for well-established democracies. This was because well-established democracies had sufficient means to protect the basic rights of citizens and visitors. As post-Cold War enthusiasm for economic and political liberalism waned, a new wave of democratically elected populist authoritarians began to appear in Europe and Latin America. Americans could still believe that their legal checks would be sufficient to protect citizens and visitors. Authoritarianism presents a fundamentally different challenge to international law, judicial independence, and the rule of law. Populist leaders rely on elections, followed by judicial reform to prevent courts reversing their political changes, followed by plebiscites to change the constitution so as to secure their reforms and their rule 85
See note 79.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 25 /
Date: 15/8
JOBNAME: Delaney PAGE: 26 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 269 (Scheppele 2006; Scheppele, forthcoming; Solomon 2008). In other words, rather than working within a legal debate to change interpretations of the law, authoritarian leaders first change the judges and then they change the laws. In this way, the legal and political check that is the rule of law can be transformed into an illiberal rule-by-law.86 International law is much harder to change than is domestic law. ICs are difficult (in some cases impossible) to stack and international judges are less politically controllable (Alter 2006). This is why nationalist, populist, and authoritarian-leaning politicians especially dislike international law and ICs. The requirement for multilateral assent to change international law and the jurisdiction of ICs, in combination with the entrenched support for the various optics, means that international constitutional review is likely here to stay in some form. Because IC review provides a lifeline when governments have placed themselves above international law, we can expect ICs to be increasingly invoked to challenge international and state acts that violate core rule of law tenets. Meanwhile, invoking international law in front of courts contributes to international law becoming much more domestically intrusive. In this respect, success may itself undermine political support for international constitutional review (Alter 2000, 512–15). International constitutional review is thus likely to persist and remain politically controversial. As I revise this chapter, the United States is experiencing what Hungary, Poland, and Venezuela recently experienced—a populist takeover that includes attacks on the right to protest, freedom of the press, and the independence of the legal system.87 These are the moments where constitutional cultures evolve. Section B discussed how constitutional obedience transferred to international law because of a diminished faith in national legal and political institutions. What I did not say is that this transference can take a very long time, because it can require the retirement of a generation of judges and legal professors steeped in conservative legal traditions. In Europe and Latin America, judicial attitudes changed in light of deeply dark episodes of history. I hope and pray that we are not entering such an episode while at the same time I recognize that things must get very bad before people lose faith in their own governments and judges, and thus lead societal values to shift in enduring ways.
86 “Rule of law” is generally seen as a part of the system of political checks and balances, where judges hold political branches accountable to respecting the constitution, its law-making procedures and statutory law. When political factions control all branches of government and the national judiciary become captured, the result can be a “rule-by-law” where political branches adjust formal laws to serve whatever purpose political leaders choose. Politicians may then wield their control of the law and judiciary to bolster their political power and to punish political opponents. See Ginsburg and Moustafa 2008. 87 John Cassidy, Why Does Trump Lash Out at Everybody, Even Judges, THE NEW YORKER (Feb. 9, 2017), http://www.newyorker.com/news/john-cassidy/why-does-donald-trump-lash-outat-everybody.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 26 /
Date: 11/7
JOBNAME: Delaney PAGE: 27 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
270 Comparative judicial review
REFERENCES Alter, Karen J. 2000. “The European Legal System and Domestic Policy: Spillover or Backlash?” International Organization 54: 489–518. Alter, Karen J. 2001. Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe. Oxford: Oxford University Press. Alter, Karen J. 2006. “Delegation to International Courts and the Limits of Recontracting Power.” In Delegation and Agency in International Organizations, edited by Darren Hawkins, David A. Lake, Daniel Nielson, and Michael J. Tierney. Cambridge: Cambridge University Press. Alter, Karen J. 2012. “The Global Spread of European Style International Courts.” West European Politics 35: 135–54. Alter, Karen J. 2014. The New Terrain of International Law: Courts, Politics, Rights. Princeton, NJ: Princeton University Press. Alter, Karen J. and Laurence Helfer. 2017. Transplanting International Courts: Law and Politics of the Andean Tribunal of Justice. Oxford: Oxford University Press. Alter, Karen J., Laurence Helfer, and James Gathii. 2016. “Backlash against International Courts in West, East and Southern Africa: Implications for Theories of Judicial Independence.” European Journal of International Law 27: 293–328. Anaya, James S. and Maia Campbell. 2009. “Gaining Legal Recognition of Indigenous Land Rights: The Story of the Awas Tingni Case in Nicaragua.” In Human Rights Advocacy Stories, edited by Deena R. Hurwitz, Margaret L. Satterthwaite, and Douglas B. Ford. New York, NY: Foundation Press. Babcock, Sandra. 2012. “The Limits of International Law: Efforts to Enforce Rulings of the International Court of Justice in U.S. Death Penalty Cases.” Syracuse Law Review 62: 183–97. Bates, Ed. 2011. The Evolution of the European Convention on Human Rights. Oxford: Oxford University Press. Benvenisti, Eyal. 2008. “Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts.” American Journal of International Law 102: 241–76. Benvenisti, Eyal and Alon Harel. 2017. “Embracing the Tension between National and International Human Rights Law: The Case for Discordant Parity.” International Journal of Constitutional Law 15: 36–59. Bookman, Pamela K. 2015. “Litigation Isolationism.” Stanford Law Review 67: 1081–144. Cavallaro, James L. and Stephanie Erin Brewer. 2008. “Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court.” American Journal of International Law 102: 768–827. De Búrca, Gráinne. 2010. “The European Court and the International Legal Order after Kadi.” Harvard International Law Journal 51: 1–49. De Búrca, Gráinne. 2011. “Roads Not Taken: The EU as a Global Human Rights Actor.” American Journal of International Law 105: 649–93. Dupuy, Pierre-Marie and Cristina Hoss. 2009. “Lagrand Case (Germany v. United States of America).” In Max Planck Encyclopedia of Public International Law [MPEPIL]. Oxford: Oxford University Press. Ebobrah, Solomon and Armand Tanoh. 2010. Compendium of African Sub-Regional Human Rights Documents, Center for Human Rights, University of Pretoria. Pretoria: Pretoria University Law Press. Garditz, Klaus Ferdinand. 2007. “Article 36, Vienna Convention on Consular Relations—Treaty Interpretation and Enforcement—International Court of Justice—Fair Trial—Suppression of Evidence.” American Journal of International Law 101: 627–35. Gibson, James L. and Gregory A. Caldeira. 1993. “Changes in the Legitimacy of the European Court of Justice: A Post-Maastricht Analysis.” British Journal of Political Science 28: 63–91. Gibson, James and Gregory Caldeira. 1995. “The Legitimacy of Transnational Legal Institutions: Compliance, Support, and the European Court of Justice.” American Journal of Political Science 39: 459–89. Gibson, James L., Gregory A. Caldeira, and Vanessa A. Baird. 1998. “On the Legitimacy of National High Courts.” American Political Science Review 92: 343–58. Ginsburg, Tom and Tamir Moustafa. 2008. Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge: Cambridge University Press. Hawkins, Darren G. 2002. International Human Rights and Authoritarian Rule in Chile. Lincoln, NE: University of Nebraska Press. Hawkins, Darren and Wade Jacoby. 2010. “Partial Compliance: A Comparison of the European and Inter-American Court of Human Rights.” Journal of International Law and International Relations 6: 35–85.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 27 /
Date: 15/8
JOBNAME: Delaney PAGE: 28 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
National perspectives on international constitutional review 271 Helfer, Laurence. 2005. “Exiting Treaties.” Virginia Law Review 91: 1579–648. Helfer, Laurence. 2010. “Exiting Custom: Analogies to Treaty Withdrawals.” Duke Journal of Comparative & International Law 21: 65–80. Huneeus, Alexandra. 2011. “Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights.” Cornell International Law Journal 44: 493–532. Keller, Helen and Alec Stone Sweet. 2008. A Europe of Rights: The Impact of the ECHR on National Legal Systems. New York, NY: Oxford University Press. Koh, Harold Hong. 2003. “On American Exceptionalism.” Stanford Law Review 55: 1479–528. Krisch, Nico. 2008. The Open Architecture of European Human Rights Law. Modern Law Review 71: 183–216. Kümmel, Gerhard. 2003. “Changing State Institutions: The German Military and the Integration of Women.” Paper presented at the Conference of the European Consortium for Political Research, Marburg (September 2003). Moravcsik, Andrew. 2000. “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe.” International Organization 54: 217–52. Moyo, Sam. 2013. “Land Reform and Redistribution in Zimbabwe Since 1980.” In Land and Agrarian Reform in Zimbabwe: Beyond White-Settler Capitalism, edited by Sam Moyo and Walter Chambati. Dakar: CODESRIA. Müller, Jan-Werner. 2007. Constitutional Patriotism. Princeton, NJ: Princeton University Press. Nzelibe, Jide. 2011. “Strategic Globalization: International Law as an Extension of Domestic Political Conflict.” Northwestern University Law Review 105: 635–88. Ohlin, Jens David. 2015. The Assault on International Law. Oxford: Oxford University Press. Phelan, William. 2008. “Why Do EU Member States Offer a ‘Constitutional’ Obedience to EU Obligations? Encompassing Domestic Institutions and Costly International Obligations.” Institute for International Integration Studies. Scheppele, Kim. 2006. “Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe.” University of Pennsylvania Law Review 154: 1757–851. Scheppele, Kim. Forthcoming. “Worst Practices and the Transnational Legal Order (or How to Build a Constitutional ‘Democratorship’ in Plain Sight).” Sikkink, Kathryn. 2005. The Transnational Dimension of the Judicialization of Politics in Latin America. In The Judicialization of Politics in Latin America, edited by Rachel Sieder, Line Schjolden, and Alan Angell. New York, NY: Palgrave MacMillan. Sloss, David. 2009. “The United States.” In The Role of Domestic Courts in Treaty Enforcement: A Comparative Study, edited by David Sloss. Cambridge: Cambridge University Press. Solomon, Peter H. 2008. “Courts and Judges in Authoritarian Regimes.” World Politics 60: 122–45. Stone Sweet, Alec. 2000. Governing with Judges. Oxford: Oxford University Press. Verdier, Pierre-Hugues and Mila Versteeg. 2015. “International Law in National Legal Systems: An Empirical Investigation.” American Journal of International Law 109: 514–33.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 13_Chapter13_ts
/Pg. Position: 28 /
Date: 11/7
JOBNAME: Delaney PAGE: 1 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
14. Efficacious judging on apex courts Lee Epstein and Jack Knight*
For decades now we have been teaching courses and running seminars on judicial behavior. Many of the “students” in our courses have not been students in the traditional sense; they have day jobs as judges, law clerks, professors, and attorneys in the private and public sectors. And they have come from many places—including Argentina, Brazil, China, Germany, Norway, Hong Kong, Israel, and on and on. As you would expect, our students differ on many dimensions: their values, politics, and personal and professional aspirations. And yet their concerns about judging coalesce. Some, to be sure, are interested in the theories developed in countless social science or law papers. But mostly they want to understand how they can apply the lessons in the scholarship to their jobs. The students pay close attention to the literature on the selection and retention of judges, for example, believing that it can help them—leaders in their society—choose which among the many options to write into their constitutional documents and laws. But what really sparks their interest, what generates days and days of discussion, are the big overarching questions about judging, especially this one: Assuming judges want to issue efficacious decisions—those that relevant external actors will respect and with which they will comply—and assuming judges want to build and maintain the legitimacy of their court over time, what paths should they follow? We suppose questions of this sort reflect political realities in many contemporary societies, where the regime would like to modify or even eradicate the power of judges to review acts of government or otherwise do damage to the court. Focusing on countries of the former Soviet Union, Bugaric and Ginsburg put it this way: In the last 25 years, constitutional courts have been major players in the governance of Central and Eastern Europe, and were arguably the most important defenders of the rule of law in the region. Yet the last few years have exposed the institutional fragility of constitutional courts in the face of illiberal democracy, as several countries have moved to pack the courts. Without quick and sustained pressure, the dismantling of the hard fought freedoms associated with the rule of law will succeed, and we will again speak of an Eastern Europe that is closer to Russia than to the West. (Bugaric and Ginsburg 2016)
But questions concerning the efficacy of judges and the legitimacy of courts are hardly confined to countries that are (at best) precarious democracies. Virtually every time we deliver talks or speak informally with legal professionals working in full democracies, * This chapter draws on some of our other work on judicial behavior and on talks and lectures we have delivered over the years. Epstein thanks the National Science Foundation, the John Simon Guggenheim Foundation, and Washington University in St. Louis for supporting her research on law, legal institutions and judicial behavior. We also thank the editors and Evan Bianchi for their helpful comments.
272
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 1 /
Date: 15/8
JOBNAME: Delaney PAGE: 2 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Efficacious judging on apex courts 273 or even (perhaps especially) in the United States, these very questions arise. And they also arise, to greater and lesser extents, in many papers and books in the comparative judicial space (see, e.g., Arguelhes and Hartmann 2017; Epstein, Knight, and Shvetsova 2002; Varun, Staton, and Cullell 2015; Helmke 2005; Helmke 2017; Iaryczower, Spiller, and Tommasi 2002; Krehbiel 2016; Staton 2010; Staton and Vanberg 2008; Vanberg 2005). It isn’t terribly surprising that we scholars express concern about and study deeply how judges and courts can not only survive but thrive. Just as the students in our seminars smell trouble brewing for their judiciaries, we scholars too regularly— and not merely occasionally—observe threats to courts all over the world, as Bugaric and Ginsburg make plain (Bugaric and Ginsburg 2016). How best to tackle questions of efficacy and legitimacy remains contested, with scholars debating the most appropriate theories and methods. In this brief (and rather informal) chapter, we dodge the debates and opt instead to lay bare four methods available to judges who want to issue decisions that their regime will respect, as well as establish and maintain their institution’s legitimacy over time. Our focus is on justices serving on apex courts with constitutional review power—a power held by almost all apex courts (Ginsburg and Versteeg 2014)—but we’d like to think that the approaches we set out have some application to other judges, too. In so offering these suggestions, we make no claim of originality. Quite the opposite: Other scholars have proposed virtually every approach we describe. Our contribution comes in bringing together their answers. We should also note that we make no attempt to specify formally the circumstances under which one method might work better than others, though no doubt this is an important task that we hope others will undertake.
A. WHY WORRY ABOUT JUDGES? Before turning to the four methods, we should address a possible objection to our entire project; namely, that it’s unnecessary. Why worry about judges issuing inefficacious decisions when at least two prominent approaches to judicial behavior—the “ruling regime” and strategic accounts—predict that these are non-events, while a third—the “insurance theory”—suggests that judges could find themselves in trouble but there’s little they can do to prevent it? On the first of these, the ruling regime account, “the policy views dominant on the Court are never for long out of line with the policy views dominant among lawmaking majorities” and so conflicts between judges and elected actors are highly unlikely (Dahl 1957). Under (strong versions) of the second—strategic approaches to relations between courts and elected officials/the public—in equilibrium, there will be no attacks on judges because judges can prevent them by perfectly anticipating the preferences and likely actions of their would-be attackers (see, e.g., Epstein and Knight 1998a; Epstein, Knight, and Martin 2001; Eskridge 1991a; Eskridge 1991b; Richman, Bergara,
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 2 /
Date: 15/8
JOBNAME: Delaney PAGE: 3 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
274 Comparative judicial review and Spiller 2003). The third, insurance theory,1 holds that the relative competitiveness of a country’s party system determines whether its courts will act independently (Ramseyer 1994; Stephenson 2003)—with seemingly little role for judges to play in their own destiny.2 A quick response to all three is that the real world provides evidence to the contrary. The theories, in other words, just don’t seem to explain the data we observe. If they did, only rarely would we notice courts overturning laws passed by the contemporaneous regime (the ruling regime theory’s prediction); or elected actors (and the public) punishing their judges and courts (strategic accounts) even when there’s a competitive party system (insurance theory). But these things happen, and they happen regularly (see generally Helmke 2017). In a comprehensive study of the US Supreme Court, Whittington and Clark tell us that the justices are (expectedly) ideologically sensitive when reviewing federal legislation, but they are not particularly deferential to their own ideological (partisan) allies, as ruling regime accounts anticipate (Whittington and Clark 2009). And, contrary to the equilibrium prediction of strategic accounts, voters in the US states unseat incumbent judges at higher rates than members of Congress (Hall 2001). The Hungarian Constitutional Court paid a price for its judicial “activism” when the legislature refused to reappoint many of the original justices after their terms expired (Rose-Ackerman 2005; see also Bugaric and Ginsburg 2016). Boris Yelstsin, angry that his constitutional court could check his power, suspended the court in 1993. The justices weren’t able to resume their work until nearly two years later, when Russia adopted a new constitutional text (Epstein, Knight, and Shvetsova 2002). And then there’s Poland’s 2012 Constitution, which repealed all Court decisions issued before 2012 (Bugaric and Ginsburg 2016). As for the United States, whose (competitive) parties should tolerate an independent court: Numerous studies recount incidences of Court curbing and, more generally, find that Congress regularly monitors, and not infrequently reverses, the justices’ decisions (Clark 2011; Eskridge 1991a; Murphy 1962). We could point to many other systematic studies of courts challenging the regime in their decisions and the regime retaliating with a vast array of sticks and stones (the above examples are suggestive, certainly not inclusive3). But the more important 1
Through the two are related, we refer here to insurance theory regarding the maintenance of judicial independence, not Ginsburg’s version, which focuses on why framers establish independence in the first place (Ginsburg 2003). See also Dixon and Ginsburg, Chapter 3, this volume. 2 Specifically, when there are competitive parties, they “may be willing to tolerate an independent judiciary that constrains their ability to pursue policies unhampered if they expect that the judiciary will also protect the party’s interests when it finds itself in opposition … for the current government, [there’s an] indirect benefit of the promise of enjoying judicial protection” when it’s out of office (Vanberg 2015, 173). 3 Of course, there are override attempts and noncompliance (see Carrubba, Gabel, and Hankla 2008), but also: enacting constitutional amendments to reverse decisions or reduce the court’s power; impeachment; withdrawing jurisdiction over certain subjects; altering the selection and removal process; requiring extraordinary majorities for declarations of unconstitutionality; removing the power of judicial review; slashing the budget; and altering the size of the Court, among others. See Rosenberg 1992.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 3 /
Date: 15/8
JOBNAME: Delaney PAGE: 4 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Efficacious judging on apex courts 275 question is why the mechanisms in the three theories don’t seem to work as expected. The primary and perhaps all too obvious answer is that their assumptions are not often met. The ruling regime account assumes periodic turnover—such that the government has an opportunity to appoint new justices who will hold sway on the Court.4 It turns out, though, that “moving the median” on many courts is very hard, as Krehbiel demonstrates theoretically and empirically for life-tenured justices (Krehbiel 2007; see also Epstein and Jacobi 2008). Even mandatory retirement or term limits—rules in effect for most European constitutional court judges—do not guarantee a median aligned with the ruling regime (Epstein, Knight, and Shvetsova 2001). One problem is that mandatory retirement ages tend to be high and terms reasonably long—on average, over nine years. This is far higher than the mean duration of governments in Europe (between about 500 and 700 days, depending on the study, region, and measure) (see, e.g., Diermeier, Eraslan, and Merlo 2002; Conrad and Golder 2010). Courts just don’t seem to turn over as frequently as governments. The insurance theory’s assumptions are even more numerous and stringent—so numerous, in fact, that it’s a bit surprising scholars have developed even a modicum of evidence to support its predictions (see, e.g., Stephenson 2003 and more generally Vanberg 2015). As for strategic accounts, we think the underlying mechanism is right: Judges must be forward thinking if they hope to issue efficacious decisions or otherwise build respect for their institution—and we say so in the next section. But more often than not the assumption of perfect foresight isn’t satisfied. Mistakes happen owing to a lack of complete and perfect information about the relevant players’ preferences, their likely actions, or both. Cameron shows as much in his study of presidential vetoes (Cameron 2000)—which should never occur if the actors perfectly anticipate the preferences and likely actions of the relevant players—and Ferejohn, Rosenbluth, and Shipan suggest that the same holds for courts (Ferejohn, Rosenbluth, and Shipan 2007). We agree. There’s another problem too: It is possible that some judges don’t care all that much about the efficacy of their decisions because the failed decision won’t be so bad relative to the alternatives (Helmke 2017). When a society has the power to impeach its judges (or worse) and regularly uses it, that may be a bigger threat than, say, a government willing to override decisions, decrease the court’s budget, or pack it with political hacks. Under these circumstances, judges will weigh the costs and benefits of reaching a decision they prefer over one the regime prefers (Ferejohn, Rosenbluth, and Shipan 2007). Judges may well find themselves in situations where they are at odds with the regime but where the reprisals are not very severe or enduring, tipping the balance towards benefits.5
B. METHODS FOR EFFICACIOUS JUDGING The upshot is this: Absent very uncommon circumstances (a perfect coincidence of judicial and political preferences, an institutional mechanism that allows a regime to 4 We focus here on the lack of periodic turnover. See Ferejohn 2013 for a discussion of political fragmentation, which too presents a problem for Dahl’s account. 5 For a variation on this same theme, see Spiller and Tiller 1996.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 4 /
Date: 15/8
JOBNAME: Delaney PAGE: 5 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
276 Comparative judicial review replace the entire court, or judges who don’t care about the efficacy of their decisions or the legitimacy of their institution), potential value conflicts between judges and the political regime will be the norm. In such situations, judges face a complex choice: They must weigh the benefits of establishing a new legal precedent that reflects their most-preferred outcome against the costs to their efficacy and legitimacy that may be imposed by a hostile political regime. How might courts respond? What approaches are available to ensure the efficacy of their decisions in the short term and their institution in the longer term? In the sections to follow we consider four methods: (1) anticipate the reactions of relevant (current) external actors; (2) anticipate the reactions of incoming external actors; (3) develop avoidance procedures and limiting doctrines; and (4) cultivate public opinion. 1. Anticipate the Reactions of Relevant (Current) External Actors Perhaps the most well-rehearsed of the methods for ensuring efficacious decisions is for judges to anticipate the reactions of relevant external actors and respond accordingly even if that means engaging in sophisticated behavior (see, e.g., Eskridge 1991a; Eskridge 1991b; Epstein and Knight 1998a; Richman, Bergara, and Spiller 2003; Segal, Westerland, and Lindquist 2011). Of course, there’s no guarantee that this strategy will always work for the reasons previously emphasized. But the literature suggests that judges can increase their chances of minimizing conflict and maximizing efficacy and legitimacy if they use one or more of the following methods: interpret dynamically, write vague opinions, and create rules designed to acquire information. i. Interpret dynamically Whether in the constitutional or statutory context, judges invoke various methods for interpreting text, to state the obvious. One such method, dynamic interpretation, is based on the premise that judges should read acts of government or constitutional provisions in line with the preferences and likely actions of the contemporaneous government—not the desires, intent, or understanding of the framers of the law or provision (Eskridge 1991a; Eskridge 1991b; Epstein, Knight, and Martin 2001; Vanberg 2005). In the United States, lower courts engage in this form of behavior vis-à-vis the Supreme Court. Rather than interpreting a precedent in accord with the will of the enacting Court, they rationally anticipate the preferences and likely response of the current Court (Westerland et al. 2010). Peak courts in other societies seem do the same, attempting to gauge the reactions of relevant government actors and the voting public (Vanberg 2005; Iaryczower, Spiller, and Tommasi 2002). When engaging in this form of interpretation, it is possible that courts will find their preferences aligned with the relevant external actors (as ruling regime accounts predict), in which case they can act as they wish. Likewise, certain forms of political fragmentation may give judges more room to maneuver. Iaryczower, Spiller, and Tommasi, for example, find that the Argentine Supreme Court tends to rule in favor of the government when the regime is unified but is often “defiant” when it’s divided (Iaryczower, Spiller, and Tommasi 2002).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 5 /
Date: 15/8
JOBNAME: Delaney PAGE: 6 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Efficacious judging on apex courts 277 If the government is relatively united and the judges’ preferences are distant from it, however, sophisticated behavior provides a plausible path—and we know judges often take it. Well-developed data and case studies in the US context indicate that Supreme Court justices modify their interpretations of laws and constitutional provisions to consider possible reactions from Congress and the President (see, e.g., Richman, Bergara, and Spiller 2003; Segal, Westerland, and Lindquist 2011). This results in decisions that attempt to narrow the gap between the preferences of the judges and those of the other branches of government. Iaryczower, Spiller, and Tommasi’s study suggests the same for Argentine justices, as do similar analyses of courts in Russia (see, e.g., Epstein, Knight, and Shvetsova 2002) and Germany (Vanberg 2005), among others. ii. Write vague opinions Dynamic interpretation may receive the lion’s share of attention but it isn’t the only method available to judges facing potential opposition to their rulings. Another is the production of vague opinions (Staton and Vanberg 2008). What Staton and Vanberg plausibly assume is that the costs to implementers of deviating from a clear court decision are higher than the costs of deviating from a vague decision because noncompliance is easier to detect. If so, a court facing “friendly” implementers may be better off writing clear opinions; clarity will increase pressure for—and thus the likelihood of—compliance. But when the probability of opposition from implementers is high, clarity could be costly to the judges: If policymakers are determined to defy even a crystal-clear decision, they highlight the relative lack of judicial power. Staton and Vanberg provide several interesting examples to illustrate the strategic use of vagueness, including the Warren Court’s 1955 decision in Brown v. Board of Education II6 and the German Constitutional Court’s rulings in two important taxation cases.7 In both, the justices had the same reason for leaving ambiguous “the precise actions that would be consistent with the decision” (Staton and Vanberg 2008): concerns about compliance and, ultimately, legitimacy. And now there is more rigorously developed support for Staton and Vanberg’s ideas. Using software called Linguistic Inquiry and Word Count (LIWC), Black et al. (2016) show that US Supreme Court justices strategically craft language in their opinions, adjusting the level of clarity to correspond to their assessment of the likelihood of noncompliance by external actors, including federal agencies and the states.8 iii. Uncover preferences and likely actions Knowing when to write clear decisions and knowing when to write vague ones—as well as when to interpret the Constitution dynamically—require that judges learn about 6
349 U.S. 294 (1955). BVerfGE 54, 34; BVerfGE 86, 369. 8 Along similar lines Corley and Wedeking find that lower courts are more likely to follow Supreme Court decisions that are written at higher degrees of certainty, with certainty also assessed using LIWC (Corley and Wedeking 2014). Although we endorse this general line of work, we withhold judgment on LIWC. Because it was developed for ordinary speech and texts, we wonder whether it has been sufficiently validated for legal materials. 7
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 6 /
Date: 15/8
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
278 Comparative judicial review the preferences and likely actions of those able to thwart their objectives. To that end, we should, and do, see courts develop information-acquiring rules and procedures (see, e.g., Collins 2008; Epstein and Knight 1998b; Johnson 2004; Spriggs and Wahlbeck 1997). Exemplary in the United States are rules governing the participation of the federal government as an amicus curiae. Out of the belief (we suspect) that the government’s briefs can advance its project of learning about the likely response of a key implementer (or potential thwarter) the Court maintains a rather lax rule (Rule 37): No motion for leave to file an amicus curiae brief is necessary if the brief is presented on behalf of the United States by the Solicitor General; on behalf of any agency of the United States allowed by law to appear before this Court when submitted by the agency’s authorized legal representative. …9
As for other potential amici, Rule 37 seems a bit more stringent: An amicus curiae brief … may be filed if accompanied by the written consent of all parties … . When a party to the case has withheld consent … motion for leave to an amicus curiae brief … may be presented to the Court.10
By granting almost all such motions, however, the justices have signaled the parties not to deny consent in the first place (O’Connor and Epstein 1983). Brodie suggests much the same about the Canadian Supreme Court, where the justices now “grant almost all interest group applications for leave to intervene” (Brodie 2002, 36). Carrubba, Gabel, and Hanka’s (2008, 440) analysis of the European Court of Justice (ECJ) runs along similar lines but also shows the effect of government briefs (Carrubba, Gabel, and Hanka 2008, 440). In all cases pending before the Court, EU institutions and member state governments can file briefs (called “observations”), which help the ECJ assess the “balance of member-state preferences regarding the legal issue.” The more observations for one side, the higher the chances of that side winning (Carrubba, Gabel, and Hanka 2008). To the authors, this makes good sense: If the member states favor one side and the Court rules the other way, the states could form a coalition to override the decision, thereby rendering it ineffective. These results and, more relevant here, the very fact that the ECJ allows government observations, are not surprising. Courts must place a premium on lawyering as a form of information transmission if they are to anticipate the reaction of relevant external actors.11 Moreover, to the extent that encouraging a diversity of inputs will likely lead to better decisions (see, e.g., Posner 1996), using rules to learn about preferences has benefits beyond the strategic context of decision making.
9 10 11
U.S. SUP. CT. R. 37(4). U.S. SUP. CT. R. 37(2)(a)–(b). Oral argument can play the same role. See, e.g., Johnson 2004.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Efficacious judging on apex courts 279 2. Strategic Anticipation of the Reactions of Incoming External Actors The approaches we just outlined pertain to judicial attitudes towards the current regime. Helmke’s (2005) path-marking work on Argentina suggests another possibility: When judges fear impeachment or worse, they will concern themselves less with current actors than with the incoming regime (Helmke 2005). Ginsburg’s analysis of Korea, Taiwan, Thailand, and Pakistan reaches a similar conclusion (Ginsburg 2013, 46). In disputes over “whether prominent political figures could retain or take office,” courts in these countries tend to “respond to majority preferences” (Ginsburg 2013). As a result, the judges play a role in facilitating transitions to democracy but only after “transition is secured” (Ginsburg 2013). What of countries in which democratic institutions are less fragile and the courts less fearful of retaliatory tactics on the part of the incoming regime? Anticipation of the desires of the new leaders still may be a useful approach for courts hoping to ensure their place in the new order. Gillman’s (2001) book on Bush v. Gore12 makes the nice point that a majority of justices on the US Supreme Court ruled the way they did because they had political cover: They knew the incoming regime would support their selection of Bush over Gore (Gillman 2001). More generally, a great deal of empirical work now suggests that judges do seem to follow the election returns or at least the “mood” of the public (see, e.g., McGuire and Stimson 2004; Giles, Blackstone, and Vining 2008; Casillas, Enns, and Wohlfarth 2011)—though we must admit that the mechanism is unclear. Here (and in the sections to follow), we posit that judges bend to the will of the people because they and their court require public support to remain an efficacious branch of government (see also Friedman 2009). The existing studies could be read to support this view, but they are equally consistent with another mechanism: that “the people” includes judges. On this account, the judges do not respond to public opinion directly but rather respond to the same events or forces that affect the opinion of other members of the public (for more on this debate, see, e.g., Epstein and Martin 2010; Casillas, Enns, and Wohlfarth 2011). 3. Develop Avoidance Procedures and Limiting Doctrines Studies of strategic anticipation typically focus on decision making on the merits of cases; that is, they offer positive (normative) descriptions (prescriptions) for how judges (should) proceed, assuming judges must resolve the dispute at hand. This need not be the case. There are many avoidance technics, the case-selection process of course being one, as well as other limiting or deference rules courts can develop for the purpose of deciding not to decide (see generally Delaney 2016; Dixon and Issacharoff 2016). The following explores such alternatives. i. Evade (certain kinds of) disputes Apex courts tend to receive far more requests for plenary treatment than they can possibly grant. To deal with the piles of petitions, many US-styled Supreme Courts have developed or operate under rules that give them substantial discretion over their 12
531 U.S. 98 (2000).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 8 /
Date: 11/7
JOBNAME: Delaney PAGE: 9 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
280 Comparative judicial review dockets. According to Flemming’s detailed account of agenda setting in the Canadian Supreme Court, various procedures lead to grants in fewer than 20 percent of the applications requesting leave to appeal (Flemming 2004). The Indian Constitution gives its Supreme Court almost complete control over its docket (Chowdhury 2016); and, after successfully lobbying Congress in 1925 and again in 1988 (Perry 1994), the US Supreme Court now enjoys substantial discretion too, resulting in a grant rate of under 1 percent. The conventional view of European-style constitutional courts is that they lack “formally recognized discretionary powers to choose which cases they will decide” (Scheppele 2006, 1769). But Fontana demonstrates otherwise (Fontana 2011). The German Constitutional Court (FCC), he reports, grants review in around 1 percent of the constitutional complaints it receives—about the same as the notoriously selective US Supreme Court. This may reflect FCC decision-making procedures, which allow three-judge panels of the FCC to dismiss or otherwise summarily treat cases lacking merit. The Constitutional Court of Hungary was nearly as selective in its early years, receiving about 6,000 petitions but deciding only 200–300 per year (Scheppele 2006). Assuming discretionary procedures exist, they may leave room for judges to reject disputes that could lead to collisions with the regime or otherwise interfere with their ability to issue efficacious decisions. As Russian constitutional court judge, Boris Ebzeev, noted: When in December 1995, before the [parliamentary] elections and in the very heat of the electoral campaign, we received a petition signed by a group of deputies concerning the constitutional validity of the five percent barrier for party lists. We refused to consider it. I opposed considering this request, because I believe that the Court should not be itching for a political fight. … The Court must avoid getting involved in current political affairs, such as partisan struggles. (quoted in Nikitinsky 1997, 85)
This was no isolated incident. After its confrontation with the government in 1993, the Russian Court often resorted to the tactic Ebzeev’s describes: The justices devoted far less of their docket space to the kinds of cases that got them in trouble (e.g., separation of powers and federalism) and far more to those that could enhance their popularity with the public.13 Russia is hardly alone. As Delaney puts it, “avoidance is everywhere” (Delaney 2016, 3). The Israeli Supreme Court, for example, occasionally avoids controversies by deciding not to decide (Reichman 2013). And even in the United States, where the Supreme Court’s legitimacy is “reasonably secure” (Gibson and Nelson 2014, 201), the justices have used their power of docket control for avoidance purposes—for instance, “to avoid entering the polarizing political debate [over] the constitutionality of the Vietnam war” (Fontana 2011, 628). Docket monitoring can be quite effective in staving off attacks and controversy but it isn’t the only way courts evade: Strategic adjustments in the timing of their decisions is another. Fontana reports that “many of the world’s most successful constitutional review courts waited several years—until the politics of the situation had cooled off some—before deciding major cases related to the responses by the political branches 13
For more on this point, see infra Section B.4.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 9 /
Date: 15/8
JOBNAME: Delaney PAGE: 10 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Efficacious judging on apex courts 281 to the events of September 11” (Fontana 2011, 629). Neither the FCC, the House of Lords, nor the US Supreme Court issued any major decisions until 2004 or 2005; the High Court of Australia waited until 2007. Along somewhat different, though related, lines, Delaney documents the South African Constitutional Court’s occasional practice of delaying a suspension of invalidity to allow the legislature to respond to its decision (Delaney 2016, 48–9). The Canadian courts do much the same—and in high-profile cases at that. As Dixon and Issacharoff note, when the US Supreme Court invalidated all existing bans on same-sex marriage, its decision had immediate effect: Gays could marry in every US state. Not so in South Africa and Canada, where the courts “explicitly deferred the effect of decisions to recognize a right to same sex equality, giving provincial and national legislatures twelve to twenty-four months to respond to their decisions” (Dixon and Issacharoff 2016, 685). These delays might be focused on concerns about “the practical costs of immediately effective judicial decisions” (Dixon and Issacharoff 2016, 685; see also Delaney 2016). But some suspensions “look strategic”—designed to promote institutional legitimacy (Delaney 2016, 49). Evidence on strategic timing also comes from recent large-n studies by Arguelhes and Hartmann and by Epstein, Landes, and Posner. Arguelhes and Hartmann show that Brazilian Supreme Court justices delay hearing a case or announcing a decision until the justices believe there is a favorable political climate (or court more inclined to rule their way) (Arguelhes and Hartmann 2017). Epstein, Landes, and Posner document the US Supreme Court’s practice of issuing its most important and, often, controversial and divisive cases in the last week or two of June—the so-called “end-of-term crunch.”14 One possible explanation for the crunch is that “the Justices delay certain decisions for public-relations reasons. The close proximity of decisions in the most important cases may tend to diffuse media coverage of and other commentary regarding any particular case, and thus spare the Justices unwanted criticism” (Epstein, Landes, and Posner 2015, 1022). ii. Deploy limiting doctrines In much the same way that avoiding and timing disputes can keep courts out of hot water, so too can developing (and applying) various deference (limiting) doctrines. The political question doctrine provides an interesting example. Anticipated by Chief Justice John Marshall in Marbury v. Madison,15 the doctrine has two strands. One entails textual, constitutional interpretation (i.e., some questions are committed to the unreviewable discretion of the political branches), but the other is prudential (i.e., some legal questions ought to be left to the political branches as a matter of prudence). This second, prudential strand implicates judicial discretion. When deciding whether to dismiss a case because it raises a political question, US courts can look to a lack of judicially discoverable standards, enforcement problems, and institutional difficulties— including the efficacy and legitimacy of the courts and their decisions. 14
Richard L. Hasen, What’s Taking the Supreme Court So Long?, DAILY BEAST (June 21, 2013), http://www.thedailybeast.com/articles/2013/06/21/what-s-taking-the-supreme-court-solong.html. 15 5 U.S. 137 (1803).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 10 /
Date: 15/8
JOBNAME: Delaney PAGE: 11 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
282 Comparative judicial review Despite the occasional rumor of its death (or the stronger contention, that it never existed), the political question doctrine remains in the canon of US constitutional law. No casebook neglects it; and no constitutional law course (of which we’re aware) fails to cover it. More importantly, we know that the justices continue to rely on the doctrine16—Bush v. Gore17 (perhaps) to the contrary. As a formal matter, European constitutional courts do not seem to have a political question doctrine. We suppose this reflects their typically capacious textual authority over constitutional disputes. But whether the doctrine exists as an informal norm is a matter of contestation. Some flatly declare that “there is no such doctrine in Europe,” while others contend “broadly similar doctrines have been developed in other constitutional systems” (see Pasquino 2008; Koopmans 2003, 101). But even those who deny its application suggest that courts have devised approaches that yield a roughly similar result: some form of (prudential) deference to other branches of government. As Pasquino tells it, the political question doctrine may be unknown in Europe but the German Constitutional Court can “return to Parliament a question that it believes to be the exclusive competence of politically accountable branches of the government” (Pasquino 2008). Pasquino thinks the distinction between this practice and the political question doctrine is meaningful because the German approach has “less to do with self-restraint than with [a] desire to prevent elected politicians from avoiding their political responsibility and accountability vis-à-vis the citizens by abdicating their power to make decisions under the convenient cover of a judicial verdict of the Constitutional Court” (Pasquino 2008). But Koopmans suggests otherwise. As he explains, European judges may not “use the expression ‘political question’, but the problems this concept was intended to deal with continue to crop up” (Koopmans 2003, 104). As a result, the doctrine “remains alive as long as representative bodies have to co-exist with an independent judiciary” (Koopmans 2003, 104). Perhaps this is why some writers in Eastern and Central Europe have urged their courts to develop approaches akin to a (prudential) political question doctrine (e.g., Nikitinsky 1997; see generally Issacharoff 2011). To them, it can work to prevent costly collisions between judges and the regime. We can’t say we disagree, though we understand that commentators have long questioned the appropriateness of any form of a political question. Among other claims they say that the doctrine is antithetical to Marbury v. Madison-type review, in that it amounts to an abdication of the judicial role. The former President of the Israeli Supreme Court, Aharon Barak, put it this way: “I regard the doctrine of …’ political questions’ with considerable wariness. … I accept that certain disputes are best decided elsewhere. However the court should not abdicate its role in a democracy merely because it … fears tension with the other branches of the state” (Barak 2006, 177–8). The idea, we suppose, is that deeming certain questions “political” could lead to a result that the doctrine was designed (in part) to prevent: an emasculation of the court. A preferable strategy, on this logic, is for judges to reach the merits of disputes with 16 See, e.g., Nixon v. United States, 506 U.S. 224 (1993); Goldwater v. Carter, 444 U.S. 996 (1979). 17 531 U.S. 98 (2000).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 11 /
Date: 15/8
JOBNAME: Delaney PAGE: 12 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Efficacious judging on apex courts 283 due deference to the elected branches, rather than leave some constitutional provisions solely to the branches’ discretion. But when courts engage in a strategy of deferential review to accomplish much the same ends as the political question doctrine (that is, to avoid collisions with external actors), normative concerns arise. For example, under highly deferential review, judges mostly uphold and thus legitimate the regime’s action; under the political question doctrine, they also allow the government to do as it pleases but do not necessarily legitimate the action. If the US Supreme Court’s disastrous decision in Korematsu v. United States18 indicates anything, it is that this is, in fact, a distinction with meaning. 4. Cultivate Public Opinion The point of avoidance doctrines is, well, to avoid disputes that may harm the judiciary in the short and long terms. To the extent that it calls on courts to go on the offensive, this final approach—cultivating public opinion—is something of the reverse. The idea is that if judges can develop deep reservoirs of public support, they can increase the costs of noncompliance by elected officials ultimately offsetting the benefits of court bashing (Vanberg 2005). In this way, “public support provides a shield for judicial independence” (Vanberg 2015, 177). Or, as we frame it, when judges generate public confidence in their institution and their rulings, they advance their cause with the ruling regime by lengthening the elected actors’ “tolerance intervals” (Epstein, Knight, and Shvetsova 2002). By tolerance intervals we mean intervals around the actors’ ideal points such that they would be unwilling to challenge a court decision placed within that interval. What methods are available to courts wishing to increase the costs of attacks via the public? The extant literature suggests three.19 i. Incorporate public opinion into jurisprudence We’ve already discussed how judges occasionally follow the “election returns” or the general mood of the public. Here we mean something different: not following public sentiment, but incorporating it explicitly into doctrine. In the US context, two obvious examples come to mind. One is obscenity cases, in which the Court has said that triers of facts must determine: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.20 18
323 U.S. 214 (1944). There are others. For example, judges must convince the public that they “are not merely legislators in robes but are constrained by professional codes of conduct that transcend their narrow policy preferences” (Vanberg 2015, 179). They can do this by justifying “their decisions with respect to the constitutional text” (Vanberg 2015, 179)—which elected politicians typically don’t do. 20 Miller v. California, 413 U.S. 15, 24 (1973) (emphasis added) (citations omitted). 19
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 12 /
Date: 15/8
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
284 Comparative judicial review Note clause (a)’s emphasis on “contemporary community standards”: The notion is that juries and judges should look to the views of people in their community to help decide whether a work is obscene or not. We can think of no more obvious way to ensure the public’s representation in judicial decisions. The second example comes into play when courts must determine whether a particular punishment that the government wants to impose is “cruel and unusual” and so forbidden by the 8th Amendment of the US Constitution. In making that determination, the Supreme Court has declared: “The words of the [8th] Amendment are not precise, and … their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”21 To assess whether a punishment comports with “evolving standards” of decency, judges can and do look at public opinion polls. Illustrative is Atkins v. Virginia.22 There the Court was considering whether to overrule an earlier decision, Penry v. Lynaugh,23 which held that applying the death penalty (executing) the mentally retarded does not constitute cruel and unusual punishment. What attorneys for the defendant in Atkins demonstrated was that Americans had demonstrated a change of heart since Penry: “polling data shows a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong.”24 Along with other arguments, the polls convinced the majority that executing the mentally retarded no longer comported with Americans’ “standards of decency.” ii. Go public Staton’s important book, Judicial Power and Strategic Communication in Mexico, documents the Mexican Supreme Court’s “coordinated and aggressive” public relations campaign (Staton 2010). Its goal? To generate conditions as favorable as possible to the exercise of its power. As Staton writes, “communication strategies are broadly designed to advance the transparency of the conflicts constitutional courts resolve and to promote a deep societal belief in the judicial legitimacy, conditions that promote judicial power” (Staton 2010, 7). The Mexican Supreme Court is not alone. According to Staton, judges serving on constitutional courts throughout the world now go public, attempting to engage the citizenry through various channels. Publicizing their decisions is commonplace: nearly 90 percent of the courts he studied make them available on the Internet; many also issue press releases announcing (select) decisions (Staton 2010). And these days it’s hard to identify a court that doesn’t maintain a website housing information about its procedures, cases, and even bios of its members. These are indirect, passive forms of communication but, as Staton also shows, more direct contact is not uncommon—especially efforts “to use the media to underline key jurisprudential points” (i.e., to defend decisions or even the rule of law, more generally) (Staton 2010). To list just a few of the many examples Staton offers: 21 22 23 24
Trop v. Dulles, 356 U.S. 86, 100–1 (1958) (emphasis added). 536 U.S. 304 (2002). 492 U.S. 302 (1989). Atkins v. Virginia, 536 U.S. 304, 316 (fn. 21) (2002).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 13 /
Date: 11/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Efficacious judging on apex courts 285 + Colombia Constitutional Court president Jaime Córdova Triviño gave a series of interviews … clarifying a decision striking down a popular law that had granted partial amnesty to paramilitary group leaders. + Canadian Supreme Court Justice Ian Binnie presented a lecture … in which he discussed whether the Court had usurped legislative authority with its interpretation of the Canadian Charter of Rights. + German Federal Constitutional Court member Dieter Grimm published a public letter advocating compliance with a controversial decision on church–state relations (Staton 2010). None of this is new, of course. In the wake of the US Supreme Court’s controversial decision in McCulloch v. Maryland,25 Chief Justice John Marshall wrote several articles responding to his critics under the nom de plume “A Friend of the Union.” Along somewhat different lines is Chief Justice Earl Warren’s insistence that his Court issue a short, non-rhetorical, non-technical opinion in Brown v. Board of Education.26 The general goal of such strategies is to enhance public support for the court with the goal of making it more costly for the regime to undermine it. iii. Develop (popular) rights If recent papers are any indication, an equally commonplace method of appealing to the public is to protect or entrench rights that have broad appeal. Mate’s essay on India attributes judicial empowerment there to the Supreme Court’s development of a public interest litigation “jurisprudential regime” (Mate 2013). Under this regime, the Court “expansively interpreted fundamental rights,” articulated a new “nonarbitrariness standard,” and relaxed standing requirements (Mate 2013). Klug’s analysis suggests much the same about the South African Court: “The Court … gave confidence to white elites that it would protect property and economic rights, guaranteeing some degree of continuity. At the same time, it gave confidence to black majorities that the democratization process was going to mean a real change for them” (Klug 2013). And Silverstein’s research on Singapore paints a portrait of judges working not so much to protect individual dignity but rather to achieve a collective goal: economic development and the “strengthening of state institutions” (Silverstein 2008). Whatever the approach, the goal may be the same: to increase the costs of attacking the court and thus to broaden the tolerance intervals of the elected actors. Ferejohn and Pasquino put it this way: “Perhaps the popularity of constitutional courts has grown with their demonstrated effectiveness in protecting rights, [leaving] the governing coalition with less political room for undermining court autonomy” (Ferejohn and Pasquino 2003, 250).
25 26
17 U.S. 316 (1819). 347 U.S. 483 (1954).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
286 Comparative judicial review
C. DISCUSSION We have outlined four general paths that judges can follow if they care about issuing efficacious decisions and establishing and maintaining the legitimacy of their court. In offering these suggestions, we recognize that each is open to normative and positive critiques. We have already considered objections to evading disputes via the political question doctrine but the other approaches raise similar concerns. For example, methods for attending to external actors’ preferences and likely actions sometimes ask judges to act as politicians pandering to their “constituents” rather than reaching decisions based on “proper” judicial methods (e.g., originalism, textualism, stare decisis, proportionality analysis, and so on). Likewise, some scholars might claim that when courts write vague opinions, they inappropriately abdicate their role by trading off doing the “right” thing (however defined) in the short term for future legitimacy gains. The strategy of entrenching rights too has its share of potential pitfalls because decisions so doing can be quite controversial—generating support, yes, but also extreme opposition from the public. The abortion case Roe v. Wade27 and litigation over guns28 are just two of the many examples that underscore the point. Should such decisions cumulate, they may produce precisely the same result as contentious rulings in the separation-of-powers context: a decrease in the cost of failure to comply with the court’s decisions. We do not dismiss these concerns willy-nilly; they are important and should be the subjects of more discussion and debate.29 More relevant for our purposes, though, are questions relating to whether the methods we propose actually contribute to the task of establishing or maintaining legitimacy in the long run—or do the courts that regularly deploy them simply become an entrenched part of the ruling regime, and (owing to their timidity) not a particularly relevant part? Almost needless to write, these are also questions we hope scholars will pursue.
REFERENCES Arguelhes, Diego Werneck and Ivar A. Hartmann. 2017. “Timing Control without Docket Control. How Individual Justices Shape the Brazilian Supreme Court’s Agenda.” Journal of Law and Courts 5: 105–40. Barak, Aharon. 2006. The Judge in a Democracy. Princeton, NJ: Princeton University Press. Black, Ryan C., Ryan J. Owens, Justin Wedeking, and Patrick C. Wohlfarth. 2016. U.S. Supreme Court Opinions and their Audiences. Cambridge: Cambridge University Press. Brodie, Ian. 2002. Friends of the Court: The Privileging of Interest Group Litigants in Canada. Albany, NY: SUNY Press. Bugaric, Bojan and Tom Ginsburg. 2016. “The Assault on Postcommunist Courts.” Journal of Democracy 27: 69–82. 27
410 U.S. 113 (1973). District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 561 U.S. 742 (2010). 29 For models on how to analyze the costs and benefits of approaches to establishing and maintaining the legitimacy of courts, see Delaney 2016 and Dixon and Issacharoff 2016. 28
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 15 /
Date: 11/7
JOBNAME: Delaney PAGE: 16 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Efficacious judging on apex courts 287 Cameron, Charles M. 2000. Veto Bargaining: Presidents and the Politics of Negative Power. Cambridge: Cambridge University Press. Carrubba, Clifford J., Matthew Gabel and Charles Hankla. 2008. “Judicial Behavior under Political Constraints: Evidence from the European Court of Justice.” American Political Science Review 102: 435–52. Casillas, Christopher J., Peter Ens, and Patrick J. Wohlfarth. 2011. “How Public Opinion Constrains the U.S. Supreme Court.” American Journal of Political Science 55: 74–88. Chowdhury, Rishad Ahmed. 2016. “Missing the Wood for the Trees: A Critical Exploration of the Supreme Court of India’s Chronic Struggle with Its Docket.” JSD dissertation, University of Chicago. Clark, Tom S. 2011. The Limits of Judicial Independence. Cambridge: Cambridge University Press. Collins, Paul M., Jr. 2008. Friends of the Supreme Court: Interest Groups and Judicial Decision Making. Oxford: Oxford University Press. Conrad, Courtenay Ryals and Sona N. Golder. 2010. “Measuring Government Duration and Stability in Central Eastern European Democracies.” European Journal of Political Research 49: 119–50. Corley Pamela C. and Justin Wedeking. 2014. “The (Dis)Advantage of Certainty: The Importance of Certainty in Language.” Law & Society Review 48: 35–62. Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Journal of Public Law 6: 279–95. Delaney, Erin F. 2016. “Analyzing Avoidance: Judicial Strategy in Comparative Perspective.” Duke Law Journal 66: 1–68. Diermeier, Daniel, Hulya Eraslan, and Antonio Merlo. 2002. “Coalition Government and Comparative Constitutional Design.” European Economic Review 46: 893–907. Dixon, Rosalind and Samuel Issacharoff. 2016. “Living to Fight Another Day: Judicial Deferral in Defense of Democracy.” Wisconsin Law Review 2016: 683–732. Epstein, Lee and Tonja Jacobi. 2008. “Super Medians.” Stanford Law Review 61: 37–100. Epstein, Lee and Jack Knight. 1998a. The Choices Justices Make. Washington, DC: CQ Press. Epstein, Lee and Jack Knight. 1998b. “Mapping Out the Strategic Terrain: The Informational Role of Amici Curiae.” In Supreme Court Decision-Making, edited by Cornell Clayton and Howard Gillman. Chicago, IL: University of Chicago Press. Epstein, Lee, Jack Knight, and Andrew D. Martin. 2001. “The Supreme Court as a Strategic National Policy Maker.” Emory Law Journal 50: 583–612. Epstein, Lee, Jack Knight, and Olga Shvetsova. 2001. “Comparing Judicial Selection Systems.” William & Mary Bill of Rights Law Journal 10: 7–36. Epstein, Lee, Jack Knight, and Olga Shvetsova. 2002. “The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government.” Law & Society Review 35: 117–64. Epstein, Lee, William M. Landes, and Richard A. Posner. 2015. “The Best for Last: The Timing of U.S. Supreme Court Decisions.” Duke Law Journal 64: 991–1022. Epstein, Lee and Andrew D. Martin. 2010. “Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why).” University of Pennsylvania Journal of Constitutional Law 13: 263–82. Eskridge, William N. Jr. 1991a. “Overriding Supreme Court Statutory Interpretation Decisions.” Yale Law Journal 101: 331–456. Eskridge, William N. Jr. 1991b. “Reneging on History?: Playing the Court/Congress/President Civil Rights Game.” California Law Review 79: 613–84. Ferejohn, John. 2013. “Judicial Power: Getting It and Keeping It.” In Consequential Courts, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. Cambridge: Cambridge University Press. Ferejohn, John and Pasquale Pasquino. 2003. “Rule of Law and Rule of Democracy.” In Democracy and the Rule of Law, edited by José María Maravall and Adam Przeworski. Cambridge: Cambridge University Press. Ferejohn, John, Francis Rosenbluth, and Charles Shipan. 2007. “Comparative Judicial Politics.” In The Oxford Handbook of Comparative Politics, edited by Carles Boix and Susan Stokes. Oxford: Oxford University Press. Flemming, Roy B. 2004. Tournament of Appeals: Granting Judicial Review in Canada. Vancouver: UBC Press. Fontana, David. 2011. “Docket Control and the Success of Constitutional Courts.” In Comparative Constitutional Law, edited by Tom Ginsburg and Rosalind Dixon. Cheltenham: Edward Elgar Publishing. Friedman, Barry. 2009. The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. New York, NY: Farrar, Straus and Giroux.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 16 /
Date: 15/8
JOBNAME: Delaney PAGE: 17 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
288 Comparative judicial review Gauri, Varun, Jeffrey K. Staton, and Jorge Vargas Cullell. 2015. “The Costa Rican Supreme Court’s Compliance Monitoring System.” Journal of Politics 77: 774–86. Gibson, James L. and Michael J. Nelson. 2014. “The Legitimacy of the U.S. Supreme Court: Conventional Wisdoms and Recent Challenges Thereto.” Annual Review of Law and Social Science 10: 201–19. Giles, Micheal W., Bethany Blackstone, and Richard L. Vining, Jr. 2008. “The Supreme Court in American Democracy: Unraveling the Linkages Between Public Opinion and Judicial Decision Making.” Journal of Politics 70: 293–306. Gillman, Howard. 2001. The Votes That Counted. Chicago, IL: University of Chicago Press. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press. Ginsburg, Tom. 2013. “The Politics of Courts in Democratization.” In Consequential Courts, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. Cambridge: Cambridge University Press. Ginsburg, Tom and Mila Versteeg. 2014. “Why Do Countries Adopt Constitutional Review?” Journal of Law, Economics, and Organization 30: 587–622. Hall, Melinda Gann. 2001. “State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform.” American Political Science Review 95: 315–30. Helmke, Gretchen. 2005. Courts Under Constraints: Judges, Generals and Presidents in Argentina. Cambridge: Cambridge University Press. Helmke, Gretchen. 2017. Institutions on the Edge: The Origins and Consequences of Inter-Branch Crises in Latin America. Cambridge: Cambridge University Press. Iaryczower, Matias, Pablo T. Spiller, and Mariano Tommasi. 2002. “Judicial Decision Making in Unstable Environments: Argentina 1938–1998.” American Journal of Political Science 46: 699–715. Issacharoff, Samuel. 2011. “Constitutional Courts and Democratic Hedging.” Georgetown Law Journal 99: 961–1012. Johnson, Timothy R. 2004. Oral Arguments and Decision Making in the United States Supreme Court. Albany, NY: SUNY Press. Klug, Heinz. 2013. “Constitutional Authority and Judicial Pragmatism: Politics and Law in the Evolution of South Africa’s Constitutional Court.” In Consequential Courts, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. Cambridge: Cambridge University Press. Koopmans, Tim. 2003. Courts and Political Institutions: A Comparative View. Cambridge: Cambridge University Press. Krehbiel, Jay N. 2016. “The Politics of Judicial Procedures: The Role of Public Oral Hearings in the German Constitutional Court.” American Journal of Political Science 60: 990–1005. Krehbiel, Keith. 2007. “Supreme Court Appointments as a Move-the-Median Game.” American Journal of Political Science 51: 231–40. Mate, Manoj. 2013. “Public Interest Litigation and the Transformation of the Supreme Court of India.” In Consequential Courts, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. Cambridge: Cambridge University Press. McGuire, Kevin T. and James A. Stimson. 2004. “The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences.” Journal of Politics 66: 1018–35. Murphy, Walter F. 1962. Congress and the Court. Chicago, IL: University of Chicago Press. Nikitinsky, Leonid. 1997. “Russia: Interview with Boris Ebzeev, Justice of the Constitutional Court of the Russian Federation.” Eastern European Constitutional Review 6: 83–8. O’Connor, Karen and Lee Epstein. 1983. “Court Rules and Workload: A Case Study of Rules Governing Amicus Curiae Participation.” Justice System Journal 8: 35–45. Pasquino, Pasquale 2008. “The Constitutional Courts in Europe and the Reshaping of Postwar Democracy.” Paper presented at the Sawyer Seminar, University of California-Berkeley. Perry, H.W., Jr. 1994. Deciding to Decide: Agenda Setting in the United States Supreme Court. Cambridge, MA: Harvard University Press. Posner, Richard A. 1996. The Problems of Jurisprudence. Cambridge, MA: Harvard University Press. Ramseyer, J. Mark. 1994. “The Puzzling (In)dependence of Courts: A Comparative Approach.” Journal of Legal Studies 23: 721–47. Reichman, Amnon. 2013. “Judicial Constitution Making in a Divided Society.” In Consequential Courts, edited by Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan. Cambridge: Cambridge University Press. Richman, Barak D., Mario Bergara, and Pablo T. Spiller. 2003. “Modeling Supreme Court Strategic Decision Making: The Congressional Constraint.” Legislative Studies Quarterly 28: 247–80.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 17 /
Date: 15/8
JOBNAME: Delaney PAGE: 18 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Efficacious judging on apex courts 289 Rose-Ackerman, Susan. 2005. From Elections to Democracy: Building Accountable Government in Hungary and Poland. Cambridge: Cambridge University Press. Rosenberg, Gerald N. 1992. “Judicial Independence and the Reality of Political Power.” Review of Politics 54: 369–98. Scheppele, Kim Lane. 2006. “A Comparative View of the Chief Justice’s Role: Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe.” University of Pennsylvania Law Review 154: 1757–851. Segal, Jeffrey A., Chad Westerland, and Stefanie A. Lindquist. 2011. “Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model.” American Journal of Political Science 55: 89–104. Silverstein, Gordon. 2008. “Singapore: The Exception that Proves Rules Matter.” In Rule by Law: The Politics of Courts in Authoritarian Regimes, edited by Tom Ginsburg and Tamir Moustafa. Cambridge: Cambridge University Press. Spiller, Pablo T. and Emerson H. Tiller. 1996. “Invitations to Override: Congressional Reversals of Supreme Court Decisions.” International Review of Law and Economics 16: 503–21. Spriggs, James E. and Paul J. Wahlbeck. 1997. “Amicus Curiae and the Role of Information at the Supreme Court.” Political Research Quarterly 50: 365–86. Staton, Jeffrey K. 2010. Judicial Power and Strategic Communication in Mexico. New York, NY: Cambridge University Press. Staton, Jeffrey K. and Georg Vanberg. 2008. “The Value of Vagueness: Delegation, Defiance, and Judicial Opinions.” American Journal of Political Science 52: 504–19. Stephenson, Matthew C. 2003. “‘When the Devil Turns …’: The Political Foundations of Independent Judicial Review.” Journal of Legal Studies 32: 59–89. Vanberg, Georg. 2005. The Politics of Constitutional Review in Germany. Cambridge: Cambridge University Press. Vanberg, Georg. 2015. “Constitutional Courts in Comparative Perspective: A Theoretical Assessment.” Annual Review of Political Science 18: 167–85. Westerland, Chad, Jeffrey A. Segal, Lee Epstein, Charles Cameron, and Scott Comparato. 2010. “Strategic Defiance and Compliance in the U.S. Courts of Appeals.” American Journal of Political Science 54: 891–905. Whittington, Keith E. and Tom S. Clark. 2009. “Judicial Review of Acts of Congress, 1789–2006.” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1475660.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 14_Chapter14_ts
/Pg. Position: 18 /
Date: 11/7
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
15. Limiting judicial discretion Mila Versteeg and Emily Zackin*
A. INTRODUCTION In recent decades, the world has witnessed a remarkable rise of judicial review. As of today, over 80 percent of all constitutions explicitly grant one or more courts the power of judicial review (Ginsburg and Versteeg 2014, 590). In all these countries, courts are empowered not only to interpret the constitution, but also to invalidate laws and regulations that contradict it. Even countries with strong historical commitments to parliamentary sovereignty, such as the United Kingdom, Canada, or New Zealand, have adopted hybrid forms of judicial review in recent decades (Gardbaum 2001, 760). This rise of judicial review is widely described as a “judicialization of politics,” in that judges are now the final arbiters over issues that used to be exclusively political in nature (Tate and Vallinder 1995, 5). According to Stone Sweet, Europe has got used to “governing with judges” (Stone Sweet 2000), and others have documented how Latin American politics have similarly been “judicialized” (Sieder, Schjolden, and Angell 2005, 1). Indeed, courts reportedly have dictated abortion policies, whether a country can have the death penalty, social spending, whether the president can run for another term, and have struck down austerity measures (Sunstein 2000, 123; Scheppele 2004, 1924–5).1 As Ran Hirschl notes, a lot of “mega-politics” are now squarely within the purview of judicial power (Hirschl 2004, 169). The judicialization of politics is, in itself, the result of political calculations. Hirschl describes, for example, that politicians often want the courts to settle highly salient political issues so that they can avoid having to take the blame for potentially unpopular policies (Hirschl 2004, 39). Such blame-shifting explains why the drafters of the South African Constitution were unwilling to directly abolish the highly popular death penalty, instead leaving this task for the court. Politicians, moreover, support the empowerment of courts when they believe that the court will protect their interests. This might be the case when they fear losing electoral power and thus the ability to protect their interest through the ordinary political process, or when they are unsure of how much power they will wield in the future (Hirschl 2004, 40; Ginsburg 2003). George Lovell and Mark Graber have demonstrated that, in order to avoid taking positions on issues that cut across and threaten their coalitions, members of Congress encourage courts to decide these questions (Lovell 2003; Graber 1993). Keith Whittington has shown how presidents promote the judicialization of politics to maintain * This chapter is reproduced (with a new introduction) from our article: 2016. “Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design.” American Political Science Review 110: 657–74. 1 Corte Constitucional [C.C.] [Constitutional Court], febrero 26, 2010, Sentencia C-141/10.
290
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 291 their political coalitions and that courts may also be useful to presidents in promoting their policy agendas (Whittington 2007). The growing empowerment of courts has generated mixed responses from the academic community. The bulk of the literature seems to view the development as a positive one. Courts are viewed as essential to ensuring constitutional compliance, and have been described as the watchdogs that alert democratic majorities when officeholders overstep their powers (Law 2009). Relatedly, it has been suggested that constitutional courts can facilitate transitions to democracy by providing insurance to potential political losers and protect fragile democracies against one-party rule (Ginsburg 2003, 21–33; Issacharoff 2007; Issacharoff 2015). Others have judged the development as less desirable. While few have propagated a return to old notions of parliamentary sovereignty, recent scholarship has searched for a middle ground between it and judicial supremacy. Mark Tushnet, for instance, has advocated for a “weak form” of judicial review, in which courts and legislatures engage in a sort of dialogue about the meaning of the constitution as it pertains to particular policies (Tushnet 2008, 227). Stephen Gardbaum describes the possible benefits of a “new commonwealth model of constitutionalism,” in which legislatures and courts act as “joint or supplementary” institutions for the protection of constitutional rights (Gardbaum 2013, 2). A central feature of Gardbaum’s model is the legislative ability to override judicial rulings through a majority vote. He has argued that this model might be more appropriate for new democracies than strong forms of judicial review (Gardbaum 2015, 289–90). Scholars of American constitutionalism have also called for a rejection of reigning notions of judicial supremacy. Tushnet and Larry Kramer, for instance, have urged Congress and ordinary American citizens to understand themselves as capable of interpreting the US Constitution (Tushnet 1999; Kramer 2004). They insist that “the people” and their elected representatives have authority over the Constitution’s meaning, and that legislatures and citizens ought to assert this authority even in the face of countervailing Supreme Court rulings. These calls for curbing judicial discretion over America’s federal constitutional controversies have been somewhat difficult to realize, in part because the text of the US Constitution has proven so difficult to amend. While the growth in judicial review is undeniable, our work on constitutional development suggests that there have also been important countervailing trends, away from judicial supremacy. In particular, we have shown that, as judicial review proliferated, so did the specificity and flexibility of constitutional documents. By examining several different instances of the rise in constitutional specificity and flexibility, we demonstrate that constitution-makers at least sometimes employed specific and flexible constitutions to limit the discretion of constitutional courts through the provision of clear and detailed guidelines. At the state level, for instance, Americans have consistently attempted to limit the policymaking power of judges by amending their state constitutions. Faced with judicial rulings that they opposed, or even the potential for such rulings, they have amended constitutions in order to protect specific policies from courts. Such “court–curbing” amendments were designed to exert control over state judiciaries, limiting their interpretive discretion (Dinan 2007; Zackin 2013).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 2 /
Date: 15/8
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
292 Comparative judicial review This use of constitutions has not been confined to sub-national polities. In fact, national constitutions have been used in a similar way across the globe (Dixon and Uhlmann 2016). Even as countries created new constitutional courts with the power of judicial review, they simultaneously and consciously attempted to limit judicial discretion by denying judges the interpretive discretion associated with broad and/or vague constitutional principles. Instead, they have drafted increasingly specific documents. For instance, the drafters of both the Canadian Charter of Rights and Freedoms and the Constitution of India deliberately avoided the term “due process of law,” for fear that it would provide overly broad discretion to the judiciary, opting instead for more specific language (Choudhry 2004, 15–24; Klug 2000, 605–6). Some constitutional provisions even include specific instructions to judges about how they are (or are not) to be interpreted. By including detailed policy provisions directly in constitutional documents and updating those policies as often as necessary, constitutional drafters (and amenders) have attempted to limit the judiciary’s capacity to substitute their own policy preferences for those of electoral majorities. We have argued that constitutional drafters created specific and flexible constitutions to limit the discretion of other branches of government, particularly legislatures. In other words, the same design strategy developed out of drafters’ desire to maintain control over both courts and legislatures. This finding has implications for our thinking about the judicialization of politics. Scholars of judicial review and judicialization have tended to emphasize the particular normative and practical problems associated with judges’ involvement in policymaking. However, our finding that specific constitutions were designed to cabin both judicial and legislative power suggests that the challenge of limiting judicial discretion should really be understood as part of a larger constitutional puzzle for democratic polities: how to empower office-holders without losing control over them. Indeed, this is how constitutional drafters, themselves, have often understood it. The remainder of this chapter presents our earlier work on the political logic of these specific and flexible constitutions.
B. AN ALTERNATIVE THEORY OF CONSTITUTIONAL DESIGN A dominant theme of the constitutional theory literature is that successful constitutions must not only constrain those in power, but must do so over long time horizons, establishing constraints durable enough to bind across generations. This “entrenchment function” (Young 2008)—the ability to create “temporally extended commitments” (Rubenfeld 2008, 73)—is often described as a defining feature and central goal of constitutionalism (Waluchow 2012). By entrenching commitments, constitutions serve as a mechanism for overcoming the inconsistency of preferences over time. One particularly famous metaphor describing this entrenchment function likens constitutional provisions to the ropes that bound Ulysses to the mast of his ship, that is, self-imposed restraints to ensure that we cannot yield to the dangerous temptations we foresee in our future (Elster 1979). Waldron likewise describes constitutions as “[p]recautions that responsible rights-holders have taken against their own imperfections” (Waldron 1999, 258). Similarly, economic historians have attributed the origins
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 3 /
Date: 11/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 293 of modern constitutionalism to monarchs or other elite rulers that attempted to make their commitments more credible by entrenching them. These elites developed constitutionalism as way to confirm the durability of the concessions they were making to maintain the support of essential members of their political coalitions (North and Weingast 1989; Acemoglu, Johnson, and Robinson 2001). 1. The Entrenched Constitution Entrenchment, or rigidity, may allow constitutional texts to establish enduring authority over governmental activities. As people come to believe that these constitutional boundaries will remain in place, they may then establish political and economic arrangements premised upon them, creating incentives for the actors involved to continue to preserve these original boundaries (Hardin 1999; Levinson 2011). Constitutional courts may then emerge from these larger political and economic structures and participate in the enforcement (and further entrenchment) of the constitutional commitments upon which these institutions were founded (Hardin 1999; Hirschl 2004; Law 2009). Importantly, entrenchment discourages the inclusion of highly specific policy choices in constitutional documents, since specific policies are unlikely to remain appropriate or popular in the face of changing economic and social conditions. Another reason that entrenchment works against constitutional specificity is that it is generally easier for diverse groups to agree on broad standards or principles than on specific policies (Lerner 2011). We might expect this difficulty to be heightened if those agreements will be difficult to revise (Hardin 1999, 84). Entrenched constitutions, therefore, tend to be narrow in scope, describing only the basic structures of government, the powers entrusted to it, and the rights it cannot violate. They also tend to exclude detailed or technical instructions, employing broad statements of principle in lieu of comprehensive policies. Entrenched constitutional documents are relatively robust against the possibility that, once in power, political actors may attempt to relax the constitutional constraints placed upon them by amending the document. Thus, procedural requirements that make the constitution harder to amend may help to reduce the cost of monitoring these actors (Levinson 2011, 679; Fusaro and Oliver 2011, 4). By requiring amendments to be passed by supermajority, or by requiring the involvement of sub-national units, constitution-makers can ensure that amendment is an extraordinary affair. Informal norms dictating infrequent amendment can further serve to defend a constitutional text from agents’ attempts to revise it (Ginsburg and Melton 2014; Levinson 1995). The entrenched and spare constitution makes it harder for both office-holders and contemporary majorities to amend the constitution in their favor. But this design strategy imposes other costs. First, constitutional interpreters, including legislatures, executives, and courts, may choose from a vast array of policy choices, and claim that almost any are consistent with the spare constitution’s broadly phrased guarantees. As a result, spare texts endow the constitutional interpreters with significant room to make, and potentially change, constitutional meanings. Scholars of American politics have long emphasized the ability of judges, in particular, to set national policy by determining the Constitution’s meaning (Dahl 1957). This invitation for unelected
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 4 /
Date: 11/7
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
294 Comparative judicial review Supreme Court Justices to substitute their own political convictions for those of democratic majorities may, at least in the short term, pose significant problems for democratic self-governance (Bickel 1962). A second set of costs associated with entrenched constitutions is that elites can use entrenched documents to secure (or entrench) their privilege (Schwartzberg 2013). Beard famously described the US Constitution, for instance, as a means through which the propertied few entrenched their material advantages against the democratic forces that might have attempted economic redistribution (Beard 1913). Parenti echoed this critique, dubbing the Philadelphia Convention “a debate of haves versus haves in which each group sought safeguards within the new Constitution for its particular concerns” (Parenti 2011, 8). Hirschl’s comparative research has also demonstrated that elites create constitutions when they fear the strength of their opponents and want to entrench their hegemony against emerging democratic majorities (Hirschl 2004). In addition to the possibility that political elites may use entrenched constitutions for anti-democratic purposes, the very practice of inter-generational binding raises questions about whether entrenched documents really allow people to control their government. It is difficult to characterize very old and rigid texts as a set of instructions from the existing people, or to justify the authority of the long-dead framing and ratifying generation over those living in the present. A generation that has had little say over a constitution’s text therefore can hardly be said to be acting as a principal. This normative critique of entrenched constitutions is most famously associated with Thomas Jefferson (Jefferson 1789), but many theorists have grappled with this “dead hand” problem (Ely 1980; Eisgruber 2001; Raz 2009). As an empirical matter, moreover, effective inter-generational binding through a rigid text may be unworkable. Scholars of both American and comparative constitutionalism have shown that when constitutional documents are sufficiently difficult to change, political development often occurs outside and around the formal constitution (Griffin 1996, 28–9; Levinson 1995; Klug 2015; Fusaro and Oliver 2011; Contiades and Fotiadou 2013). Change may occur through the introduction of new legislation (Eskridge and Ferejohn 2001), new conventions (Albert 2015) or simply because entrenched provisions have been rendered obsolete (Schauer 1995; Albert 2014). Even when judiciaries attempt to block such extra-textual changes, ruling elites can typically overcome these decisions, sooner or later, by revising the composition of the judicial branch (Dahl 1957; Levinson 1995; Balkin and Levinson 2001). 2. The Specific Constitution While constitutional theory has focused on entrenchment, many real-world constitution-makers have found a different solution to some of the agency problems in constitutional design: specificity. By placing a broad range of detailed policies directly in a constitutional text, constitution-makers can attempt to constrain the exercise of political power. In other words, the principal can use a constitutional text to tell its agents exactly what to do and not do. The resulting constitutions tend to emphasize rules over standards, attempting to define much of the content of law ex ante rather than allowing it to be defined by its interpreters ex post (Kaplow 1992). Since these specific rules leave less room for interpretative disagreement, they can facilitate
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 295 political coordination to support their own enforcement (Weingast 1997; Hadfield and Weingast 2014). It is relatively easy to agree when a government has violated a detailed instruction and to mobilize opposition around that blatant violation. A high degree of specificity requires constitutional texts to become un-entrenched. While specific provisions might seem attractive at the time of founding, they can quickly grow outdated. Thus, highly specific constitutions typically require frequent updating. Furthermore, if constitutions are updated frequently, this flexibility may encourage people to pursue constitutional change in their efforts to advance particular policy goals (Elkins, Ginsburg, and Melton 2009, 89). Perhaps more fundamentally, some degree of flexibility is a central part of a constitutional strategy that envisions continuous control over constitutional agents, since flexibility is required for contemporary majorities to correct governmental policies through textual constitutional instructions. Indeed, one of the striking findings presented in our next section is that specificity and flexibility are highly correlated with one another and appear to have increased together in democratic constitutions. Specific and un-entrenched constitutions mitigate some of the agency costs and normative problems associated with entrenched documents. First, their flexibility allows them to avoid the “dead hand” problem, since the living generation clearly acts as the principal in its frequent revision of the constitutional text. Second, constitutional detail can guard against judiciaries’ tendency to cater to a small elite by providing policy-oriented instructions to judges about how to (and how not to) interpret the constitution (Dinan 2007). In some cases, these constitutions have become more specific as democratic majorities have added detailed provisions in response to judicial interpretations with which they disagreed (Lupia et al. 2010; Zackin 2013; Dixon and Landau 2016). Third, specific and un-entrenched constitutions limit the discretion of those responsible for implementing the constitution. By increasing the scope of constitutional mandates (i.e., including mandates on a wider array of policy issues), citizens can also dictate exactly which policies executives and legislatures must enact and which they must refrain from enacting in manifold areas of governance. Including detail on these policies also allows the principal to exert further control over its agents by including explicit instructions about how they are to carry out their responsibilities. As we will demonstrate below, constitutions have often become more specific because democratizing forces insisted on the inclusion of explicit commitments to particular redistributive policies. While specific and flexible constitutions reduce some of the agency costs associated with highly entrenched constitutions, they introduce others. Perhaps most troublingly, they are vulnerable to the very actors they purport to control. There exists a fine line between the principal adjusting the agent’s marching orders and the agent enshrining its own interests. Thus, a flexible constitution may be more vulnerable to amendment in ways that undermine a polity’s democratic character. What is more, constitutions that are sensitive to democratic pressures might be unable to safeguard minority group protections that were enshrined in the constitution at the time of drafting. Where constitutional systems respond readily to majoritarian pressures, minority rights can be easily violated (Ely 1980). There are also other potential downsides of specific and flexible constitutions. First, because these constitutions envision an ongoing constitutional micro-management, they
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 6 /
Date: 11/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
296 Comparative judicial review impose significant costs associated with the monitoring of office-holders. There are also costs associated with the frequent revisions necessary to ensure that the constitutions’ highly specific text will remain relevant, especially when those revisions require legislative action or referenda. Second, it is not clear that the strategy is actually successful in practice (Dixon 2016). Specificity is certainly no guarantee of compliance with drafters’ intentions. In fact, since the early 20th century, legal realists have emphasized the indeterminacy of legal rules (Llewellyn 1930), and some scholars believe that judiciaries are unlikely to enforce positive rights against the government (Cross 2001). While specificity often represents an attempt to curb judicial discretion, some have suggested that constitutions that are too specific may enhance discretion by requiring judges to balance the competing values that these constitutions contain (Posner 2013). Our goal is not to argue that specific and flexible constitutions are normatively superior to entrenched constitutions. We simply seek to demonstrate that the specific and flexible constitutions currently populating the globe are not simply failures to achieve brevity and entrenchment, but represent a plausible alternative solution to some of the agency problems associated with constitutional design.
C. EMPIRICAL EXPLORATION OF CONSTITUTIONAL MODELS We draw on quantitative data from democratic constitutions (drafted from the early 19th century to today) to determine which design strategies particular constitutions embody. Our analysis includes the entire universe of democratic national constitutions and all US state constitutions.2 We include state constitutions in our analysis because these documents share many similarities with the constitutions of democratic countries other than the US (Gardbaum 2008; Versteeg and Zackin 2014). Like most foreign constitutions, state constitutions tend to be highly specific, to grant plenary rather than enumerated powers, to be amended or replaced frequently, and to be fairly unfamiliar to their publics. Indeed, as we will elaborate in the next section, state constitutions illustrate the design logic of specific and flexible constitutions rather well. 1. Measuring Entrenchment and Specificity There are different ways to measure a constitution’s degree of entrenchment. Individual constitutions lie somewhere along a continuum from highly entrenched and unchangeable to extremely flexible, and within a single constitution, some provisions may be more entrenched than others. It is not entirely clear how best to determine a constitution’s place along this axis. Some studies assess flexibility according to the formal amendment rules of the constitutions (Lutz 1994; Lijphart 1999; La Porta et al. 2004; Lorenz 2005), others count the number of times the constitution has been 2 Existing studies have shown that authoritarian constitutions possess a distinct logic and are generally short and ambiguous (Ginsburg and Simpser 2013). We treat countries with a polity2 score of higher than 5 as democratic.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 297 amended (Ginsburg and Posner 2010), or the frequency with which a single polity adopts entirely new constitutions (Elkins, Ginsburg, and Melton 2009). To describe the level of entrenchment of constitutional texts, we calculate each constitution’s entrenchment score, which we define as the total number of years a democratic polity has existed divided by the total number of years in which it witnessed constitutional change (either through replacement or amendment). The resulting measure captures the average number of years that a polity has gone between constitutional revisions. In constructing this entrenchment score, we do not distinguish between amendment and replacement because this distinction is often not a meaningful one: Some polities have employed the formal amendment process to overhaul their entire constitutions, while the promulgation of a “new” constitution sometimes reflects no significant differences in content (Arato 2014).3 Thus, we consider both types of textual changes as evidence of flexibility. The measure does not rely on formal amendment rules because these rules are mediated so dramatically by political norms (Ginsburg and Melton 2014; Klug 2015). For instance, the Japanese Constitution, which is widely considered one of the world’s most entrenched, contains the same formal amendment rule as most US state constitutions, which are generally understood to be highly flexible. Finally, since our purpose is to reveal how readily those living under a democratic constitution modify its text, our measure excludes non-textual change. To describe a constitution’s specificity, we simply calculate the number of words it contains. Specificity, however, comes in different forms. A constitution may be specific because it describes many different topics. Many democratic constitutions cover a wide range of topics, including matters such as fiscal policy and economic development, the management of natural resources, animals, matters of cultural significance, and citizen character. This type of specificity is often described as scope (Ginsburg 2010). To capture the scope of democratic constitutions, we calculate the number of unique words in each constitutional text, on the premise that a larger number of unique words reflects the constitution’s inclusion of a larger number of unique issues.4 A second form of specificity is the extent to which each topic is discussed (Elkins, Ginsburg, and Melton 2009). We refer to this form of specificity as detail. To measure a constitution’s detail, we divide the total word count of the constitution by its number of unique words, thus creating a proxy for how many words are spent on each unique
3 To illustrate, Chile’s 1980 Constitution has never been replaced since the fall of the Pinochet regime, and yet has been changed radically through amendment (Arato 2014). Conversely, Louisiana’s Constitution of 1861 was exactly the same as the Constitution of 1852, except for its replacing the words “United States” with “Confederate States” throughout. 4 Elkins, Ginsburg, and Melton capture specificity by counting how many of a predetermined list of topics are covered in a constitution (Elkins, Ginsburg, and Melton 2009, 104). The downside of this measure is that it is limited to a fairly common set of topics (92 topics), and thus does not capture those constitutions widest in scope because they cover topics not on the list. The correlation between our unique word count measure and the existing scope measure is 0.59.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 8 /
Date: 15/8
JOBNAME: Delaney PAGE: 9 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
298 Comparative judicial review topic.5 It is important to note that scope and detail are closely related concepts. For instance, imagine a constitution that grants all citizens a right to education, but subsequently adds provisions on teachers’ pay or the content of the curriculum. These provisions could be regarded as a larger number of topics covered in the constitution (increasing its scope), but could also be viewed as a more exhaustive treatment of the general topic of education (increasing its detail). Because we have measured constitutional scope according to the number of unique words in a constitution, we treat all of these additional policies as an expansion of scope, rather than detail. 2. Historical Trajectory The historical data we have collected suggest that, over the past two centuries, democratic constitutions have become less entrenched, while their specificity has increased. Figure 15.1a shows the historical trajectory of all democratic constitutions, including both democratic national constitutions and state constitutions. Panel 1 demonstrates that constitutions of democratic polities have become less entrenched over time as witnessed by their declining entrenchment scores.6 Panel 2 depicts the average word count of these constitutions (as measured at the time of their adoption) and reveals that democratic constitutions have grown in specificity.7 Panel 3 depicts the growth in the scope of these constitutions as captured by their unique word count over time.8 Panel 4 depicts the increase in their detail as captured by the number of words they spend on each topic. Overall, Figure 15.1a depicts a large-scale shift away from sparseness and entrenchment, toward flexibility and specificity. For comparison, Figure 15.1b depicts the same information for democratic countries only (excluding state constitutions) and reveals the same trends.
5 Elkins, Ginsburg, and Melton measure detail as the constitution’s total word count divided by the number of topics (out of 92) it deals with (Elkins, Ginsburg, and Melton 2009). The correlation between their measure and ours is 0.92. 6 The amendment and replacement data for state constitutions comes from Dixon and Holden, and is available for 44 states (Dixon and Holden 2012). The data is current as of 2005. We expanded the coverage of their dataset by using the NBER State Constitutions database. The same data for national constitutions comes from the Comparative Constitutions Project (CCP) and is current as of 2014. To capture the historical changes in entrenchment, we calculate the number of years a polity has been in existence and divide it by the total number of revisions (either amendment or replacement) it has undergone at that point in time. 7 The historical texts of national constitutions at the time of their adoption were provided by CCP; the state constitutional texts were collected by the UVA Law Library. We calculate the number of words in each constitution at the time of adoption using the “tm” package in R and assign this to all subsequent years, until a new constitution is adopted. We do so because constitutional texts that incorporate all subsequent amendments are not systematically available. 8 We first “stem” our data to remove common stop words, after which we estimate the number of unique words using the “tm” package in R. We thank Adam Chilton for sharing R-code for this.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 9 /
Date: 11/7
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 299
Figure 15.1a Democratic countries and US states
Figure 15.1b Democratic countries only
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 10 /
Date: 11/7
JOBNAME: Delaney PAGE: 11 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
300 Comparative judicial review 3. Current Constitutions A systematic comparison of the flexibility and specificity of democratic constitutions in force today reflects a remarkable gap between constitutional theory and practice. Although most accounts of constitutional governance suggest that written constitutions are defined in large part by their stability, the average entrenchment score across all democratic polities is 5.3, which means that the average democratic polity revises its constitution (through either amendment or replacement) roughly every five years. India, Georgia (the country), Louisiana, Austria, New Zealand, Germany, Malawi, Texas, and Mexico have revised their constitutional documents the most: at least every two years on average. For comparison, the US Constitution has an entrenchment score of 13.3, having been revised on only 16 occasions over the course of its 226-year history. Along with Japan, Denmark, Paraguay, and Vermont, it is the most entrenched democratic constitution in the world. For most democracies, however, frequent textual change is part and parcel of ordinary constitutional politics. Not only are most democratic constitutions not particularly well entrenched, they are not particularly spare either. Instead of limiting themselves to the broad outlines of government’s structures and citizens’ rights, they contain highly specific provisions on a wide range of topics. Indeed, the median state constitution is 27,647 words. National constitutions are comparably verbose. On average, the constitutions of democratic nations contain 24,559 words. By contrast, the US Constitution, which is generally described as a model of spare constitutional design, contains 7,644 words, only a quarter of the length of the global average.9 The limited scope of the US Constitution is captured by the fact that it contains a mere 1,119 unique words. By contrast, the average democratic constitution today contains 2,217 unique words, while the median democratic constitution contains 2,087 unique words. The average state constitution contains 2,560 unique words. On the far end of the spectrum, Alabama’s constitution contains 5,840 unique words, while Brazil’s constitution includes 5,073 unique words and Missouri’s contains 4,480. Notably, each of these constitutions stands out for the wide range of topics it deals with, such as Alabama’s provisions on catfish, cattle, poultry, swine, sheep, and goats; Brazil’s provisions on the end-of-year-bonus for rural workers; and Missouri’s recent amendment on the right to farm. It is these unique topics that are presumably captured by the unique word measure. The relative lack of detail of the US Constitution is captured by the fact that it contains a mere 6.8 words per topic. By contrast, the average democratic constitution spends 11.9 words on each unique topic. The most detailed constitution is that of Alabama (with 65.9 words per topic), followed by India (28.2 words), and Malaysia (21.1 words). Constitutional specificity and flexibility appear to go hand in hand. One way to measure the degree to which specificity and flexibility are connected is to simply calculate the correlation between the number of words in the current constitution and the total number of amendments that this same document has witnessed. The 9 The word counts are based on the texts of all state constitutions currently in force (as collected by the UVA Law Library) and the text of all current democratic national constitutions, which we obtained from the Constitute website.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 11 /
Date: 11/7
JOBNAME: Delaney PAGE: 12 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 301 correlation between these two measures is 0.535, indicating that longer constitutions have undergone more textual changes.10
D. THE ORIGINS OF UN-ENTRENCHED CONSTITUTIONS Our quantitative data reveal that over the past two centuries, the form of democratic constitutions has undergone a dramatic shift. In this section, we show that, in many parts of the world, this shift arose from a deliberate choice on the part of constitutionmakers to employ specificity as a means of controlling their governments. We do so by disaggregating the worldwide data and identifying the timing of the shift in distinct groups of democratic polities: (1) the US states, (2) continental Europe, and (3) Latin America. Drawing on the primary and secondary literature on constitutional developments in these regions, we show that the shift away from entrenchment coincided with pressure for increased democratization and increased resistance to judicial supremacy. We present evidence that those who wrote flexible, specific constitutions were very much concerned with solving the principal–agent problem, but were employing specificity, rather than entrenchment, as their primary instrument of constraining their governments/agents. More specific constitutions required more frequent revision, but constitutions were also rendered more malleable in the hopes that they would better serve as a vehicle for popular control of government. In each case, therefore, the increase in constitutional specificity was accompanied by an increase in flexibility, and this specific, flexible model of constitutional design was a conscious solution to the perception that democratic governments had become (or might become) unresponsive. Our approach in this section is necessarily inductive and impressionistic. It does not purport to explain every instance of constitutional design, and since we only examine constitutional groupings that underwent this shift, we cannot test a hypothesis about its causes. Nonetheless, by identifying critical periods of constitutional change in distinct groups of constitutions, we can develop an account of how un-entrenched constitutions were designed to operate. 1. US State Constitutions In the US states, the shift away from entrenched, spare constitutions to flexible and detailed documents began in the mid-19th century. Figure 15.2 depicts the historical development of US state constitutions’ average entrenchment score, while Figure 15.3 depicts the average word count. The left-hand panels of both Figures are based on all states for which we have data, while the right-hand panels are based on those states that have continuously been in our sample since 1815 for each of these measures. Shifts depicted in the right-hand panels do not result from new states entering the sample. Figure 15.3 shows that the increase in state constitutions’ flexibility first occurs in the 1830s, while the increase in specificity occurs around the same time. Our specificity data depicted by the solid lines in Figure 15.3 understate the growth of states’ 10 Note that for state constitutions, this undercounts the total number of amendments, since the amendment data is available only until 2005.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 12 /
Date: 11/7
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
302 Comparative judicial review
Figure 15.2 Average entrenchment scores of state constitutions constitutions since subsequent constitutional amendments are excluded from our analysis. To give a fuller sense of the dramatic increase in specificity, the dotted lines in Figure 15.3 show the average word count for state constitutions when including subsequent amendments.11 As many scholars of US state constitutions have noted, detailed instructions were constitutionalized as part of a nationwide, 19th-century movement to enhance popular control over policymaking (Fritz 1994; Tarr 1998; Dinan 2006; Dinan 2007; Zackin 2013; Versteeg and Zackin 2014). Over the course of the 19th century, the drafters of US state constitutions also adopted increasingly flexible constitutions. In part, this increased flexibility may have been necessitated by the documents’ mounting detail, but state constitutional drafters also redesigned constitutions to be more flexible so that they could better serve as vehicles of democratic control over courts and legislatures (Dinan 2006, 62–3; Fritz 1994). The original impetus to include detailed policy instructions in state constitutions is often traced to the economic crisis of 1839, which revealed the fiscal blunders that many state legislatures had made and motivated a wave of constitutional change designed to prevent legislatures from repeating these mistakes (Tarr 1998, 112). Earlier in the decade, state legislatures had invested heavily in the canals, railroads, and banks, and had financed these investments not through taxation, but through indebtedness. When the economic boom of the 1830s ended with an equally dramatic bust, these 11 We obtained state constitutional texts with their amendments from the NBER State Constitutions Project. This database includes all the subsequent amendments for 38 state constitutions. The dotted lines are thus based on a smaller sample of states than the solid lines.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 13 /
Date: 11/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 303
Note: Solid lines denote constitutional texts as adopted; dotted lines take account of subsequent amendments.
Figure 15.3 Average word count of state constitutions schemes proved disastrous. Many heavily indebted states were forced to default on their interest payments, while others only narrowly avoided default. These crises triggered widespread calls to ensure that legislatures would be barred from this type of boom-time policymaking. Between 1842 and 1852, ten of the 11 states that held constitutional conventions wrote procedural restrictions on the way that states could issue debt directly into their constitutions (Wallis 2005, 219). Throughout the second half of the 19th century and into the 20th, agrarian reformers and advocates of organized labor pursued constitutional specificity for a similar purpose: to preempt particular policy choices and to force state governments into enacting new slates of popular policies. Agrarian populists, for instance, used constitutions to establish state oversight and regulation of railroad operations, increasing the scope of these documents (Buck 1913, 195–8). In many states, labor unions employed a similar strategy, pursuing the insertion of specific labor regulations directly into constitutional documents (Zackin 2013, 106–45). In its endorsement of a constitutional provision establishing an eight-hour workday, for instance, the Montana Labor News explained that the state had already regulated the working hours in a number of industries, but that to ensure democratic control over these policies it was also necessary to add an eight-hour provision to the state constitution: “[a]ll of these 8-hour laws may be destroyed by the corporations unless you pass this 8-hour amendment.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
304 Comparative judicial review Usually, the courts function in the interests of the corporations; so does the legislature.”12 This embrace of constitutional specificity reflected the recognition that judges and legislatures can exert enormous influence over public policy and that highly specific constitutions can curtail the discretion of these agents. As the 20th century dawned, it became increasingly apparent that judges were not neutral monitors, overseeing government officials on behalf of the people, but were themselves consequential policymakers. Progressive reformers realized that specific constitutional provisions could check judicial power over the policymaking process by explicitly identifying particular policies as constitutionally permissible. This insight generated a wave of court-constraining constitutional provisions, designed to prevent state courts from invalidating legislation on subjects related to maximum working hours, minimum wages, collective bargaining, workers’ compensation and other social welfare programs (Dinan 2007). Contemporaneous observers described enhanced constitutional detail as a reflection of drafters’ desires to exert control over those who would later interpret and apply their constitutions. An 1892 article in the Harvard Law Review described newly written state constitutions as products of the pervasive belief that “the agents of the people, whether legislative, executive, or judicial, are not to be trusted; so that it is necessary to enter into the most minute particulars as to what they shall not do” (Eaton 1892, 121). Critics of this new form of constitutionalism recognized that greater specificity reflected a distrust of office-holders, and admonished constitutional drafters to avoid constitutionalizing detailed policies. The famous jurist Thomas Cooley, for instance, addressed North Dakota’s constitutional convention with this advice: “[d]on’t in your Constitution-making legislate too much … You have got to trust somebody in the future and it is right and proper that each department of government should be trusted to perform its legitimate function” (Leahy 2003). As we have seen, however, these calls to preserve spare constitutional documents went largely unheeded. Successive waves of constitutional drafters not only embraced specificity, but also sought to make state constitutions increasingly flexible so that they could better respond to majoritarian pressure. Since the founding era, some of the state constitutions had provided for periodic referenda to determine whether the state should call for a new constitutional convention to replace the existing constitution (Dinan 2006, 45–6). Throughout the 19th century, constitutional drafters further liberalized the amendment procedures in their constitutions, arguing that rigorous amendment procedures were anti-democratic. Some states eliminated the requirement that amendments be passed by successive sessions of state legislatures while others dispensed with the need for a supermajority of the legislature to pass a constitutional amendment. By the end of the 20th century, four states had even abandoned both restrictions on amendments (Dinan 2006, 41–5). The beginning of the 20th century witnessed yet further un-entrenchment of state constitutions, with the addition of amendment procedures that allowed electoral majorities to amend constitutions through initiative and referendum. This increase in flexibility was also understood as a way to render these constitutions more responsive to democratic demands and changing economic conditions (Dinan 2006, 63). One 12 All These Laws Will Be in Danger If the Eight Hour Amendment is Defeated by the People November 3, MONTANA LABOR NEWS 1 (Oct. 29, 1936).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 15 /
Date: 11/7
JOBNAME: Delaney PAGE: 16 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 305 champion of the initiative and referendum explained: “The initiative and referendum puts the absolute control of affairs into the hands of the people and keeps it there.”13 In fact, like constitutional specificity, demands for amendment through initiative and referendum were, in part, reactions to unpopular judicial rulings. Thus, these proposals to adopt the initiative and referendum were often coupled with appeals to equip electoral majorities with the power of direct judicial recall. The debates that ensued reveal that the framers of state constitutions over the course of the 19th and early 20th centuries consciously rejected the model of entrenched, spare constitutional documents in their attempts to secure enhanced popular control over policy (Dinan 2006, 62–3; Fritz 1994). 2. Continental Europe The constitutions of continental Europe have also grown longer and more flexible over time.14 Figure 15.4 depicts the historical development of the entrenchment scores, while Figure 15.5 depicts the average specificity, as captured by the total word count at the time of adoption. The left-hand panels of both Figures are based on all countries for which we have data, while the right-hand panels are based on those countries that have continuously been in our sample since 1918.15 Figure 15.4 shows that the unentrenchment of continental European constitutions began in the 1920s. Figure 15.5 shows that their increase in specificity also began at the same time, and underwent a more dramatic increase around 1960. Although relatively elite political actors drafted most European constitutions, their shift from entrenched and spare to specific and flexible documents still seems to have been motivated (at least in part) by a desire to render government more responsive and accountable to democratizing forces. After World War I, ruling European elites extended the franchise to all citizens when the working classes, who had paid the heaviest price for the war, demanded political recognition (Lesaffer 2009, 495). Constitutional changes were often required simply to expand suffrage, accounting in part for a decrease in constitutional entrenchment. However, in an effort to assure people that they would be able to exert more direct control over government, constitutional drafters also added many detailed policy provisions addressing working class demands. Against the backdrop of the Bolshevik Revolution of 1917, many ruling elites wrote new constitutions and/or new constitutional provisions that addressed working class demands for enhanced control over government and for particular welfare-oriented policies. Perhaps most famous are the socio-economic policies enshrined in the Weimar Constitution of 1919. Yet, between 1914 and 1933, 11 other European countries also adopted constitutional education rights, social welfare policies, and/or workers’ rights. 13
MICHIGAN UNION ADVOCATE 2 (Aug. 9, 1907). Our sample of continental European countries includes both Eastern and Western European countries, but excludes the former Soviet Republics. 15 In order to keep our sample size constant, we do not drop countries from this sample when they become less democratic during the World Wars. 14
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 16 /
Date: 16/7
JOBNAME: Delaney PAGE: 17 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
306 Comparative judicial review
Figure 15.4 Average entrenchment scores of continental European constitutions
Figure 15.5 Average word count of continental European constitutions
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 17 /
Date: 11/7
JOBNAME: Delaney PAGE: 18 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 307 This dynamic rendered many European constitutions less entrenched. The author of one 1922 study of newly drafted (central) European constitutions argued that class-based movements had rendered European constitutions more flexible, explaining that the new documents were “sufficiently elastic to enable revolutions to be met half way” (McBain and Rogers 1922, 157). He went on to note these documents were not only malleable enough to accommodate working class demands, but also highly specific. “All of the new constitutions are, of course, definite written documents. Some lacunae are apparent and some obscurities will doubtless cause difficulty, but the attempt has been made to meet all probable contingencies” (McBain and Rogers 1922, 155). In the same year, another political scientist, studying the constitutions of Poland, Czechoslovakia and the Kingdom of the Serbs, Croats, and Slovenes, observed that in these new constitutions, “provision is made for many of the conventional or statutory practices, methods and principles by means of which the older nations have sought to adapt their governments to the ever-changing needs of modern life” (Ralston 1922, 227). Thus, even before World War II, European constitutions had begun to include “statutory practices” that recognized the “ever-changing needs” of industrial societies. Popular pressure (coupled with elite fears of Bolshevism) resulted in more specific and flexible constitutions. Europe’s detailed constitutions were not only designed to control legislatures, but also to subject courts to popular control. Even as they endowed courts with the power to nullify legislation, Europe’s constitutional drafters quite clearly sought to cabin the policymaking potential of these new institutions (Stone Sweet 2003; Ferejohn 2002, 58). Rather than asking judges to interpret ambiguous statements of broad principles, the European approach to judicial review has been to increase the specificity of their constitutional texts. The Austrian Constitution of 1920 exemplifies this use of specificity to curtail judicial discretion. The document is not only very detailed but also very flexible. The legal philosopher Hans Kelsen is generally recognized as the principal architect of the document, and we can consult Kelsen’s own writings to investigate the logic of his design choices. The document established a specialized constitutional court with the power of judicial review, but the design of Kelsen’s constitution was informed by the observation that constitutional adjudication is inherently political in nature. In annulling unconstitutional statutes, Kelsen believed that the court would become a kind of “negative legislature” (Kelsen 1929, 1506)—one that, like the positive legislature, would require firm checks on its authority. He therefore designed the court as a separate body, distinct from the ordinary judiciary, whose members had to be elected in a manner that takes account of the court’s political nature (Kelsen 1929, 1508). In addition, Kelsen employed constitutional specificity to curb judicial discretion. He noted that: [T]he norms to be applied by a constitutional court, especially those which determine the content of future statutes, like the provisions concerning the basic rights, must not be formulated too broadly and must not operate with vague slogans like “freedom,” “equality,” and “justice,” and so forth. Otherwise there is a danger of a politically highly inappropriate shift in power, not intended by the constitution, from the parliament to some other institution external to it … . (Kelsen 1931, 1550)
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 18 /
Date: 11/7
JOBNAME: Delaney PAGE: 19 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
308 Comparative judicial review Indeed, the document that Kelsen drafted for Austria was notably “clear in language” (Stelzer 2011, 17, 21), and includes “provisions that in many other countries would not be considered to be constitutional laws” (Stelzer 2011, 22). Although the intellectual movement to create constitutional courts empowered to nullify legislation emerged in Europe in the 1920s (Schwartz 1999), judicial review only became a widespread constitutional feature in Europe in the 1960s. As Figure 15.5 demonstrates, continental European constitutions underwent a strong increase in detail during this exact period. Thus, while the first wave of increased flexibility and specificity in Europe might have been directed at legislatures, the increase in the wake of World War II was likely directed at least in part toward Europe’s new constitutional courts. Europe witnessed another wave of national constitution-making in the 1990s as the countries of Central and Eastern Europe transitioned to democracy. These countries also drafted highly specific constitutional documents, replete with substantive policy commitments. Unlike the post-war constitutions of Western Europe, this detail does not seem to have been targeted at constraining courts, but like the constitutional detail of the early 20th century, at controlling legislatures. As Kim Scheppele has explained, in countries with a history of democratic-looking procedures, but authoritarian governments, constitutional drafters sought to secure their countries’ democratic futures not through procedural frameworks, but through substantive constitutional guarantees: “These new constitutions provide[d] answers to questions that are in older constitutional democracies given by legislation … Thick [or detailed] constitutions take a great many policy choices out of the hands of the remodeled political institutions, and lodge them instead in a higher law” (Scheppele 2005, 38). Post-Soviet countries, therefore, continued the European trend of drafting highly specific constitutional documents. Indeed, if we compare the length of the former Soviet Republic’s Constitution (as of 1989) to that of the Russian Constitution as of 2013, we see that it increased from 8,734 to 11,138 words. 3. Latin America As in the US states and Europe, Latin America’s constitutional development reflects the region’s particular political history. Most Latin American countries became stable democracies only in the 1980s. Under shifting authoritarian governments, Latin American constitutions were replaced frequently, often to mark changes in political leadership (Negretto 2014, 9). Thus, throughout much of the 19th and 20th centuries, the flexibility of Latin American constitutions reflected the existence of political instability, rather than direct democracy. Nonetheless, we believe that several shifts away from entrenchment and toward specificity in Latin American constitutions were, at least partially, responses to democratic pressure for increased control over policymaking. Figure 15.6 depicts the historical development of the entrenchment scores; Figure 15.7 depicts the historical development of the specificity of Latin America’s constitutions. The left-hand panels are again based on all countries for which we have data, while the right-hand panels are based on a stable sample of all countries for which we have had data since 1860. Figure 15.6 shows that entrenchment scores have always
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 19 /
Date: 15/8
JOBNAME: Delaney PAGE: 20 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 309 been lower in Latin America than in Europe or the US states, which presumably reflects the authoritarian instability. However, Figures 15.6 and 15.7 depict a marked decrease in entrenchment scores and an increase in specificity in the 1930s. They also reveal a further increase in flexibility and specificity in the 1980s.
Figure 15.6 Average entrenchment scores of Latin American constitutions The first shift away from entrenchment was, at least in part, a response to popular demands. The early 20th century witnessed a wave of radicalism and pressure for democratization (Gargarella 2013, 91–102). These movements were reflected in the addition of elaborate social policies to Latin American constitutions (Gargarella 2013, 106). Mexico’s Constitution of 1917 illustrates this dynamic. A product of the Mexican Revolution, this document included specific protections for laborers, including maximum working hours, minimum wages, and the right to strike. It also mandated agrarian/land reform—specifying that “necessary measures shall be taken to divide up large, landed estates”—and explicitly subordinated private property rights to the public interest. The advocates of these specific provisions insisted that those who would later implement the Constitution could not be trusted to legislate on behalf of laborers. One delegate to the constitutional convention explained: “I think our Magna Carta ought to be more explicit on this point … who will guarantee us that the new Congress will be composed of revolutionaries? Who will guarantee us that … the government … will not tend toward conservatism?” (Niemeyer 1974, 108). Beginning with Mexico, Latin American countries began to include a range of socio-economic rights in their constitutions. By 1945, one political scientist noted that “virtually statutory detail concerning all aspects of labor regulation, prohibition of monopolies, restriction of the competition of foreign labor, social security and
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 20 /
Date: 11/7
JOBNAME: Delaney PAGE: 21 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
310 Comparative judicial review
Figure 15.7 Average word counts of Latin American constitutions provision for the educational advancement of the working classes are typical of the bold imagination shown by Latin American Constitution-makers … in the past quarter-century” (Fitzgibbon 1945). By 1950, no less than 15 countries in the region had reformed their constitutions to add such policies. Despite the democratic pressures that led to these provisions, Latin American governments were typically characterized by long periods of authoritarian rule throughout much of the century that followed. When many Latin American countries transitioned to democracy in the 1980s, they ratified new, and even more detailed, constitutions. Many of the changes during this period, particularly in Andean countries, involved the creation of “more inclusive rules for electing presidents and legislatures” (Negretto 2014, 2; Lalander 2012). For instance, the Constitutions of Bolivia and Ecuador contain provisions devoted to “popular participation/transparency” and “social control” of the government (Lalander 2012, 188). During the 1980s and 1990s, and in the face of sweeping neoliberal economic reforms and in the wake of human rights atrocities, many Latin American constitutions also included enhanced slates of rights (Rodríguez-Garavito 2011; Sikkink 2011; Gargarella 2013, 151). This increase in constitutional specificity necessitated decreased entrenchment. For instance, Arantes and Couto argue that the many explicit policies in the Brazilian Constitution forced the legislature to pursue constitutional amendments as part of the legislative process (Arantes and Couto 2012). They note: [T]he more a constitution embodies public policies, the longer the text is; the longer the text is, the more it forces governments to govern by means of constitutional amendments and the
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 21 /
Date: 11/7
JOBNAME: Delaney PAGE: 22 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 311 more a constitution is amended, the longer it becomes which tends to trigger the same cycle all over again. (Arantes and Couto 2012, 214)
Finally, the policymaking power of increasingly independent constitutional courts may also account for the increase in the specificity and flexibility of Latin American constitutions. As countries transitioned to democracy, international financial institutions promoted the creation of independent judiciaries, capable of protecting private property rights, and many features of Latin American politics have now been “judicialized” (Sieder, Schjolden, and Angell 2005, 1). As courts have expanded their influence over policymaking, legislatures have sometimes responded by “implement[ing] formal constitutional changes precisely to confirm or reject judicial rulings” (Negretto 2014, 6). For example, several 21st-century amendments to the Colombian Constitution, addressing policies like the criminalization of drug possession and the mechanics of the civil service system, were designed to overturn the high court’s interpretation of the Constitution (Dixon and Landau 2016). In fact, since 1991, every presidential administration has proposed amending the Constitution in response to a judicial ruling (Rodríguez-Raga 2011, 85). It is possible to understand this legislative override of judicial decisions as the democratic exercise of the popular will over an elite and unrepresentative court. However, the normative significance of such court-constraining amendments is open to debate (Dixon and Landau 2016; Gloppen, Gargarella, and Skaar 2004). As in the post-soviet transitions from autocracy to democracy, many constitution-makers viewed independent judiciaries as watchdogs, who could help to maintain fragile new democracies by checking the other branches of government (Issacharoff 2015). Read in this light, constitutional amendments aimed at constraining the power of Latin America courts may appear less like popular constitutional interpretations and more like retaliation by legislative and executive branches chafing at their constitutional restraints (Kapiszewski and Taylor 2013, 807–8).
E. CONCLUSION We have argued here that the familiar model of constitutions as highly entrenched and spare documents captures neither the form nor function of many present-day democratic constitutions. Our goal in this chapter is to begin to close the gap between so much of existing constitutional theory and today’s actual constitutional practices. The clearest implication of our findings is that constitutional scholars should no longer define constitutional success in terms of the stability (or majesty) of a single constitutional text. Instead, we argue that these features address some of the hazards associated with democratic constitutionalism, but create others. Ultimately, all constitutional drafters face the paradox that majority rule both defines and threatens democracy. Entrenched constitutional texts may be robust to attempts to undermine constitutional constraints through formal revision, but such documents often allow for markedly anti-democratic governance. Specific constitutions grew out of a desire for tighter democratic control over policymaking, but as a result, they are likely to be far worse at hindering office-holders or tyrannical majorities who attempt to
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 22 /
Date: 11/7
JOBNAME: Delaney PAGE: 23 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
312 Comparative judicial review revise them. It is perhaps fortunate, therefore, that the actual practice of constitutional drafting does not require a dichotomous choice between the two models we have described. In fact, many national constitution-makers have inserted eternity clauses, declaring certain basic constitutional principles unamendable, while leaving the rest of the constitution more flexible. By some estimates, 40 percent of existing national constitutions employ this strategy (Roznai 2013). Others have adopted tiered amendment procedures, rendering some provisions subject to higher amendment thresholds than others (Dixon and Landau 2016). These hybrid designs may enable democratic majorities to exert enhanced control over some areas of policymaking, while also allowing constitutions (and judiciaries) to protect fundamental rights from majority factions. Further research is necessary to determine whether features like eternity clauses and tiered amendment procedures stemmed from drafters’ conscious attempts to overcome the problems associated with each model of constitutionalism. More generally, constitutional scholars may want to investigate the conditions under which popular distrust in government actually results in increasingly specific constitutions. Future studies might ask, for example, whether fear of a powerful judiciary is largely responsible for the global shift away from entrenched documents, or how frequently these shifts are associated with democratization or with movements’ demands for increased provision of public goods. Constitutional scholars might also seek to identify other factors that cause a polity to embrace specificity. For instance, one might test the hypothesis that homogeneous communities are more likely than divided societies to adopt specific constitutions (Lerner 2011), or inquire about the influence of supranational structures on the entrenchment of constitutional documents (Ginsburg and Posner 2010). Finally, our inquiry into the design logic of specific and flexible constitutions has normative implications for the process of constitutional drafting. We have focused exclusively on the origins and logic of un-entrenched constitutions. Consequently, this research does not allow us to evaluate the post-adoption effects of this design. However, our analysis does suggest that, since un-entrenched constitutions are intended to promote tighter control of the citizenry over the policymaking process, it is particularly important to attend to the processes through which these constitutions are written and revised. It is certainly far from straightforward to locate a “people” or identify its “will.” However, if un-entrenched constitutions are to promote democratic control over office-holders through frequently updated, specific instructions, then these instructions must issue from recognizably democratic sources. The drafting and revision procedures for un-entrenched constitutions should, therefore, be rendered as inclusive and representative as possible. Indeed, recent scholarship suggests that a higher degree of citizen participation in constitutional drafting might produce more inclusive constitutional documents (Ginsburg, Elkins, and Blount 2009), and does correlate with higher measures of democracy after a constitution’s adoption (Eisenstadt, LeVan, and Maboudi 2015). We have been living in a brave new world of un-entrenched constitutions for quite some time. To ask meaningful and relevant questions about it, constitutional theory must fully register this transformation.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 23 /
Date: 11/7
JOBNAME: Delaney PAGE: 24 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 313
REFERENCES Acemoglu, Daron, Simon Johnson, and James A. Robinson. 2001. “The Colonial Origins of Comparative Development: An Empirical Investigation.” The American Economic Review 91: 1369–401. Albert, Richard. 2014. “Constitutional Amendment by Constitutional Desuetude.” American Journal of Comparative Law 62: 641–86. Albert, Richard. 2015. “How Unwritten Constitutional Norms Change Written Constitutions.” Dublin University Law Journal 38: 387–418. Arantes, Rogério Bastos and Cláudio G. Couto. 2012. “Constitutionalizing Policy: the Brazilian Constitution of 1988 and its Impact on Governance.” In New Constitutionalism in Latin America, edited by Detlef Nolte and Almut Schilling-Vacaflor. Farnham: Ashgate Publishing Ltd. Arato, Andrew. 2014. “Beyond the Alternative Reform or Revolution: Post Sovereign Constitution Making and Latin America.” Working paper. Balkin, Jack and Sanford Levinson. 2001. “Understanding the Constitutional Revolution.” Virginia Law Review 87: 1045–104. Beard, Charles A. 1913. An Economic Interpretation of the Constitution of the United States. New York, NY: Macmillan Co. Bickel, Alexander M. 1962. The Least Dangerous Branch: the Supreme Court at the Bar of Politics. Indianapolis, IN: Bobbs-Merrill. Buck, Solon Justus. 1913. The Granger Movement: A Study of Agricultural Organization and its Political, Economic and Social Manifestations, 1870–1880. Cambridge, MA: Harvard University Press. Choudhry, Sujit. 2004. “The Lochner Era and Comparative Constitutionalism.” International Journal of Constitutional Law 2: 1–55. Contiades, Xenophon and Alkmene Fotiadou. 2013. “Models of Constitutional Change.” In Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, edited by Xenophon Contiades. Abingdon: Routledge. Cross, Frank B. 2001. “The Error of Positive Rights.” UCLA Law Review 48: 857–924. Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Journal of Public Law 6: 279–95. Dinan, John J. 2006. The American State Constitutional Tradition. Lawrence, KS: University of Kansas Press. Dinan, John J. 2007. “Foreword: Court-Constraining Amendments and the State Constitutional Tradition.” Rutgers Law Journal 38: 983–1040. Dixon, Rosalind. 2016. “Constitutional Drafting and Distrust.” International Journal of Constitutional Law 13: 819–46. Dixon, Rosalind and Richard Holden. 2012. “Constitutional Amendment Rules: The Denominator Problem.” In Comparative Constitutional Design, edited by Tom Ginsburg. New York, NY: Cambridge University Press. Dixon, Rosalind and David Landau. 2016. “Competitive Democracy and the Constitutional Minimum Core.” In Assessing Constitutional Performance, edited by Tom Ginsburg and Aziz Huq. Cambridge: Cambridge University Press. Dixon, Rosalind and Felix Uhlmann. 2016. “The Swiss Constitution and a Weak-Form Unconstitutional Amendment Doctrine?” Unpublished manuscript. Eaton, Amasa M. 1892. “Recent State Constitutions.” Harvard Law Review 6: 109–24. Eisenstadt, Todd A., Carl LeVan, and Tofigh Maboudi. 2015. “When Talk Trumps Text: The Democratizing Effects of Deliberation during Constitution-Making, 1974–2011.” American Political Science Review 109: 592–612. Eisgruber, Christopher L. 2001. Constitutional Self-Government. Cambridge, MA: Harvard University Press. Elkins, Zachary, Tom Ginsburg, and James Melton. 2009. The Endurace of National Constitutions. Cambridge: Cambridge University Press. Elster, Jon. 1979. Ulysses and the Sirens. Cambridge: Cambridge University Press. Ely, John Hart. 1980. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press. Eskridge Jr., William N. and John Ferejohn. 2001. “Super-Statutes.” Duke Law Journal 50: 1215–76. Ferejohn, John. 2002. “Judicial Review in a Global Context.” NYU Journal of Legislation and Public Policies 6: 49–59.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 24 /
Date: 11/7
JOBNAME: Delaney PAGE: 25 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
314 Comparative judicial review Fitzgibbon, Russell H. 1945. “Constitutional Development in Latin America: A Synthesis.” The American Political Science Review 39: 511–22. Fritz, Christian. 1994. “Rethinking the American Constitutional Tradition: National Dimensions in the Formation of State Constitutions.” California Supreme Court Historical Society Yearbook 1: 103–22. Fusaro, Carlo and Dawn Oliver. 2011. “Changing Constitutions.” In How Constitutions Change: A Comparative Study, edited by Dawn Oliver and Carlos Fusaro. Oxford: Hart Publishing. Gardbaum, Stephen. 2001. “The New Commonwealth Model of Constitutionalism.” American Journal of Comparative Law 49: 707–60. Gardbaum, Stephen. 2008. “The Myth and The Reality of American Constitutional Exceptionalism.” Michigan Law Review 107: 391–466. Gardbaum, Stephen. 2013. The New Commonwealth Model of Constitutionalism: Theory and Practice. Cambridge: Cambridge University Press. Gardbaum, Stephen. 2015. “Are Strong Constitutional Courts Always a Good Thing for New Democracies?” Columbia Journal of International Law 53: 285–320. Gargarella, Roberto. 2013. Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution. Oxford: Oxford University Press. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press. Ginsburg, Tom. 2010. “Constitutional Specificity, Unwritten Understandings and Constitutional Agreement.” University of Chicago Public Law & Legal Theory Working Paper No. 330. Ginsburg, Tom, Zachary Elkins, and Justin Blount. 2009. “Does the Process of Constitution-Making Matter?” Annual Review of Law and Social Science 5: 201–23. Ginsburg, Tom and James Melton. 2014. “Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty.” The University of Chicago Law School: Coase-Sandor Institute for Law and Economics Working Paper No. 682. Ginsburg, Tom and Eric A. Posner. 2010. “Subconstitutionalism.” Stanford Law Review 62: 1584–628. Ginsburg, Tom and Alberto Simpser. 2013. Constitutions in Authoritarian Regimes. New York, NY: Cambridge University Press. Ginsburg, Tom and Mila Versteeg. 2014. “Why Do Countries Adopt Judicial Review?” Journal of Law, Economics, and Organization 30: 587–622. Gloppen, Siri, Roberto Gargarella, and Elin Skaar. 2004. Democratization and the Judiciary: The Accountability Function of Courts in New Democracies. London: Frank Cass. Graber, Mark A. 1993. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” Studies in American Political Development 7: 35–73. Griffin, Stephen M. 1996. American Constitutionalism: From Theory to Politics. Princeton, NJ: Princeton University Press. Hadfield, Gillian K. and Barry R. Weingast. 2014. “Constitutions as Coordinating Devices.” In Institutions, Property Rights, and Economic Growth: The Legacy of Douglass North, edited by Sebastian Galiani and Itai Sened. Cambridge: Cambridge University Press. Hardin, Russell. 1999. Liberalism, Constitutionalism and Democracy. Oxford: Oxford University Press. Hirschl, Ran. 2004. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press. Issacharoff, Samuel. 2007. “Fragile Democracies.” Harvard Law Review 120: 1405–67. Issacharoff, Samuel. 2015. Fragile Democracy: Contested Power in the Area of Constitutional Courts. Cambridge: Cambridge University Press. Jefferson, Thomas. 1789. “Letter from Thomas Jefferson to James Madison: Sept. 6, 1789.” In The Papers of Thomas Jefferson, Volume 15: November 1789 to July 1790, edited by Julian P. Boyd. Princeton, NJ: Princeton University Press. Kapiszewski, Diana and Matthew M. Taylor. 2013. “Compliance: Conceptualizing, Measuring, and Explaining Adherence to Judicial Rulings.” Law & Social Inquiry 38: 803–35. Kaplow, Louis. 1992. “Rules Versus Standards: An Economic Analysis.” Duke Law Journal 42: 557–629. Kelsen, Hans. 1929. “Wesen and Entwicklung der Staatsgerichtbarkeit.” In The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, edited and translated by Lars Vinx. Cambridge: Cambridge University Press. Kelsen, Hans. 1931. “Wer soll der Huter der Versfassung Sein?” In The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, edited and translated by Lars Vinx. Cambridge: Cambridge University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 25 /
Date: 15/8
JOBNAME: Delaney PAGE: 26 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Limiting judicial discretion 315 Klug, Heinz. 2000. “Model and Anti-Model: The United States Constitution and the ‘Rise of World Constitutionalism.’” Wisconsin Law Review 2000: 597–616. Klug, Heinz. 2015. “Constitutional Amendments.” Annual Review of Law and Social Science 11: 95–110. Kramer, Larry. 2004. The People Themselves: Popular Constitutionalism and Judicial Review. Oxford: Oxford University Press. La Porta, Raphael, Florencio López-de-Silanes, Cristian Pop-Eleches, and Andrei Shleifer. 2004. “Judicial Checks and Balances.” Journal of Political Economy 112: 445–70. Lalander, Rickard. 2012. “Neo-Constitutionalism in Twenty-First Century Venezuela: Participatory Democracy, Deconcentrated Decentralization or Centralized Populism?” In New Constitutionalism in Latin America: Promises and Practices, edited by Detlef Nolte and Almut Schilling-Vacaflor. Farnham: Ashgate Publishing Ltd. Law, David S. 2009. “A Theory of Judicial Power and Judicial Review.” Georgetown Law Journal 97: 723–801. Leahy, James E. and North Dakota. 2003. The North Dakota State Constitution: A Reference Guide. Westport, CT: Praeger Publishers. Lerner, Hannah. 2011. Making Constitutions in Deeply Divided Societies. Cambridge: Cambridge University Press. Lesaffer, Randall. 2009. European Legal History: A Cultural and Political Perspective, translated by Jan Arriens. Cambridge: Cambridge University Press. Levinson, Daryl J. 2011. “Parchment and Politics: The Positive Puzzle of Constitutional Commitment.” Harvard Law Review 124: 657–746. Levinson, Sanford. 1995. “Introduction: Imperfection and Amendability.” In Responding to Imperfection: The Theory and Practice of Constitutional Amendment, edited by Sanford Levinson. Princeton, NJ: Princeton University Press. Lijphardt, Arend. 1999. Patterns of Democracy: Government Forms and Performance in Thirty-Six Democracies. New Haven, CT: Yale University Press. Llewellyn, Karl N. 1930. The Bramble Bush: Some Lectures on Law and Its Study. New York, NY: Columbia University Press. Lorenz, Astrid. 2005. “How to Measure Constitutional Rigidity: Four Concepts and Two Alternatives.” Journal of Theoretical Politics 17: 339–61. Lovell, George. 2003. Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy. New York, NY: Cambridge University Press. Lupia, Arthur, Yanna Krupnikov, Adam Seth Levine, Spencer Piston, and Alexander Von Hagen-Jamaer. 2010. “Why State Constitutions Differ in Their Treatment of Same-Sex Marriage.” Journal of Politics 72: 1222–35. Lutz, Donald S. 1994. “Toward a Theory of Constitutional Amendment.” American Political Science Review 88: 355–70. McBain, Howard Lee and Lindsay Rogers. 1922. The New Constitutions of Europe. Garden City, NY: Doubleday, Page & Company. Negretto, Gabriel L. 2014. Making Constitutions: Presidents, Parties, and Institutional Choice in Latin America. Cambridge: Cambridge University Press. Niemeyer, E. Victor. 1974. Revolution at Querétaro: The Mexican Constitutional Convention of 1916–1917. Austin, TX: University of Texas Press. North, Douglass C. and Barry R. Weingast. 1989. “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England.” Journal of Economic History 49: 803–32. Parenti, Michael. 2011. Democracy for the Few. Boston, MA: Wadsworth. Posner, Eric. 2013. The Twilight of Human Rights. New York, NY: Oxford University Press. Ralston, Hayden. 1922. “New European Constitutions: In Poland, Czechoslovakia and the Kingdom of the Serbs, Croates and Slovenes.” The American Political Science Review 16: 211–27. Raz, Joseph. 2009. Between Authority and Interpretation: On the Theory of Law and Practical Reason. Oxford: Oxford University Press. Rodríguez-Garavito, César. 2011. “Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America.” Texas Law Review 89: 1669–98. Rodríguez-Raga, Juan Carlos. 2011. “Strategic Deference in the Colombian Constitutional Court, 1992– 2006.” In Courts in Latin America, edited by Gretchen Helmke and Julio Ríos-Figueroa. New York, NY: Cambridge University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 26 /
Date: 15/8
JOBNAME: Delaney PAGE: 27 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
316 Comparative judicial review Roznai, Yanev. 2013. “Unconstitutional Constitutional Amendments: The Migration and Success of a Constitutional Idea.” American Journal of Comparative Law 61: 657–719. Rubenfeld, Jed. 2008. Freedom in Time: A Theory of Constitutional Self-Government. New Haven, CT: Yale University Press. Schauer, Fredrick. 1995. “Amending the Presuppositions of a Constitution.” In Responding to Imperfection: The Theory and Practice of Constitutional Amendment, edited by Sanford Levinson. Princeton, NJ: Princeton University Press Scheppele, Kim Lane. 2004. “A Realpolitik Defense of Social Rights.” Texas Law Review 82: 1921–61. Scheppele, Kim Lane. 2005. “Democracy by Judiciary. Or Why Courts Can Be More Democratic Than Parliaments.” In Rethinking the Rule of Law after Communism, edited by Adam Czarnota, Martin Krygier, and Wojciech Sadurski. Budapest: Central European University Share Co. Schwartz, Herman. 1999. “A Brief History of Judicial Review.” In The Self-Restraining State: Power and Accountability in New Democracies, edited by Andreas Schedler, Larry Jay Diamond and Marc F. Plattner. Boulder, CO: Lynne Rienner Publishers. Schwartzberg, Melissa. 2013. Counting the Many: The Origins and Limits of Supermajority Rule. New York, NY: New York University Press. Sieder, Rachel, Line Schjolden, and Alan Angell (eds). 2005. The Judicialization of Politics in Latin America. New York, NY: Palgrave Macmillan. Sikkink, Kathryn. 2011. The Justice Cascade: How Human Rights Prosecutions are Changing World Politics. New York, NY: W.W. Norton & Co. Stelzer, Manfred. 2011. The Constitution of the Republic of Austria: A Contextual Analysis. Portland, OR: Hart Publishing. Stone Sweet, Alec. 2000. Governing with Judges: Constitutional Politics in Europe. New York, NY: Oxford University Press. Stone Sweet, Alec. 2003. “Why Europe Rejected American Judicial Review: And Why It May Not Matter.” Michigan Law Review 101: 2744–80. Sunstein, Cass. 2000. “Social and Economic Rights? Lessons from South Africa.” Constitutional Forum 11: 123–132. Tarr, G. Alan. 1998. Understanding State Constitutions. Princeton, NJ: Princeton University Press. Tate, Neal and Torbjörn Vallinder. 1995. “The Global Expansion of Judicial Power: The Judicialization of Politics.” In The Global Expansion of Judicial Power, edited by Neal Tate and Torbjörn Vallinder. New York, NY: New York University Press. Tushnet, Mark V. 1999. Taking the Constitution Away from the Courts. Princeton, NJ: Princeton University Press. Tushnet, Mark. 2008. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. Princeton, NJ: Princeton University Press. Versteeg, Mila and Emily Zackin. 2014. “American Constitutional Exceptionalism Revisited.” The University of Chicago Law Review 81: 1641–707. Waldron, Jeremy. 1999. Law and Disagreement. New York, NY: Oxford University Press. Wallis, John Joseph. 2005. “Constitutions, Corporations, and Corruption: American States and Constitutional Change, 1842 to 1852.” The Journal of Economic History 65: 211–56. Waluchow, Wil. 2012. “Constitutionalism.” The Stanford Encyclopedia of Philosophy, http://plato.stanford. edu/archives/win2012/entries/constitutionalism/. Weingast, Barry. 1997. Political Foundations of Democracy and the Rule of Law. American Political Science Review 91: 245–63. Weingast, Barry. 2007. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, NJ: Princeton University Press. Whittington, Keith E. 2007. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, NJ: Princeton University Press. Young, Ernest. 2008. “Constitutive and Entrenchment Functions of Constitutions: A Research Agenda.” University of Pennsylvania Journal of Constitutional Law 10: 399–411. Zackin, Emily. 2013. Looking for Rights in all the Wrong Places: Why State Constitutions Contain America’s Positive Rights. Princeton, NJ: Princeton University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 15_Chapter15_ts
/Pg. Position: 27 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
PART IV OPERATIONALIZING JUDICIAL REVIEW: TYPOLOGIES, DOCTRINES AND METHODOLOGICAL CHALLENGES
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
16. Beyond Europe and the United States: the wide world of judicial review Virgílio Afonso da Silva*
A. INTRODUCTION: THE CURIOUS CASE OF BRAZIL AND PORTUGAL Judicial review of legislation has been exercised in Brazil since the end of the 19th century. The 1891 Constitution established a model of judicial review clearly inspired by the US experience (i.e., a model in which all courts may set aside unconstitutional legislation within a concrete lawsuit). However, since 1965—and especially since 1988—there have also been ways to challenge the constitutionality of enacted legislation directly and abstractly (i.e., not within a concrete lawsuit) before the Brazilian Supreme Court. Thus, in Brazil, concrete and abstract review and centralized and diffused review coexist. However, while concrete review is diffusely exercised by all courts, abstract review is exercised only by the Supreme Court. Portugal has had a constitutional court since 1982. But, just like the case of the Brazilian Supreme Court, the Portuguese Constitutional Court does not have a monopoly over declaring the unconstitutionality of ordinary legislation. All Portuguese courts may set aside unconstitutional legislation. In a nutshell, in Portugal, concrete and abstract review and centralized and diffused review also coexist: Concrete review is diffusely exercised by all courts, abstract review is exercised only by the Constitutional Court. Paradoxically, however, Portugal is associated with the European model of judicial review (Ferreres Comella 2004, 463),1 whereas the Brazilian system is usually classified as initially US inspired or a hybrid (Rosenn 2000, 317). It is not clear why such similar systems have frequently been classified so differently. The two most plausible explanations for this do not seem methodologically very inspiring. It seems that both the geographic location of a court (Europe or elsewhere) * This chapter expands upon a shorter text on constitutional and supreme courts, written for the Max Planck Encyclopedia of Comparative Constitutional Law, http://oxcon.ouplaw.com/ home/MPECCOL. I would like to thank Erin Delaney and Rosalind Dixon for inviting me to contribute to this book as well as to the seminar on Comparative Judicial Review, at Northwestern University, in Chicago. Further, I would like to thank Aziz Huq for his kind and thought-provoking comments on the first draft of this text during the seminar in Chicago. 1 See also Stone Sweet 2003, 2766 (“Kelsen’s legacy was secured when constitutional reformers in Spain, Portugal, and post-Communist Europe all rejected American judicial review and adopted Kelsenian courts”); Gardbaum 2001, 714–15 (Portugal adopted “the essentials of the polar opposite American model”); Ferejohn 2002, 49–50 (“Other countries that have adopted constitutional review have taken great pains to exclude ordinary judges from having any part in it. This was true … in Spain and Portugal after the collapse of their authoritarian governments”).
318
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 3 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Beyond Europe and the United States 319 and its name (“supreme” or “constitutional”) play a more important role than almost anything else. According to this logic, Portugal belongs to the European model because it is located in Europe and has a court called “Constitutional Court.”2 Brazil belongs to the US model or is a hybrid system because it is not located in Europe and its court is called “Supreme Court.” In this chapter, I will argue that the curious example of Portugal and Brazil is not an exception. The classification of courts and of models of judicial review is based on the answers to two questions: Who may declare the unconstitutionality of ordinary legislation (centralized or diffuse) and in which context (abstract or concrete)? Conventional wisdom has assumed the continued relevance of a sharp dichotomy between the United States and Europe in responding to these questions, as if we were still in the 1920s, after the creation of the Austrian Constitutional Court.3 Although the dualism of the two models is widespread and rarely called into question (especially in the United States and in Europe), it nevertheless represents a very crude simplification; it is unable to accurately describe the majority of systems of judicial review of legislation in the world, and this holds true for at least two compelling reasons: First, because even if one limits the scope of the typology to the two questions presented above, many countries (including several European ones) simply do not follow such clear divisions between only one or all courts and between abstract or concrete review; and second, because a typology of constitutional and supreme courts need not be based solely on these two oppositions. In order to justify this line of reasoning, this chapter is organized as follows. I will first describe the contrast between the US and European models. Subsequently, I will present a critique of this dualism based on the two reasons I presented above. Then, in order to show that the world of judicial review is too complex to be grasped by the traditional classification, I will briefly present several variables that are ignored by this classification in order to argue that they may be at least as important as the variables usually taken into account. However, I do not claim that a sound typology must always take every imaginable variable into consideration; hence, I will also digress briefly into typology building in order to avoid some misunderstandings on this matter. I then conclude by arguing, among other things, that it is time to decisively abandon the labels “US model” and “European model.”
2 It should be noted, however, that Portuguese scholars usually classify their own system as hybrid or complex (see, for instance, Canotilho 1998, 809). The excerpts quoted above in n. 1 thus fall short of identifying the existence of a diffuse and concrete judicial review in Portugal. This is actually the Portuguese tradition in this realm, which began in the first half of the 20th century, clearly influenced by the Brazilian model established in 1891. In this sense, see, for instance, Queiroz 2009, 291. 3 As a matter of fact, and as will be shown below, this dichotomy was already inaccurate in the 1920s, since much before Kelsen “invented” the European model, there had already been abstract review of legislation in other countries, such as Venezuela, Colombia, Haiti, and Cuba. See, e.g., Grant 1954.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 2 /
Date: 11/7
JOBNAME: Delaney PAGE: 4 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
320 Comparative judicial review
B. THE US AND EUROPEAN MODELS The concept of judicial review of legislation is usually considered to have two fathers. The first is John Marshall, the fourth Chief Justice of the US Supreme Court, who in the decision Marbury v. Madison4 laid down the main arguments that until now have been widely accepted as foundations for the power that courts should have to set aside ordinary legislation considered incompatible with the constitution. The second father is Hans Kelsen (see Kelsen 1929; Kelsen 1949), who was the author of one of the drafts of the 1920 Austrian Constitution5 and later a judge on the newly created Constitutional Court of Austria. This does not mean that the idea of judicial review of legislation did not exist before Marshall, nor does it mean that Kelsen was the first person to advocate creating a constitutional court, nor that the Constitutional Court of Austria was the first concrete experience of centralized review. In the United States, Alexander Hamilton had already advanced arguments in favor of some type of judicial review.6 In Europe, the Austrian Constitution was not even the first to provide for a constitutional court: The Constitution of Czechoslovakia had already done so some months before. Kelsen himself always declared that he was inspired by Georg Jellinek, who published a small book in the 19th century—not very well known today—called A Constitutional Court for Austria (Jellinek 1885).7 And almost 100 years before Jellinek, Emmanuel Joseph Sieyès had (unsuccessfully) argued for the creation of a kind of constitutional court—the Jury Constitutionnaire—during the French constituent assembly of 1795 (see Sieyès 2007; see also Burdeau 1969, 408–10; Bastid 1939, 416, 597). However, irrespective of these, or any other, forerunners, what remained and inspired the introduction of judicial review of legislation in many jurisdictions were the ideas of Marshall and Kelsen. The contrast between the US and European models of judicial review is not only—and not even mainly—based on organizational aspects of courts. What underlies the dichotomy above all is the way in which judicial review of legislation is performed in these jurisdictions. As already mentioned above, it is based on the answer to two questions: who may declare the unconstitutionality of ordinary legislation and in which 4
5 U.S. 137 (1803). On Kelsen’s role in the drafting of the Austrian Constitution, see Paulson 2000 and Bongiovanni 2007. According to Paulson, Kelsen’s suggestions were accepted “without exceptions,” at least concerning the Constitutional Court. 6 See Hamilton, Madison, and Jay (1787, LXXVIII [Hamilton]): “It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” 7 On this subject, see also Noll 2000, 261 and Eisenmann 1928, 157. 5
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 3 /
Date: 11/7
JOBNAME: Delaney PAGE: 5 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Beyond Europe and the United States 321 context? The US model is grounded on the following answers: all courts (who) within a concrete lawsuit (context). In contrast, the so-called European model is based on the following answers: only the constitutional court (who) and independent of a concrete judicial case (context). Of course, there are organizational differences between the US Supreme Court and the constitutional courts in many European countries. Maybe the most important difference lies in the fact that the US Supreme Court is the apex court in its jurisdiction, whereas constitutional courts in some other countries—even when considered part of the judiciary branch—are specialized courts that do not belong to the ordinary system of justice. In other words, constitutional courts have always been asked to perform a very specific task: judicial review of legislation, usually called constitutional review of legislation.8 In contrast, supreme courts were created in many countries even before the idea of judicial review of legislation was introduced. 1. United States The US Supreme Court is naturally the paradigmatic example of the “US model.” Article III of the US Constitution defines the organization of the judicial power and provides for the creation of a supreme court.9 Apart from some exceptional cases in which the US Supreme Court has original jurisdiction, the Court is mainly thought of as the ultimate appellate court of the country. Judicial review of legislation is not explicitly provided for in the US Constitution. As is widely known, it was not until Marbury v. Madison that the US Supreme Court decided that courts have the power to set aside legislation deemed incompatible with the Constitution. According to this decision, “[t]hose who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”10 Since “an act of the Legislature repugnant to the Constitution is void,” it cannot bind the courts, which must disregard the ordinary law.11 This power is shared by all judges and courts, and the Supreme Court exercises its function as the final arbiter of constitutionality. The most important features of the US model are thus: (1) the US Supreme Court is the ultimate appellate court; (2) its appellate jurisdiction includes judicial review of legislation; (3) the constitutionality or unconstitutionality of a given statute is decided within a particular case;12 and (4) the power to set aside legislation is shared by all judges and courts.
8 For a slightly different use of these expressions, see Stone Sweet 2003, 2745. According to his use of these terms, constitutional review “refers to the authority of any governmental institution to declare statutes … unconstitutional.” Therefore, judicial review should be considered “one mode of constitutional review, that which is exercised by the judiciary in the course of processing litigation.” 9 U.S. CONST. art. 3. 10 5 U.S. 137, 177. 11 Id. 12 Stone Sweet and Shapiro, however, claim that abstract review is also exercised in the United States (Stone Sweet and Shapiro 2002).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 4 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
322 Comparative judicial review 2. Europe Examples in Europe are varied. There are countries with supreme courts similar to the US Supreme Court. Judicial review of legislation has been performed, for instance, by the Norwegian Supreme Court since at least 1866. Further, there are supreme courts that analyze the constitutionality of ordinary legislation but have no power to declare it void, like the Supreme Court of the United Kingdom. Others have no power whatsoever to analyze constitutional questions, like the Supreme Court of the Netherlands. Finally, there are countries where constitutional questions are decided mainly outside the judiciary, like France. It is true that many European countries have followed the Austrian example and, in the course of the 20th century, created a constitutional court and—at least to some extent—adopted an abstract and centralized review. But even if one focuses only on those countries that do have a constitutional court, the differences among them are glaring. Nevertheless, references to a general “European model” of constitutional review of legislation abound. When one refers to such a model, one has in mind above all else two features: centralization and abstract review (see, e.g., Ferreres Comella 2004, 463). The most important features of the European model are thus: (1) constitutional courts have original jurisdiction and monopoly over the declaration of unconstitutionality of ordinary legislation; (2) deciding the constitutionality or unconstitutionality of a given statute in the abstract.
C. EXPANDING THE HORIZONS Speaking of a European model of judicial (or constitutional) review of legislation is a simplification, not only because there are minor variations in the organization of European constitutional courts or because review of legislation may be slightly less decentralized or slightly less abstract in some countries, but because the dichotomies— centralization vs. decentralization and abstract vs. concrete review—are not able to explain what characterizes the practice of constitutional review of legislation in many countries. In addition to Portugal (mentioned above), the characterization of the European model of constitutional review as centralized and abstract also leads some authors to include France in this model (see Ferreres Comella 2009; Ferreres Comella 2004, 462). Until the constitutional reform of 2008, the French Constitutional Council had a monopoly over striking down ordinary legislation and its decisions were (and still are) taken in the abstract. However, there are several reasons not to include the French experience under the label of the “European model.” These reasons will be analyzed below. Here it suffices to point out that the French Constitutional Council is not a court,13 does not have judges (many of its members do not even have a law degree), 13
Some authors have classified the French Constitutional Council as a political institution— almost a third legislative body. See, e.g., Stone 1992, 108–10, 209 and Avril and Gicquel 2005, 139: “[T]he review … is not a legal dispute, but an ‘additional reading of the law.’” See, however, in a different sense, Favoreu 1988, 109, 138 and Vedel 1989.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 7 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Beyond Europe and the United States 323 barely justifies its decisions in articulated legal terms, and decides upon the constitutionality of a given statute before its promulgation. Thus, it does not make much sense to consider the French Constitutional Council as belonging to the same category as, say, the Federal Constitutional Court of Germany, simply because both have (or used to have) a monopoly over striking down ordinary legislation (centralization) and because both decide in the abstract.14 Perhaps the most important argument for looking beyond the US- vs. Europeanmodel dualism is the fact that the majority of constitutional democracies follow neither of them. It is therefore a mistake—or a vestige of colonialism—to try to explain every constitutional system in the world through US or European eyes. As demonstrated above, the European model is not even able to explain the review of legislation in the European countries, not to mention countries outside Europe. I do not intend to deny that the experiences of the United States and Europe (especially Germany’s model of judicial review) inspired the creation of similar courts all over the world. But this fact is not enough to justify reducing the myriad of experiences of other countries to these two cases. Two main arguments may be advanced to justify looking beyond these two traditional models. The first is the fact that, even if one limits the analysis of supreme and constitutional courts to decentralization/centralization and concrete/abstract review, it turns out that, as already mentioned, many countries do not clearly follow either the US or European models, especially because many countries simultaneously have both decentralized and centralized as well as concrete and abstract review. The second reason for going further is the fact that, if one only considers these two features, many relevant characteristics that strongly define the meaning of judicial review of legislation in each constitutional system are simply ignored. For example, as mentioned above, the French and the German experiences are completely different, although both countries have constitutional review of legislation that is (or used to be) centralized and abstract. I argue below that a series of additional factors should also be taken into consideration. 1. Two Variables, But More Than Two Combinations A concrete/abstract binary classification of judicial review can have three categories: Either the review is (1) performed within a concrete judicial controversy, (2) is done in the abstract, or (3) both. In contrast, it could be argued that a classification of judicial review based on the dichotomy between centralization and decentralization can have only two categories. If the question to be answered is, “is there an institution which has a monopoly over declaring the unconstitutionality of ordinary legislation?” then the possible answers may only be “yes” or “no.” In other words, either there is an 14 As a matter of fact, while the German Constitutional Court was created precisely with the goal of introducing a judicial review of legislation, the creation of the French Constitutional Council had precisely the opposite goal. As Dominique Rousseau argues, the creation of the French Constitutional Council was the association of two goals: a positive one—to check the parliament—and a negative one—to avoid the introduction of a truly judicial review of legislation (see Rousseau 1999, 24, 27).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 6 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
324 Comparative judicial review institution with such a monopoly—and thus judicial review of legislation is centralized—or there is no such institution and the system is decentralized. But institutional design tends to be a complex matter. A third path is not only possible, it is indeed the case of many jurisdictions in which centralization and decentralization (as well as concrete and abstract review) coexist.15 In Latin America, for instance, many countries adopt systems that combine these four features. This is the case in Brazil, already mentioned in the introduction. In these countries, although no institution has a monopoly over declaring the unconstitutionality of ordinary legislation, since every court and every judge may do so within an actual judicial controversy, there is nevertheless an institution with original (i.e., not appellate) jurisdiction for reviewing legislation in the abstract. This institution—a supreme or constitutional court—has thus a monopoly over abstract review. In a nutshell, it can be said that in these countries there is a centralized abstract review as well as a decentralized concrete review. Trying to classify these models as either US or European is thus pointless. As Navia and Ríos-Figueroa argue, “innovations tried in Latin America test the limits of any previously existing categorization” (Navia and Ríos-Figueroa 2005, 191).16 And it also makes no sense to label them as mixed or hybrid, because this label seems to assume, deliberately or not, that everything that does not follow the US or the European models is simply a mixture of both, not a model on its own.17 This assumption—deliberately or not, colonialist or not—stems from the fact that too few variables are taken into account in the definition of these two, supposedly ideal types of courts.18
15 John Ferejohn, for instance, seems to assume that both possibilities (centralization and decentralization) are mutually exclusive when he argues that “[t]he United States is virtually unique in having judicial review, if judicial review means a system in which ordinary judges can review and strike down legislation” (Ferejohn 2002, 49). However, as the examples of Brazil and Portugal (and many others) show, systems in which ordinary judges can review and strike down legislation are actually quite common. This feature may simply not be readily noticed from outside when, in the same system, statutes may also be challenged directly before a constitutional or supreme court. 16 They argue further: “Because Latin American countries have been very creative in the way their constitutional adjudication systems have evolved, researchers must avoid gross generalizations when they study the advantages, constraints, and challenges faced by Latin American constitutional adjudication systems” (Navia and Ríos-Figueroa 2005, 213). In the same sense, see Frosini and Pegoraro 2009 and Fernández Segado 2004, 496. For a detailed account of all Latin American courts, see Ferrer Mac-Gregor 2009. 17 See Brewer-Carias 2006, 442 for a suggestion that this type of system should be called the “Latin American model of judicial review.” 18 To be sure, there are several authors who pay attention to more variables than those summed up by the two dichotomies mentioned here (abstract–concrete, centralized– decentralized). Interestingly enough, these authors are usually political scientists rather than legal scholars. See, for instance, Epstein and Knight (2004). Among legal scholars, see, for instance, Ginsburg 2003, 34–53.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 9 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Beyond Europe and the United States 325 2. Further Variables If one adds more variables into the classification of courts and judicial review of legislation, the shortcomings of the binary classification become immediately apparent. In the following sections I will analyze only the most important of these variables: (i) timing, (ii) appointment of judges, (iii) composition of the bench, (iv) term, (v) access to the court, (vi) deliberation and decision-making process and (vii) effects of court decisions.19 i. Timing The most obvious, and indeed frequently mentioned, variable is timing. Besides answering the “who” and “in which context” questions, it could be argued that the “when” question also be taken into account. The constitutionality of ordinary legislation may be challenged either before or after a given statute is promulgated. Although review of legislation usually occurs after promulgation, some countries admit preventive control. The most well-known system of preventive control is that performed by the French Constitutional Council (although there are other European countries that also incorporate it, like Portugal, Poland, and Romania, as well as several Latin American countries, like Chile and Costa Rica, and African countries, like Algeria and Morocco). Until 2008, ordinary legislation in France could only be declared unconstitutional before its promulgation. This fact—in addition to those previously mentioned—makes it impossible to include France as part of the so-called European model.20 ii. Appointment of judges Appointment of judges to supreme and constitutional courts may follow a variety of different procedures. However, despite this diversity, a common feature is almost always present: Unlike the selection of judges in lower courts, the appointment of judges to supreme and constitutional courts generally entails a political element, especially because the political branches—legislative and executive—are usually key players in this selection process. Members of the US Supreme Court are appointed by the president after confirmation by the Senate. This process has been reproduced in several Latin American countries, but most eventually abandoned it (with exceptions such as Argentina and Brazil). In 19
Some of these variables are rather related to the dichotomy between supreme and constitutional courts. Still, since the contrast between US and European models of judicial review to a great extent assumes this dichotomy, it is adequate to analyze these variables here. 20 Ginsburg and Versteeg argue that, after the constitutional reform of 2008, “the version of constitutional review in France has evolved to become much closer to the German variant,” because the French system includes post-promulgation as well as pre-promulgation review (Ginsburg and Versteeg 2014, 592). In light of what has been argued throughout this text, Ginsburg and Versteeg’s reasoning is unsound. The German and French models have always had almost nothing in common. The introduction of post-promulgation review does not change this diagnosis, especially if one bears in mind that the post-promulgation review in France is not exercised by the Constitutional Council, but by ordinary judges (unlike the case in Germany, where ordinary judges are not allowed to perform judicial review).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 8 /
Date: 11/7
JOBNAME: Delaney PAGE: 10 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
326 Comparative judicial review some European countries, judges of constitutional courts are appointed by the legislative branch (like the Federal Constitutional Court of Germany and the Constitutional Court of Croatia, for instance). This model is also adopted by some supreme courts (like the Supreme Court of Justice of Costa Rica and the Supreme Court of Uruguay). The appointment of judges to a given supreme or constitutional court may also be conducted by different persons or institutions. For example, there are courts whose members are selected partly by the legislative branch, partly by the executive branch, partly by the court itself, other courts or by other institutions (like the Constitutional Court of Indonesia, the Constitutional Court of Italy, the Constitutional Court of Chile, and the Constitutional Court of Angola). Additionally, there are courts whose members are selected by commissions especially designed for this task, which are usually composed of members from different institutions (like the Supreme Court of Israel and the Supreme Court of the United Kingdom). Finally, there is at least one constitutional court whose members are elected by universal suffrage, namely the Plurinational Constitutional Tribunal of Bolivia. With few exceptions, when the nomination of a judge has to be confirmed by the legislature, a qualified majority—usually twothirds—is required. The most well-known exception is surely the United States: Confirmation of justices within the Senate requires only an ordinary majority. iii. Composition of the bench Judges in constitutional and supreme courts usually have a law degree (the French Constitutional Council is again the most notable exception,21 as already mentioned above).22 However, one should not assume that the profile of these courts is similar simply because their members have a legal background. A further important variable must be taken into account. Some courts—especially supreme courts—usually recruit their members from a pool of lower court judges. The US Supreme Court is maybe the 21 Ginsburg and Versteeg try to mitigate this fact by arguing that “the majority of the members of the Conseil have judicial or legal experience” and that “only one of the 11 current members, Jacques Barrot, lacks any prior legal experience” (Ginsburg and Versteeg 2014, 602). However, the simple fact that it is not necessary to have legal experience is enough to mitigate the supposed similarities between the composition of the French Council and that of other European courts. Additionally, the “only one non-jurist among ten jurists” argument is context-dependent, Ginsburg and Versteeg wrote in 2014—only two years later, the scenario was quite different. In September 2016, of the ten members, three had no legal background. And among those who had some kind of legal background, some had no law degree (a good example is Claire Bazy Maleurie, who actually studied Russian, but has a maîtrise in law). But much more important, even among those who have some kind of legal background or even a law degree, almost no one had a legal career before having been appointed to the Constitutional Council. 22 The case of the Constitutional Court of Thailand is even more interesting than the case of the French Constitutional Council. As mentioned in the preceding footnote, the presence and the number of members without a legal background in the French Council vary from year to year. In the case of Thailand, Section 204(1)(4) of the Constitution itself provides that two of the nine justices of the Constitutional Court must be “qualified persons in political science, public administration, or other social sciences with thorough knowledge and expertise in public administration.” For more details on the judicial system of Thailand, see Satayanurug and Nakornin 2014.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 9 /
Date: 11/7
JOBNAME: Delaney PAGE: 11 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Beyond Europe and the United States 327 best example. Constitutional courts, in contrast, are usually composed of members coming from different legal professions: judges from lower courts, lawyers, state attorneys, university professors, politicians with law degrees, among others. But a sharp distinction between US and European courts is not possible when it comes to composition of the bench, since there are many courts traditionally categorized as US-model courts whose composition is as diversified as most constitutional courts. iv. Term Judges in the US Supreme Court have life tenure. This feature is found in almost no other supreme court in the world. In Latin America, for instance, where the US model was very influential, it was lastly abandoned in Argentina.23 Almost all supreme and constitutional courts have judges that serve for fixed terms, usually between eight and 12 years. In some courts, justices enjoy renewable terms (like in the Constitutional Court of South Korea and in the Constitutional Court of the Czech Republic). Some courts, like the Brazilian Supreme Court, the Supreme Court of India, the Supreme Court of Canada, and the Supreme Court of Japan, adopt a third, intermediate approach: mandatory retirement. Judges in these courts have no fixed term, but must retire when they reach a given age. v. Access to the court In countries where all courts may set aside ordinary legislation incompatible with the constitution, the question of who can bring about constitutional challenges before the court (standing) does not seem to be relevant. Since constitutional disputes may arise within any concrete case, it is possible to assume that anyone involved in a case before a court may challenge the constitutionality of a given statute. In contrast, in those countries where there is a specialized court with a monopoly over the declaration of unconstitutionality of ordinary legislation—as well as in those countries without such a court but where there is nevertheless a higher court which decides constitutional questions in the abstract—a relevant issue is the decision of who may file constitutional questions before the court. This question has possibly as many answers as the number of countries with abstract review. It may be only one person or institution, but it is usually a mixture of governmental and non-governmental actors and sometimes individual citizens. Additionally, judges themselves may be important actors who initiate constitutional questions before constitutional and supreme courts, especially in those countries where these courts have a monopoly over the declaration of unconstitutionality of ordinary legislation. In such countries (Austria and Germany are perhaps the most well-known examples), when a judge believes that a certain statute, applicable to a concrete case, is unconstitutional, she must refer a constitutional question to the constitutional court. 23 Actually, life tenure had already been mitigated in Argentina by a constitutional revision in 1994, but this change was challenged before the Supreme Court by Carlos Fayt, a member of the Court appointed before the constitutional revision. The court firstly declared the constitutional amendment void, thus maintaining life tenure for its justices (see Fayt, Carlos Santiago v. Estado Nacional [1999]). However, the court overruled this decision in March 2017 (see Schiffrin, Leopoldo Héctor v. Poder Ejecutivo Nacional [2017]).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 10 /
Date: 11/7
JOBNAME: Delaney PAGE: 12 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
328 Comparative judicial review vi. Deliberation and decision-making process Courts decide cases and controversies. This is their most important task. And yet, typologies of courts and of judicial review almost never take into account how courts deliberate and decide.24 Judges may deliberate behind closed doors, in front of an audience or live on TV. Courts may decide seriatim (through the aggregation of the opinions of each judge) or per curiam (through only one institutional decision). Concurring and dissenting opinions may be allowed or not. In this realm, the contrast between common law and civil law traditions tends to explain more than the contrast between the US and European models. Courts of several common law countries adopt the seriatim model. By contrast, courts in civil law countries usually decide per curiam, typically after secret deliberation. Concurring and dissenting opinions are thus usual in common law courts and rarer, or even forbidden, in courts of civil law countries. However, because supreme and constitutional courts of countries of civil law tradition—especially outside Europe—may have been created for different reasons, in different contexts, and inspired by different ideals, it is not rare that these courts follow the common law practices of deliberation and decision-making. Therefore, many countries, especially in Latin America (although belonging to the civil law tradition), have—or have had—courts that adopt deliberation and decision-making processes typically from common law courts: seriatim, with concurring and dissenting opinions and not behind closed doors. The deliberation and decision-making process in the French Constitutional Council is again an exception. Even if its members engage in some form of deliberation, the fact that they have only one month to decide (a period sometimes even reduced to only eight days25) indicates that the discussion that takes place within the Council is different from the deliberation that takes place in supreme and constitutional courts: It does not aim to produce a decision with a robust legal reasoning. Its short decisions can hardly be compared with decisions from other courts.26 vii. Effects The role of a court that exercises judicial review of legislation may be strongly determined by the effects of its decisions. It is possible to subsume a wide variety of variables under the category of “effects.” Traditionally, effects have been understood both as “the moment from which the declaration of unconstitutionality is effective” (ex tunc/ex nunc) and “the extent of these effects” (erga omnes/inter partes). Lately, however, other dimensions also fall under “effects,” such as the degree of binding force of a court’s decision upon the legislative branch, described by some scholars “strong” or “weak” judicial review (see Tushnet 2003 and Sinnott-Armstrong 2003); the nature of governmental action that is demanded by the court’s decision (positive/negative); and 24 Among those whose do emphasize the importance of the deliberation processes see, for instance, Ferejohn and Pasquino 2002, Lasser 2004, and Mendes 2013. See also da Silva 2013b. 25 See FRENCH CONST. art. 61 as well as Article 25 of the rules of procedure of the French Constitutional Council. 26 It is thus not easy to understand what Ginsburg and Versteeg 2014, 602 have in mind when they argue that the French Council “uses court-like procedures.”
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 11 /
Date: 11/7
JOBNAME: Delaney PAGE: 13 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Beyond Europe and the United States 329 whether the court monitors or not the implementation of its decision, especially in the field of socioeconomic rights.27 In this realm, the European- and US-model dichotomy can at most point to some tendencies and does not explain much. Although it is true, for instance, that decisions of constitutional courts usually have general effects, this is not necessarily so. The decisions of the Constitutional Court of Luxembourg, for instance, only bind the judges who raise the constitutional questions at issue. On the other hand, even if the decisions of the US Supreme Court are directly applicable only to the concrete cases brought before the court, the doctrine of stare decisis indirectly expands these effects to all similar cases.28 The other kinds of effects mentioned above are even less related to the dualism between US and European models. They may be found across an array of constitutional systems, irrespective of legal tradition. Furthermore, in the case of the degree of binding force of the court’s decision upon the legislative branch, some argue that weak judicial review defines a category of its own—sometimes called the “commonwealth model” (Gardbaum 2001; Gardbaum 2010; Gardbaum 2013). But this should not be simply considered a third model in addition to the US and the European ones. Rather than demanding the creation of a new category, the dichotomy of strong vs. weak judicial review puts into question the previous categorization. If weak judicial review is characterized by the weak binding effect of judicial review on the legislature—by the possibility of legislative override (see Goldsworthy 2003), or by a potential (even though sometimes not actual) dialogue between legislature and court (see Hogg and Bushell 1997; Hogg, Thornton, and Wright 2007; Webber 2002)29—then the judicial review exercised in many European countries and in the United States should be seen as belonging to the same category: strong judicial review. In those countries, the legislature cannot override the court’s decision unless the constitution itself is amended, which is usually neither easy nor common. Additionally, it could be even argued that there are courts that exercise an extra-strong form of judicial review. This is the case, for instance, for Brazil’s Supreme Court and the Supreme Court of India, for they also exercise judicial review of constitutional amendments, thus blocking even this form of institutional dialogue.30
27
See Colombian Constitutional Court, Decision T-025 of 2004. See also Rodríguez Garavito and Rodríguez Franco 2015. 28 For a comprehensive account of the value of stare decisis, see Fallon Jr. 2001. 29 In the realm of socioeconomic rights, see Dixon 2007. 30 Thus, in Brazil and India, in many cases their respective supreme courts could not even tell the legislature to try a different path (e.g., constitutional amendment instead of ordinary legislation). As Favoreu used to argue, this “switchman role” has frequently been played by the French Constitutional Council. According to him, the Council “placed at a crucial switch, is a kind of switchman … that indicates the path a given reform should take in order to be adopted: decree, ordinary law, organic law or constitutional amendment” (Favoreu 1982, 419). See also Troper 2003, 111. For a comprehensive analysis of the judicial review of constitutional amendments, see Roznai 2017, 179–225.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 12 /
Date: 11/7
JOBNAME: Delaney PAGE: 14 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
330 Comparative judicial review 3. Other Variables There are several other, less formal variables that may be taken into account in a typology of judicial review and of constitutional and supreme courts. Many of these variables are not determined by the institutional design of these courts (even though they may be influenced by it). Some examples include judicial independence and degree of compliance of their decisions. Unlike the variables presented in the previous sections, it is usually difficult, or even impossible, to assess the variables mentioned here simply by reading the constitution or the legislation of each country. Still, the study of these variables may be relevant in the context of typology building insofar as it may show that two (or more) courts that are formally identical may play completely different roles within the constitutional and political system of their respective countries.
D. SHORT DIGRESSION ON TYPOLOGIES Typologies may be a very powerful tool for understanding the world and, as a consequence, also our research objects. The objections I have presented so far against the dualist typology of judicial review should thus not be understood as objections against the attempt to build typologies in this realm.31 Typologies, just like any other method of making classifications, are simplifications. They aim precisely at reducing complexity. Therefore, when I argue, at the beginning of this chapter, that the Europe- and US-model dualism is a “very crude simplification,” this should be understood as “a crude simplification even for the purposes of typology building.” In other words, while it is perfectly acceptable to speak of a US system and of an Austrian system of judicial review of legislation as a simply descriptive enterprise, it is nevertheless unsound to take the description of two concrete models, without further qualification, as if the typology must necessarily be constructed upon them. I do not propose that a typology of systems of judicial review of legislation should take into account all variables presented in this text. A typology based on so many variables, even if it would be able to better capture the many variations across the systems, would be as good as unintelligible. Besides the variables expressed by the two main dichotomies (abstract vs. concrete review and centralized vs. diffuse review), I mentioned seven further variables.32 For the sake of simplification, assuming that each 31 Neither should they be understood as objections against all dualist typologies as such. As a matter of fact, in other research fields, my work is heavily based on dualist typologies. When I write on electoral systems, I assume a dualist classification of proportional and majoritarian systems (see, for instance, da Silva 2013a). When I write on balancing and proportionality, I assume a dichotomy between rules and principles (see da Silva 2003; da Silva 2011). In both cases, however, as well as in the case of models of judicial review, I reject a category labeled “mixed” or “hybrid” and argue that the need for such a category is usually the symptom of flaws in the typology building (see da Silva 2013a, 249; da Silva 2016, 103). 32 Timing, appointment of judges, composition of the bench, term, access to the court, deliberation and decision-making process, and effects of the court’s decisions.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 13 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Beyond Europe and the United States 331 of these variables were dichotomous, a typology based on all these nine variables would encompass 512 (i.e., 29) different types of judicial review.33 Such a typology would clearly fall short of one of the main goals of typologies, namely reducing complexity. Several cells (types) in such a typology would have only one or two empirical examples and for most types there would be no empirical examples at all. Even if it is still a golden rule in conceptual typology building that types must be mutually exclusive and exhaustive, these requirements must be often mitigated in empirical typologies.34 In this case, Kenneth Bailey argues for a different rule, which he calls the “Min-Max Rule”: “The goal of typology construction is to construct a minimum number of types, each of which displays maximum homogeneity” (Bailey 1973, 291). However, just as the typology should not have too many types, neither should it have too few. In the former case, it would not be able to reduce complexity; in the latter, it would not be helpful to grasp some relevant variations in the real world.35 Having said that, I would like to stress again the first part of my argument: a dualist typology that has to be constantly complemented by a third (and rather amorphous36) type labeled mixed or hybrid—which, in turn, is the type that explains virtually all real experiences of judicial review—seems to be rather useless (see also Fernández Segado 2004, 491). In addition, this short digression on methodological issues concerning typology construction also sheds more light on the second part of my argument, which is related to the demand of taking other dimensions of judicial review into account. If it does not make sense to construct an enormous typology taking every possible dimension of judicial review into consideration, because such a typology would have hundreds or 33
Actually, the number of single types may be much higher than 512. The typology would have 512 types if the variables were mutually exclusive (e.g., a system may adopt either abstract or concrete review, but not both). Since most of the variables are not mutually exclusive, “dichotomous variable” cannot be understood as either abstract or concrete, but rather “abstract: yes or no?” and “concrete: yes or no?” The number of single types will therefore be much higher than 512. 34 This is what characterizes the contrast between monothetic and polythetic typologies. See, e.g., Bailey 1973. Although this methodological discussion is beyond the scope of this text, the following excerpt may illustrate well what is central to the goals of this chapter: “One can form a monothetic typology and then search for specimens fitting each cell. However, the typology quickly becomes overly large and thus unmanageable if it contains many variables with many categories for each. … Some form of reduction to polytheticism is necessary to insure parsimony. … Further, there is so much variation in the empirical world that if a typology contains many dimensions, few specimens will be identical on all. The researcher must be practical and group the most similar specimens into a single type, even if they are not identical. Otherwise no real grouping will occur” (Bailey 1973, 295). 35 In the realm of judicial review, see Frosini and Pegoraro, who state: “on the one hand, the need to avoid oversimplified classifications as these would not meet the aim of providing a precise picture of the legal institutions that are object of study, on the other, the necessity of also avoiding classifications that are too detailed as these would risk thwarting the very aim of classifying” (Frosini and Pegoraro 2009, 39). 36 In this sense, a typology based on the US- vs. Europe-model dualism, complemented by a third (hybrid) type, does not even fulfill the min-max rule, since the hybrid type may be defined as everything that does not fit into the two other types and therefore displays exactly the opposite of maximum homogeneity.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 16 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
332 Comparative judicial review thousands of types, the alternatives to this could be: (i) ignore some of these dimensions; (ii) group similar specimens into a single type (slightly sacrificing homogeneity for the sake of parsimony); (iii) construct several partial typologies and, most importantly, abandon the idea that one of them is the most important no matter what is at stake. I argue that (i) and (ii) are not promising alternatives for two reasons. First, all dimensions are (or may in many cases be) relevant. Second, such dimensions are completely independent from each other and do not realize only one or a few overarching principles (or goals) that could justify grouping different but nevertheless similar types.37 I will analyze the strengths of the third alternative in the following section. 1. Partial Typologies The construction of several partial typologies is nothing new and has already been done in the realm of judicial review. For instance, if one aims to analyze and classify supreme and constitutional courts based on their decision-making process, the relevant dimension is not whether these courts decide in the abstract or within a concrete case, but rather, among other things, if they decide seriatim or per curiam. And if what is at stake is the degree of binding force of the court’s decision upon the legislative branch, the relevant dimension is whether and how the legislature may override a judicial decision that had struck down a piece of legislation, irrespective of whether this decision had been taken within a concrete lawsuit or in the abstract.38 What I have been arguing is, therefore, that research goals should define how a given typology should be constructed, not the other way around. After all, a typology based on dimensions irrelevant to my research goals is irrelevant to my research, even if it is a sound typology. As a corollary, a typology should not be considered more relevant than others simply because we are more accustomed to it than to others. We need a more robust and substantive reason. And this is exactly what is frequently lacking in the debate on models of judicial review. My argument against the US- vs. Europe-model dualism may 37
It is thus not the quantity of variables as such that prevents such a grouping (or at least makes it more difficult). When there is an overarching principle or goal, grouping may occur despite the presence of several variables. An example from the realm of electoral studies may again be useful to understand this. There is an enormous variation of electoral formulas, constituency magnitudes, ballot structure, types of lists, etc., but it is nevertheless possible to group electoral systems into only two types (proportional and majority systems) without sacrificing type homogeneity, because it is possible to refer to any (conceptual or empirical) system to only two principles of representation: proportional or majoritarian. The maximum of homogeneity is thus related not to the technical details but to the principles of representation (see Nohlen 1984). 38 In his recent attempt at developing a typology based on the dichotomy strong vs. weak review, Colón-Ríos is explicit: “Although I make some brief references to the distinction between decentralized and centralized systems of judicial review (as well as to the distinction between abstract and concrete review), this distinction is not relevant for the typology presented in this article” (Colón-Ríos 2014, 149).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 15 /
Date: 11/7
JOBNAME: Delaney PAGE: 17 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Beyond Europe and the United States 333 thus have two versions: The first, and softer, one is based on what I have just argued—i.e., on the assumption that no dimension is more important than others in and of itself. There is, therefore, no overarching typology. But one could push my reasoning further and assume a stronger version of the objection against the US- vs. Europe-model dualism. There may be variables that, in the current debate on courts and judicial review, may have a stronger general explanatory power than the traditional dichotomies of abstract vs. concrete review and centralized vs. diffuse review. The contrast between the United States and Europe (based exactly on these variables) may be considered less relevant than is usually assumed, because it barely addresses the political role of courts within a given constitutional democracy. It is a very formalistic classification, which may make sense from the perspective of the organization of the judicial process of a country, but explains almost nothing else.39 Almost everywhere, the debate on judicial review has evolved from a formalistic one, which asked who is legitimate to set aside legislation; within which type of action; what is the status of an unconstitutional law and from which moment does a declaration of unconstitutionality become effective,40 to a more substantive one, which assumes supreme and constitutional courts as major players in constitutional democracies and tries to understand which features are relevant to define how this role is performed. But, oddly enough, it seems that the classification of courts and types of judicial review of legislation did not evolve at the same pace.
E. CONCLUSION It has been stressed throughout this text that a dualist classification based on the contrast between a US and a European model of judicial review of legislation can hardly explain the diversity of courts in the world. A third category—mixed or hybrid systems—does not help either. One could of course argue that the US and European models are ideal types in the Weberian sense. Ideal types are constructed from a one-sided accentuation of one or a few features of the object being examined. They are therefore abstractions, made for analytical purposes. In their conceptual purity, they “cannot be found anywhere” (Weber 1968, 191). Real systems are always more complex and may combine elements from different models. But they usually lean towards one ideal type. It is possible to assume that Favoreu had a similar idea in mind when he argued that “mixed systems … evolve toward one or the other of the two principal models” (Favoreu 1990, 106; see also Stone Sweet 2012, 818). This, however, 39
Unless it could be argued, for example, that centralization and abstract review foster (or hinder) a given political profile of the courts, or that the relationship between courts and political powers are strongly determined by these variables (or at least more strongly than by other variables). 40 These were the types of questions that underlay Kelsen’s comparison between the Austrian and the US models, because these were the questions that mattered most at that time. See Kelsen 1942.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 16 /
Date: 11/7
JOBNAME: Delaney PAGE: 18 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
334 Comparative judicial review is an empirical and analytical assumption that demands robust demonstration, which is never done. In conclusion, one could ask if a typology is possible in this realm at all. As I argued in previous sections, the answer can only be affirmative. Classifications and typologies are always possible and it would be odd if this were not true in relation to supreme and constitutional courts. However, the simple fact that a given typology is possible does not mean that it is necessarily useful. Thus, some conclusions may be drawn from what has been argued throughout this chapter: (i)
(ii)
A dualist classification seems to have low explanatory power when almost every concrete experience does not seem to fit into either of the categories, thus demanding the creation of a third, loosely defined category called “hybrid systems.” There are more variables to be taken into consideration than the degree of centralization and the context in which review of legislation is performed. This finding can lead to two different methodological strategies: (a) abandoning the idea of an overarching typology based on one or two dimensions that are supposedly more important than the others;41 or (b) maintaining the idea of an overarching typology, but not based on the traditional dichotomies.
In any case, it is perhaps time to decisively abandon the labels “US model” and “European model.” Thus, I agree with Stone Sweet and argue that the distinction between US and European models no longer matters (see Stone Sweet 2003). However, as I have argued throughout this text, this irrelevance does not lie in the fact that both models are becoming increasingly similar, as Stone Sweet argues, but because the world of judicial review of legislation is too complex to be grasped by such a simple dichotomy.
REFERENCES Avril, Pierre and Jean Gicquel. 2005. Le Conseil Constitutionnel. Paris: Montchrestien. Bailey, Kenneth D. 1973. “Constructing Monothetic and Polythetic Typologies by the Heuristic Method.” The Sociological Quarterly 14: 291–308. Bastid, Paul. 1939. Sieyès et sa pensée. Paris: Hachette. Bongiovanni, Giorgio. 2007. “Rechtsstaat and Constitutional Justice in Austria: Hans Kelsen’s Contribution.” In The Rule of Law: History, Theory and Criticism, edited by Pietro Costa and Danilo Zolo. Dordrecht: Springer. Brewer-Carias, Allan R. 2006. “Judicial Review in Venezuela.” Duquesne Law Review 45: 439–66. Burdeau, Georges. 1969. Traité de science politique. Vol. IV. Paris: LGDJ. Canotilho, J. J. Gomes. 1998. Direito constitucional e teoria da constituição. Coimbra: Almedina. Colón-Ríos, Joel I. 2014. “A New Typology of Judicial Review of Legislation.” Global Constitutionalism 3: 143–69. Dixon, Rosalind. 2007. “Creating Dialogue about Socioeconomic Rights.” International Journal of Constitutional Law 5: 391–418. 41 Choosing a dimension (or multiple dimensions) as a basis for a typology under this strategy depends solely on research goals.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 17 /
Date: 11/7
JOBNAME: Delaney PAGE: 19 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Beyond Europe and the United States 335 Eisenmann, Charles. 1928. La justice constitutionnelle et la Haute Cour Constitutionnelle d’Autriche. Paris: LGDJ. Epstein, Lee and Jack Knight. 2004. “Courts and Judges.” In The Blackwell Companion to Law and Society, edited by Austin Sarat. Oxford: Blackwell. Fallon Jr., Richard H. 2001. “Stare Decisis and the Constitution: An Essay on Constitutional Methodology.” New York University Law Review 76: 570–97. Favoreu, Louis. 1982. “Les décisions du Conseil Constitutionnel dans l’affaire des nationalisations.” Revue Du Droit Public 98: 377–420. Favoreu, Louis. 1988. La politique saisie par le droit. Paris: Economica. Favoreu, Louis. 1990. “American and European Models of Constitutional Justice.” In Comparative and Private International Law: Essays in Honor of John Henry Merryman on His Seventieth Birthday, edited by David S. Clark, 105–20. Berlin: Duncker & Humblot. Ferejohn, John. 2002. “Constitutional Review in the Global Context Legislatures.” New York University Journal of Legislation and Public Policy 6: 49–60. Ferejohn, John and Pasquale Pasquino. 2002. “Constitutional Courts as Deliberative Institutions: Towards an Institutional Theory of Constitutional Justice.” In Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective, edited by Wojciech Sadurski. The Hague: Kluwer. Fernández Segado, Francisco. 2004. “La faillite de la bipolarité ‘modèle americain—modèle européen en tant que critère analytique du contrôle de la constitutionalité et la recherche d’une nouvelle typologie explicative.” Jahrbuch des öffentlichen Rechts der Gegenwart 52: 471–503. Ferrer Mac-Gregor, Eduardo, ed. 2009. Crónica de Tribunales Constitucionales en Iberoamérica. Buenos Aires/México: Marcial Pons/UNAM. Ferreres Comella, Victor. 2004. “The European Model of Constitutional Review of Legislation: Toward Decentralization?” International Journal of Constitutional Law 2: 461–91. Ferreres Comella, Victor. 2009. Constitutional Courts and Democratic Values: A European Perspective. New Haven, CT: Yale University Press. Frosini, Justin O. and Lucio Pegoraro. 2009. “Constitutional Courts in Latin America: A Testing Ground for New Parameters of Classification?” Journal of Comparative Law 3: 39–63. Gardbaum, Stephen. 2001. “The New Commonwealth Model of Constitutionalism.” American Journal of Comparative Law 49: 707–60. Gardbaum, Stephen. 2010. “Reassessing the New Commonwealth Model of Constitutionalism.” International Journal of Constitutional Law 8: 167–206. Gardbaum, Stephen. 2013. The New Commonwealth Model of Constitutionalism: Theory and Practice. Cambridge: Cambridge University Press. Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge University Press. Ginsburg, Tom and Mila Versteeg. 2014. “Why Do Countries Adopt Constitutional Review?” Journal of Law, Economics, and Organization 30: 587–622. Goldsworthy, Jeffrey. 2003. “Judicial Review, Legislative Override, and Democracy.” In Protecting Human Rights: Instruments and Institutions, edited by Tom Campbell, Jeffrey Goldsworthy, and Adrienne Stone. Oxford: Oxford University Press. Grant, J.A.C. 1954. “Judicial Control of Legislation: A Comparative Study.” American Journal of Comparative Law 3: 186–98. Hamilton, Alexander, James Madison, and John Jay. 1787. The Federalist. Hogg, Peter W. and Allison A. Bushell. 1997. “The Charter Dialogue Between Courts and Legislatures (or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All).” Osgoode Hall Law Journal 35: 75–124. Hogg, Peter W., Allison A. Bushell Thornton, and Wade K. Wright. 2007. “Charter Dialogue Revisited: or ‘Much Ado About Metaphors.’” Osgoode Hall Law Journal 45: 1–65. Jellinek, Georg. 1885. Ein Verfassungsgerichtshof für Österreich. Vienna: Hölder. Kelsen, Hans. 1929. “Wesen und Entwicklung der Staatsgerichtsbarkeit.” Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 5: 31–88. Kelsen, Hans. 1942. “Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution.” The Journal of Politics 4: 183–200. Kelsen, Hans. 1949. General Theory of Law and State. Cambridge, MA: Harvard University Press. Lasser, Mitchel de S.-O.-L’E. 2004. Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy. Oxford: Oxford University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 18 /
Date: 11/7
JOBNAME: Delaney PAGE: 20 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
336 Comparative judicial review Mendes, Conrado Hübner. 2013. Constitutional Courts and Deliberative Democracy. Oxford: Oxford University Press. Navia, Patricio and Julio Ríos-Figueroa. 2005. “The Constitutional Adjudication Mosaic of Latin America.” Comparative Political Studies 38: 189–217. Nohlen, Dieter. 1984. “Two Incompatible Principles of Representation.” In Choosing an Electoral System: Issues and Alternatives, edited by Arend Lijphart and Bernard Grofman. Westport, CT: Praeger. Noll, Alfred J. 2000. “Georg Jellineks Forderung nach einem Verfassungsgerichtshof für Österreich.” In Georg Jellinek: Beiträge zu Leben und Werk, edited by Stanley L. Paulson and Martin Schulte. Tübingen: Mohr Siebeck. Paulson, Stanley L. 2000. “On Hans Kelsen’s Role in the Formation of the Austrian Constitution and His Defense of Constitutional Review.” In The Reasonable as Rational? On Legal Argumentation and Justification—Festschrift for Aulis Aarnio, edited by Werner Krawietz, Robert S. Summers, Ota Weinberger, and Georg Henrik von Wright. Berlin: Duncker & Humblot. Queiroz, Cristina. 2009. Direito constitucional: as instituções do Estado democrático e constitucional. Coimbra: Coimbra Editora. Rodríguez Garavito, César and Diana Rodríguez Franco. 2015. Radical Deprivation on Trial: The Impact of Judicial Activism on Socioeconomic Rights in the Global South. Cambridge: Cambridge University Press. Rosenn, Keith S. 2000. “Judicial Review in Brazil: Developments under the 1998 Constitution.” Southwestern Journal of Law and Trade in the Americas 7: 291–320. Rousseau, Dominique. 1999. Droit du contentieux constitutionnel. Paris: Montchrestien. Roznai, Yaniv. 2017. Unconstitutional Constitutional Amendments: The Limits of Amendment Powers. Oxford: Oxford University Press. Satayanurug, Pawat and Nat Taporn Nakornin. 2014. “Courts in Thailand: Progressive Development as the Country’s Pillar of Justice.” In Asian Courts in Context, edited by Jiunn-rong Yeh and Wen-Chen Chang. Cambridge: Cambridge University Press. Sieyès, Emmanuel Joseph. 2007. “Opinion sur les attributions et l’organisation du Jury Constitutionnaire proposé le 2 Thermidor [1795].” In Essai sur les privilèges et autres textes, edited by Pierre-Yves Quiviger. Paris: Dalloz. Silva, Virgílio Afonso da. 2003. Grundrechte und gesetzgeberische Spielräume. Baden-Baden: Nomos. Silva, Virgílio Afonso da. 2011. “Comparing the Incommensurable: Constitutional Principles, Balancing and Rational Decision.” Oxford Journal of Legal Studies 31: 273–301. Silva, Virgílio Afonso da. 2013a. “A Continuum of Electoral Systems? (Or, Why Law and Legislation Need Typologies).” The Theory and Practice of Legislation 1: 227–53. Silva, Virgílio Afonso da. 2013b. “Deciding Without Deliberating.” International Journal of Constitutional Law 11: 557–84. Silva, Virgílio Afonso da. 2016. “The Brazilian Supreme Court Needs Iolaus: A Reply to Marcelo Neves’ Objections to Balancing and Optimization.” Revista Direito. UnB 2: 96–117. Sinnott-Armstrong, Walter. 2003. “Weak and Strong Judicial Review.” Law and Philosophy 22: 381–92. Stone, Alec. 1992. The Birth of Judicial Politics in France. Oxford: Oxford University Press. Stone Sweet, Alec. 2003. “Why Europe Rejected American Judicial Review (and Why It May Not Matter).” Michigan Law Review 101: 2744–80. Stone Sweet, Alec. 2012. “Constitutional Courts.” In The Oxford Handbook of Comparative Constitutional Law, edited by Michel Rosenfeld and András Sajó. Oxford: Oxford University Press. Stone Sweet, Alec and Martin Shapiro. 2002. “Abstract and Concrete Review in the United States.” In On Law, Politics, and Judicialization, edited by Martin Shapiro and Alec Stone Sweet. Oxford: Oxford University Press. Troper, Michel. 2003. “The Logic of Justification of Judicial Review.” International Journal of Constitutional Law 1: 99–121. Tushnet, Mark. 2003. “Alternative Forms of Judicial Review.” Michigan Law Review 101: 2781–802. Vedel, Georges. 1989. “Neuf ans au Conseil Constitutionnel.” Le Débat 55: 61–70. Webber, Jeremy. 2002. “Institutional Dialogue between Courts and Legislatures in the Definition of Fundamental Rights: Lessons from Canada (and Elsewhere).” In Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective, edited by Wojciech Sadurski. The Hague: Kluwer. Weber, Max. 1968. “Die ‘Objektivität’ sozialwissenschaftlicher und sozialpolitischer Erkenntnis.” In Gesammelte Aufsätze zur Wissenschaftslehre. Tübingen: J.C.B. Mohr.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 16_Chapter16_ts
/Pg. Position: 19 /
Date: 11/7
JOBNAME: Delaney PAGE: 1 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
17. Judicial review and Public Reason Wojciech Sadurski
The concept of Public Reason (PR) is not a modern invention, but in this chapter I will discuss a contemporary reinterpretation—and the most influential version of it—developed in John Rawls’s idea of political liberalism. In Rawls’s theory, PR is intimately tied up with the liberal principle of legitimacy which postulates that only those laws that are based upon arguments and reasons to which no members of society have good moral reason to object can boast political legitimacy. In Rawls’s words: “Our exercise of political power is fully proper only when it is exercised in accordance with the constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason” (Rawls 1993, 137). This theory is based on a simple negative point: A law cannot claim any legitimacy towards me if it is based upon arguments and reasons that I have no reason to accept (think of an atheist faced with a law the sole rationale for which is religious). The denial of legitimacy to such a law is based on the view that there must be some connection between the law and myself qua an addressee of the law—a connection that establishes rational reasons to identify the resulting benefits for myself in the law. It is clear that the category of PR serves to limit the range of rationales that can be invoked to justify the proposed uses of coercive measures towards individuals. This requirement applies not only to politicians, legislators, and judges, but to all citizens because “ideally citizens are to think of themselves as if they were legislators and ask themselves what statutes, supported by what reasons satisfying the criterion of reciprocity, they would think it most reasonable to enact” (Rawls 1999, 135, italics in original). In this chapter, I will reflect upon the applicability of this concept to the theory and practice of judicial review. For some scholars, PR is the cornerstone of judicial review. This is based on the premise that the review of constitutionality of laws should focus fundamentally on the reasons which can be provided as justification for laws in a democratic system. Significantly, the centrality of PR is claimed on both sides of the major divide in contemporary judicial review: systems which adopt “proportionality analysis” as the best template to be used by constitutional courts (the predominant approach in today’s world) on one side, and those which are reluctant to openly adopt the pattern of proportionality in their reasoning (as in the United States) on the other. With respect to the former, Mattias Kumm claimed that the main point of proportionality is to give PR pride of place in judicial scrutiny of legislation: “The proportionality test … provides a structure for the demonstrable justification of an act in terms of reasons that are appropriate in a liberal democracy. Or to put it another way: It provides a structure for the justification of an act in terms of public reason” (Kumm 2010, 150; italics removed). Elsewhere in the same article, Kumm expresses this point 337
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
338 Comparative judicial review even more emphatically: “When courts apply the proportionality test, they are in fact assessing whether or not legislation can be justified in terms of public reasons, reasons of the kind that every citizen might reasonably accept, even if actually they don’t” (Kumm 2010, 168–9). With respect to the latter, Ronald C. Den Otter provides both an account of, and a normative theory designed to guide, the US Supreme Court’s adjudication in terms of scrutinizing both “the reasons given in the legislature but also … those given in defense of the statute in court” (Otter 2009, 180).1 These reasons correspond to the Rawlsian ideal of eliminating non-public reasons without “invoking deeper reasons and arguments” (Otter 2009, 175). PR in this perspective is meant not only to be consistent with, but also to explain and justify judicial reasoning in rights-related cases. These pronouncements by scholars represent different legal traditions, and yet equally focus on the centrality of PR in judicial review. They thus indicate that the topic of this chapter is of universal rather than parochial interest. Section A will introduce the general idea of PR as a legitimacy-conferring device. Section B will discuss its application to judicial review through a motive-oriented scrutiny. Section C will consider the argument that such scrutiny runs into evidentiary difficulties regarding the actual discerning of motives. Section D will reflect on the ways in which “harmonizing” the motive- and effects-oriented scrutiny may be useful to a PR conception of judicial review. Section E will feature a discussion regarding the argument that PR-based scrutiny troublingly amplifies the clash of the judiciary with the legislature. Section F will provide a comparative case study of PR-based judicial review of the laws on the relationship between state and religion. Finally, the chapter concludes by bringing these different themes together and offering an agenda for further research.
A. PUBLIC REASON AND LEGITIMACY OF LAW PR is about providing reasons and about constraints on what reasons can be provided in the process of law-making. It is a characteristically liberal idea: “Liberal citizens must justify their political demands in terms that fellow citizens can understand and accept as consistent with their status as free and equal citizens. It requires a conscientious effort to distinguish those beliefs that are matters of private faith from those that are capable of public defense …” (Kymlicka 2001, 296–7; italics added). But note that not all conceptions that posit restrictions on the reasons for laws are liberal; and, vice versa, not all liberals are committed to PR as a reasons-restricting device. For instance, one may adopt a typically liberal “harm to others principle,” or its equivalent,2 as a basis for restricting a state’s interference with individual liberty, and justify it on non-public grounds (see Eberle 2013, 60–61). A useful way of talking about reasonsconstraining approaches is by categorizing them as “exclusionary reasons.” These are 1 Otter’s work is the only book-length analysis of judicial review through the prism of PR that I know of. 2 For a classic articulation of this principle, see Mill 1859, 22 (“[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 2 /
Date: 15/8
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and Public Reason 339 second-order reasons which dismiss first-order reasons and must be disqualified at the outset even if, were they allowed to compete, they would have been pertinent to the decision in question and may have outweighed those other reasons. In a classical discussion by Joseph Raz, an exclusionary reason is defined as a “second-order reason to refrain from acting for some reason” or, simply, “a reason for disregarding other reasons for action” (Raz 1999, 38–9). PR plays a special role in the context of legitimacy of political power (i.e., of the use of coercion towards individuals). The issue of legitimacy typically arises when individual citizens ask themselves why they should comply with a directive issued by an authority if they disagree with its content. From this point of view, the concept of “legitimacy” serves as a marker to identify the point on a continuum between two extremes. On the one hand, we have the authoritarian position under which the very fact of authoritative enactment of a directive is sufficient moral reason for compliance. On the other side of the spectrum lies an anarchistic position under which the fact of legal enactment does not add any weight to moral arguments for compliance; compliance is conditional upon substantive moral approval for the directive. The intermediate space on this continuum is occupied by a liberal position, which implies that there is a duty to comply with at least some authoritative rules which are not substantively accepted by a given person. The task of this idea of legitimacy is to determine the criteria, grounds, and scope of such a moral duty to comply with those rules. This sense of legitimacy resonates, I believe, with the approach to legitimacy sketched by Ronald Dworkin (who was otherwise strongly critical of the idea of PR).3 Legitimacy, Dworkin suggested, does not postulate that only just governments are legitimate (because no existing governments are perfectly just) nor does it seek to assert that they are based on consent (this, in Dworkin’s view, is too strong a position). Rather, legitimacy operates on recognition that the government treats citizens with equal respect: A plausible theory of legitimacy … must proceed on the … assumption that when citizens are born into a political community or join that community later, they just have obligations to that community, including the obligation to respect its laws whether or not they explicitly or even tacitly accept those obligations. But they assume these political obligations only if and so long as the community’s government respects their human dignity … I can have no obligation to a community that treats me as a second-class citizen …. (Dworkin 2006a, 96–7)
In this way, an ideal of PR is one way of understanding what it means for the government to respect citizens’ dignity. Rawls makes clear that the directive of PR applies primarily to judges, and then to legislators and citizens only when constitutional essentials (a concept that Rawls fails to define the contours of) are implicated (Rawls 1993, 235); on non-essentials, political bodies are free to enforce their comprehensive doctrines. But this view is puzzling. Suppose the legislature votes on a compulsory health insurance and, for the sake of argument, suppose that it does not implicate questions of constitutional essentials or basic justice. Under such a situation, shall we be happy to have legislators vote on the 3
For Dworkin’s critique of the idea of PR, see Dworkin 2006b, 251–4.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 3 /
Date: 11/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
340 Comparative judicial review basis of their PR-incompatible comprehensive doctrines—for instance, refusing insurance for medical procedures which are condemned by their religion? Presumably not. Accordingly, when discussing the bearers of the PR-related obligations, a fair assumption can be made that they fall upon all actors involved in law-making: Legislators and judges alike (as well as citizens-voters) must live up to the demands of PR. But of course this is an obvious simplification, and we know that different legal actors are variously affected by other constraints in their choices when engaged in law-making. The constraints are most stringent and canonical in the case of judges, more lenient in the case of legislatures, and even more lax in the case of citizens-voters. Judges, the argument goes, are so constrained by a duty to provide rationale for their decision-making in terms of legitimate legal sources (their understanding of the text of a constitution, of the statute, the force of precedent) that it may leave no room for contemplating the force of other constraints, such as PR. In other words, considerations of the established sources of law may seem to deplete any room for such moralpolitical constraints as those of PR (Waldron 2007, 107–34). I disagree with this view when it is stated in such a strong way, though a weaker articulation (that judges are less free to resort to PR than are legislators) is eminently plausible. Although judges must first consider how the established legal sources control a given matter, they can then fill any remaining space with considerations of PR (or other applicable moral-political reason-restraining principles). Viewed in this way, Rawls is mistaken when he makes a sweeping statement that PR “is the sole reason the court exercises” (Rawls 1993, 235). Further, Rawls has it backwards when he adds that “[b]eyond [applying PR, the judges] are to go by what they think the constitutional cases, practices, traditions and constitutionally significant historical texts require” (Rawls 1993, 235–6). In actuality, PR is exercised in spaces which are left undetermined by the argument from text and precedent etc. The unfortunate court-centeredness of Rawls’s theory of PR was thrown into sharp relief by Rawls’s insistence that, as a test, we might inquire as to whether a particular argument for a new law belongs to the category of PR by considering whether it could be used in a written opinion of the Supreme Court (Rawls 1993, 254). As Samuel Freeman explains, Rawls “is not saying that the Supreme Court is an exemplar of public reason, but rather that it belongs to the office of a supreme court, as such, to be the exemplar of public reason” (Freeman 2004, 2066). This may be a plausible construction of Rawls’s thesis but it has an unfortunate consequence of locating either an exclusive or predominant mission of being guided by PR in courts and taking away responsibility for argument in terms of PR from other political institutions and citizens. In fact, and this is central to this chapter, judges’ duties to be governed, inter alia, by PR when exercising judicial review are parasitic upon a prior duty of legislators to enact only such laws which may be supported by PR. A normative thesis about PR should be distinguished from a descriptive proposition that judges—by virtue of specificity of their institutional design—may often be better suited to engage in moral-philosophical inquiry than the legislature (despite the formal, legal constraints that act upon the judiciary). Frank Michelman makes precisely such a moderate thesis: It is not as a matter of principle, but rather as a practical observation based on experience that we may conclude that “the judiciary … has some institutional advantage over other branches of government when it comes to deciding philosophical
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 4 /
Date: 11/7
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and Public Reason 341 questions” (Michelman 1999, 57). This may be because such “philosophical questions” related to constitutional interpretation often trigger complex, difficult, and subtle judgments. Judges may be better placed than legislators—who are far more exposed to conflicting pressures of preferences and demands of policy—to make such decisions. Such a comparative institutional judgment may be correct, depending on the specific institutional design of a system of judicial review in a given country (Michelman is focused on the US), but it is important to keep in mind the contingent and local nature of such a judgment.
B. MOTIVE-ORIENTED SCRUTINY IN CONSTITUTIONAL LAW In his work on proportionality, Aharon Barak observed that the legitimacy component of laws in a democracy “is made up of the proper purpose and the means to achieve that purpose, which limit the constitutional right in a proper manner” (Barak 2012, 245). That identification of “the proper purpose” is the irreducible starting point for the entire proportionality analysis, and it is at that stage that the PR ideal acquires its critical edge. As Mattias Kumm adds in defending proportionality analysis as giving expression to an ideal of PR: “the first prong of proportionality test provides a point of entry for the discussion of whether or not certain types of reasons are relevant in the context or should be excluded” (Kumm 2010, 160). This general idea is reflected in a family of doctrines which refer to “unconstitutional motives,”4 but motives understood in an “objectified” manner, as the most likely purposes/aims pursued by the legislator, and which if improper, taint the legislation as unconstitutional. According to some scholars of comparative constitutional law, the US constitutional model is typically “intent-based” as opposed to the European (“continental”) model which is said to be more “impact-based” (Cohen-Eliya and Porat 2013, 64–81). The impact orientation is said to reflect a low level of suspicion towards the government, as there is “less need to look for illicit or hidden intentions lying behind its actions” (Cohen-Eliya and Porat 2013, 65). In contrast, the US model of constitutional review—in particular, the review of constitutionality of restrictions on rights—is said to be mainly concerned with the intentions behind legislative action. This is reflected in the aspect of scrutiny which consists of finding out whether the legislator used the least restrictive means to achieve a constitutionally important purpose (the “necessity” test), thus revealing a high degree of distrust in legislative intentions or motives. The distinction between systems of judicial review focused on intent and those focused on effect is vastly overdrawn. The intent orientation is discernible both in the US model structured alongside different “levels of scrutiny” and in the European-style proportionality analysis where motives (purposes) of legislation coexist with effectcenteredness. However, it is helpful to begin this discussion with the American-style constitutional balancing because it is de rigeur in the constitutional literature to characterize it as an important “tool to smoke-out hidden illicit government motives” (Cohen-Eliya and Porat 2013, 68). This proposition is well supported by the case law of courts (including the Supreme Court) which inquire into possibly impermissible 4
For a good recent overview and discussion, see Petersen 2016.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
342 Comparative judicial review motives. This inquiry occurs not only in obvious areas such as freedom of expression (to determine, for instance, whether a restriction has been motivated by intolerance towards a disfavored opinion or protecting the authorities against criticism) or freedom of religion (to see whether the regulation has been enacted out of favoritism or hostility to a religion), but also in areas such as anti-discrimination law (to detect racial or gender prejudice as a possible motive for the law), the Dormant Commerce Clause (to strike down laws motivated by economic protectionism), the prohibition on bills of attainder (to see whether the laws, notwithstanding their formally non-penal character, have been triggered by punitive motives), and even the constitutional right to travel (to discern statutes enacted to serve the purpose of discouraging inter-state migration) (Nelson 2008, 1855–6). There is a clear connection between standards of review of laws and the call for public justification in terms of appropriate (i.e., public) reasons. The way in which US-style balancing can be used to flush out unconstitutional (but hidden) motives is normally illustrated by the use of “strict scrutiny” review over legislative intrusions of rights. Both its elements—searching for a compelling aim and for a close connection between the asserted aim and legislative means—may be properly seen as aimed at discerning (and, if found unconstitutional, disqualifying) the true legislative motives. Higher-than-usual scrutiny is normally justified by a suspicion that improper motives are at work. In a classic account provided by John Hart Ely, the flushing out of true motives through the use of a strict scrutiny operates in the following way: The “special scrutiny” that is afforded suspect classifications … insists that the classification in issue fit the goal invoked in its defense more closely than any alternative classification would. There is only one goal the classification is likely to fit that closely, however, and that is the goal the legislators actually had in mind. If that goal cannot be invoked because it is unconstitutional, the classification will fail. Thus, functionally, special scrutiny, in particular its demand for an essentially perfect fit, turns out to be a way of “flushing out” unconstitutional motivation …. (Ely 1980, 146)
Equivalents of the US strict scrutiny standard that serve the same function are present in other legal systems. For example, the High Court of Australia announced a doctrine of varying degrees of scrutiny required for different types of legislative restrictions on rights in a decision known as ACTV.5 Concerning the implied constitutional right of freedom of political communication, ACTV established that laws restricting “ideas or information” (as contrasted to laws merely restricting the “activity or mode of communication”) will require a “compelling justification” based in some significant competing public interest.6 Those laws must be minimally restrictive, or no more restrictive than is “reasonably necessary to achieve the protection” of that competing public interest.7 More recently, these terms were invoked in Hogan v. Hinch,8 where the Court acknowledged the distinction between “incidental” and “direct” burdens on communication, citing ACTV’s stricter standard of justification analysis to be applied in 5 6 7 8
Australian Capital Television Pty Ltd & NSW v. The Commonwealth (1992) 177 CLR 106. Id. at 143. Id. (2011) 243 CLR 506, 555.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 6 /
Date: 11/7
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and Public Reason 343 the case of the former. In ACTV, the Court had found that laws directly prohibiting or restricting political communication “will be much more difficult to justify.”9 This hierarchy of scrutiny levels focuses the court’s attention on the legitimacy of the purpose in pursuit of which the law was enacted. In the judgment by Chief Justice Mason in ACTV, a lack of proportionality between the measure and the alleged aim is a sign that a different, more invidious aim was at work: Where the impairment of free communication is “disproportionate to the attainment of the competing public interest,”10 that disproportionality will suggest that “the purpose and effect of the restriction is in fact to impair freedom of communication.”11 The relationship between differing standards of scrutiny and judicial review’s effort to flush out wrongful motives is visible also in the second aspect of strict scrutiny in the US version. Here, a requirement of asserting especially high importance purposes applies when a suspicion of illicit motives is justified. This seeks to prevent the situation where a law displays a strong connection between the means and the purpose (thus meeting the first requirement of narrow tailoring), but furthers a purpose so trivial that it warrants a suspicion that it serves as a disguise for another, less acceptable, one. This requirement of special importance of purposes justifying restriction of a right is present also in the Canadian jurisprudence under the Charter of Rights and Freedoms. Following a determination that a given law infringes the Charter (which is a preliminary step, not determinative of the outcome), the inquiry proceeds to a justification analysis. Here, it must be determined whether the limitation on the relevant right is a legitimate one. As far as the legitimacy of purposes is concerned, the test was formulated by Chief Justice Dickson with the unanimous support of the Supreme Court in R v. Oakes12—in order to justify a law found to infringe the Charter, the objective of the law must be of “sufficient importance to warrant overriding a constitutionally protected right or freedom.”13 That standard is met where the objective relates to “concerns which are pressing and substantial in a free and democratic society.”14 In Oakes, Chief Justice Dickson provided what has become a famous sample of the values of a “free and democratic society” which read very much like a catalogue of public reasons. These included “respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.”15 While in theory the requirement of special urgency of the purposes matches the task of flushing out improper motivations, in reality the test has rarely been treated as very demanding. As a result, this has weakened the test’s capacity for ascertaining true motives. In Canada laws will rarely fail to clear the hurdle of the justification analysis. “Rarely,” however, does not mean “never”—the landmark Canadian decision in R v. Big 9 10 11 12 13 14 15
(1992) 177 CLR 106, 169. Id. at 143. Id. at 144. R v. Oakes [1986] 1 SCR 103. [1986] 1 SCR 103, 138 (citing R v. Big M Drug Mart Ltd [1985] 1 SCR 295 at 352). Id. at 138–9. Id. at 136.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
344 Comparative judicial review M Drug Mart is a case in point.16 The legislation at issue was the federal Lord’s Day Act, which imposed a general prohibition on the performance of various forms of commercial activity on Sundays. The Court held that the Act, by its purpose, infringed upon the Charter-protected freedom of religion in Section 2(a). Justice Dickson conducted a detailed examination of the legislative history behind the Act to conclude that its object was to compel observance of the Christian Sabbath. Accordingly, a finding of “invalid purpose” was determinative at this stage of the analysis, without any need for consideration of the law’s effects. The Court was clear on this point, stating that “effects can never be relied upon to save legislation with an invalid purpose.”17 In the course of the judgment, Justice Dickson noted the value of a purpose-based analysis in ensuring adequate consideration is given to the protection of rights: “The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures they are consonant with the guarantees enshrined in the Charter.”18 While legislation can infringe the Charter by either its purpose or effects, Justice Dickson established the principle that an illegitimate purpose eliminates the need for any inquiry into the actual effects of the legislation—an enactment with an illegitimate purpose will be unconstitutional on that ground, and cannot thus be saved by its actual effects.19 As mentioned, the purpose scrutiny in Canada rarely results in the negative verdict. In his comparative analysis of the German and Canadian proportionality tests, Dieter Grimm considered it “quite instructive” that “almost no Canadian law fails because of an insufficient purpose” (Grimm 2007, 388). In Germany, the purpose of a law running this stage of the gauntlet of review need only qualify as “legitimate”—it must simply be a purpose that is not prohibited under the Constitution. The importance of the purpose is not considered until a later stage of the analysis. For this reason, it is very rare for a law to fail this initial step. The main function of this analysis thus becomes to “eliminate the small number of runaway cases.”20 But it does not follow that German constitutional judges are always deferential towards the purposes cited by the legislator.21 Consider a remarkable dissenting opinion by Justice Hassemer in the Prohibition of Incest decision of the Federal Constitutional Court in 2008.22 In this case, the Court upheld the prohibition of incest based on a bundle of purposes: to protect “the family order,” to protect the “subordinate partner” of an incestuous relationship, and to prevent genetic diseases of children born in these relationships.23 Importantly, the Court found that these various purposes (which it dubbed nachvollziehbarer, roughly translatable as “rationally intelligible”) corresponded to Rechtsgüter (rights-based interests). Additionally, the 16
[1985] 1 SCR 295. Id. at 334. 18 Id. at 331–2. 19 Id. at 334. 20 Id. at 388–9. 21 See, e.g., the Monopoly in Sport Betting (Sportwettenmonopol) case of March 28, 2008, BVerfG v. 28.03.2006, 1 BvR 1054/01. 22 BVerfG v. 25.02.2008, 2 BvR 392/07, BVerfGE 120, 224. There is no official English translation provided by the Court. 23 Id. at ¶¶ 41–50. 17
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 8 /
Date: 11/7
JOBNAME: Delaney PAGE: 9 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and Public Reason 345 Court factored in societal condemnation in favor of penalization of incest. The Court explained that the legislator may legitimately mirror in criminal law a socially funded Unrechtsbewusstsein (awareness of a wrong).24 In his dissent, Justice Hassemer methodically debunked each of the three Rechtsgüter-based purposes (showing that there is no rational connection between the criminal prohibition, as crafted in the code, and any of these purposes). However, he reserved special criticism for the argument about the law mirroring conventional morality about wrongness of certain acts: “Maintaining a societal consensus concerning value judgments … cannot … serve as a justification for a criminal norm … Strengthening of morality can only function as an indirect aim and result of a just, clear, rational and coherent criminal justice system.”25 This passage reads much like the German equivalent of the US-style rejection of laws which merely reproduce social prejudices.26
C. EVIDENTIARY DIFFICULTIES A frequent argument against motive-oriented judicial scrutiny, an argument which would erode a possibility of PR doctrine of judicial review, is about an asserted evidentiary difficulty of discerning the motives (real or “objectified”) of lawmakers. But this difficulty is a contingent matter, varying case by case. Consider a gerrymandering example from the US where a redistricting plan resulted in significant dilution of the voting strength of a particular racial group that had been discriminated against in its ability to vote. This was precisely what occurred in the 2006 League of United Latin Am. Citizens v. Perry case.27 In this matter, the US Supreme Court reviewed a redistricting plan in Texas, implemented after Republicans gained control of the state legislature, which resulted in significant changes to a Latino-majority district. As Justice Stevens declared in his dissent, “the narrow question presented by the statewide challenge in this litigation [was] whether the State’s decision to draw the map in the first place, when it was under no legal obligation to do so, was permissible.”28 In answering that question, Justice Stevens suggested: “It is undeniable that identifying the motive for making that basic decision is a readily manageable task.”29 Furthermore, to emphasize that it was particularly easy to determine the motives in this case, Justice Stevens added: “The conclusion that courts can easily identify the motive for redistricting … is reinforced by the record in this very case. The District Court 24
Id. at ¶ 51. Id. at ¶ 100. 26 It has long been established in the US Supreme Court’s jurisprudence that animus towards unpopular groups cannot be the basis for a legal measure. See e.g., Romer v. Evans, 517 U.S. 620, 634 (1996) (Justice Kennedy asserting with disapproval that the law under scrutiny was “born of animosity toward the class of persons affected”); see also Palmer v. Thompson, 403 U.S. 217, 224, 226 (1971) (“Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility …”). 27 548 U.S. 399 (2006). 28 Id. at 457 (Stevens, J., concurring in part and dissenting in part). 29 Id. (italics added). 25
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 9 /
Date: 11/7
JOBNAME: Delaney PAGE: 10 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
346 Comparative judicial review unambiguously identified the sole purpose behind the decision to promulgate [the new plan]: a desire to maximize partisan advantage.”30 Outside US constitutionalism, inquiries into the motives for legislative action have been found to be relatively unhindered by evidentiary difficulties. While German constitutional scholar Niels Petersen may be right in stating, in general, that “[d]enying the legitimacy of the purpose requires courts to second-guess legislative policy goals” (Petersen 2017), nevertheless, in some cases such “second-guessing” is well founded and eminently plausible. Consider the recent Canadian case of Mounted Police Association of Ontario v. Canada.31 This was one of a few cases in which the Supreme Court of Canada found that the purpose of an impugned act was to contravene the Charter. At issue was a statute which regulated public servants’ participation in employee associations. By virtue of the narrowed definition of “employee” for the purposes of that act, members of the Royal Canadian Mounted Police (RCMP) were prohibited from collective bargaining and confined to a non-unionized labor relations regime. Delivering the judgment for the majority, Chief Justice McLachlin and Justice LeBel examined the history of labor relations within the RCMP, which revealed sustained hostility on the part of the Canadian government and RCMP management towards unionization by members of the force. This, in turn, suggested that a clear purpose in the government’s act was “to prevent the formation of independent RCMP members’ associations for the purposes of collective bargaining.”32 The legislation was, for that reason, directly contrary to the freedom of association under Section 2(d) of the Charter.33 No insurmountable evidentiary problems were encountered by the judges in their purpose analysis. These examples do not seek to state that ascertainment of the purpose or the motive will always be easy and that the res ipsa loquitur standard will always point to a single, determinate purpose. As a leading Canadian constitutional scholar said while ruminating about the Supreme Court’s role in identifying legislative objectives: “At the practical level, the objective of the legislators in enacting the challenged law may be unknown,” but Canadian courts “usually assume that the statute itself reveals its objective, and they may pronounce confidently on the point even if there is no supporting evidence” (Hogg 2010, section 38-19). The problem is, the statute will often not “reveal its objective” in a determinate way. Consider the Canadian Supreme Court’s decision in Sauvé v. Canada,34 concerning whether the denial of the right to vote to certain categories of prisoners violated Section 3 of the Canadian Charter. Taking issue with the government’s attempt to frame its objectives in broad and symbolic terms (such as civic responsibility and general purposes of criminal sanctions), Chief Justice McLachlin (writing for the majority) noted that “Parliament cannot use lofty objectives to shield legislation from Charter scrutiny.”35 Nonetheless, on the basis of no more than “some glimmer of light,” as the trial judge had put it, Chief Justice McLachlin was, 30 31 32 33 34 35
548 U.S. at 458 (Stevens J., concurring in part and dissenting in part). Mounted Police Association of Ontario v. Canada (Attorney General) [2015] SCC 1. Id. at [110]. Id. at [107]–[110]. [2002] 3 SCR 519. Id. at 538.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 10 /
Date: 11/7
JOBNAME: Delaney PAGE: 11 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and Public Reason 347 grudgingly, prepared to accept these objectives,36 and proceeded to the proportionality analysis in the name of prudence. In this instance, the law failed all the tiers of the proportionality test.
D. HARMONIZING MOTIVE- AND EFFECTS-ORIENTED SCRUTINY The contrast between motive- and effects-oriented scrutiny should not be overstated. Judicial pronouncements which affirm the importance of motive inquiry are usually accompanied by a finding of wrongful effects—for instance, of the disparate impact upon various categories of citizens. But this is not necessarily embarrassing to a theory of PR as an explanation of these cases because there are various ways of harmonizing these two strands of inquiry. One way is to view the effects as a threshold for a subsequent inquiry into motives, which then completes the argument about unconstitutionality. Another way of harmonization may be to understand effects as indicators of the most likely motives. In this case, effects act as an evidence of motive, with the latter being the true cornerstone of unconstitutionality. Such an inference from the effects to the motive is based on general empirical knowledge of the world: We know that some effects are usually triggered by some types of motives. In addition, the substance of a law, combined with the anticipation of its likely effects, will usually constitute an important aid in discerning motives. This is essential when we are uncertain as to the most likely motive within a range of motives—of varying importance and validity—which may have affected the adoption of a statute. As US Supreme Court Justice Kennedy noted in delivering the opinion of the Court in League of United Latin American Citizens v. Perry: “We should be skeptical … of a claim that seeks to invalidate a statute based on a legislature’s unlawful motive but does so without reference to the content of the legislation enacted.”37 In judicial argument, the line between these different patterns of harmonization may be blurred. However, this does not upset an argument that, at least at times, judges implement (sans le nom) a PR-based theory whereby illicit motives (accompanied by troublesome effects) taint a regulation as unconstitutional.38 And I am making this proposition deliberately weak because I do not suggest that judicial scrutiny into motives or purposes will always be appropriate. In fact, often the effect-based inquiry is all that matters because, judging from the effects, even a prima facie suspicion does not exist that illicit motives may have been at work. In such cases, a showing of a constitutional violation via the effects path is all that is needed. In Vriend v. Alberta,39 the Canadian Supreme Court considered a challenge mounted by a former laboratory coordinator at a Christian school following the termination of his employment in 36 37 38
Id. at 540. 548 U.S. 399, 418 (2006). Of course, not every motive-oriented inquiry may be characterized as based on the ideal of
PR. 39
[1998] 1 SCR 493.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 11 /
Date: 11/7
JOBNAME: Delaney PAGE: 12 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
348 Comparative judicial review accordance with a school policy against hiring homosexuals. Mr. Vriend initially sought redress before the Alberta Human Rights Commission. However, the Commission declined to take any action on the basis that the Alberta Individual’s Rights Protection Act did not include sexual orientation as a prohibited ground of discrimination. The legislation was challenged as inconsistent with Section 15 of the Canadian Charter (equality before the law and prohibition of discrimination), and ultimately came before the Supreme Court. The majority judgment on this issue noted that it was “unnecessary to decide” whether the legislature had such a purpose, given that “a finding of discrimination does not depend on an invidious, discriminatory intent.” That is, the discriminatory effects of the legislation were—in themselves—sufficient to invalidate.40 But one must not protest too much. When legal scholar Calvin Massey claims: “Because it is the real world effects of government action that harm or help people, the default criterion for assessing constitutional validity should be the effects of the challenged government action” (Massey 2007, 3), a red light alert flashes for proponents of the idea of PR. Wrongful motives, when triggering legislation, also “harm people.” We may adopt a default rule, as suggested by Massey, in the sense that it is usually easier to proceed via the effects path, and if we reach a verdict of unconstitutionality, it is the end of the story. But it is not the end of the story if we encounter a suspicion of wrongful motives along the way, regardless of whether we like the effects or not.
E. PUBLIC REASON INQUIRY AND CLASH OF THE JUDICIARY WITH THE LEGISLATURE An important theme in arguing against the motive- (or purpose-) based constitutional inquiry, which would be a powerful argument against a PR conception of judicial review, is that such a scrutiny dramatizes the clash between the judicial and legislative branch. Such scrutiny, an argument goes, is an objectionable form of judicial activism and incompatible with proper respect for the legislature. In his classic article on the subject, Laurence Tribe tried to carefully demarcate between areas where judicial inquiry into possibly illicit motivations may be justified (the areas which he defined as “legislative actions distributing benefits or opportunities”) as opposed to areas where motive inquiry should be avoided, or at least where there should be a strong presumption against such generalized use of motive-based scrutiny (“legislative actions laying down general rules of conduct, or creating governmental institutions or practices”) (Tribe 1994, 22). Quite apart from the question of whether such a bifurcated approach is workable, and whether these two realms can be distinguished from each other (something which is questionable, but which I will put to one side here), it is unclear why the second (and arguably, more important) category of cases should be immunized from a motive scrutiny. Tribe suggests that “[r]espect for the Congress as a coordinate branch, and for the sovereign state legislatures, is difficult to reconcile” with the use of judicial review in a 40
Id. at 546–7.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 12 /
Date: 11/7
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and Public Reason 349 way similar to the “exclusionary rule”—that is, by deeming statutes unconstitutional if they were tainted by a legislature’s illicit motivation (Tribe 1994, 25). It is therefore an argument from the separation of powers, judicial deference, and proper respect for the legislature. Tribe is not alone in thinking that motive inquiry amplifies the conflict between branches of government. As Theodore Eisenberg observed, “[i]nterbranch tensions increase when judges examine official decisionmakers’ motives” (Eisenberg 1978, 1148). The argument has some force, and occasionally motive-based scrutiny is criticized precisely on that ground, including by some judges.41 But this criticism goes only so far. If someone already accepts an overall system of judicial review of democratically enacted legislation—and such acceptance hinges, of course, on arguments unrelated to the motive/effects issue—it is hard to imagine a better candidate for judicial scrutiny and the judicial reprimand than the illicit motives or unconstitutional purposes that the legislature may wish to pursue. And it is unclear why a motivescrutiny would be more intrusive into the legislature’s position or more disrespectful of the lawmakers than the scrutiny regarding the effects. An opponent of PR theory of judicial review might suggest that an inquiry into the effects may, at worst, detect a legislative error while an inquiry into the legislative motivations may lead to questioning of the legislator’s honesty or integrity.42 But this unnecessarily over-dramatizes the distinction. There may be minor faults in motivations and major errors in effects: The effect/motivation distinction does not correlate neatly with the degree of gravity of unconstitutionality. Furthermore, as we saw before, effects and motives are often so “harmonized” with each other that a distinction between a “mere” error and grave dishonesty simply does not make sense. Finally, if an inquiry into motives occasionally results in identifying something disingenuous or dishonest about the legislator, so be it. Candor in public life requires us to admit that such things happen, and we need to have institutional means of remedying and preventing legislative transgressions. When we think about the laws which strike us intuitively as motivated by particularly improper, non-public reasons, be they sectarianism, selfishness, or prejudice, “against the grounds for nonintervention [we] must set the interests favoring judicial invalidation on an illicitly motivated legislative act—the injury and insult felt by those at whom it is aimed …” (Brest 1971, 130). This is the most important point of the present argument: Illicit motivations should be seen as a sufficient ground for invalidation. Without more, they taint the legislation as reprehensible and as expressing a lack of respect for certain groups of people who cannot endorse, or cannot seem to be equally included by, the legislation in question. So while there may be various ways of “harmonizing” motive- and effect-oriented inquiry, with the latter usually serving as a reliable indicator of the former, a detection of illicit motives (with or without an appeal to effects) should be seen as a sufficient 41 See, e.g., De La Cruz v. Tormey, 582 F.2d 45, 72 (9th Cir. 1978) (Wallace, J., dissenting) (“[W]henever the federal judiciary begins to probe the motives of state officials or members of the coordinate branches of the federal government, serious questions arise about whether the constitutionally prescribed limits of the judicial branch have been exceeded”). Judge Wallace characterized it as the “most substantial” of his objections against a motive-oriented judicial scrutiny. Id. at 71–2. 42 See Brest 1971, 129 (“[A] finding of illicit motivation is tantamount to an accusation that the decisionmaker violated his constitutional oath of office”).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 13 /
Date: 11/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
350 Comparative judicial review ground for invalidation. After all, “[r]easons … matter—so much so that they should matter even when the actions they motivate produce no discernible change in material circumstances” (Pildes 1994, 727). This last sentence is taken from a classical article by Richard Pildes, which provides a theory of constitutional adjudication in contrast to a balancing-of-rights account. According to Pildes, the US Supreme Court can be seen as engaging in a two-step inquiry: first defining boundaries between different spheres of authority, and then articulating the appropriate principles that legitimize state action within a particular sphere under scrutiny. In the latter step, what is crucial for the Court is to see which principles—in other words, which purposes for state action—are appropriate to a given sphere and which constitute excluded reasons. The latter principles would include purposes which, considering the proper collective understanding of a given sphere, must not figure in the justification of state action. Excluded reasons operate very much like Raz’s exclusionary reasons: reasons not to act on certain reasons which are pre-empted by acceptable meanings of a given sphere of state authority, which makes them analogous to PR. Identifying the excluded reasons in particular spheres of authority scrutinized by the Court or, in Pildes’ words, “recognizing that certain reasons are simply excluded from being acceptable bases for action” (Pildes 1994, 714), is often only implicit in the Court’s reasoning, but no less significant. Consider one particular case study provided by Pildes regarding voting rights. Pildes compared two of the central US cases in this area, which at first sight may seem inconsistent in method and in substance: Lassiter v. Northampton County Board of Elections43 and Harper v. Virginia Board of Elections.44 In Lassiter, the Court upheld a literacy test as a condition of the franchise; in Harper, seven years later, the Court struck down a requirement to pay state poll taxes as conditioning an exercise of the right to vote. Pildes explains the Court’s seemingly disparate reasoning by reference to the proper understanding of a social practice in a given sphere and the resulting implications for excluded (or approved) reasons. He states: “Literacy tests and poll taxes differ, in the Court’s view, precisely because they rest on different justifications and reflect different theories about the nature of voting” (Pildes 1994, 743). In Lassiter, Pildes claims, “[t]he justification for literacy tests is that they help define a political community with the relevant competence for political participation” (Pildes 1994, 743). However, in Harper, “the very justification for poll taxes is in itself the obstacle to their constitutionality” (Pildes 1994, 744; italics added). The same conception of the nature of voting, and of the political community, may support both decisions. This is because, in one case, the justification is found as continuous with the broader theory of voting which may appeal to properly public reasons (my observation, not Pildes’s). In the second, it is contrary to it. Of course, we may always disagree about the substance and moral value of a particular reason and its relevance to the broader nature of a particular constitutional practice. But we may at the same time agree that some connection between such a motivating reason and the outcome is crucial to the finding of (un)constitutionality— which is the main point of the PR-based theory of judicial review. 43 44
360 U.S. 45 (1959). 383 U.S. 663 (1966).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and Public Reason 351
F. A CASE STUDY: PUBLIC REASON AND THE LAW OF STATE AND RELIGION It is not surprising that the most attractive examples of PR at work in judicial review are found in cases concerning the relationship between law and religion (either through the lens of religious freedom or of non-establishment of any religion by the state). After all, religion is a paradigmatic (though not the only) case of a sectarian creed—a “comprehensive” conception which does not find itself in an “overlapping consensus” (Rawls 1993, 133–72), and which should not motivate a law in a liberal-democratic state. A prohibition on religiously motivated laws is thus a clear implication of PR as implemented through judicial review aimed at eliminating laws triggered by “nonpublic” reasons. This motive aspect is clear, for instance, in the very textual formulation of the Australian Constitution, which precludes federal authorities from making any law “for establishing any religion,” “for imposing any religious observance,” or “for prohibiting the free exercise of any religion.”45 Under a textual-formalistic approach, which is dominant in Australian constitutional review, it was relatively easy for the High Court of Australia to interpret the clauses in a way which underlined the centrality of the purpose.46 In the United States, where the First Amendment religion clauses on their face do not carry such an explicit motive orientation, the Supreme Court has written in the illicit purpose as a criterion of unconstitutionality. One of the main doctrines in the Court’s jurisprudence on separation of state and religion is the “Lemon test.” In Lemon v. Kurtzman,47 the Court established a test for determining if a state violated the non-establishment of religion requirement of the First Amendment. One component of the test is that state law must have a secular purpose. Notwithstanding a categorical phrasing of a secular purpose requirement, scholars have observed that “[t]he existence of a purpose to aid religion will not itself doom a law so long as a legitimate public welfare purpose can be invoked to support it” (Barron and Dienes 1993, 411, italics added). Another commentator summarizes the current doctrine of the Court in the following way:
45
AUSTRALIAN CONSTITUTION § 116 (italics added). Note that the section includes a fourth prohibition on religious tests as a qualification for any office or public trust. 46 A good example is Kruger v. Commonwealth (1997) 190 CLR 1 (known as the “Stolen Generations Case”). The case concerned Northern Territory legislation authorizing the forced removal of Australian Aboriginal and Torres Strait Islander children from their families. One of the plaintiffs’ claims was that the law’s purpose was to stop the Aboriginal children from participating in community cultural and religious practices, which would directly offend Section 116 of the Constitution of Australia. The claim was eventually unsuccessful but the purposerelated scrutiny played an important role in the judges’ opinions. For instance, Justice Toohey recognized the possibility that the purpose of the impugned ordinance could have been to “impair, even prohibit the spiritual beliefs and practices of the Aboriginal people in the Northern Territory.” However, he found that the language of the law itself did not reveal any such purpose, and had received no further evidence on this question. 47 403 U.S. 602 (1971).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 15 /
Date: 11/7
JOBNAME: Delaney PAGE: 16 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
352 Comparative judicial review [V]oters and legislators can refer to their religious views to explain their actions, and those references do not in themselves make their actions unconstitutional. All the Supreme Court requires is that there is a secular justification available for their actions, even if the legislators do not actually have that justification in mind when they act. (Tushnet 1999, 77)
This formula is useful to PR theory insofar as it shows how the purpose, or motive, of legislative action is taken to be “objectified” rather than being viewed as a subjective set of legislative intentions. In this way, it is illustrative of Rawls’s “Proviso,” which allowed for the presence of “comprehensive” doctrines in arguments about the law insofar as proper public reasons can be provided for the law.48 The purpose/motive orientation is also evident in the German Federal Constitutional Court’s case law on the separation of state and religion. In the German constitutional parlance, this is expressed as the general principle of religiös-weltanschauliche Neutralität—“neutrality” towards religion and worldviews. The Court construes this principle in a manner that is not “strict” (which would correspond to the “wall of separation” or laicité-like interpretation) but rather “supportive” or “open.” This approach lends itself to the state’s cooperation with various religions, as long as they are not endorsed and respect the non-discrimination principle. What this cryptic formula means in practice can only be ascertained from an analysis of key cases in this area. The Crucifix decision of 1995 was one of the Court’s most controversial decisions.49 The Court found that the Bavarian practice of hanging crosses in the classrooms of public schools was an infringement of the “negative” freedom of religion of nonChristian students. The judgment lends itself to two different (though mutually compatible) readings: an effects-oriented reading which emphasizes the impact that crosses in the classrooms have upon non-Christian students, and a legislative motives reading that directly aligns itself with the main argument of the PR conception of judicial review. The state government of Bavaria defended the law on the basis that the cross was not an expression of any faith but an essential part of the tradition and culture. They argued that the task of public schools was to teach students values crucially influenced by common Christian tradition, which have become the common heritage of Western culture. However, the Court rejected that characterization of the purposes behind the law, emphasizing that such a perspective would erode rather than celebrate the cross’s religious meaning. As the Court said: The cross is still one of the religious symbols, which is specific to Christianity. In fact, it is the main religious symbol … It would be a profanation of the cross and contrary to the self-understanding of Christianity and the Christian churches if one considered it … as a mere expression of Western tradition or as a cult-like symbol without any religious significance.50 48
Rawls defines it as the “requirement” which “allows us to introduce into political discussion at any time our comprehensive doctrine, religious or nonreligious, provided that, in due course, we give properly public reasons to support the principles and policies our comprehensive doctrine is said to support” (Rawls 1999, 144). 49 BVerfG v. 16.5.1995, 1 BvR 1087/91—Kruzifix [FCC of 16 May 1995, 1 BvR 1087/91— Crucifix]; BVerfGE 93, 1. There is no official English translation provided by the Court. 50 BVerfGE 93 at 19–20.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 16 /
Date: 15/8
JOBNAME: Delaney PAGE: 17 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and Public Reason 353 Note the remarkable irony in this argument. In defense of the religious neutrality of the state, the Court appeared to adopt a position internal to the religion, and defended the main religious symbol of Christianity against a possible trivialization by its widespread usage within a secular setting. In contrast, in order to defend the widespread presence of the religious symbol, the state legislator underplayed its essentially religious connotation and characterized the cross in general, rather anodyne, social-cultural terms. Viewing the matter through the scope of the illegitimate motive analysis, the argument is clear: The shape of Bavarian law revealed an intention to impose some specific religious symbolism upon all, including those who do not espouse this religion—and that legislative purpose violates the constitutional principle of neutrality.
G. CONCLUSIONS AND THE AGENDA FOR FURTHER RESEARCH The general idea that exercises of public power are legitimate only when based on truly “public” reasons and that reasons which are inadmissible taint an authoritative directive with illegitimacy can be translated into a constitutional doctrine under which improper legislative motives or purposes contaminate a law with unconstitutionality, even if we may approve of the effects of such laws. The question of which motives and purposes should be considered improper is supplied by a conception of PR: a typically liberal conception of legitimacy which proposes that exercises of coercive power over individuals are only legitimate when based on the reasons which are endorsable, or at least non-rejectable, by those to whom the coercion applies. This is the fundamental point of this chapter, but it relies itself on prior fundamental rationales for adopting the idea of PR in the first place. I have not undertaken such a defense of the conception here. I have argued elsewhere that while, at the most general level, the ideal of PR expresses the fundamental value of respect for persons, respect itself is too vague and thin a value to sustain a political ideal as weighty as PR (Sadurski 2014). Respect has to be seen as part of a constellation of values, of which freedom and equal citizenship are of particular importance. Each of these values enhances our political life, and can be explained in terms of another value: They are in a mutually supportive, interlocking, integrated scheme of political values, where each value is understood and appreciated by reference to the others.51 This idea resonates with a constitutional doctrine which calls for invalidation of laws tainted by wrong (i.e., unconstitutional) motives. Thus, PR may be a useful tool in identifying which motives should be found unconstitutional. However, any scrutiny which relies upon the second-guessing of actual legislative motives is potentially unworkable. Hence, what is needed is an “objectified” approach to the motives, which can be determined through reasonableness analysis by arguing from the effects back to (the most likely) motives. This is especially necessary when we do not have reliable evidence of the legislature’s actual motives. But, as the case law of a number of 51
For a concept of “integrated scheme of political values,” see Dworkin 2004, 14–18.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 17 /
Date: 11/7
JOBNAME: Delaney PAGE: 18 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
354 Comparative judicial review constitutional courts around the world shows, there are limits to the arbitrary “manufacturing” of reasons. The value of PR is not only in the scrutiny of laws already enacted, but also as an appeal to lawmakers (including citizens acting as “popular legislators”) that only some types of arguments should be used in public discourse— namely arguments that can be endorsed by those who do not necessarily agree with the specific merits of the proposal. Having said this, one must admit that the theory of PR is highly controversial. The controversy is not only about the contested nature of the PR idea itself (something that, due to the subject matter of this chapter, I have put to one side), but also for reasons specific to judicial review. After all, while PR is primarily a philosophical conception, judges operate within the language, idioms, canons, and constraints of the law. Judicial opinions are not philosophical essays, and much is lost in translation from one language to the other.52 Some scholars fundamentally reject the idea that judges have the opportunity to carry on a moral-philosophical analysis of the kind required by the conception of PR. They argue that judges are too constrained by legal-technical considerations, such as “jurisdiction, precedent, consistency, authorization, distinguishability, separation of doctrine from dicta, canons of construction, and so on” (Zurn 2007, 184; see also Waldron 2007). I have already alluded to this criticism in Section A and indicated that it is overdrawn. It is one thing to say that judges act under a large number of formal, technical constraints on their argument and another to claim, implausibly, that those constraints are so powerful that they eliminate altogether the space for giving effect to their moral and political conceptions under the guise of interpreting vague constitutional provisions. But such a notion clearly indicates an important field for further research: how to discern and measure the PR factor in judicial opinions infused as they are with technical-legal arguments about canonical sources for judicial reasoning. Two other areas for further research can be articulated more briefly. The second flows directly from the one just described. As all constitutional judicial review is not performed by the same type of courts, the question is whether there exists any direct correlation between courts’ opportunity to conduct review in terms of PR and the institutional model of judicial review. The most important distinction, among various institutional models, is that between a “concrete” and “abstract” judicial review. The former occurs as part of the regular adjudication of a case between parties while the latter is conducted in abstracto, by a specialized constitutional court. An opinion may be ventured that specialized constitutional courts conducting an abstract review are better suited to engage in moral-philosophical arguments (including the one matching requirements of PR) than courts which are at the apex of a system of regular adjudication and conduct constitutional review only as an incidental effect of hearing cases. As Christopher Zurn hypothesized, a Kelsenian-style court with the power of abstract review “and perhaps even adjudicating without the legalistic requirements of common-law jurisprudence … could better exemplify, represent, and/or communicate in the public language of fundamental moral-political principles …” (Zurn 2007, 214). But while such a hypothesis may sound eminently plausible in theory, the actual comparison of different courts around the world does not support such a proposition. 52
Indeed, whether translations should and can be done is a matter of ongoing controversy.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 18 /
Date: 11/7
JOBNAME: Delaney PAGE: 19 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and Public Reason 355 Some concrete review courts (e.g., the US, Canada, and India) are by and large more “moral-philosophical” in the style of their publicly delivered argument than some abstract review courts (e.g., France and Italy). Clearly there are many other institutional variables which determine the capacity and willingness of courts to engage in this type of argument—identifying these variables is an important research challenge for a theory of PR-based judicial review. The final field for further study concerns judicial review conducted by supranational courts, especially regional human rights courts (such as the European and InterAmerican courts), but also other supranational judicial or quasi-judicial bodies (such as the Appellate Body of the World Trade Organization). In a recent article, I suggested that we could stipulate “supranational public reason” as a set of rules and standards emerging beyond national borders, which constitute the basis for supranational courts and tribunals exercising scrutiny over the reasons provided by national legislatures for their laws (Sadurski 2015). The European Court of Human Rights is a particularly good example because of the combination of: (1) a list of grounds for legitimate restrictions of some of the Convention’s rights (which sounds much like a catalogue of public reasons); and (2) its canonical proportionality analysis in which scrutiny of legislative purposes plays a separate and important step in the enquiry. To be sure, the Court extremely rarely finds a breach of a right on the basis of illegitimate purpose but, as we saw earlier, this is symptomatic of many national constitutional courts as well (including Canada and Germany). However, this idea of supranational PR is deeply controversial because all the difficulties in identifying a proper overlapping consensus of values at a national level are amplified in a supranational sphere. In light of this, can we reliably extrapolate the “national” PR-based judicial review as an account or as an ideal (or both) upon the normative sphere beyond borders?
REFERENCES Barak, Aharon. 2012. Proportionality: Constitutional Rights and their Limitations. Cambridge: Cambridge University Press. Barron, Jerome A. and C. Thomas Dienes. 1993. First Amendment Law in a Nutshell. St. Paul, MN: West Publishing. Brest, Paul. “Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive.” Supreme Court Review 1971: 95–146. Cohen-Eliya, Moshe and Iddo Porat. 2013. Proportionality and Constitutional Culture. Cambridge: Cambridge University Press. Dworkin, Ronald. 2004. “Hart’s Postscript and the Character of Political Philosophy.” Oxford Journal of Legal Studies 34: 1–37. Dworkin, Ronald. 2006a. Is Democracy Possible Here? Princeton, NJ: Princeton University Press. Dworkin, Ronald. 2006b. Justice in Robes. Cambridge, MA: Harvard University Press. Eberle, Christopher J. 2013. Religious Conviction in Liberal Politics. Cambridge: Cambridge University Press. Eisenberg, Theodore. 1978. “Reflections on a Unified Theory of Motive.” San Diego Law Review 15: 1147–53. Ely, John Hart. 1980. Democracy and Distrust. Cambridge, MA: Harvard University Press. Freeman, Samuel. 2004. “Public Reason and Political Justification.” Fordham Law Review 72: 2021–72. Grimm, Dieter. 2007. “Proportionality in Canadian and German Constitutional Jurisprudence.” University of Toronto Law Journal 57: 383–98. Hogg, Peter W. 2010. Constitutional Law of Canada, student ed. Toronto: Carswell.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 19 /
Date: 11/7
JOBNAME: Delaney PAGE: 20 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
356 Comparative judicial review Kumm, Mattias. 2010. “The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review.” Law & Ethics of Human Rights 4: 142–75. Kymlicka, Will. 2001. Politics in the Vernacular. Oxford: Oxford University Press. Massey, Calvin. 2007. “The Role of Governmental Purpose in Constitutional Judicial Review.” South Carolina Law Review 59: 1–60. Michelman, Frank I. 1999. Brennan and Democracy. Princeton, NJ: Princeton University Press. Mill, John Stuart. 1859. On Liberty. Nelson, Caleb. 2008. “Judicial Review of Legislative Purpose.” New York University Law Review 83: 1784–882. Otter, Ronald C. Den. 2009. Judicial Review in an Age of Moral Pluralism. Cambridge: Cambridge University Press. Petersen, Niels. 2016. “Legislative Inconsistency and the ‘Smoking Out’ of Illicit Motives.” American Journal of Comparative Law 64: 121–46 Petersen, Niels. 2017. Proportionality and Judicial Activism. Cambridge: Cambridge University Press. Pildes, Richard H. 1994. “Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law.” Hastings Law Journal 45: 711–51. Rawls, John. 1993. Political Liberalism. New York, NY: Columbia University Press. Rawls, John. 1999. “The Idea of Public Reason Revisited.” In The Law of Peoples. Cambridge, MA: Harvard University Press. Raz, Joseph. 1999. Practical Reasons and Norms. Oxford: Oxford University Press. Sadurski, Wojciech. 2014. “The Idea of Public Reason Re-Revisited: Common Good and Respect for Persons.” Rivista di filosofia del diritto 2: 377–98. Sadurski, Wojciech. 2015. “Supranational Public Reason: On Legitimacy of Supranational Norm-Producing Authorities.” Global Constitutionalism 4: 396–427. Tribe, Laurence H. 1994. “The Mystery of Motive, Private and Public: Some Thoughts Inspired by the Problems of Hate Crime and Animal Sacrifice.” Supreme Court Review 1993: 1–36. Tushnet, Mark. 1999. Taking the Constitution Away from the Courts. Princeton, NJ: Princeton University Press. Waldron, Jeremy. 2007. “Public Reason and ‘Justification’ in the Courtroom.” Journal of Law, Philosophy and Culture 1: 107–34. Zurn, Christopher F. 2007. Deliberative Democracy and the Institutions of Judicial Review. Cambridge: Cambridge University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 17_Chapter17_ts
/Pg. Position: 20 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
18. Pockets of proportionality: choice and necessity, doctrine and principle Vicki C. Jackson*
Proportionality is both a specific doctrine, a general principle, and a goal of good government (Jackson 2015, 3098). As a set of tests to be applied in evaluating claims of rights violations, proportionality doctrine has been widely embraced by constitutional and supreme courts in many parts of the world, as well as by international human rights courts including the European Court of Human Rights.1 After providing some background on proportionality doctrine in Section A, this chapter focuses on a small number of cases in Canada, the United States, and Australia to explore the differences between proportionality as a doctrine and proportionality as a principle. Section B considers whether proportionality as an approach is experienced by judges as a choice or a necessity. Section C explores a potentially significant analytical difference that exists between the principle of proportionality and the doctrine of proportionality review.
A. BACKGROUND: PROPORTIONALITY AS DOCTRINE Proportionality doctrine is an approach to resolving a host of constitutional or human rights issues involving non-categorical standards. Many constitutional rights are expressed in the language of a principle, or standard, that lacks definitive boundaries. Think here of the difference between a constitutional right to have a felony prosecution proceed by way of grand jury indictment—a pretty definite, categorical requirement that can be analyzed in more or less binary terms—and the right to be free from “unreasonable” searches or seizures, which is a principle, or standard, that cannot be concretized easily outside of the diverse factual settings in which a question arises. Proportionality doctrine is widely used in the public law courts of constitutional democracies. Canada and Germany are two leading jurisdictions in this regard. I will take Canadian doctrine as an example. Proportionality as a doctrine in Canada was first fully articulated in the Canadian Supreme Court within four years of Canada’s adopting a constitutional Charter of Rights and Freedoms. In R. v. Oakes,2 Chief Justice Dickson elaborated on the meaning * With thanks to Rosalind Dixon and Mark Tushnet for helpful comments and to Kári Ragnarsson, Harvard SJD expected, for his excellent research assistance. 1 See Jackson 2015, 3098–9, n.22; Barak 2012, 179–206, 208–10 (discussing proportionality review in Germany, Canada, Israel, the European Court of Human Rights, and the European Court of Justice, as well as in Ireland, England, New Zealand, Australia, South Africa, Central and Eastern Europe, Asia, and South America); see also de Búrca 1993, 113. 2 [1986] 1 S.C.R. 103.
357
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
358 Comparative judicial review of Charter Section 1. That section provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”3 In Oakes, Chief Justice Dickson emphasized that Section 1 is both a guarantee of rights and freedoms and a measure to determine the bounds of appropriate limits on those rights and freedoms within the parameter of what are “reasonable limits” that can be “demonstrably justified in a free and democratic society.” Chief Justice Dickson then described the steps in analysis for defining the acceptable limits on those rights, establishing what is now known as the Oakes test: Once an intrusion on rights protected by the Charter is identified, the government must show that the purpose of the intrusion was sufficiently important to justify infringing rights, and that the means chosen are rational, minimally impairing of the right, and proportional as such.4 The Oakes test has remained a staple of Canadian rights jurisprudence to this day. A useful elaboration is found in Newfoundland (Treasury Board) v. N.A.P.E.,5 where the Court wrote: Demonstration of a reasonable limit involves consideration of five related questions with close attention to the factual context: 1. 2. 3. 4. 5.
Does the law address a sufficiently important legislative objective? “It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial.” Is the substance of the law “rationally connected to the objective”? Does the law impair the right no more than is reasonably necessary to accomplish the legislative objective, i.e., impair “as little as possible the right or freedom in question”? Is there proportionality between the effects of the legislation and the objective which has been identified as of “sufficient importance”? Even if the importance of the objective outweighs the adverse effect of the measure on protected rights, do the adverse effects of the measure outweigh its “actual salutary effects”?6
In Canada, the tests of proportionality doctrine are applied sequentially; if a statute fails the justificatory question at an earlier stage, it is in theory not necessary to go further. 3 Canadian Charter of Rights and Freedoms § 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (UK). 4 Oakes [1986] 1 S.C.R. at 138–40 (explaining, with respect to the final “proportionality as such” step, that “the more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society”). 5 [2004] 3 S.C.R. 381. 6 Id. at ¶ 53 (citations omitted). This definition incorporates two perspectives on “proportionality as such”—one between the objective of the legislation and its effects on rights, the other between the effects of the legislation towards its “salutary” goals and the adverse effects on protected rights. Although some Canadian scholars note that the Canadian Court has applied Oakes with varying degrees of rigor, see, e.g., Choudhry 2006, 506 (suggesting that the Court walked away from any rigorous conception of the minimal impairments test in R v. Edwards Books and Art Ltd) and Roach 2001, 383, the Canadian Supreme Court continues to apply the Oakes test along the lines described above. See, e.g., Quebec (Atty Gen’l) v. A [2013] 1 S.C.R. 61 (various opinions discussing “minimal impairment” criterion).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 2 /
Date: 15/8
JOBNAME: Delaney PAGE: 3 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Pockets of proportionality 359 As will be discussed below, in some other jurisdictions the questions relevant to proportionality may be applied in a more holistic fashion.
B. CHOICE OR NECESSITY? All judicial doctrine is, in a sense, a product of choice. Whatever the inherited traditions may be, there is always the possibility of a shift and perhaps more so in common law than in civil law systems. But good judges feel a sense of constraint and boundedness. I now turn to the question whether, from an “internal” judicial viewpoint, adoption of proportionality doctrine is a felt choice and how that may differ from reliance on the principle of proportionality, which, at times, may feel like more of a necessity. There has been considerable writing in recent years that seeks to account for why the doctrine of proportionality has not been adopted in the United States, in contrast to its spread through many other constitutional and human rights courts in the world. Some of this scholarly writing argues, in essence, that the United States could not adopt proportionality review without adopting such thoroughgoing changes in its constitutional self-understandings—including acceptance of positive rights and horizontal effects—so as to make it virtually impossible to imagine (Möller 2017). Others suggest that various historical contingencies—such as the age of the US Constitution, the long lines of precedent surrounding many issues, the order in which it developed constitutional as compared to administrative law, and the large role of the “countermajoritarian difficulty” undergirding US worries about discretionary decisions by judges—have resulted in the relative lack of interest in proportionality doctrine in the United States.7 Notwithstanding path dependencies, such contingent historical accounts leave open the possibility of a change.8 On these accounts, there remains an element of choicefulness in deciding whether to adopt proportionality doctrine as a method of analysis in constitutional law. 1. Choicefulness of Adoption of Proportionality Doctrine: Australia In Australia, debate over proportionality has been taking place only in recent years, as Justice Susan Kiefel has become a “norm entrepreneur” with respect to the virtues of proportionality analysis. After writing academically about the benefits of proportionality review (first in connection with issues of federalism under Section 92 and then more generally),9 and gaining some support in an earlier case,10 Justice Kiefel’s arguments appeared to have attracted the support of a majority of the judges on the Australian 7 See, e.g., Cohen-Eliya and Porat 2013; Cohen-Eliya and Porat 2017; Jackson 2015, 3121–9; cf. Bomhoff 2017, 148 (suggesting that US disinterest in achieving proportional government, e.g., in sentencing, is linked to broader cultural attitudes towards crime and society that emerged in reaction to the Warren Court’s decisions). 8 See, e.g., Perju 2017, 197 (arguing that proportionality doctrine should be adjusted to account for stare decisis as a separate element of analysis in common law jurisdictions). 9 See Kiefel 2010; Kiefel 2012. 10 Tajjour v. New South Wales (2014) 254 CLR 508, at ¶¶ 110–13.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 3 /
Date: 15/8
JOBNAME: Delaney PAGE: 4 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
360 Comparative judicial review High Court in 2015 to apply proportionality doctrine in the context of the implied constitutional freedom of political communication. In McCloy v. New South Wales,11 the Court rejected constitutional challenges to statutes limiting private donations to political campaigns, prohibiting real estate developers from making contributions and limiting indirect campaign contributions. Four justices—Chief Justice French and Justices Kiefel, Bell, and Keane—issued a judgment that presented the doctrine as an explication or formalization of the “reasonably appropriate and adapted” inquiry of earlier cases;12 they suggested that the revised doctrine was so similar to the earlier test it would not make a significant difference.13 But the concurring justices in McCloy did not approve of the change.14 Justice Gageler agreed that the constitutional challenge should be rejected, but did so on the grounds that the restrictions were no greater than are “reasonably necessary” to pursue a compelling statutory objective.15 He did not object to the relevance of the concept or principle of proportionality, agreeing that it was latent in the High Court’s earlier decision in Lange,16 but he did raise two objections to the majority’s use of structured proportionality doctrine: first, that it did not make sense to apply that doctrine to all infringements of political communication freedoms, no matter how small;17 and second, he questioned the majority’s formulation of the “proportionality as such” test—whether there was an “adequate” balance—as providing insufficient discipline to the decision whether an infringement of a protected freedom was justified in light of the reasons for the freedom.18 Moreover, he argued that the entirety of the Lange analysis should be informed by the reasons underlying the freedom of political communication and that those considerations should not be isolated to a particular subtest.19
11
(2015) 257 CLR 178. See, e.g., Lange v. Australian Broadcasting Commission (1997) 189 CLR 520. 13 See McCloy, 257 CLR at ¶ 88 (stating that the methodology does not have “particular significance”); see also Lange, at 572, n.70 (noting that there was “little difference” between the two tests). 14 For a helpful discussion of these opinions, see Mason 2016. 15 Mason 2016, 120; see McCloy, at ¶ 98 (Gageler, J., separate judgment). 16 In Lange the High Court affirmed that an implied freedom of political communication derived from the Australian Constitution, and established a standard for determining whether laws that burdened that freedom were justified. 17 McCloy, 257 CLR at ¶ 142 (Gageler, J., separate judgment). 18 Id. at ¶ 145. 19 Id. at ¶¶ 150–51; see also id. at ¶¶ 222, 269 (Nettler, J., separate judgment) (asserting that it is unnecessary to delve into strict proportionality and concluding that the prohibited donor provisions were unconstitutional while the caps were permissible); id. at ¶¶ 311, 339 (Gordon, J., separate judgment) (arguing that issues could be resolved according to “known questions and tools,” that there was a danger of uncritical use of proportionality doctrine from outside the country and concluding that all of the challenged restrictions should be upheld). For scholarly concerns that the proportionality doctrine may have the unintended effect of diverting focus from the matters of principle underlying recognition of the implied freedoms, see Anne Twomey, Proportionality and the Constitution, AUSTRALIAN LAW REFORM COMMISSION (Oct. 8, 2015), https://www.alrc.gov.au/proportionality-constitution-anne-twomey. 12
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 4 /
Date: 15/8
JOBNAME: Delaney PAGE: 5 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Pockets of proportionality 361 In the 2016 decision in Murphy v. Electoral Commissioner,20 the Court issued six different opinions, with two of the justices in Justice Kiefel’s narrow four-judge majority in McCloy declining to apply the structured proportionality doctrine to the question there presented. The issue in Murphy was the constitutionality of asserted restrictions on the right to vote arising out of the closure of the voter registration rolls seven days after the writ issues for a new election. The Court was unanimous in rejecting the challenge, but divided in its rationale.21 Chief Justice French and Justice Bell, who had joined Justice Kiefel in McCloy, wrote that the structured proportionality test “is a mode of analysis applicable to some cases involving the general proportionality criterion, but not necessarily all.”22 The attraction of structured aspects of proportionality doctrine in Australia may be linked to its somewhat formalist traditions of “legalism,” associated at times with the idea that the intended meaning of its Constitution’s words do not change over time even if their applications do,23 and at times with the idea that only “legal” sources—not economic, sociological, or moral sources—should be used in constitutional interpretation.24 In 1992, however, in the ACTV case, the High Court, in a marked departure, began to discern—cautiously—unwritten or implied freedoms from the text and structure of the Australian Constitution.25 Perhaps structured proportionality doctrine became more attractive as the High Court gained more experience with adjudicating the “implied freedom” cases that grew out of the ACTV decision, because the doctrine may have seemed more like a formal, “legalist” approach than application of the “reasonable and adequate” standard of the earlier cases.26 At the same time, the question whether to use the structured sequential questions of proportionality doctrine or instead a more general principle of proportionality appears 20
[2016] HCA 36. See Martin Clark, Murphy v. Electoral Commissioner, OPINIONS ON HIGH (Sept. 5, 2016), https://blogs.unimelb.edu.au/opinionsonhigh/2016/09/05/murphy-case-page/; Anne Twomey, Murphy case opens up cracks on the doctrine of proportionality, THE AUSTRALIAN (Oct. 28, 2016), http://www.theaustralian.com.au/business/legal-affairs/murphy-case-opens-up-cracks-onthe-doctrine-of-proportionality/news-story/b10fd38ec1fae21f3ab6dc0c7bbf7b9e. 22 Murphy v. Electoral Commissioner [2016] HCA 36, at ¶ 37 (French, C.J. and Bell, J.), quoted in Hobbs 2016. 23 See Goldsworthy 2007, 106. 24 See Saunders and Stone 2017, 36, 51, 59 (stating that in Australia a majority of judges clearly believe that the meaning of the Constitution changes over time but that legalism is important and expressed in devotion to precedent as a dominant source and a discomfort with “values” as a source). 25 See Australian Capital Television Pty Ltd v. Commonwealth (1992) 177 CLR 106 (recognizing an implied freedom of political communication in a case challenging certain regulations of campaign advertising). For a possible example of the Australian Court’s effort to sustain elements of legalism with recognition of implied freedoms, see McGinty v. Western Australia (1996) 186 CLR 140, 168 (“Implications [i.e., implied rights] are not devised by the judiciary; they exist in the text and structure of the Constitution and are revealed or uncovered by judicial exegesis. No implication can be drawn from the Constitution which is not based on the actual terms of the Constitution, or on its structure”) (footnotes omitted). 26 Cf. Stone 1999 (arguing that proportionality doctrine is not a substitute for identifying the extra-constitutional principles or value judgments that underlie the freedom of political communication and arguing in favor of a more rule-based approach); see also Stone 2005. 21
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
362 Comparative judicial review to have been experienced by the judges as a choice, one that they could debate and of which they could acknowledge the benefits and limitations.27 Justice Kiefel’s 2012 paper, for example, argued that proportionality was related to a substantive-justicebased conception of the rule of law, and that proportionality doctrine provided a more disciplined approach than “unconstrained judgments as to the reasonableness” of a legislative provision (Kiefel 2012, 87). She noted that Sir Anthony Mason, in a companion case to ACTV, Nationwide News Pty Ltd v. Wills,28 talked about “reasonable proportionality” as a test of the question of ultra vires; but she also noted that its use as a general test of powers had not been accepted by others, out of concern about drawing courts into policy judgments.29 But she rejected these objections and suggested, implicitly, that concepts of freedom implied by representative government can best be implemented through proportionality analysis. Even so, rhetorically, one feels in the realm of choice rather than necessity. 2. Choicefulness of Proportionality Doctrine or Necessity of Proportionality Principle: United States A similar sense of choicefulness about methodology is found in discussions of proportionality relating to US constitutional cases. Justice Breyer is perhaps the leading proponent on today’s Supreme Court of applying the concept of proportionality, as well as some elements of proportionality doctrine, to issue areas involving non-absolute rights (Breyer 2010, 159–70). Thus, for example, in the First Amendment area, Justice Breyer has invoked considerations of proportionality on several occasions.30 Likewise, in analyzing Second Amendment issues, Justice Breyer has relied on the concept of proportionality.31 In Making our Democracy Work: A Judge’s View, Justice Breyer argued the merits of proportionality approaches across the range of cases where the Constitution protects a right that is not absolute, “when a statute restricts one constitutionally protected interest in order to further some other comparably important interest” (Breyer 2010, 163). In order to “ultimately … determine whether the statute threatens a constitutionally protected interest with harm that is disproportionately severe when considered in light of the statute’s justification,” he emphasized the need 27
See McCloy v. New South Wales (2015) 257 CLR 178, ¶ 4, discussing the “utility” of proportionality doctrine; id. at ¶ 3 (referring to proportionality doctrine cases in Europe as “a source of analytical tools”). 28 (1992) 177 CLR 1. 29 See Kiefel 2012, 91 (citing Nationwide News Pty Ltd. v. Wills (1992) 177 CLR 1, 29). 30 See, e.g., Ysursa v. Pocatello Education Ass’n, 129 S. Ct 1093, 1103–4 (2009) (Breyer, J., concurring in part, dissenting in part) (disagreeing with Court that “rational basis” review was appropriate standard to review First Amendment challenge to a state law prohibiting employer checkoffs for dues to support political activities of unions, and arguing for a form of intermediate scrutiny to determine whether the intrusion on interests protected by the First Amendment is disproportionate to the legitimate goals of the government); Reed v. Town of Gilbert, 135 S. Ct. 2218, 2235–6 (2015) (Breyer, J., concurring in the judgment) (putting the question of “whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives”). 31 District of Columbia v. Heller, 554 U.S. 570, 689–90 (2008) (Breyer, J., dissenting).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 6 /
Date: 15/8
JOBNAME: Delaney PAGE: 7 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Pockets of proportionality 363 to ask how serious the harm is to a protected interest caused by a statute, how important the countervailing objectives are, to what extent the statute will achieve those objectives, and whether there are less restrictive ways of accomplishing the statute’s purpose (Breyer 2010, 164). Though not expressed in the sequenced, structured way that Canadian doctrine is, this approach captures most of the elements of the more formal proportionality doctrine, but more as factors to be considered rather than sequential tests to be met. Justice Breyer argues more generally that values, which he analogizes to statutory purposes, and proportionality are important tools for contemporary constitutional interpretation (Breyer 2010, 162–3, 165–6, 170–71). Others have argued that proportionality doctrine could be usefully applied to more areas of US constitutional law, including the Fourth Amendment, and that the concept of proportionality might be usefully deployed in softening the categorical approach to equal protection analysis (see, e.g., Jackson 2015, 3130–53, 3172–83). These arguments read as proposals to improve doctrine over existing approaches. In part, they are consistent with more general arguments against the use of broad categorical rules in the areas discussed, in favor of more flexible and nuanced approaches. In part, they may be premised on the idea that judicial decisionmaking involves a complex interaction between legally trained professional intuitions and the constraints of doctrine. Karl Llewelyn long ago described the process of judicial reasoning as involving “situation sense,” a professionally informed judgment about correct answers (Llewelyn 1960, 60). Yet, doctrine should not be viewed simply as “cover” for such intuitions; applying doctrine could interrogate intuitions and provide more of a discipline for their use. As Dan Kahan and his co-authors argue, drawing on the work of Howard Margolis and others, decisionmaking by judges draws on “professional judgments” consisting of “habits of mind … distinctively fitted to reasoning tasks that fall outside ordinary experience,” and influenced by “pattern recognition.”32 On their account, cognitive, rational application of frameworks of analysis do not quite operate as a “check” on unconscious, implicit decisionmaking. Rather two systems of decisionmaking—implicit and even at times unconscious, on the one hand, and explicit and cognitively rational, on the other—work together in forming professional judgments (Kahan et al. 2016, 369–79). Kahan et al.’s experimental studies found that judges were relatively immune from “identity-protective reasoning,” motivated (implicitly or unconsciously) by preexisting views when they were making decisions in the legal domain, but not when they were making evaluations of societal risks to “health, safety or prosperity.” Such work might be taken to suggest that key questions are those of legal training and judicial character; if there are good judges who are well trained in law they will reach judgments appropriate to the legal question. But, where the legal question turns in some way on the extent of justifications for a rights-infringing action, it is possible that having both systems—one that asks generally about reasonableness or justifiability, and another that requires multiple smaller rational steps—might coalesce in useful ways. That is, formalizing the steps of proportionality analysis in a doctrine that judges 32 Kahan et al. 2016, 370 (relying importantly on Howard Margolis’ 1987 work, Patterns, Thinking, and Cognition: A Theory of Judgment, and 1996 work, Dealing with Risk: Why the Public and the Experts Disagree on Environmental Issues).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 7 /
Date: 15/8
JOBNAME: Delaney PAGE: 8 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
364 Comparative judicial review would apply may help inform and be informed by judges’ more intuitive or implicit sense of what the correct legal answer is.33 In some contrast to discussions that reflect on the benefits of proportionality doctrine, sometimes proportionality as a concept is discussed not as a choice about improving existing doctrine, but rather as an essential element of a specific legal concept. In other words, for the judges invoking proportionality, it is a felt necessity of explicating a legal value or rule, not a matter of choice. (Of course, as I said at the outset, all doctrine is choiceful, but there are ways in which some discussions feel more choiceful than others, which is what I am exploring.) So, for example, many justices in the United States and in other countries with analogous provisions conclude that proportionality is an essential element of understanding bans on cruel or inhumane punishments. Although not all justices in the United States agree, the disagreement does not read as though it were a disagreement about a choice of tools, but rather reads as being about something more fundamental in the basic normative understanding of the constitutional provision.34 An example in the courts of appeals is found in Foretich v. United States.35 Following a highly publicized custody dispute, the child’s mother removed the child from the United States and hid her with relatives, refusing to disclose the child’s location even after being jailed for civil contempt. Congress enacted a statute that was intended to prevent the father from enforcing custody decisions allowing him visitation with the child. The Court of Appeals for the D.C. Circuit found the statute to be an unconstitutional bill of attainder, applying the doctrinal test established by the Supreme Court in Nixon v. GSA.36 In Nixon, and later caselaw elaborating on its analysis, the Supreme Court had indicated that, in determining whether a specific law was a “punishment” as required for the bill of attainder to apply, courts should make a three-part inquiry: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes”; and (3) whether the legislative record “evinces a congressional intent to punish.”37 33
In commenting on the Oakes test, Justice McLachlin wrote, “The process is not one of mere intuition, nor is it one of deference to Parliament’s choice. It is a process of demonstration.” RJR-MacDonald Inc. v. Canada (Attorney General) [1995] 3 S.C.R. 199, ¶ 128. 34 Compare Harmelin v. Michigan, 501 U.S. 957, 983–94 (1991) (Scalia, J.) (concluding that proportionality has no role to play in evaluating whether punishment is “cruel and unusual” under the Eighth Amendment, except with respect to death sentences) with id. at 996 (Kennedy, J., concurring in part) (expressing the view that a “narrow proportionality principle” is part of analyzing what is “cruel and unusual”) and id. at 1009 (White, J., dissenting) (arguing that proportionality is a principle of the Eighth Amendment). For a flavor of the dissent, see id. at 1023 (“To be constitutionally proportionate, punishment must be tailored to a defendant’s personal responsibility and moral guilt”). 35 351 F. 3d 1198 (D.C. Cir. 2003). 36 Nixon v. GSA, 433 U.S. 425, 473 (1977) (describing as punishments within the scope of the bill of attainder clause measures that are “disproportionately severe and … inappropriate to nonpunitive ends”). 37 Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 852 (1984) (quoting Nixon, 433 U.S. at 473, 475–76, 478).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 8 /
Date: 15/8
JOBNAME: Delaney PAGE: 9 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Pockets of proportionality 365 The D.C. Circuit majority concluded that the statute was directed with specificity at the child’s father and that it was punitive in character and intent. Proportionality appears to play an important role in the two of the three Nixon criteria. As to the first (the category of traditional punishments), the D.C. Circuit Court of Appeals, quoting the Supreme Court, wrote: The historical experience with bills of attainder in England and the United States “offers a ready checklist of deprivations and disabilities so disproportionately severe and so inappropriate to nonpunitive ends that they unquestionably have been held to fall within the proscription of Art. I, § 9.” This checklist included sentences of death, bills of pains and penalties, and legislative bars to participation in specified employments or professions.38
The Court of Appeals found that the challenged Act did not fall within the historical checklist. But at the same time, it reasoned that “the burdens imposed on [the father] under the Act—deprivation of parental rights and the opprobrium of being branded a criminal child abuser—may be of even greater magnitude than many of those at issue in the historical cases”; accordingly, the Court of Appeals concluded that finding “the Act constitutes a bill of attainder … would not be an inconsistent extension of the historical category.”39 The second factor—“whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes”40—is functional. Described by the Court of Appeals as the “most important” factor,41 this functional inquiry requires courts to “examin[e] both the purported ends of contested legislation and the means employed to achieve those ends.”42 The means–end connection was articulated in terms of proportionality by the Foretich court: “Where there exists a significant imbalance between the magnitude of the burden imposed and a purported nonpunitive purpose, the statute cannot reasonably be said to further nonpunitive purposes … .”43 The Court continued: “Because such an imbalance belies any purported nonpunitive goals, the availability of ‘less burdensome alternatives’ becomes relevant to the bill of attainder analysis.”44 Summarizing its legal view on the second, functional factor, the Foretich majority said: [a] court must weigh the purported nonpunitive purpose of a statute against the magnitude of the burden it inflicts … . It is not the severity of a statutory burden in absolute terms that demonstrates punitiveness so much as the magnitude of the burden relative to the purported nonpunitive purposes of the statute. A grave imbalance or disproportion between the burden and the purported nonpunitive purpose suggests punitiveness, even where the statute bears some minimal relation to nonpunitive ends.45 38
Foretich, 351 F. 3d at 1218 (quoting Nixon, 433 U.S. at 473) (emphasis added) (citation omitted). 39 Id. at 1220. 40 Id. (quoting Nixon, 433 U.S. at 475–6). 41 Id. at 1218. 42 Id. at 1221. 43 Id. 44 Id. at 1222 (citing Nixon, 433 U.S. at 482). 45 Id. (emphasis added).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 9 /
Date: 11/7
JOBNAME: Delaney PAGE: 10 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
366 Comparative judicial review Also relevant, the Court of Appeals said, are whether there is an unexplained difference in treatment of seemingly situated persons, and the availability of less burdensome methods, which may cast doubt on “the plausibility of any purported” legitimate nonpunitive goals.46 Chief Judge Edwards wrote for himself and Judge Randolph. The third member of the panel, Judge Tatel, concurred on the grounds that there was a less restrictive alternative; that is, accepting that Congress had only a forward-looking purpose of protecting the child, this goal could have been achieved by preventing unsupervised visitation.47 For neither the majority nor Judge Tatel do the opinions read as if there were a choice whether or not to consider the disproportionality between the stated legitimate aim and the means used; both opinions read as though the judges have no choice but to consider this point in deciding the question of whether the statute in effect imposed a punishment. The Supreme Court having long since rejected a view that the defining trigger for bill of attainder protections was only those sanctions formally denoted as criminal punishment or historically treated as within the prohibition on attainders, resort had to be to some other criteria in resolving such claims. That is, once the courts rejected any categorical historical notion as completely controlling, more functional understandings became compelling. And proportionality played a seemingly necessary role in responding to such functional inquiries. A similar story might be told with respect to “takings” jurisprudence. Older, more categorical understandings of the concept of a taking of property, which depended on physical intrusions by the sovereign on physical property, did not require a concept of proportionality. Once these older fixed categories were abandoned, however, and takings expanded to apply to limitations on the use of property through regulation, some other concept was needed to inform judgment about when regulation would be deemed a taking. As seemingly foreshadowed by Justice Holmes’ framing of an early regulatory takings case, Pennsylvania Coal,48 proportionality was one possibility.49 Holmes’ language in that case invokes considerations of proportionality when he speaks about the “extent of the diminution” of property rights arising from a police power regulation as bearing on its constitutionality; the statute, he found “does not disclose a public interest sufficient to warrant so extensive a destruction” of constitutional 46
Id. at 1223. Id. at 1228 (Tatel, J., concurring) (“[T]he only legitimate, non-punitive objective the Act might plausibly have furthered—protecting [the child] from abuse—could have been achieved in a less-burdensome way, i.e., by prohibiting the D.C. court from granting [the father] unsupervised visitation … . That Congress eschewed this less-burdensome alternative and imposed an additional hardship that had no legitimate non-punitive purpose demonstrates the Act’s punitiveness, rendering it a bill of attainder”). 48 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). 49 For other possible approaches, see, e.g., Epstein 2012 (suggesting that all distinction between physical and regulatory takings of property should be abolished, and thus treating all regulations of property as potential takings with a key question being the amount of compensation). In other areas of constitutional law, the US Court considers motivation as a key doctrinal component to differentiate lawful from unlawful measures, as in equal protection or free exercise analysis. However, motive might not be a sufficiently sensitive tool for evaluating claims of regulatory takings, because the government purpose is typically regulatory (rather than seeking to gain title to the property for the government). 47
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 10 /
Date: 15/8
JOBNAME: Delaney PAGE: 11 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Pockets of proportionality 367 property rights.50 In more modern regulatory takings cases involving conditions on the grant of a permission or a power under local building or zoning laws, the Court has formulated a “rough proportionality” standard applicable to claims of regulatory takings through imposition of conditions on waivers to zoning regulations.51 So in the area of takings law, once older, categorical notions of property ceased to fully define the universe of constitutional concern, some additional doctrinal approaches were needed to produce a manageable standard. Proportionality in these opinions is treated not as a choice but as a necessity. In both the bill of attainder and takings cases there may have been alternative doctrinal approaches. The felt sense of necessity behind the courts’ use of proportionality, then, may be indicative of a deeper possibility: that judges in a post-classical, non-formalist environment may have come to believe that it is their role to constrain disproportionate action by the political branches, especially where action is inconsistent with norms of fairness and generality. The US Supreme Court’s willingness, however, to uphold legislation specifically directed at changing results in specific cases before the courts—which could have plausibly been found to violate the separation of judicial from legislative powers contemplated by Articles I and III of the Constitution, through their lack of generality—suggests that there is no general commitment to norms of generality in legislation at the federal level in the United States.52 The appeal of proportionality as a concept in constitutional decisionmaking, then, may be related to a broader concept of the nature of good government in a constitutional democracy—that it be proportionate (or not be obviously disproportionate) in its impositions on the people—and a conception of the role of courts in a constitutional democracy—to try to prevent obviously disproportionate government action adversely affecting particular persons.
50
Pennsylvania Coal, 260 U.S. at 413, 414. See, e.g., Dolan v. City of Tigard, 512 U.S. 374 (1994) (analogizing rough proportionality to the reasonable relationship test developed in the state courts). 52 See Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016) (rejecting a constitutional challenge to legislation designed to clear obstacles to enforcement of a judgment in a specific case against specific assets); Robertson v. Seattle Audobon Society, 503 U.S. 429 (1992) (rejecting a constitutional challenge to legislation enacted to overcome a court decision concerning application of a federal environmental law to a specific tract of land). Some other countries appear to take a different view. See, e.g., Den Selvejende Institution Friskolen i Veddinge Bakker mod Undervisningsministeriet/The Self-owning Institution, The Free School in Veddinge Bakker v. The Ministry of Education (“Tvind-sagen/Tvind-case”), UfR 1999, 841H (Sup. Ct Denmark, Feb. 19, 1999), English summary available at http://www.codices.coe.int/, at DEN-1999-2-005 (striking down legislation that disqualified a specific group of private schools from public funding because of legislative distrust of their compliance with a more general provision, and excluded judicial review of this disqualification, as a violation of separation of powers) (with special thanks to Kári Ragnarsson for bringing this to my attention). 51
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 11 /
Date: 15/8
JOBNAME: Delaney PAGE: 12 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
368 Comparative judicial review
C. ANALYTICAL DIFFERENCE BETWEEN PROPORTIONALITY AS PRINCIPLE AND PROPORTIONALITY AS STRUCTURED DOCTRINE There are analytical differences between applying a principle or concept of proportionality to a constitutional rights analysis and applying structured proportionality doctrine. One of those differences is in the relationship between the last two steps in the sequentially structured forms of proportionality doctrine. A direction to consider “proportionality” could, in theory, operate without the requirement that any challenged measure that infringes on rights meet a minimal impairment test; the availability of other less intrusive alternatives might function not as an absolute requirement, but as a factor to consider in resolving a more conceptual question of proportionality. Sequence vs Factors: Under the Canadian sequenced approach, in every case in which the restriction clears the initial purpose inquiry and the rational connection requirement, the courts should next inquire into whether the means chosen are such as to “minimally impair” the right in question. If the statute fails the minimal impairment test, then it is invalid and there is no need to go on to answer the “proportionality as such” requirement.53 By contrast, in South Africa, the standard of proportionality is set out in the Constitution and a number of factors are listed as relevant (including whether there are less restrictive means), but they need not be applied sequentially.54 53 In a small number of cases the Canadian Court has done so; however, generally speaking, in cases in which a statute fails minimal impairment and in which the Court also addresses “proportionality as such,” the statute fails “proportionality as such.” In every instance in which a statute passes minimal impairment it passed “proportionality as such.” See Trakman, ColeHamilton, and Gatien 1998, 103. The authors describe the flexible approach to minimal impairment as leading to some conflation of minimal impairment and proportionality as such analysis. Id. at 102. They note development of a more normative approach of evaluating the right and government interest to determine the degree of deference to be applied across the steps of the doctrinal test, but argue for a more robust threshold testing of whether the importance of the government’s reasons for infringing on the right are of sufficient weight to warrant the alleged infringement. Id. at 123. This would allow finding some statutory limits unconstitutional without resort to the more detailed step-by-step analysis. For earlier descriptions of proportionality as such, see supra notes 4, 6 and accompanying text. 54 CONST. OF SOUTH AFRICA, § 36 (“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.”). For a description of the South African Court’s approach, see Young 2017, 259 (“The Constitutional Court, however, is not a strict adherent of the multipronged structure of the test: the Court considers the clause requires it to engage in ‘a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list.’”) (citing, inter alia, S v. Manamela, 2000 (3) SA 1 (CC)); S v. Manamela, 2000 (3) SA 1 (CC), ¶ 32 (“[The five itemized factors in § 36] are included in the section as key factors that have to be considered in an overall assessment as to whether or not the limitation is reasonable and justifiable in an open and democratic society … . As a general rule, the more serious the impact of the measure in the
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 12 /
Date: 15/8
JOBNAME: Delaney PAGE: 13 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Pockets of proportionality 369 In theory, the Canadian structured, sequenced approach could have the following effect: A statute that is broader than it needs to be (that is, would fail minimal impairment), but that could be found to confer more in benefits towards an important government purpose than it imposes intrusions on rights, may nonetheless be struck down.55 Such an approach—including insisting on minimal impairment as a distinct requirement for all rights-infringing actions—has potential advantages, including creating incentives to more care in legislating and recognizing the deontological quality of (at least some) constitutional rights. But it also has potential foreseeable costs, especially if one considers the nature of problems of inertia, momentum, and delay in democratic legislatures.56 Inertia and Delay in Response: Irrelevant or not? There are costs to the conclusion that all laws that are rights-infringing and are not the least intrusive means to achieve the same government goal should always be judicially invalidated. Among these costs are the possibility that there will be considerable delay in obtaining re-enactment of a law designed to achieve the beneficial effects with less harm to protected rights. There are many reasons why democratic legislatures may not act.57 It is difficult to get on the legislative agenda for action, exacerbated by problems of partisan polarization and legislative gridlock. The forces of inertia are powerful, and it can take a lot to get momentum going for legislation.58 These risks or costs I refer to as “democratic inertia costs.” They may be higher in separation of powers than in parliamentary systems, which are designed to make it easier to enact legislation with fewer veto points. Yet the risks of inaction of legislatures after initial invalidation may be so difficult to capture as right, the more persuasive or compelling the justification must be. Ultimately, the question is one of degree to be assessed in the concrete legislative and social setting of the measure, paying due regard to the means which are realistically available in our country at this stage.”); see also id. at ¶ 33. 55 To the extent that the Canadian court has implicitly adjusted the severity of the minimal impairment test to allow the government more room where the Court believes the statute serves an increasingly important purpose, this concern may not be realized in practice. For a suggestion that concerns about the severity of the threat of terrorism led the US Supreme Court to provide relaxed deferential review of the least restrictive means aspect of First Amendment law, see Jackson 2015, 3138–40. A legislative “purpose” may sometimes be stated in broader terms, so as to better align the purpose and means. 56 For a critique of structured as compared to unstructured balancing approaches, including proportionality review, see Kaplow ND. 57 See Young 2000, 1596 n.244 (“It would be wrong to overstate the likelihood of Congress’s revisiting the issue following a narrowing construction of a statute by a court. Legislative inertia or conflict avoidance may lend strong weight to whatever construction the court reaches”). Young cited Jane Schacter’s 1995 Harvard Law Review article, “Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation,” and described Schacter as “arguing that, generally, ‘legislators have a strong incentive to avoid taking up a question that has been provisionally settled by a court and have little incentive to spend precious political capital vindicating the claimed “real” intention of the prior legislature that enacted the law.’” Cf. Stuntz 2001, 557 (suggesting that legislative inertia may be stronger for subtracting crimes compared to adding crimes). 58 For a thoughtful treatment of the relationship between legislative inertia and “weak form” judicial review, and of the reasons for legislative inertia, see Dixon 2017.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 13 /
Date: 15/8
JOBNAME: Delaney PAGE: 14 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
370 Comparative judicial review to elude principled and judicially manageable standards, at least in respect of determining whether an act of another branch of government violates the constitution.59 But, bearing in mind both the possibility of legislative inertia in responding and the nature of legislative processes (almost inevitably a compromise in some respects to produce legislation) (see Tushnet 2017, 303), might these costs provide a reason to depart from the sequenced nature of the last two steps—that is, to be more focused on proportionality as a principle than on the sequenced structure of proportionality doctrine? It might well be argued that insisting on the minimal impairment test as one that must be met in all cases is the best way to assure appropriate recognition of rights as distinctive. After all, if there is a way to achieve a social value that intrudes less on rights than another approach, it would be seemingly irrational, in a rights-respecting society, not to require the less intrusive means. On the other hand, if democracy is valued, it must be acknowledged that democracies often cannot and should not act quickly, and that a fundamental task of democratic legislatures is to engage in effective governance notwithstanding the representation of diverse views. Does the fact that constitutional courts relying on proportionality doctrines often operate within constitutional democracies mean that a court should be aware of the prospects of legislative inertia and delay in responding to judicial rulings in deciding when to declare a statute unconstitutional under proportionality testing? Or perhaps, alternatively, that prospects of legislative inertia should be considered at the remedial stage? Applying a more general concept of proportionality—or approaches to proportionality that do not required sequenced passage of each test (as may be the case in South Africa)—might be thought to avoid some of the democratic inertia costs that a more rigorous adherence to all of the steps of sequenced proportionality doctrine would entail. Legally trained decision makers’ “intuition,” based on their “situation sense” that a law is disproportionate, might capture this kind of cost. Consider, as a hypothetical, a mandatory motorcycle helmet law that applies to the driver and any passenger on a motorcycle. Let us imagine that a court in a hypothetical democracy Westphalia concludes that (1) as to persons under the age of 21, the law meets minimal impairment and proportionality as such but that (2) as to competent adults 21 years of age or older, a more minimally impairing approach would be to have a law requiring that motorcycles use devices that remind passengers of the benefits of wearing a helmet once the engine is turned on but does not require them to do so. Let us further imagine that such a device is already available, but at some added costs, in vehicles currently offered for sale. And let us assume the court considers the greater
59
Cf. Greene 2016, 637 n.9 (“Some critics of the Shelby County [v. Holder] decision have noted that the Chief Justice was surely aware that a Republican-led Congress in a polarized era of legislative inertia was not going to amend the Act’s coverage formula, and so the Court’s decision in effect invalidated section 5 [citing, as such critics, Akram Faizer and Joel Heller]. But for the Court to leave in place what it believes to be an irrational statute based on its prediction that Congress is unlikely to replace it would have been an even more aggressive posture than the one the majority actually took.”)
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Pockets of proportionality 371 administrability of a general helmet requirement, including relative ease of enforcement, in its analysis of whether the law is or is not minimally impairing as applied to drivers above the age of 21.60 The court’s conclusion that a more minimally impairing approach does exist would, under Canadian-style versions of proportionality, require a finding of invalidity or invalidity in part. In a less structured and sequenced approach, however, the existence of a less restrictive alternative might be treated not as a barrier to upholding the challenged law, but as a factor to be considered in evaluating overall proportionality. Under such a regime, might a court think that the overall benefits of having a general requirement of mandatory helmet laws outweigh the harms from the intrusion on autonomy rights, given the likelihood that the now-sitting legislature is less likely to re-enact any part of the motorcycle helmet law than the one that passed the initial law? In that circumstance, what are the court’s options? One option might be not to find a violation; but this option would raise too many difficulties of consistent application of principle and of prediction and manageability. That is, the “costs” of a legislature not responding (or not responding in a timely way) are perhaps too difficult to predict for them to be appropriate for a court to consider at all in evaluating the substantive question of liability. However, courts (at least in common law jurisdictions) have typically exercised more discretion over remedial responses to violations and these might be legitimately influenced by this concern. Among the “remedial” responses, one option would be to “read down” the statute, providing a court-developed limitation. Reading down is a not uncommon response, but engenders questions about whether the court is acting properly in so doing or whether it should leave the decision to the legislature.61 In situations in which a law is deemed too narrow to be minimally impairing of, say, equality rights, a court might consider, as a remedial approach, “reading up” the statute by extending its application. Reading up, as the Canadian Court did in Vriend v. Alberta,62 is perhaps more controversial from a rule-of-law and democratic selfgovernance point of view, at least in a situation like Vriend where it was possible that the provincial legislature would have preferred no human rights statute to one that protected from discrimination based on sexual orientation. Moreover, there is a stronger formalist rule-of-law argument that only the legislature can add to a textual prohibition (as compared to when a court strikes a part of a law). My point here is that considerations of proportionality—which might include considering the likelihood of a law quickly being enacted that would provide the public benefit without the rights 60 For a helpful analysis of the ways in which the “necessity” or “minimal impairment” inquiry can be best understood to involve a series of normatively freighted balancing judgments, see Bilchitz 2014, 51–60. 61 For discussion of related questions of severability, see, e.g., Fish 2016 (noting that courts sometimes use “editorial restraint” and sometimes “purpose preservation” approaches, and arguing that the latter is better). 62 Vriend v. Alberta [1998] 1 S.C.R. 493 (treating the exclusion of sexual orientation from the list of grounds on which discrimination is prohibited by a provincial human rights law as a violation of the Charter equality guarantee and as not minimally impairing because there is no reasonable basis for the exclusion and the exclusion is a “total, not minimal, impairment” of the challenger’s right to equality).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 15 /
Date: 15/8
JOBNAME: Delaney PAGE: 16 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
372 Comparative judicial review violation—might influence the court’s choice of remedies (by which I include treating the statute as subject to an interpretation that would cure the constitutional problem). Alternatively, a court could delay the effective date of its finding of invalidity (see generally Dixon and Issacharoff 2016). However, for courts whose legitimacy is believed to depend on a linkage of decision with judgment, as US courts operating under the case-or-controversy requirement arguably are, such suspended declarations of invalidity (in order to allow time for legislative action) also raise problems of appropriate judicial role.63 On the other hand, British courts operating under the Human Rights Act are empowered to make a declaration of incompatibility without rendering the challenged statute invalid, so the statute remains in force until it is repealed or modified by the legislature. And in Canada, the courts may invalidate but suspend the effective date of the invalidation, thereby allowing legislative response at a remedial level (see Roach 2005, 546–7) or, at least in theory, at a more substantive level of disagreement if the “non obstante” clause of Charter Section 33 is invoked (see Roach 2005, 543–6). Again, the court’s sense of the consequences and proportionalities of striking the law, as opposed to temporarily leaving it in place for a legislative fix, would bear on this remedial decision. A third approach would be to simply declare the statute invalid for infringing on autonomy rights without sufficient justification under proportionality doctrine because the statute fails minimal impairment, leaving it to the legislature to decide whether and how to respond. Where a statute overall confers more good than it does harm to rights, this means that the beneficial effects of the law are not achieved until such time as the legislature acts. Such an approach is arguably most consistent with the conception of a court as the rights-declaring forum of principle in the polity. Proportionality testing comes into play only when an infringement of a right has been found. And, as noted above, in a rights-respecting society there are good reasons for this result to follow; rights will not mean very much if they are not given a high priority in how governments act. So, it might be thought, pragmatic concerns with legislative delay in responding should have no bearing, since laws that infringe on rights are presumptively invalid. However, in jurisdictions that use proportionality doctrine as a general methodology, many have noted a phenomenon of rights inflation, that is, of tending to construe liberty rights quite broadly, such that many statutes would be found infringing. If rights are understood very broadly, courts may want to be more attentive to the potential for interference with the possibility of democratic selfgovernance that too rigid an application of proportionality doctrine may create, either through a relaxation of the minimal impairment standard to give more weight to the principle of proportionality or through the choice of remedies upon a finding of unconstitutionality.64 63
See Dixon and Issacharoff 2016, 697 (noting that although “there are fleeting examples in American jurisprudence of delays in the implementation of judgments, the practice appears inconsistent with the general dominance of constitutional decrees through post-Marbury judicial review”) (footnotes omitted). 64 Dixon and Issacharoff identify two different functions for judicial deferral of decisions, “one of which is focused on ensuring the practicality or principled quality of judicial review, under conditions of a need for legal continuity, or strong democratic disagreement; and another
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 16 /
Date: 11/7
JOBNAME: Delaney PAGE: 17 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Pockets of proportionality 373 Caselaw and convergence? There is some caselaw in both the United States and Canada that suggests that whatever the formalities of doctrine, proportionality as a principle sometimes trumps strict application of minimal impairment or least restrictive means scrutiny under formal doctrine. Consider a Canadian case involving a province’s decision, in a financial emergency, to defer implementing a pay equity agreement that it had previously agreed was necessary to redress gender discrimination. In Newfoundland (Treasury Board) v. N.A.P.E.,65 the administrative tribunal that first heard the challenge found the statute delaying the implementation of the pay equity agreement (and eliminating liabilities of $24 million that had accrued under that agreement) was an infringement of equality rights that could not be saved under Section 1 of the Charter of Rights and Freedoms and its proportionality doctrine, “because the government had failed to demonstrate it had examined less drastic or less unfair means of solving its fiscal problems such as unpaid leave, job sharing, early retirement or reduced employees pension contributions in respect of all public sector employees.”66 The trial court upheld the statute under Section 1, concluding that there was a bona fide emergency, the provincial government had considered other measures and consulted with the union, the pay equity was deferred not wholly repealed, and that very broad deference to the legislature was appropriate; the trial court concluded that “the Act did not have a disproportionately severe effect upon the affected group of female hospital workers in relation to the broader benefits achieved by fiscal restraint for the province as a whole.”67 The Newfoundland Court of Appeals also upheld the legislation, but did not do so under the Oakes proportionality test; rather it introduced a separation-of-powers element into its analysis, concluding that the measure was a “‘reasonable effort’ … to minimize the infringement” and arguing that “‘[s]winging in harmony’ with the separation of powers doctrine required judicial deference to the policy choices adopted by the elected representatives to address communal or societal needs.”68 Reaffirming that female workers had a constitutional right to equal pay for equal work and that the targeting of female workers for repeal of liabilities under the pay equity agreement and the deferral of its provisions infringed on their equality rights,69 the Canadian Supreme Court turned to the justification analysis under Section 1. It disagreed with the Court of Appeals’ introduction of separation of powers as a distinct
of which is focused on a more strategic set of concerns for courts, or the effectiveness of judicial review against a backdrop of fragile democracy, or more specific threats to judicial power” (Dixon and Issacharoff 2016, 707). The concerns introduced in this part relate more to the quality of governance as a whole than to the need for legal continuity, how to manage strong democratic disagreement, or how to build judicial legitimacy. For discussion of the possible role of suspended declarations of invalidity as a judicial approach to dialogue with other branches, see Delaney 2016, 55–8. 65 [2004] 3 S.C.R. 381. 66 Id. at ¶ 17 (summarizing decision of Arbitration Board majority). 67 Id. at ¶ 21 (summarizing the trial court’s decision). 68 Id. at ¶¶ 27, 28 (summarizing the Newfoundland Court of Appeals’ decision). 69 Id. at ¶¶ 33–51.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 17 /
Date: 15/8
JOBNAME: Delaney PAGE: 18 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
374 Comparative judicial review factor and purported to apply the Oakes test.70 But it placed emphasis on the appropriateness of considering financial factors in a financial emergency and upholding such emergency measures as long as they were “proportional both to the fiscal crisis and to their impact on the affected Charter interests.”71 The Court alluded to the impact of closing hospital beds and employee layoffs to support its conclusion that the government’s objective was “substantial and pressing” in a free and democratic society and rejected the challenger’s argument that costs could never justify Charter infringements;72 these conclusions contributed to the Court’s ultimate finding that given the scope of the financial crisis, the costs imposed on female employees were permissible. On minimal impairment, the Court invoked a line of cases recognizing that “there may be no obviously correct or obviously wrong solution, but a range of options each with its advantages and disadvantages. Governments act as they think proper within a range of reasonable alternatives … . ”73 In such cases, it wrote, governments have a wide “margin of appreciation” to choose options, and “the scope of that ‘margin’ will be influenced, amongst other things, by the scale of the financial challenge confronting a government and the size of the expenditure required to avoid a Charter infringement in relation to that financial challenge.” Against this background, the court found that the minimal impairment standard was satisfied because of (1) the scale of the financial crisis, (2) the cost of implementing the prior pay equity act provisions, (3) the fact that the principle of pay equity going forward was affirmed, (4) the union (the party plaintiff) had been invited to offer other alternatives, and (5) the government was mediating claims among important stakeholders (e.g., patients who would not have hospital beds, although the Court acknowledged that their Charter rights were not affected).74 Noting alternatives suggested by counsel, including having all employees forego “step progression” salary increases and using that saving to pay the pay equity amount, the Court said “there is no compelling rule that says step progression should have been denied all employees, including women, in order to keep to the original schedule of the pay equity program.”75 The Court also implicitly at least rejected the analysis of the Arbitration Tribunal, which had found a failure to meet Section 1 standards because of the presence of more minimally impairing alternatives. It seems reasonably clear that the severity of the minimal impairment test was substantially relaxed here, in part because of the scale of the financial crisis, (i.e., the weight of the salutary purpose the government was trying to achieve). The first line of the Court’s discussion under the heading, “Proportionality of Means to Objective,” which immediately followed its discussion of minimal impairment, was: “The salutary 70
Id. at ¶¶ 100–116 (concluding that adding a separation-of-powers element would be inconsistent with Section 1’s requirement that an infringement be demonstrably justified and not necessary because Oakes’ analysis affords a wide range of deference already to government decisions on economic matters). 71 Id. at ¶ 64. 72 Id. at ¶¶ 72–5. 73 Id. at ¶ 83. 74 Id. at ¶¶ 86–94. 75 Id. at ¶ 96 (also discussing another alternative).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 18 /
Date: 11/7
JOBNAME: Delaney PAGE: 19 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Pockets of proportionality 375 effects of the legislation were far reaching.”76 This discussion might be an illustration of a court treating the “proportionality as such” query as in some sense superseding or mitigating the minimal impairment query, requiring only a reasonable effort to avoid undue infringement—an effort itself judged by the scale of the crisis. A recent US case that did not formally employ proportionality doctrine may also provide an example of a court implicitly being influenced by its judgment in some overall sense of whether a law was proportionate. It illustrates both the risks and benefits of an analytical approach that—either through obscurity or otherwise—allows considerations of proportionality as such to overshadow failures to meet the minimal impairment requirement. Consider in this light Holder v. Humanitarian Law Project.77 The Court purported to apply US strict scrutiny to the challenged statute, which prohibited providing “material support”, including “training” and “expert advice” to groups designated as terrorist, as the statute was applied to a US-based group that sought, inter alia, to provide training in how to use international law instead of violence to resolve disputes. The challengers argued that the statute was impermissibly vague and overbroad and in violation of their constitutionally protected freedoms of speech and association. The Court accepted the government’s goal of not “legitimating” groups engaged in terrorism, a very broad goal (itself in tension with some conceptions of freedom of speech), which enabled the Court to rapidly conclude that there were no less intrusive means to achieve the goal. But perhaps—speculatively—the Court saw the harm being prevented by the statute not primarily as about legitimating terrorists but about the possibility of future physical terrorist attacks; and perhaps it concluded that this harm was of such a magnitude that the possible existence of alternatives should not invalidate the statute, in light of the risks that Congress would not get itself together to enact a more narrowly crafted statute if the challenge were sustained. On the one hand, one might take Humanitarian Law Project to be an object lesson in the benefits of the structured, sequenced proportionality test. The failure to address proportionality separately from minimal impairment (or less restrictive means) may have muddied the issues (see Jackson 2015, 3138–40). The sequenced nature of analysis is part of the appeal of Canadian proportionality, rendering outcomes arguably more predictable and consistent. But in some cases, sticking to the sequenced nature of Canadian-style proportionality doctrine may have effects inconsistent with the principle of proportionality (at least as viewed from the perspective of those, as I hypothesize, in the Humanitarian Law Project majority who may have thought the purpose of preventing terrorism to be of the highest value), considered in light of the possibility that invalidation will result in no substitute, or will at least delay the achieving of the benefits or averting of the harm of the government’s legitimate goal. That is to say, application only of a principle or general concept of proportionality might uphold laws that do not meet the minimal impairment test but that are perceived to achieve such an important public good that failures of narrow tailoring are outweighed by the dangers of invalidation, including the prospects of delay in responding to judicial invalidation. Having said this much, I think an important question for future scholarship is whether this concern should legitimately figure at all and, if so, whether it should 76 77
Id. at ¶ 98. 561 U.S. 1 (2010).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 19 /
Date: 11/7
JOBNAME: Delaney PAGE: 20 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
376 Comparative judicial review figure at the liability stage or at the remedial stage. I worry that introducing such considerations in any explicit way at the liability-determining stage could undercut the rights-protective character of proportionality review. It may be that it matters less exactly what the doctrine is (and whether it is applied in a sequenced or more holistic fashion) than whether the judges applying it have a rights-protecting legal orientation. But if not applicable at the liability stage, concerns about the costs to democratic self-governance and public benefit from the possibility of legislative delay or inertia in responding to findings of liability seem well suited to being applied at the remedial stages (whether the statute is read down, or read up, or whether there is a suspended declaration of invalidity or the unconstitutional aspect is severed).78 More systematic research on how to make these remedial decisions would also be of benefit.
D. CONCLUSION On the one hand, the choice of proportionality doctrine as a method of resolving rights cases is quite consequential. Its capacity to interrogate initial intuitions and provide a framework for analysis of considerations likely to affect judicial decisions can helpfully promote impartiality and candor, two desirable elements of judging. Proportionality doctrine is a good choice for many areas of analyzing constitutional right issues, insofar as it provides a structure for the testing and application of judicial intuitions about proportionality as a principle. But those intuitions at some level are also important, taking into account the challenges and benefits of democratic governance. The principle of proportionality is, across the range of rights violations, an important element of constitutional rights adjudication as reflected in reliance on the principle of proportionality in a number of areas of US caselaw (and notwithstanding the US’s lack of acceptance of proportionality doctrine as a general methodological approach). Sometimes the best indication of a lack of proportionality is the presence of some obviously less intrusive alternative. But sometimes, perhaps, the principle of proportionality might apply to the degree of scrutiny that is given under minimal impairment analysis. The minimal impairment inquiry, if always read as a stringent less restrictive means test, may be at odds with the more general principle of proportionality. Intuitive forms of proportionality judgments—at either the liability or remedial stage—might, then, be a way of being proportional about proportionality and its minimal impairment test, and of mediating the tensions between elements of proportionality as a doctrine and proportionality as a principle.
78 See Barak 2017, 331–2 (suggesting as a topic for further research the bearing of proportionality on remedial issues).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 20 /
Date: 11/7
JOBNAME: Delaney PAGE: 21 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Pockets of proportionality 377
REFERENCES Barak, Aharon. 2012. Proportionality: Constitutional Rights and Their Limitations. Cambridge: Cambridge University Press. Barak, Aharon. 2017. “A Research Agenda for the Future.” In Proportionality: New Frontiers, New Challenges, edited by Vicki Jackson and Mark Tushnet. Cambridge: Cambridge University Press. Bilchitz, David. 2014. “Necessity and Proportionality: Towards a Balanced Approach?” In Reasoning Rights: Comparative Judicial Engagement, edited by Liora Lazarus, Christopher McCrudden, and Nigel Bowles. Oxford: Hart Publishing. Bomhoff, Jacco. 2017. “Beyond Proportionality: Thinking Comparatively about Constitutional Review and Punitiveness.” In Proportionality: New Frontiers, New Challenges, edited by Vicki Jackson and Mark Tushnet. Cambridge: Cambridge University Press. Breyer, Stephen. 2010. Making Our Democracy Work: A Judge’s View. New York, NY: Alfred A. Knopf. de Búrca, Gráinne. 1993. “The Principle of Proportionality and its Application in EC Law.” Yearbook of European Law 13: 105–50. Choudhry, Sujit. 2006. “So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis Under the Canadian Charter’s Section 1.” Supreme Court Law Review 35: 501–35. Cohen-Eliya, Moshe and Iddo Porat. 2013. Proportionality and Constitutional Culture. Cambridge: Cambridge University Press. Cohen-Eliya, Moshe and Iddo Porat. 2017. “The Administrative Origins of Constitutional Rights and Global Constitutionalism.” In Proportionality: New Frontiers, New Challenges, edited by Vicki Jackson and Mark Tushnet. Cambridge: Cambridge University Press. Delaney, Erin F. 2016. “Analyzing Avoidance: Judicial Strategy in Comparative Perspective.” Duke Law Journal 66: 1–67. Dixon, Rosalind. 2017. “The Core Case for Weak-Form Judicial Review.” Cardozo Law Review 38: 2193–232. Dixon, Rosalind and Samuel Issacharoff. 2016. “Living to Fight Another Day: Judicial Deferral in Defense of Democracy.” Wisconsin Law Review 2016: 683–731. Epstein, Richard A. 2012. “Physical and Regulatory Takings: One Distinction Too Many.” Stanford Law Review Online 64: 99–105. Fish, Eric S. 2016. “Choosing Constitutional Remedies.” UCLA Law Review 63: 322–86. Goldsworthy, Jeffrey. 2007. “Australia: Devotion to Legalism.” In Interpreting Constitutions: A Comparative Study, edited by Jeffrey Goldsworthy. Oxford: Oxford University Press. Greene, Jamal. 2016. “Maximinimalism.” Cardozo Law Review 38: 623–49. Hobbs, Harry. 2016. “Revisiting the Scope of the Race Power after McCloy.” Public Law Review 27: 264–70. Jackson, Vicki C. 2015. “Constitutional Law in an Age of Proportionality.” Yale Law Journal 124: 2680–3203. Kahan, Dan M., David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, and Katherine Cheng. 2016. “‘Ideology’ or ‘Situation Sense’? An Experimental Investigation of Motivated Reasoning and Professional Judgment.” University of Pennsylvania Law Review 164: 349–440. Kaplow, Louis. ND. On the Design of Legal Rules: Balancing Versus Structured Decision Procedures (unpublished manuscript). Kiefel, Susan. 2010. “Section 92: Markets, Protectionism and Proportionality—Australian and European Perspectives.” Monash University Law Review 36: 1–15. Kiefel, Susan. 2012. “Proportionality: A Rule of Reason.” Public Law Review 23: 85–93. Llewelyn, Karl. 1960. Common Law Tradition: Deciding Appeals. Boston, MA: Little, Brown and Company. Mason, Sir Anthony. 2016. “The Use of Proportionality in Australian Constitutional Law.” Public Law Review 27: 109–123. Möller, Kai. 2017. “US Constitutional Law, Proportionality, and the Global Model.” In Proportionality: New Frontiers, New Challenges, edited by Vicki Jackson and Mark Tushnet. Cambridge: Cambridge University Press. Perju, Vlad. 2017. “Proportionality and Stare Decisis: Proposal for a New Structure.” In Proportionality: New Frontiers, New Challenges, edited by Vicki Jackson and Mark Tushnet. Cambridge: Cambridge University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 21 /
Date: 11/7
JOBNAME: Delaney PAGE: 22 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
378 Comparative judicial review Roach, Kent. 2001. “Searching for Smith: The Constitutionality of Mandatory Sentences.” Osgoode Hall Law Journal 39: 367–412. Roach, Kent. 2005. “Constitutional, Remedial, and International Dialogues About Rights: The Canadian Experience.” Texas International Law Journal 40: 537–76. Saunders, Cheryl and Adrienne Stone. 2017. “The High Court of Australia.” In Comparative Constitutional Reasoning, edited by András Jakab, Arthur Dyevre, and Giulio Itzcovich. Stone, Adrienne. 1999. “The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication.” Melbourne University Law Review 23: 668–708. Stone, Adrienne. 2005. “The Limits of Constitutional Text and Structure Revisited.” UNSW Law Journal 28: 842–51. Stuntz, William J. 2001. “The Pathological Politics of Criminal Law.” Michigan Law Review 100: 505–600. Trakman, Leon E., William Cole-Hamilton, and Sean Gatien. 1998. “R. v. Oakes 1986–1997: Back to the Drawing Board.” Osgoode Hall Law Journal 36: 83–149. Tushnet, Mark. 2017. “Making Easy Cases Harder.” In Proportionality: New Frontiers, New Challenges, edited by Vicki Jackson and Mark Tushnet. Cambridge: Cambridge University Press. Young, Ernest A. 2000. “Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review.” Texas Law Review 78: 1549–614. Young, Katherine G. 2017. Proportionality, Reasonableness, and Economic and Social Rights. In Proportionality: New Frontiers, New Challenges, edited by Vicki Jackson and Mark Tushnet. Cambridge: Cambridge University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 18_Chapter18_ts
/Pg. Position: 22 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
19. Comparative approaches to constitutional history Jamal Greene and Yvonne Tew*
A. INTRODUCTION An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional courts or apex courts that engage in constitutional review: those of the United States, Canada, Germany, Australia, India, Hong Kong, Malaysia, and Singapore. Because our selection of cases aims to be illustrative rather than exhaustive, we do not attempt to draw firm conclusions about the global use of constitutional history. Still, the qualitative evidence that follows hints at what might well be universal within constitutional judging: (1) the significance of history broadly understood, and (2) the limits on history’s reach into contemporary rights conflicts.
B. THE USES OF CONSTITUTIONAL HISTORY The use of constitutional history as an interpretive resource has received enormous attention from US scholars and relatively little attention from others (see Law 2015, 932). In the United States, discussion of the role originalist analysis should play in constitutional law has slain many trees, but originalism is defined in too many ways to retain significant descriptive power. What began as a primarily conservative movement with the aim of providing purportedly neutral criteria to restrain judges adjudicating controversial rights cases (see Scalia 1989) has since broadened considerably. Much recent work understands originalism in terms that permit its compatibility with judicial activism (see Barnett 2003), a progressive ideology (see Amar 2016), a robust doctrine of stare decisis (see Baude 2015, 2358–61), and even living constitutionalism (see Balkin 2011). For that reason, we find it more fruitful to discuss the various ways in which courts around the world use “historical” analysis, without burdening their practices with the * We thank Anna Brennan, Suparna Reddy, and Samual Swoyer for valuable research assistance.
379
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
380 Comparative judicial review “originalism” label. The ways in which courts and individual judges may use constitutional history, and their reasons for doing so, are heterogeneous. Below we outline six variations that can help motivate a taxonomy of approaches to constitutional history. We group these variations into three categories: (1) Type of History, (2) Pattern of Usage, and (3) Type of Provision. 1. Type of History i. Purposes or expectations? A court may invoke history to identify the specific expectations that members of an earlier generation had as to how constitutional provisions would apply, or it may do so to identify the broader purposes or values that motivated the constitution. As in the domain of statutory interpretation, contemporaneous history helps to reveal the mischief the document meant to avoid or mitigate. We may contrast this approach with one that ties current interpretation to the specific ways through which the founding generation sought to vindicate the constitution’s ends (see Scheppele 2013, 27). Examples of purposive interpretation abound, including from courts not traditionally associated with historical argument. The German Constitutional Court has often invoked Germany’s Nazi past as a “never again” aversive model that informs interpretation of the Basic Law (Germany’s Constitution) (see Scheppele 2003). Justices of the South African Constitutional Court have referred to the nation’s apartheid history in elucidating the concept of ubuntu,1 which appears in the epilogue to the Interim Constitution and is translated loosely as the value of mutual interdependence.2 In a Japanese Supreme Court case holding that a Shinto groundbreaking ceremony did not offend the separation of state and religion provided for in Article 20 of Japan’s Constitution, dissenting judges made much of the history of state-sponsored religion following the 1868 Meiji Restoration (Beer and Itoh 1996). Each of these examples invokes history to identify a problem the relevant constitution or its particular provisions was meant to remedy. Identifying that problem does not commit an interpreter to the view that current problems should be resolved just as the drafters or the ratifiers would have contemplated. ii. Intention or meaning? An inquiry into how a constitutional provision was historically understood might focus on the intentions of the provision’s drafters, perhaps on the theory that a text means what its author intended it to mean (see Knapp and Michaels 1992, 187). Alternatively, that inquiry might focus on the meaning a hypothetical reasonable person would have given the text when it was adopted. Although intentionalist and original meaning-based approaches to constitutional history are often grouped together (see Scalia 1997, 28), they have radically different theoretical foundations and can produce different results. For example, the US Supreme Court held in Brown v. Board of Education that the equality guarantee of the Fourteenth Amendment prohibited racial segregation in public 1
Constitution of the Republic of South Africa Act, No. 200 of 1993, ch. 15, § 251(4). See S. v. Makwanyane, 1995 (2) SALR 391, ¶¶ 222–27 (Langa, J.); ¶¶ 263 (Mahomed, J.); ¶ 312 (Mokgoro, J.). 2
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 2 /
Date: 15/8
JOBNAME: Delaney PAGE: 3 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 381 schools.3 It is doubtful that the drafters of the Fourteenth Amendment contemplated that it would invalidate segregated schooling (see Klarman 1995), but the original meaning of “equal” arguably sanctions such progressive application (see Bickel 1955). Jed Rubenfeld has described the key dichotomy in Brown as the difference between “application understandings” and “no application understandings” (see Rubenfeld 2005, 46). On Rubenfeld’s view, a court should be bound by the applications to which the ratifying generation affirmatively committed the nation, but not by what that generation believed the commitment excluded (Rubenfeld 2005, 14). The South African Constitutional Court appeared to adopt a version of this view in State v. Makwanyane,4 its first significant decision. There, the Court acknowledged that the Interim Constitution’s negotiators had deliberately declined to prohibit capital punishment but nevertheless held that the death penalty was incompatible with the right to life guaranteed in Section 9.5 iii. Texts or backdrops? At times it may be as important to know what institutions a constitution retained as to know what it created or changed. Stephen Sachs has coined the term “constitutional backdrops” to describe “rules of law that aren’t derivable from the Constitution’s text, but instead are left unaltered by the text, and in fact are protected by the text from various kinds of legal change” (Sachs 2012, 1816). Sachs derives his examples from US constitutional tradition: Thus, the Supreme Court has drawn on Founding-era history to establish a constitutionally protected immunity from damages suits for states even in the absence of explicit constitutional language so providing.6 The concept of backdrops is relevant to historical inquiry in other jurisdictions as well. One recurring question is the scope and reviewability of prerogative powers exercised by the executive. For example, in a case involving whether the German president’s exercise of the pardon power based on mercy was subject to judicial review under the Basic Law, judges of the Federal Constitutional Court drew on the history of the power of mercy under the monarchy and through the period of the Weimar Constitution.7 Historical inquiry is unavoidable in identifying a constitutional backdrop.8 Even a court committed to evolving constitutional norms might have reason to invoke pre-constitutional history or drafting debates to ascertain how the constitution affected a traditional government power or custom.
3
347 U.S. 483 (1954). 1995 (2) SALR 391. 5 Id. ¶ 25. For contrasting reasoning, see the Singapore Court of Appeal decision in Yong Vui Kong v. Public Prosecutor [2010] 3 SING. L. REP. at [489], discussed in Section C.8, infra. 6 See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 7 25 BVerfGE 352, ¶¶ 27–34 (1969). 8 See id. at ¶ 22. 4
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 3 /
Date: 11/7
JOBNAME: Delaney PAGE: 4 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
382 Comparative judicial review 2. Pattern of Usage i. Pluralist or dispositive? Courts typically supplement discussion of historical meanings, purposes, or expectations with other modes of analysis, whether grounded in textual exegesis, prudential reasoning, established doctrinal frameworks, or prior precedent. We might distinguish a court that views history as one resource among many from one that regards the conclusions reached through historical analysis as dispositive or deserving of greater interpretive weight. For example, the US Supreme Court’s decision in District of Columbia v. Heller, which held that a Washington, D.C. prohibition on handgun possession contravened the Second Amendment,9 frontloaded its opinion with an extensive inquiry into the historical meaning of the Amendment’s text. Only after its historical discussion did the Court ask “whether any of [its] precedents forecloses” the conclusion it reached through historical analysis.10 Placing history in this kind of privileged position, which is unusual even in US cases, reflects a different approach than one that views it as on par with or subordinate to other forms of analysis.11 ii. Interpretation or rhetoric? Judges in constitutional rights cases invariably serve a political function. Their audience is not merely the parties to the litigation—indeed, sometimes the parties are nonexistent or out of the case—but also includes a broader public. The values the judges articulate and the weights they assign to those values must resonate with the public if judge-made constitutional law is to endure. A constitutional judge’s audience also and most immediately includes her colleagues on the bench, whom she must persuade in order to achieve a majority or to move the law in her preferred direction. The burdens of persuasion may support a distinctly rhetorical invocation of history. As Ozan Varol has documented, for example, the Turkish Constitutional Court has used history to elucidate the views of Mustafa Kemal Atatürk, the founder of the Turkish Republic, in cases implicating Turkey’s secular commitments (Varol 2011, 1239). Varol attributes this practice to a “cult of personality” around Atatürk, whom “the Turkish nation views … as a quasi-divine figure, a God-like war hero, and a foresightful President who led a battered nation from despair to glory” (Varol 2011, 1283). The imprimatur of such a figure is an important resource in constitutional argument quite apart from one’s theory of interpretation (see Greene 2012). Anonymous references to “the Convention” rather than to individual drafters tend to suggest that historical understandings are performing an interpretive rather than a rhetorical function.12 Such references rely implicitly on a theory of constituent authority rather than on the celebrity of any historical actor. Likewise, one reliable sign 9
554 U.S. 570 (2008). Id. at 619. 11 An example would be the Indian Supreme Court, a multimodal court that makes common reference to the debates in the Constituent Assembly and particularly the words of B.R. Ambedkar. Section C.5, infra. 12 E.g., McCulloch v. Maryland, 17 U.S. 316, 356 (1819). 10
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 4 /
Date: 11/7
JOBNAME: Delaney PAGE: 5 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 383 that the views of Founding-era figures are being invoked rhetorically is when the figure had no role, or only a symbolic one, in drafting the constitution. Consider the US case of Wallace v. Jaffree, in which Justice Rehnquist dissented from the invalidation of an Alabama law providing for a moment of silence in public schools, noting that President George Washington had proclaimed a public day of prayer.13 He wrote archly: “History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the Establishment Clause.”14 Rehnquist’s message is clear, even though President Washington was not a significant constitutional drafter. The rhetorical purchase of the constitution’s drafting can cut both ways. Reference to the framers could carry negative weight if the constitution is not a source of national pride. As H.W.O. Okoth-Ogendo has emphasized, several post-colonial African leaders rejected Westminster- or French-influenced constitutions on the ostensible ground that those instruments established non-autochthonous institutions that failed to fit local political and social conditions (see Okoth-Ogendo 1993, 65, 68, 72). 3. Type of Provision Not all constitutional provisions lend themselves equally to historical analysis (see Greene 2016). The architecture of the government, procedural technicalities, and historical compromises such as treaties are often intended by their drafters as complete statements of future application. By contrast, provisions announcing individual rights tend to be stated as principles or standards, which in their nature call for progressive development (Balkin 2011, 6–7). We do well to pay some attention to this distinction. As we discuss below, the US Supreme Court under Chief Justice Earl Warren is often described as distinctly ahistorical in its constitutional approach, but that Court applied historical methods in cases relating to the constitutionally mandated structure of the political process.15 Likewise, as we show below, the Supreme Court of Canada, a self-avowedly nonoriginalist court, has relied on the intentions of the drafters in cases involving specific compromises embedded within the Constitution.16
C. CASE STUDIES Below, we discuss the use of history in eight jurisdictions. We note at the outset that seven of the eight are common law countries, with Germany the lone holdout. Part of the reason for this selection bias is that common law courts often publish decisions in English, which facilitates analysis for English-speaking scholars such as ourselves. Further, civil law courts tend toward a deductive, mechanical style of opinion writing that can frustrate identification of interpretive methods. 13 14 15 16
472 U.S. 38 (1985). Id. at 113 (Rehnquist, J., dissenting). Section C.1, infra. Section C.2, infra.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
384 Comparative judicial review 1. United States There is long-standing normative debate over the place of historical argument in US constitutional interpretation. In recent years, an analogous debate has arisen over the place of historical argument as a matter of positive constitutional practice. Justice Scalia frequently claimed that US courts were originalist for most of their history, but that the Supreme Court departed from that convention mid-century during the tenure of Chief Justice Warren (Scalia 1989, 852–4). William Baude has suggested that, understood in relatively broad terms, originalism fairly describes even current US practice (see Baude 2015; see also Sachs 2015). Others have argued that history plays little role in cases of any constitutional moment (see Strauss 2010). In this section, we attempt to cut through this debate with the aid of the distinctions Section B articulates. We make three descriptive points. First, historical argument is an important mode of constitutional argument in the United States and can be an especially powerful mode of argument in dissent. Second, the Supreme Court frequently invokes the original understanding of constitutional provisions in cases involving specific provisions. Third, historical argument has not been an important mode of affirmative argument by Supreme Court majorities in modern individual rights cases. One of the ways Americans, including American judges, argue about the meaning and requirements of the Constitution is by invoking history. Philip Bobbitt includes historical argument in his well-known taxonomy of “modalities” of constitutional argument in the United States, though he insists that it enjoys no lexical priority over other argument forms (see Bobbitt 1988). Historical argument has pointedly been used by dissenters to attack disfavored constitutional decisions—and over the last seven decades, three Supreme Court Justices—Hugo Black, Antonin Scalia, and Clarence Thomas—have placed the significance of constitutional history at the center of their judicial philosophies. One can identify Supreme Court decisions that rely heavily on historical argument throughout the Court’s history. For example, in the 1831 case of Cherokee Nation v. Georgia, Chief Justice John Marshall dwelled on the original expectations of the Constitution’s drafters in holding that an Indian tribe is not a “foreign state” eligible to sue in federal court.17 Marshall relied on specific intentions despite a long postratification history of treating the Cherokee as a foreign nation18 and even though he seemed to believe that the equities of the suit weighed heavily in the Cherokee Nation’s favor.19 The Court took the ostensible constraints of history no less seriously a generation later in the notorious case Dred Scott v. Sandford.20 Scott, a slave suing for his freedom, went to federal court on the theory that the Constitution confers federal jurisdiction over suits “between citizens of different states.”21 The Court held that no 17 18 19 20 21
30 U.S. (5 Pet.) 1, 18–19 (1831). See id. at 16. See id. at 15. 60 U.S. 393 (1857). U.S. CONST. art. III, § 2.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 6 /
Date: 15/8
JOBNAME: Delaney PAGE: 7 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 385 descendant of African slaves could be a citizen of a state for federal constitutional purposes. Chief Justice Roger Taney’s lead opinion is thoroughly originalist. It canvasses state practices at the time of the Constitution’s enactment in an effort to establish that the drafters had not intended to include African Americans within the category of citizen and then argues that historical intentions fix the Constitution’s meaning unless and until it is amended.22 Dred Scott is often criticized for the inflexibility (and inaccuracy) of its historical argument (Greene 2011, 407), but Chief Justice Taney’s methodology is not entirely out of place within the American constitutional tradition. For example, historical argument factored heavily even in decisions of the relatively progressive Warren Court. That Court relied on documentary evidence of original meaning in Powell v. McCormack—involving the power of the House of Representatives to expel a member for corruption23—and in Wesberry v. Sanders—involving the constitutionality of creating numerically unequal congressional districts.24 In Powell, which Chief Justice Warren wrote, the Court dismissed reliance on post-ratification congressional practices by stating that “[t]he relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen’s intent.”25 The Warren Court’s occasional reliance on history tends to refute the notion that historical argument has always had a conservative valence in US constitutional adjudication. Indeed, it remains true today that the Court’s more liberal justices regularly invoke history. In NLRB v. Noel Canning, concerning the scope of the president’s power to use a Senate recess to make executive appointments, Justice Stephen Breyer’s majority opinion first determined that the original meaning of the appointments clause was ambiguous before feeling liberated to consider post-enactment political precedent.26 In recent decisions concerning whether an independent commission could be empowered to create legislative districts and whether eligible voters was the basis for population equality between legislative districts, Justice Ruth Bader Ginsburg wrote majority opinions that began with Founding-era expectations before considering other arguments.27 The cases discussed above involve questions of constitutional structure. When we turn to the Constitution’s individual rights provisions, we find a far more limited role for history. The Supreme Court’s case law in the areas of antidiscrimination law, free speech, taking of private property, and due process—notably including rights to abortion and to same-sex marriage—does not typically engage with the original understandings of the Constitution’s drafters (Greene 2016, 1639). With limited exceptions, most notably in Heller28 and in certain areas of constitutional criminal 22
Dred Scott, 60 U.S. at 426. 395 U.S. 486 (1969). 24 376 U.S. 1 (1964). 25 Powell, 395 U.S. at 547. 26 134 S. Ct. 2550 (2014). 27 Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015); Evenwel v. Abbott, 136 S. Ct. 1120 (2016). 28 Heller, 554 U.S. 570. 23
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
386 Comparative judicial review procedure,29 the Court’s approach in individual rights cases has been purposive and evolutionary. 2. Canada The Supreme Court of Canada has openly disclaimed originalist methods. As Justice Frank Iacobucci wrote in Ontario Hydro v. Ontario (Labour Relations Board): “This Court has never adopted the practice more prevalent in the United States of basing constitutional interpretation on the original intentions of the framers of the Constitution.”30 The Canadian Supreme Court has historically captured its progressive approach to interpretation via the image of a “living tree.” The metaphor originated in a 1930 Privy Council opinion by Lord Sankey in which he declined to limit Canadian Senate eligibility to men notwithstanding that women would not have been considered “qualified persons” under the original expectations of the drafters of the relevant section of the British North America Act.31 Since the adoption of the Charter of Rights and Freedoms in 1982, the Court has repeatedly emphasized that “[the] Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”32 The Court made its devotion to progressive interpretation transparent in an early case on the constitutionality of a provincial law that made driving with a suspended license a strict liability offense.33 The Supreme Court invalidated the law as a violation of section 7 of the Charter, which prohibits deprivation of liberty “except in accordance with the principles of fundamental justice.”34 The Charter’s drafting history indicates that this language was intended to confer procedural rights only.35 But Justice Antonio Lamer, writing for the Court, emphasized that Charter interpretation was to be “purposive,”36 and should not depend on “the comments of a few federal civil servants.”37 Notwithstanding its commitment to living tree interpretation, the Court has, on occasion, leaned heavily on the intentions of the Constitution’s framers. It has done so most conspicuously in cases involving historical compromises that underwrite Canadian federalism and its relationship to indigenous tribes. For example, in a 2003 decision, a Manitoba Métis challenged his conviction for hunting deer out of season on unoccupied Crown land on the basis of a claimed immunity under the Manitoba 29
Crawford v. Washington, 541 U.S. 36 (2004); Apprendi v. New Jersey, 530 U.S. 466
(2000). 30
[1993] 3 S.C.R 327, 409 (Iacobucci, J., dissenting). Edwards v. Attorney-General for Canada [1930] A.C. 124 (P.C.). 32 Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, ¶ 22. 33 Reference re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486. 34 Charter of Rights and Freedoms § 7. 35 Minutes of the Proceedings and Evidence of the Spec. J. Comm. of the S. and of the H. of Commons on the Constitution of Canada, 1st Sess. of the 32d Parliament, 46:32 (1981) (statement of Barry Strayer, Assistant Deputy Minister, Dep’t of Justice). 36 B.C. Motor Vehicle Act, 2 S.C.R. at 511. 37 Id. at 508. 31
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 8 /
Date: 15/8
JOBNAME: Delaney PAGE: 9 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 387 Natural Resources Transfer Agreement (NRTA).38 The case turned on whether a Métis counted as an “Indian” within the terms of the NRTA’s hunting provisions. In deciding unanimously against the defendant, the Court relied on historical evidence showing that “the Métis were treated as a different group from ‘Indians’ for purposes of delineating rights and protections” within the NRTA,39 and that the word “Indian” would not have been thought to include Métis when the NRTA was enacted.40 The Court considered the broader purpose behind the NRTA’s hunting provisions—they were based on “the view that Indians required special protection and assistance”41—but it bound itself to the historical application of this purpose rather than understanding it progressively: “Rightly or wrongly,” the opinion states, “this view did not extend to the Métis.”42 The Court’s attention to history in Blais is not random or idiosyncratic. As the Court later clarified, the intentions of the framers of the NRTA appeared to be determinative because the interpretive question related “to a particular constitutional agreement, as opposed to a head of power which must continually adapt to cover new realities.”43 There are other occasions on which the Canadian Court has lingered on historical materials in cases involving specific agreements. In Reference re Manitoba Language Rights, for example, the Court held that constitutional provisions enacted in 1867 and 1870 requiring that provincial laws “shall” be published in English and French were mandatory even though Manitoba had been publishing laws only in English for nearly a century.44 The Court analyzed uses of the words “shall” and “may” in the relevant acts and the views of the “drafters” of the British North America Act on the meanings of these words.45 The Court declared invalid nearly all of Manitoba’s laws but suspended its judgment temporarily for so long as it took for the legislature to enact new laws in both languages.46 Cases of this sort demonstrate that, as on other courts, part of the context relevant to determining the use of historical materials is the nature of the constitutional norm under review. Even so, outside of these discrete situations, the Canadian Supreme Court’s rhetoric around what it identifies as originalism remains strongly oppositional (Miller 2009, 331). 3. Germany Constitutional interpretation on the German Federal Constitutional Court (FCC) is often described as purposive or teleological. Donald Kommers has written that the Court’s “focus … is often on the unity of the text as a whole from whence judges are to ascertain the aims and objects—i.e., the telos—of the Constitution” (Kommers 1991, 38 R. v. Blais [2003] 2 S.C.R. 236. Provincial NRTAs are entrenched in the Canadian Constitution. See Constitution Act, 1930 (U.K.), 20–21 Geo. V., c. 26. 39 Id. at ¶¶ 19–25. 40 See id. at ¶¶ 27–9. 41 Id. at ¶ 33. 42 Id. 43 Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, ¶ 30. 44 [1985] 1 S.C.R. 721. 45 See id. at ¶¶ 28, 32–3. 46 See id. at ¶¶ 107–11.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 9 /
Date: 15/8
JOBNAME: Delaney PAGE: 10 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
388 Comparative judicial review 844). The German approach is typically taken as emblematic of other European constitutional courts where, Michel Rosenfeld has remarked, “recourse to originalism is virtually nonexistent” (Rosenfeld 2004, 656). There is no doubt that historical inquiry plays a relatively minor role in the opinions of the FCC (Kommers 1991, 844–5). Still, we can identify at least three ways in which history factors into the Court’s opinions. First, it can play an evidentiary function in establishing the constitutional purposes that motivate the Court’s teleological approach. Second, it may be used to understand the requirements of relatively specific structural provisions of the Basic Law. Third, it has been used to identify constitutional backdrops. We offer examples of each in turn. The Court announced its teleological approach in the Southwest State Case, its earliest significant opinion.47 In announcing its principles of judicial review, the Court declared that “[e]very constitutional provision must always be interpreted so as to render it compatible with the fundamental principles of the Constitution and the intention of its authors.”48 What distinguishes this conspicuous reference to drafters’ intent from a narrow historical exegesis is the notion that particular clauses are always subordinate to the Basic Law’s overarching principles.49 German purposivism is tethered to the Constitution but the Court understands its subject at a high level of generality. On this view, history may be used to elucidate “the objective conditions out of which a constitutional value or provision arose” (Kommers 1991, 845). Take, for example, the Concordat Case, on the validity of a Lower Saxony law requiring nondenominational schools, which was in conflict with a 1933 Reich treaty with the Holy See. The opinion of the Second Senate contains much discussion of the events leading to the framing of the Basic Law.50 Many actions of the Länder had ignored the educational requirements of the concordat both before and after the demise of the Third Reich, and the Court observed that the Länder wielded impressive political leverage in the ratification process.51 This reality meant that the Basic Law had to “state expressly” any intention to obligate the Länder to adhere to the concordat (Kommers and Miller 2012). In articulating the context of German federalism, the Court noted that “the framers of the Basic Law” had to take the political advantages of the Länder as “faits accomplis” (Kommers and Miller 2012, 82). The Court recited constitutional history not to identify historical analogs to the case before it but to make the case for a broad principle of the Länder retaining legislative competence on all matters that the Basic Law does not expressly confer on the federation. In light of the tragic events that form the historical background to the Basic Law, it is unsurprising that one of the principles whose purposes the German Constitution must vindicate is that the paradigmatic sins of the Nazi regime must “never again” be replicated (Scheppele 2013, 29). Thus, in the First German Abortion Decision, in which the Court invalidated a federal abortion liberalization law as insufficiently protective of 47 48 49 50 51
1 BVerfGE 14 (1951). Id. See id. at 32. The Federal Constitutional Court is divided into two “senates.” Id.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 10 /
Date: 15/8
JOBNAME: Delaney PAGE: 11 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 389 fetal life,52 the First Senate opinion interpreted the right to life in terms that invoked the Holocaust as a negative model: “[T]he categorical inclusion of the inherently selfevident right to life in the Basic Law may be explained principally as a reaction to the ‘destruction of life unworthy to live,’ the ‘final solution,’ and the ‘liquidations’ that the National Socialist regime carried out as governmental measures.”53 Like the US and Canadian Supreme Courts, the FCC has also used historical argument in cases involving constitutional provisions that represent specific structural requirements or historical compromises. In the Parliament Dissolution Case,54 the Court had to decide whether a Chancellor with majority support in the Bundestag (Germany’s principal legislative chamber) could use the Article 68 power to call for a vote of confidence as a strategic ploy to force new elections and obtain a stronger majority (Kommers and Miller 2012, 154–5). In seeking an answer, the Court zeroed in on “the genesis of Article 68.”55 Invoking specific meetings of the Parliamentary Council that drafted the Basic Law, the Court noted that Council members were aware of the dangers of early dissolution of parliaments,56 but their greater fear was the governmental paralysis that would result from a weak Chancellor who could be replaced by the Bundestag.57 The opinion is clause-specific and historically sensitive in just the way one would expect from a court interpreting a constitutional provision that helps to erect the nation’s political architecture. The FCC has also used history to uncover what elements of Germany’s preconstitutional law the Basic Law preserves. The Constitution requires this inquiry: Article 123 states that “[l]aw in force before the Bundestag first convenes shall remain in force insofar as it does not conflict with [the] Basic Law.”58 In other words, the Constitution recognizes constitutional backdrops. For example, in a case involving the permissibility of secularizing a course offered by a theology professor, the Court noted that the protected status of theology faculties under pre-constitutional Land constitutions informed the meaning of constitutional silence on the matter: “The Parliamentary Council simply said nothing on this topic, and it cannot be concluded from this that there was a decision to the contrary, radically breaking with the existing German university tradition.”59 Likewise, in a decision affirming the constitutionality of life sentences, the First Senate took notice of the fact that when the framers of the Basic Law abolished capital punishment, they assumed that life imprisonment was the available alternative.60 The Court’s dive into constitutional history was deep enough that it felt the need to add the disclaimer that history, though relevant, is not dispositive: “Neither original history nor 52 See Judgment of February 25, 1975, 39 BVerfGE 1 (translated in Robert E. Jonas and John D. Gorby, West German Abortion Decision: A Contrast to Roe v. Wade, 9 JOHN MARSHALL J. PRAC. & PROC. 605 (1976)). 53 Id. at 637. 54 114 BVerfGE 121 (2005). 55 Id. at ¶ 136. 56 Id. at ¶¶ 133–4. 57 Id. at ¶ 136. 58 Art. 123, The German Basic Law of 1949. 59 1 BVerfGE 462/06 (2008), ¶ 53. 60 See 45 BVerfGE 187 (1977); Kommers and Miller 2012, 364.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 11 /
Date: 11/7
JOBNAME: Delaney PAGE: 12 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
390 Comparative judicial review the ideas and intentions of the framers are of decisive importance in interpreting particular provisions of the Basic Law” (Kommers and Miller 2012, 365). 4. Australia We are aware of no constitutional or apex court that more consistently understands its role in terms of discerning the historical meaning of its constitution’s language than the High Court of Australia. The canonical interpretive decision in Australia remains the Engineers Case, in which Justice Isaac Isaacs wrote that the Court’s mandate was “faithfully to expound and give effect to [the Constitution] according to its own terms, finding the intention from the words of the compact, and upholding it throughout precisely as framed.”61 As Chief Justice Samuel Griffith, an important framer of the Australian Constitution, wrote in 1908, “whatever [a constitutional provision] meant in 1900 it must mean so long as the Constitution exists.”62 Australian scholars and judges refer to the Court’s methods as “legalism,” and its methodological analog is British statutory interpretation (Goldsworthy 2006).63 Prior to the High Court’s 1988 decision in Cole v. Whitfield,64 consultation of legislative debates was generally forbidden as a distraction from the original meaning of the text.65 The “intention” the Court consistently refers to is that of the Constitution as a document, not the individual views of any particular drafters. Moreover, the Court has drawn a distinction, drawing on John Stuart Mill, between the static “connotation” and the “denotation” of the Constitution’s words. The former remains unchanged whereas the latter may “extend” because of “changing events and attitudes.”66 For example, the section 51 power to legislate for trade and commerce applies to airplane regulation even though planes did not exist when the Constitution was drafted and ratified.67 Finally, unlike some American originalists, Australian jurists have not typically described legalism as competing with stare decisis—a vibrant practice at the High Court—perhaps because the theory did not arise as a backlash to what were perceived as wrongly decided cases. We discern at least two reasons for the persistence of legalism as a jurisprudential commitment of Australian jurists. First, the Australian Constitution was drafted as an English statute, and legalism reflects an internalization of British norms of statutory interpretation.68 Second, Australia lacks a federal Bill of Rights, and judicial review of individual rights is not a significant part of the Australian constitutional order. Accordingly, the invitation to progressive constitutional application that individual rights adjudication typically offers is largely absent from the High Court’s docket (see Weis 2013, 844–5). 61 62 63 64 65 66 67 68
Amalgamated Soc’y of Engineers v. Adelaide Steamship Co. (1920) 28 C.L.R. 129, 142. R. v. Barger (1908) 6 C.L.R. 41, 68. Amalgamated Soc’y of Engineers, 28 C.L.R. at 148. (1988) 165 C.L.R. 360. See AG Vict. ex rel. Black v. Commonwealth (1981) 146 C.L.R. 559, 578. King v. Jones (1972) 128 C.L.R. 221, 229. See Australian Nat’l Airways Pty Ltd. v. Commonwealth (1945) 71 C.L.R. 29. See Tasmania v. Commonwealth (1904) 1 C.L.R. 329, 338.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 12 /
Date: 11/7
JOBNAME: Delaney PAGE: 13 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 391 That being so, the past three decades have witnessed a highly public debate over the progressive capacity of Australia’s constitutional culture. During the tenure of Chief Justice Anthony Mason, which began in 1987, the High Court liberalized its constitutional interpretive approach in several ways. First, as noted, it began to permit reference to legislative history. Today it is not uncommon for Australian courts to cite to the Australasian Convention Debates at Adelaide or to J.A. La Nauze’s canonical history of the convention (Kirby 2000, 10). Second, the High Court began to accept the notion of justiciable implied constitutional rights, most notably the right of political communication.69 Chief Justice Mason acknowledged that enforceable constitutional rights were not part of the original constitutional design but claimed that Australia’s 1986 constitutional independence impliedly altered the relationship between Parliament and its constituents.70 Most scholars would agree that the Mason Court did not kill off Australian legalism, either because the Court backtracked under Chief Justice Murray Gleeson or because the Mason Court’s departures were not so dramatic to begin with.71 In the wake of the Mason Court, Justice Michael McHugh described the High Court as remaining invested in original meaning but characterized its originalism as “faint-hearted,”72 willing to take social context into account rather than viewing history as an “interpretive straitjacket” (McHugh 2008, 22). Others, including frequent dissenters such as Justices Ian Callinan and Dyson Heydon, have suggested that the Court’s approach is not much constrained by history, at least in individual rights cases (see Weis 2013). 5. India The Indian Constitution’s creation is indissolubly linked to a narrative of the nation’s independence. “In the Indian constitutional imagination,” Sujit Choudhry observes, “the Constitution marks a decisive and sharp break with the past and was a central element in the formation of the Indian polity” (Choudhry 2013, 3). Historical appeals resonate with India’s constitutional project; the Constitution’s starting point is usually invoked to identify the purpose behind the broader plan established at the founding (Choudhry 2013, 3). References to the framers of the Indian Constitution—particularly, its chief architect B. R. Ambedkar—are made to support arguments about these constitutional purposes. The Indian Supreme Court’s constitutional interpretation approach has been called “eclectic” (Chandrachud 2016, 73), although this has not appeared to erode public perception of the Court’s institutional legitimacy. While the Court has not adhered to a consistent interpretive approach, constitutional history is present in Indian constitutional practice. We offer three such examples. 69
See Australian Capital Television Pty. Ltd. v. Commonwealth (1992) 177 C.L.R. 106 [hereinafter ACTV]; see also Theophanous v. Herald & Weekly Times Ltd. (1994) 182 C.L.R. 104. 70 ACTV, 177 C.L.R. at 138. 71 For an example of the former view, see, e.g., Selway 2003. For the latter view, see e.g., McHugh 2008. 72 Eastman v. The Queen (2000) 203 C.L.R. 1, 33; cf. Scalia 1989, 864.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 13 /
Date: 11/7
JOBNAME: Delaney PAGE: 14 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
392 Comparative judicial review Consider first the Supreme Court’s 2015 decision in the NJAC Case.73 Since the Court’s 1993 judicial appointments decision,74 judges are appointed to the Supreme Court and High Courts through a “collegium” system of appointments, in which the Chief Justice and other senior justices play a primary role. Parliament sought to replace this system with an appointments process led by a National Judicial Appointments Commission. Invoking the “basic structure” doctrine for only the fourth time in its history,75 the Court struck down a constitutional amendment and a statute enacted to change the judicial appointments process. By a four to one majority, the Court declared the amendment unconstitutional for violating judicial independence, a part of the Constitution’s basic structure.76 The focus on constitutional history in the NJAC Case is striking. The AttorneyGeneral relied “emphatically” on the Constituent Assembly debates to argue that the Supreme Court’s earlier judicial appointments judgments had been “diagonally opposite” to the “intent and resolve of the Constituent Assembly.”77 In response, the Court repeatedly referred to the drafting debates to support its conclusion that judicial primacy in the appointment process is integral to judicial independence. Justice Kehar frequently mentioned Ambedkar’s statements in arguing that the drafters had intended judicial appointments to be “shielded” from “political considerations.”78 Concluding that this was the framers’ “true intent” behind the clause that the president appoint judges after “consultation” with the Chief Justice,79 Justice Kehar declared that the word “consultation” could not “be assigned its ordinary dictionary meaning.”80 Justice Lokur, too, paid close attention to history. Cautioning that “those who do not remember their past are condemned to repeat their mistakes,”81 he employed historical arguments to assert that the understanding at the time was that the president should consult and defer to the chief justice.82 In addition to the Constituent Assembly debates83 and Ambedkar’s views,84 Justice Lokur referred extensively to other sources from the constitution-making period, such as memoranda submitted to the drafting committee85 and Granville Austin’s scholarly work.86
73 Supreme Court Advocates-on-Record Association v. Union of India (2015) 5 RAJ 350 [hereinafter NJAC Case]. 74 Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441. 75 See L. Chandra Kumar v. Union of India (1997) 3 SCC 261; Minerva Mills v. Union of India (1980) 3 SCC 625; Indira Nehru Gandhi v. Raj Narain (1975) 1 Suppl. SCC 97. 76 NJAC Case, 5 RAJ at ¶¶ 254–6 (Kehar, J.). 77 NJAC Case, 5 RAJ at ¶¶ 17, 73, 124. 78 Id. at ¶ 79. 79 Id.; see INDIA CONST. art. 124. 80 NJAC Case, 5 RAJ at ¶ 77 (Kehar, J.). 81 Id. at ¶ 4 (Lokur, J.). 82 Id. at ¶ 54. 83 Id. at ¶¶ 34–53. 84 Id. at ¶¶ 18–24. 85 See id. at ¶¶ 31, 36, 38, 43, 45–50. 86 See id. at ¶ 32.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 393 Although the accuracy of the NJAC Case majority’s historical claims has been contested,87 the interpretive moves made by the majority are originalist. They are grounded in appeals to the framers’ intent and the aims behind the Constitution’s creation. A second example of constitutional history being used in practice is the Delhi High Court decision in Naz Foundation v. Government of Delhi.88 In 2009, the court held a penal code provision criminalizing same-sex activity unconstitutional for violating equality and liberty guarantees.89 Appealing in soaring terms to the ideals behind the drafting of these constitutional liberties, it declared that “[t]hese fundamental rights had their roots deep in the struggle for independence.”90 Endorsing the idea of the Indian Constitution as “first and foremost a social document,” the court viewed the Constitution’s aim as achieving a “social revolution by creating an egalitarian society.”91 Using as a guide the constitutional morality “strongly insisted upon by Dr. Ambedkar in the Constituent Assembly,”92 the Delhi High Court declared that it “would be against constitutional morality to criminalize homosexuals only on account of their sexual orientation.”93 The Naz Foundation decision has been hailed as an illustration of “a comparative, engaged living originalism in practice” (Choudhry 2013, 18). What is clear is that the use of history in Naz Foundation is not in service of a rigidly textualist or specific application form of originalism. Rather, the court “reframed the concepts of originalism and morality to demonstrate how both ideas demanded the overturning of such laws” (Katyal 2010, 1465). In reaching its decision, the High Court “turned for help[] to an older moment, a moment of origin” (Bhan 2009, 94). The invocation of historical arguments go to the Constitution’s overarching goals and sounds in the “conscience of the Constitution.”94 In 2013, the Supreme Court overturned the Delhi High Court judgment in a panel decision which appears to pay little attention to constitutional history.95 Yet, the Supreme Court’s skepticism about relying on foreign experiences—associating LGBT rights claims with Western values96—speaks, in a sense, in the language of the Indian Constitution as an anti-colonial project. Contrast the High Court’s Naz Foundation judgment with the Supreme Court’s narrowly originalist approach in A.K. Gopalan v. Madras.97 In this 1950 case involving 87
See, e.g., Sengupta 2011, 126; Chintan Chandrachud, Debating the NJAC Judgment of the Supreme Court of India: Three Dimensions, UK CONSTITUTIONAL LAW ASSOCIATION (2015), www.ukconstitutionallaw.org/2015/11/03/chintan-chandrachud-debating-the-njac-judgment-of-thesupreme-court-of-india-three-dimensions/. 88 (2009) 160 DLT 277 (Del) [hereinafter Naz Foundation (HC)]. 89 Id.; see PEN. CODE, art. 14; PEN. CODE, art. 21. 90 Naz Foundation (HC), 160 DLT at ¶ 52. 91 Id. at ¶ 80. 92 Id. at ¶ 79. 93 Id. at ¶ 80. 94 Id. at ¶ 80. 95 Koushal v. Naz Foundation, Civil Appeal No. 10972 of 2013. 96 Id. at ¶ 52. 97 (1950) 1 S.C.R. 88.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 15 /
Date: 15/8
JOBNAME: Delaney PAGE: 16 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
394 Comparative judicial review a constitutional challenge to preventive detention laws, the Court refused to interpret the Article 21 due process guarantee as containing any substantive protections.98 Notably, in choosing to reject substantive due process in Gopalan the Court explicitly looked to the drafting history of Article 21.99 India’s constitutional framers had sought to avoid the American constitutional experience with substantive due process by amending the original wording of the Indian due process clause.100 Justice Felix Frankfurter, no less, had warned the Indian constitutional drafters to avoid the risk of Lochner-esque economic libertarianism (Neuborne 2003, 479 n.21). Reflecting on the Court’s decision, one commentator noted that “[a]s a matter of strict originalism, the Gopalan Court was probably justified in declining to read substantive protections in article 21” (Neuborne 2003, 479 n.21). Later, in Maneka Gandhi v. Union of India,101 the Court rejected the Gopalan Court’s due process approach, recognizing an implied substantive due process right and endorsing an expansive, purposive approach to interpreting fundamental rights that paved the way for the Indian Supreme Court’s assertive role in rights protection. Accordingly, the Gopalan Court’s narrow approach to due process and originalism has receded in Indian constitutional jurisprudence even as the Supreme Court has cemented its powerful institutional position in Indian constitutional governance. Constitutional interpretation in India is pluralistic, not predominantly focused on history. Nevertheless, when invoked, the power of historical arguments sounds in the broader ideals of India’s constitutional project. 6. Hong Kong Since coming into force on July 1, 1997, as part of Hong Kong’s “one country, two systems” constitutional arrangement, Hong Kong’s Basic Law has been a fault line of tension between the Hong Kong Court of Final Appeal and the Standing Committee of the National People’s Congress of the People’s Republic of China. The contestation over the Basic Law exemplifies the broader conflict between these two systems of different ideological, cultural, and legal traditions in modern Hong Kong (Chan 2014, 170). Drafted by committee members who were approved by the Standing Committee and drawn mostly from mainland China, the Basic Law codified policies in accordance with the 1984 Sino-British Joint Declaration, which provided for Hong Kong to operate with a high degree of autonomy upon its transfer to China. It came into effect in 1997 when Hong Kong became a Special Administrative Region under Chinese sovereignty. While Hong Kong courts are authorized to interpret provisions of the Basic Law, the final power to interpret the Basic Law is vested in the Standing Committee.102 Despite the political climate in which it operates, the Court of Final Appeal has “ascended” (Ip 2016, 565) into the role of “custodian of the constitution” (Chen and Lo 98 99 100 101 102
Id. at 107–10. Id. at 110–11. Id. at 111. (1978) 2 S.C.R. 621. XIANGGANG JIBEN FA art. 158.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 16 /
Date: 11/7
JOBNAME: Delaney PAGE: 17 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 395 2014, 390). The Court has generally favored a purposive approach toward interpreting the Basic Law, focused on the text, and has been skeptical of narrowly conceived historical claims tied to the original intent of the Basic Law drafters.103 According to the Court, the Basic Law is “a living instrument intended to meet changing needs and circumstances”104 and ascertaining its “true meaning” requires considering “the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context.”105 The Court’s approach is in line with traditions of common law constitutionalism familiar to the Hong Kong legal system (Ip 2016, 593). The Standing Committee, however, has not hesitated to refer to the original intent of the Basic Law’s drafters in interpreting the constitutional document and has relied on legislative materials related to the drafting of the Basic Law (see Young 2007, 16). In its 1999 Basic Law Interpretation, the Standing Committee referred to the written opinion of a preparatory committee in 1996 as evidence of the original intent,106 and declared that “the interpretation of Court of Final Appeal [was] not consistent with the legislative intent.”107 The Court of Final Appeal refused to adopt the original intent approach endorsed by the Standing Committee. In 2001, the Court declared that the task of the courts “is not to ascertain the intent of the lawmaker on its own.”108 “Once the courts conclude that the meaning of the language of the text when construed in the light of its context and purpose is clear,” wrote the Chief Justice, “the courts are bound to give effect to the clear meaning of the language.”109 A court should not “on the basis of any extrinsic materials depart from that clear meaning and give the language a meaning which the language cannot bear.”110 After this case, as Eric Ip observes, “Hong Kong judges seemed to have no obligation to follow the Standing Committee’s arbitrary claims of ‘original’ intent” (Ip 2016, 583). In light of the composition of the committee that drafted the Basic Law, it is unsurprising that the Hong Kong courts have strenuously sought to avoid interpretation based on the framers’ intent. As Albert Chen has remarked: “If the original intent were to be given effect to, does this mean that the Basic Law would have to be interpreted in accordance with mainland Chinese thinking, assumptions, values and interest?” (Chen 2000, 421). Writ large, though, the conflicts over Hong Kong’s Basic Law are not simply over disparate interpretive methods but also between different institutional interpreters. Which forms of historical argument have salience—and with whom—depends greatly on Hong Kong’s political and historical context in which two systems co-exist within one country. 103
See Ng Ka Ling v. Director of Immigration (1999) 2 H.K.C.F.A.R. 4. Id. at ¶ 73. 105 Id. at ¶ 74. 106 The Interpretation by the Standing Comm. of the National People’s Congress of Articles 22(4) and 24(2)(3) of the Basic Law (adopted on June 26, 1999). 107 Id. 108 Director of Immigration v. Chong Fung Yuen (2001) 4 H.K.C.F.A.R. 211, 223. 109 Id. at 225. 110 Id. 104
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 17 /
Date: 15/8
JOBNAME: Delaney PAGE: 18 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
396 Comparative judicial review 7. Malaysia Constitutional history is frequently invoked in debates over the place of religion in Malaysia’s constitutional order. Contemporary politics and adjudication divide over whether the Malaysian state is secular or Islamic. On August 31, 1957, the Malayan Constitution came into force when the Federation of Malaya gained independence from the British. Six years later, the 1957 Merdeka Constitution would become the basis for the Federal Constitution of Malaysia when Singapore and the Borneo states of Sabah and Sarawak joined the Malayan Federation to create the new nation of Malaysia. Much of the debate has centered over the Article 3(1) declaration that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony …”111 Growing Islamization in Malaysia’s political discourse over the past three decades has challenged the established understanding at the Constitution’s creation that Article 3(1) would not undermine the Constitution’s secular foundation (see generally Fernando 2006).112 Historical arguments have featured prominently in the legal and political battleground. Proponents of Malaysia’s Islamization have employed historicist rhetoric to expand Islam’s constitutional scope (see Tew 2014, 801–18). Secularists, in response, have sought to defend the Constitution’s secular basis by recourse to the original understanding of Article 3(1). Initially, constitutional arguments relied on the intent of the framers to establish the Malaysian Constitution’s secular foundations. In a landmark 1988 decision, the Supreme Court (later renamed the Federal Court) made clear its focus of inquiry: “The question here is this: Was this the meaning intended by the framers of the Constitution?”113 It concluded that Malaysia’s constitutional and drafting history showed that Islam’s role was confined only to “rituals and ceremonies.”114 Two years later, the Supreme Court again affirmed the Constitution’s secular basis after seeking to “ascertain … what purpose the founding fathers of our Constitution had in mind when our constitutional laws were drafted. …”115 Those wishing to prioritize Islam’s constitutional position, however, have mobilized historical arguments to promote Islam’s supremacy. In Meor Atiqulrahman,116 for example, the High Court constructed a historical account of the constitutional bargain to argue that the framers had intended to secure Islam’s dominant position as a result of the social contract struck at the founding.117 And in Lina Joy, the High Court insisted that allowing Muslims to convert out of Islam “would result in absurdities not intended
111 112
FED. CONST. (MALAY.), art. 3(1). See, e.g., REPORT OF THE FEDERATION
OF
MALAYSIA CONSTITUTIONAL COMMISSION at
¶ 11. 113
Che Omar bin Che Soh v. Public Prosecutor (1988) 2 MALAYAN L.J. 55, 56. Id. at 56–7. 115 Teoh Eng Huat v. Kadhi Pasir Mas (1990) 2 MALAYAN L.J. 300, 301. 116 Meor Atiqulrahman bin Ishak v. Fatimah bte Sihi (2000) 5 MALAYAN L.J. 375 (High Court, Seremban). 117 Id. at 385; see also id. at 384. 114
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 18 /
Date: 11/7
JOBNAME: Delaney PAGE: 19 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 397 by the framers …”118 Although these historical accounts have been criticized as “revisionist” (see Thio and Neo 2006, 681–3), what is notable is these courts’ insistence on using historical arguments to support an expansive interpretation of Article 3(1) despite established Supreme Court precedent confining its scope. Judges alarmed by this expansion of Islam’s position have fought back on originalist turf. In his Lina Joy dissenting opinion, Justice Malanjum asserted that the courts had a duty to uphold an individual’s religious freedom.119 Significantly, the Justice viewed his interpretation as faithful to the framers’ intent: “Sworn to uphold the Federal Constitution, it is my task to ensure that it is upheld at all times by giving effect to what I think the founding fathers of this great nation had in mind when they framed this sacred document.”120 Recourse to constitutional history has also been used to advocate a purposive interpretation of the Constitution’s fundamental liberties.121 Its proponents exhort “a liberal approach in order to implement the true intention of the framers” of the Constitution.122 They seek to empower the courts to protect constitutional rights from legislative infringement by expanding the scope of enforceable rights and support drawing implied rights from the Constitution’s text and founding principles.123 Strikingly, historical argument in Malaysia is usually employed by political liberals in support of a rights-expansive constitutional adjudication approach not associated with judicial constraint. Secularists routinely reach back to the Constitution’s founding premises to argue for more robust protection of individual constitutional rights. Originalist discourse in Malaysia is characterized by a focus on the intent of the framers and constitutional history, rather than textual meaning. Historical evidence is viewed favorably as an extrinsic interpretive aid to determine the actual intentions of individual framers.124 Constitutional history in Malaysia has not been confined to the courts, but has a distinctly popular dimension (see Tew 2014, 813–14). Secularists and Islamists battle so deeply over the history surrounding Malaysia’s constitutional founding because it is, in essence, a struggle over the nation’s identity. Constitutional history provides a means by which to articulate narratives about the country’s founding (see Evans 2009, 438). Historical argument in judicial and popular discourse has potency because of its role in linking constitutional narrative with national identity. 118
Lina Joy v. Majlis Agama Islam Wilayah & Anor (2004) 2 MALAYAN L.J. 119, [18]. See FED. CONST. (MALAY.), art. 11(1) (“Every person has the right to profess and practice his religion …”). 119 Lina Joy v. Majlis Agama Islam Wilayah Persekutuan (2007) 3 ALL MALAY. REP. 585, 623[53]–24[53]. 120 Id. at 619[23]. 121 See, e.g., Sivarasa Rasiah v. Badan Peguam Malaysia & Anor (2010) 2 MALAYAN L.J. 333, ¶¶ [22]–[23]. 122 Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan (1996) 1 MALAYAN L.J. 261, 288; see also Lee Kwan Woh v. Pub. Prosecutor (2009) 5 MALAYAN L.J. 301, 312. 123 See, e.g., Sivarasa Rasiah (2010) 2 MALAYAN L.J. 333; Muhammad Hilman bin Idham v. Kerajaan Malaysia (2011) 6 MALAYAN L.J. 507. 124 See, e.g., Zambry bin Abd Kadir v. Mohammad Nizar bin Jamaluddin (2009) 5 MALAYAN L.J. 464, 534 (CA).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 19 /
Date: 11/7
JOBNAME: Delaney PAGE: 20 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
398 Comparative judicial review 8. Singapore Unlike Malaysia’s Constitution, conceived on the heady road to independence, Singapore’s constitutional origins emerged from more pragmatic circumstances. Singapore achieved independence from Britain when it joined the Federation of Malaysia in 1963. The union was unhappy and brief. In August 1965, Singapore separated from the Federation to become a sovereign state, and the Singapore government cobbled together a working constitution from several documents.125 Although much of the Singapore Constitution is based on Malaysia’s Constitution, it is distinct in several ways; for example, Malaysia’s Islamic constitutional clause has no Singaporean counterpart. The prevailing approach to constitutional interpretation by the Singapore courts has been characterized by strict legalism and a highly deferential stance toward the political branches of government (see Neo 2016, 3–6). In light of Singapore’s lack of a momentous constitutional founding moment, it is unsurprising that judicial appeals to history have not featured prominently in its constitutional jurisprudence. That is, until the Singapore apex court’s heavily originalist decision in Yong Vui Kong v. Public Prosecutor,126 which involved a constitutional challenge to the mandatory death penalty brought by an appellant convicted of drug trafficking. The Singapore Court of Appeal unanimously rejected the argument that the mandatory death penalty constituted an inhuman punishment that violated the right to life guaranteed by Article 9(1) of Singapore’s Constitution.127 The Court’s opinion is self-consciously originalist, focusing on the text and framers’ intent. It refused to find an implied prohibition against inhuman punishment, reasoning that the framers had deliberately omitted to include such a prohibition.128 The Court took the lack of any explicit prohibition against inhuman punishment in Singapore’s Constitution as evidence of the framers’ original understanding.129 The Court’s focus on the framers’ original intent is striking, particularly since Singapore’s Constitution is based on the 1957 Independence Malayan Constitution, which was drafted by a constitutional commission chaired by Britain’s Lord Reid.130 Despite the oddity of relying on the original intent of another nation’s constitutional drafters (see Yap 2016, 120), Chief Justice Chan Sek Keong emphasized that the Reid Commission had not recommended a prohibition against inhuman treatment, even though such a provision existed in the European Convention on Human Rights at the time.131 Such an “omission … was clearly not due to ignorance or oversight” on the 125 Singapore’s 1965 Constitution was a composite of its amended State Constitution, the Republic of Singapore Independence Act, and the applicable provisions of Malaysia’s Federal Constitution. 126 (2010) SGCA 20. 127 CONST. OF THE REP. OF SING. art. 9(1) (“No person shall be deprived of his life or personal liberty save in accordance with law”). 128 Yong Vui Kong, SGCA 20 at [60]–[75]. 129 Id. at [61]. 130 Id. at [62]. 131 Id.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 20 /
Date: 11/7
JOBNAME: Delaney PAGE: 21 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 399 drafters’ part.132 Therefore, to find such an implied prohibition would be “to legislate new rights into the Singapore Constitution under the guise of interpreting existing constitutional provisions.”133 The Court also noted that Singapore’s Constitutional Commission had convened in 1966 and had proposed adding an inhuman treatment prohibition, but that the “proposal was ultimately rejected by the Government.”134 As such, it was “not legitimate for [the] court to read into Art 9(1) a constitutional right which was decisively rejected by the Government in 1969. …”135 The Singapore Court maintained its focus on constitutional history in two subsequent cases involving the same appellant. In 2011, the Court drew on the “legislative history of the clemency power in this jurisdiction” to conclude that the Constitution “excludes any role for the President’s personal discretion” in the exercise of clemency.136 The Court also rejected another appeal on the grounds that there was “no evidence in the historical record” to indicate that the original understanding of the right to life prohibited corporal punishment.137 The originalist approach employed by the Singapore Court of Appeal bears little resemblance to the appeals to history displayed across the border in Malaysia. Constitutional interpretation in Singapore is heavily formalist, and its originalist jurisprudence is no exception. The Yong Court’s narrowly textualist approach to original understanding is in service of judicial deference.138 Judicial invocation of constitutional history reflects the Singapore Court’s deferential approach to the political branches. The Court employs originalist arguments prudentially: It is concerned with constraining judicial discretion and ensuring deference toward legislative majorities. The manner in which historical arguments are employed in Singapore is unsurprising in light of its constitutional culture, which reflects “a predominant constitutional pragmatism” (Thio 2012). The Singapore Court’s reliance on history is in service of judicial deference, focused on text, and has little popular appeal outside the courts.
D. CONCLUSION The uses and practices of constitutional history vary across different comparative contexts. We have offered a number of distinctions that an observer may draw in describing a particular court’s use of constitutional history. We have also described the practices prevalent within eight jurisdictions that have a constitutional court or an apex court that engages in constitutional review. Our selection of jurisdictions, while interstitial, shows that the salience of constitutional history is contingent on a nation’s political and historical traditions and is often also connected to temporal socio-cultural 132 133 134 135 136 137 138
Id. Id. at [59]. Id. at [64]. Id. at [72]. Yong Vui Kong v. Attorney-General (2010) 2 SLR 1189, [174]. Yong Vui Kong v. Public Prosecutor (2010) SGCA 11, [23]. Yong Vui Kong, SGCA 20 at [49], [52].
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 21 /
Date: 11/7
JOBNAME: Delaney PAGE: 22 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
400 Comparative judicial review elements. For instance, historical arguments appear to thrive in constitutional cultures where there is popular identification with the narratives associated with the constitution’s founding, like the United States and Malaysia. Other factors that influence the use of history might be easier to predict. For example, we suspect that frequent amendment might tend to dull references to the original constitutional design (though it might also spur dialogue about the constitution’s core commitments, as in the case of India’s basic structure doctrine). Frequent amendment might diminish the rhetorical purchase of the initial framers. Similarly, repeated experience with the contentious process of constitutional drafting may make drafter worship less likely and might educate the public about the compromises that inform constitutional design. We also suspect that caseload or financial pressures may limit a court’s ability to conduct in-depth historical research and therefore affect its use of history as an interpretive resource. Still, while particular uses of history may depend on idiosyncratic features of the constitutional culture, our examples indicate that history is broadly relevant even in jurisdictions that disclaim its significance, and has limited reach even in jurisdictions that herald its importance. The variations in the uses of constitutional history across comparative systems stem from the particularities of the political, historical, and cultural context in which those practices are located.
REFERENCES Amar, Akhil Reed. 2016. The Constitution Today. New York, NY: Basic Books. Balkin, Jack M. 2011. Living Originalism. Cambridge, MA: Harvard University Press. Barnett, Randy E. 2003. Restoring the Lost Constitution. Princeton, NJ: Princeton University Press. Baude, William. 2015. “Is Originalism Our Law?” Columbia Law Review 115: 2349–408. Bhan, Gautam. 2009. “On Freedom’s Avenue.” In Right That Dares Speak Its Name. Bangalore: Alternative Law Forum. Bickel, Alexander M. 1955. “The Original Understanding and the Segregation Decision.” Harvard Law Review 69: 1–65. Bobbitt, Philip. 1988. Constitutional Interpretation. Hoboken, NJ: Blackwell Publishing. Chan, Johannes. 2014. “Hong Kong’s Constitutional Journey 1997–2001.” In Constitutionalism in Asia in the Early Twenty-First Century, edited by Albert H.Y. Chen. Cambridge: Cambridge University Press. Chandrachud, Chintan. 2016. “Constitutional Interpretation.” In The Oxford Handbook of the Indian Constitution, edited by Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta. Oxford: Oxford University Press. Chen, Albert H.Y. 2000. “The Interpretation of the Basic Law—Common Law and Mainland Chinese Perspectives.” Hong Kong Law Journal 30: 380–431. Chen, Albert H.Y and P.Y Lo. 2014. “The Basic Law Jurisprudence of the Court of Final Appeal.” In Hong Kong’s Court of Final Appeal: The Development of Law in China’s Hong Kong, edited by Simon N. M. Young and Yash Ghai. Cambridge: Cambridge University Press. Choudhry, Sujit. 2013. “Living Originalism in India? ‘Our Law’ and Comparative Constitutional Law.” Yale Journal of Law and Humanities 25: 1–22. Evans, Carolyn. 2009. “Constitutional Narratives: Constitutional Adjudication on the Religion Clauses in Australia and Malaysia.” Emory International Law Review 23: 437–68. Fernando, Joseph M. 2006. “The Position of Islam in the Constitution of Malaysia.” Journal of Southeast Asian Studies 37: 249–66. Goldsworthy, Jeffrey. 2006. “Australia: Devotion to Legalism.” In Interpreting Constitutions: A Comparative Study, edited by Jeffrey Goldsworthy. New York, NY: Oxford University Press. Greene, Jamal. 2011. “The Anticanon.” Harvard Law Review 125: 379–475. Greene, Jamal. 2012. “The Case for Original Intent.” George Washington Law Review 80: 1683–706.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 22 /
Date: 15/8
JOBNAME: Delaney PAGE: 23 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Comparative approaches to constitutional history 401 Greene, Jamal. 2016. “Rule Originalism.” Columbia Law Review 116: 1639–704. Ip, Eric C. 2016. “The Politics of Constitutional Common Law in Hong Kong under Chinese Sovereignty.” Washington International Law Journal 25: 565–96. Katyal, Sonia K. 2010. “The Dissident Citizen.” UCLA Law Review 57: 1415–76. Kirby, Hon. Justice Michael. 2000. “Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?” Melbourne University Law Review 24: 1–14. Klarman, Michael J. 1995. “Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell.” Virginia Law Review 81: 1881–936. Knapp, Steven and Walter Benn Michaels. 1992. “Intention, Identity and the Constitution: A Response to David Hoy.” In Legal Hermeneutics, edited by Gregory Leyh. Berkeley, CA: University of California Press. Kommers, Donald P. 1991. “German Constitutionalism: A Prolegomenon.” Emory Law Journal 40: 837–74. Kommers, Donald P. and Russell A. Miller. 2012. Constitutional Jurisprudence of the Federal Republic of Germany. Durham, NC: Duke University Press. Law, David S. 2015. “Judicial Comparativism and Judicial Diplomacy.” University of Pennsylvania Law Review 163: 927–1036. McHugh, Michael. 2008. “The Constitutional Jurisprudence of the High Court: 1989–2004.” Sydney Law Review 30: 5–26. Miller, Bradley W. 2009. “Beguiled by Metaphors: The ‘Living Tree’ and Originalist Constitutional Interpretation in Canada.” Canada Journal of Law and Jurisprudence 22: 331–54. Neo, Jaclyn Ling-Chien. 2016. “Introduction.” In Constitutional Interpretation in Singapore. New York, NY: Routledge. Neuborne, Burt. 2003. “The Supreme Court of India.” International Journal of Constitutional Law 1: 476–510. Okoth-Ogendo, H.W.O. 1993. “Constitutions Without Constitutionalism: Reflections on an African Political Paradox.” In Constitutionalism and Democracy: Transitions in the Contemporary World, edited by Douglas Greenberg, Stanley N. Katz, Melanie Beth Oliviero, and Steven C. Wheatley. Oxford: Oxford University Press. Rosenfeld, Michel. 2004. “Constitutional Adjudication in the United States and Europe: Paradoxes and Contrasts.” International Journal of Constitutional Law 2: 633–68. Rubenfeld, Jed. 2005. Revolution by Judiciary. Cambridge, MA: Harvard University Press. Sachs, Stephen E. 2012. “Constitutional Backdrops.” George Washington Law Review 80: 1813–88. Sachs, Stephen E. 2015. “Originalism as a Theory of Legal Change.” Harvard Journal of Law and Public Policy 38: 817–88. Scalia, Antonin. 1989. “Originalism: The Lesser Evil.” University of Cincinnati Law Review 57: 849–66. Scalia, Antonin. 1997. A Matter of Interpretation. Princeton, NJ: Princeton University Press. Scheppele, Kim Lane. 2003. “Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Cultural Influence Through Negative Models.” International Journal of Constitutional Law 1: 296–324. Scheppele, Kim Lane. 2013. “Jack Balkin Is an American.” Yale Journal of Law and Humanities 25: 23–42. Selway, Brad. 2003. “Methodologies of Constitutional Interpretation in the High Court of Australia.” Public Law Review 14: 234–50. Sengupta, Arghya. 2011. “Judicial Independence and the Appointment of Judges to the Higher Judiciary in India: A Conceptual Inquiry.” Indian Journal of Constitutional Law 5: 99–126. Strauss, David A. 2010. The Living Constitution. Oxford: Oxford University Press. Tew, Yvonne. 2014. “Originalism at Home and Abroad.” Columbia Journal of Transnational Law 52: 780–895. Thio, Li-Ann. 2012. A Treatise on Singapore Law. Singapore: Academy Publishing. Thio, Li-Ann and Jaclyn Ling-Chien Neo. 2006. “Religious Dress in Schools: The Serban Controversy in Malaysia.” International and Comparative Law Quarterly 55: 671–88. Varol, Ozan O. 2011. “The Origins and Limits of Originalism: A Comparative Study.” Vanderbilt Journal of Transnational Law 44: 1239–98. Weis, Lael K. 2013. “What Comparativism Tells Us About Originalism.” International Journal of Constitutional Law 11: 842–69. Yap, Po Jen. 2016. “Uncovering Originalism and Textualism in Singapore.” In Constitutional Interpretation in Singapore, edited by Jaclyn Ling-Chien Neo. New York, NY: Routledge.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 23 /
Date: 15/8
JOBNAME: Delaney PAGE: 24 SESS: 3 OUTPUT: Thu Aug 23 10:51:28 2018
402 Comparative judicial review Young, Simon. 2007. “Legislative History, Original Intent, and the Interpretation of Basic Law.” In Interpreting Hong Kong’s Basic Law: The Struggle for Coherence, edited by Hualing Fu, Lison Harris, and Simon N. M. Young. New York, NY: Palgrave Macmillan.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 19_Chapter19_ts
/Pg. Position: 24 /
Date: 11/7
JOBNAME: Delaney PAGE: 1 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
20. Judicial review and the politics of comparative citations: theory, evidence and methodological challenges Ran Hirschl*
A. INTRODUCTION: TERMINOLOGY AND TRENDS The rise of a global constitutional dialogue, the apparent inevitability of engagement with foreign jurisprudence in an era of globalization and increased inter-connectivity, and the corresponding emergence of an international epistemic community of courts and judges are phenomena that have attracted much attention among scholars and jurists alike. One of the main manifestations of the global constitutional convergence is the supposed rise of a predominantly Western-liberal constitutional “core” of rights protection principles and a corresponding increase in foreign references to that canonical core by constitutional courts worldwide (McCrudden 2000; Jackson 2010; Andenaes and Fairgrieve 2015). Whether there has been a significant increase in foreign citations in recent years remains an open question; the empirical data concerning the actual scope and nature of these trends is inconclusive and quite thin considering the normative polemics and scholarly buzz the phenomenon has attracted of late. In the United States, the debate on the desirability and legitimacy of reference to foreign precedents in constitutional interpretation has been fierce, often reflecting given stakeholders’ ideological stand on much broader questions, and thus described by observers as “an episode in America’s culture wars” (Tushnet 2006a; see also Waldron 2005; Dorsen 2005). In other settings, the practice has been in routine and uncontested use for decades—yet in other polities, the changing political and constitutional fortunes have brought about frequent changes in the scope and nature of foreign citations, or created unique sub-communities of reference along regional, linguistic, or religious lines. Despite the ever-increasing interest in the international migration of constitutional ideas and the steady rise in quality scholarship on the subject, detailed analyses of the practice of constitutional court recourse to foreign sources—including a breakdown of precisely which countries’ courts are cited the most or the least by other high courts—are quite difficult to come by. Little is known about the scope of the practice in entire regions, most notably Latin America, Africa, and large parts of Asia.1 Moreover, * This chapter draws on work previously published in Hirschl 2009a, Hirschl 2014a, Hirschl 2014b, Hirschl 2015, and Hirschl 2016. 1 Several notable exceptions (e.g., chapters describing patterns of foreign citations in Russia, Romania, Mexico, and Japan) are included in Groppi and Ponthoreau 2013.
403
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 1 /
Date: 11/7
JOBNAME: Delaney PAGE: 2 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
404 Comparative judicial review relatively little is known about the specific areas of constitutional law where crossjurisdictional reference is more likely to occur other than the intuitive sense that such reference is more common in rights jurisprudence than in other areas, such as the more aspirational or organic (e.g., federalism, separation of powers, amending procedures) features of the constitution, where national idiosyncrasies and contingencies are more prevalent (Jackson 2004). However, initial insights into the changing patterns of non-binding foreign reference are now available in about two dozen, mostly Western, constitutional democracies, and this is a fast-growing and proliferating area of comparative constitutional research (e.g., Gelter and Siems 2014; Arcioni and McLeod 2015; Black et al. 2015; Gentili 2015). First, cross-jurisdictional constitutional “pollination” can refer to several different objects of migration: constitutional structure (i.e., the very architecture of a given constitutional system and its organs); constitutional interpretation techniques and modes of analysis (e.g., originalism, purposive interpretation, proportionality); and comparative jurisprudence, namely judicial reference to abstract concepts alongside concrete constitutional court rulings, precedents, and legal analysis. With respect to constitutional structure, several studies address borrowing in constitution-making and constitutional design, although the exact scope and nature of diffusion in that area are not readily quantifiable and often require detailed single-country constitutional ethnographies to capture. With respect to constitutional interpretative modes, there is a general agreement that what has been termed “proportionality” has become the unofficial lingua franca of constitutional interpretation worldwide. In this chapter, I focus on a main component of the third aspect: actual international migration of constitutional ideas through judicial reference to foreign constitutional jurisprudence. Second, there are several types of judicial recourse to foreign law by courts: mandatory or binding use of foreign law (e.g., when courts are legally obliged to use foreign legal rules or to follow rulings of foreign tribunals in a domestic forum); advisable but non-binding use of foreign law (e.g., when the foreign law has clear normative and reputational value that makes reference to it alluring, as with, for example, international human rights norms); and voluntary or optional use of foreign law (e.g., where there is no requirement, expectation, or authority in the domestic legal order for the reference to foreign law but it is done nonetheless) (see Bobek 2013, 19–35; Canale 2015). In the latter scenario, foreign law may be used as a “persuasive authority” (Glenn 1987), as an interpretive aid (so that the ruling does not appear arbitrary), as a testament to a given rule’s functionality in other jurisdictions, as a benchmark against which to compare a given constitutional system’s take on the issue at stake, or simply for “beautification” or “decorative” purposes. The discussion herein addresses this type of recourse to the laws of others: voluntary reference to the constitutional jurisprudence of other polities. Third, with respect to actual patterns of voluntary reference, it has become a near-cliché to mention that in its landmark 1995 Makwanyane ruling—determining the unconstitutionality of the death penalty—the newly established South African Constitutional Court examined in detail pertinent jurisprudence from Botswana, Canada, Germany, Hong Kong, Hungary, India, Jamaica, Tanzania, the United States, Zimbabwe, the European Court of Human Rights, and the United Nations Committee on Human Rights. In total, it refers to no fewer than 220 foreign case citations from
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 2 /
Date: 11/7
JOBNAME: Delaney PAGE: 3 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and the politics of comparative citations 405 11 national and three supranational courts (Rautenbach and du Plessis 2013). This seems indicative of a broader pattern. Foreign law has been cited or referenced in more than half of that country’s Constitutional Court rulings since 1994 (Bentele 2009). Observers often point out that Article 39 of the South African Constitution explicitly permits courts to look to foreign jurisprudence and in fact mandates that they consult international law when dealing with rights cases. It is hardly surprising that Justice Dikgang Moseneke, Deputy Chief Justice of South Africa, stated in 2010 that “[I]t is no exaggeration to observe that our decisions read like works of comparative constitutional law and where appropriate we have not avoided relying on foreign judicial dicta or academic legal writings in support of the reasoning we resort to or conclusions we reach” (Moseneke 2010, 63). Even the US Supreme Court—often considered (though perhaps incorrectly) the last bastion of principled resistance to foreign citations among the world’s leading national high courts—has hesitantly joined the comparative reference trend (Breyer 2015). On the supply side, too, things appear to have changed considerably. In 1957, Indian scholar Pradyumna K. Tripathi astutely observed (in a piece published in the prestigious Columbia Law Review) that as of the mid-twentieth century, the main point of foreign reference had shifted from the United Kingdom to the United States, even in former British colonies such as Australia, Canada, and India (Tripathi 1957). Half a century later, there seems to have been yet another shift, this time around a decline (the extent of which is not entirely clear) in the significance of American constitutional jurisprudence overseas (Law and Versteeg 2012). Some studies suggest that landmark judgments such as Brown v. Board of Education2 are referenced by only a small number of apex courts (e.g., in South Africa, India, Canada, and Israel), mainly to help justify the transformative role of those courts in equality-related matters (Lyke 2012). Other studies identify an increasing reference to certain elements of American constitutional jurisprudence as negative examples used by courts for distinction and contrast purposes (Scheppele 2003; Choudhry 2004). At any rate, it is safe to say that the current “global market” of citation sources offers considerably more choices to potential “consumers” than was the case 50 years ago. Accordingly, the Supreme Court of Canada, the German Federal Constitutional Court, and the European Court of Human Rights have emerged as three of the most frequently cited courts in the world. No single country’s constitutional landscape exemplifies this transformation more vividly than Canada, which offers a paradigmatic illustration of the focus and preoccupations of contemporary comparative constitutionalism and, in particular, of comparative constitutional reference (Hirschl 2017). Canada entered the twentieth century embodying the deferential, British-style constitutional tradition and emerged out of it with a robust constitutional culture featuring active judicial review, an acclaimed constitutional Bill of Rights, pervasive rights discourse, and one of the most frequently cited high courts in the world (Allan, Huscroft, and Lynch 2007). As the Chief Justice of the Supreme Court of Canada recently observed: “Canadian decisions are routinely cited by courts in South Africa, New Zealand, Israel, the United Kingdom, Australia and India, and by the European Court of Human Rights” (McLachlin 2013, 41). Likewise, Aharon Barak, former Chief Justice of the Supreme Court of Israel and 2
347 U.S. 483 (1954).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 3 /
Date: 11/7
JOBNAME: Delaney PAGE: 4 SESS: 8 OUTPUT: Thu Aug 23 10:51:28 2018
406 Comparative judicial review a member of honor in the emerging global epistemic community of judges, has praised the Supreme Court of Canada for being “particularly noteworthy for its frequent and fruitful use of comparative law. As such, Canadian law serves as a source of inspiration for many countries around the world” (Barak 2006, 203). This is a stunning change considering that the Supreme Court of Canada (established in 1875) did not become the top court of the land until the late-1940s, when appeals to the Judicial Committee of the Privy Council were abolished. The first century of the Supreme Court of Canada’s constitutional jurisprudence was not very relevant or inspiring to jurists, legal academics, or constitutional drafters overseas. But things changed almost overnight with the adoption of the Constitution Act, 1982, and in particular the Canadian Charter of Rights and Freedoms. A key feature of this change was Canadian constitutional ingenuity. As part of the 1982 constitutional revolution, innovations such as explicit constitutional commitment to bilingualism, multiculturalism, Aboriginal peoples’ rights, proportionality (via Section 1 of the Charter—the “limitations clause”), and potential political override of certain rights provisions (via Section 33’s “override clause”) were introduced in Canada. Some of these mechanisms were later analyzed and emulated abroad (Dodek 2016). Because they were designed to mitigate the tension between rigid constitutionalism and judicial activism on the one hand, and fundamental democratic governing principles on the other—a general challenge involving active judicial review—they were quick to attract the attention of constitutional reformers overseas. Supreme Court of Canada decisions concerning Section 1’s limitation clause—most notably R v. Oakes3—are now featured in many comparative constitutional law textbooks. They have served as the basis for the so-called proportionality analysis—the contemporary Esperanto-like lingua franca of constitutional interpretation throughout much of the liberal democratic world. It is here where the exportability of Canada’s “new constitutionalism” model has been evident. Canada’s model of formal limitations on rights has served as point of reference to constitutional framers in other countries (Weinrib 1993; Ghai 1997) and is frequently cited in leading textbooks and journals in comparative constitutional law (e.g., Jackson and Tushnet 2014). Subsequently, the so-called “dialogue” thesis, as well as “weak-form” and “commonwealth” models of judicial review were developed (Hogg and Bushell 1997; Gardbaum 2001; Tushnet 2006b), debated extensively, and have been analyzed comparatively by scholars in Canada and abroad (e.g., Gardbaum 2013). Another main area wherein Canadian constitutional thought is referred to frequently overseas is the managing of secessionist impulses through constitutional means. Landmark Supreme Court of Canada rulings concerning the Quebec saga, chief among them the Reference re Secession of Quebec (1998),4 have been commonly invoked in comparative constitutional design discourse and in international legal conversation on secession and self-determination. Over the last few years alone, the Quebec Secession Reference ruling and the jurisprudential framework it provided for dealing with the constitutionality and legality of secession claims have been referred to frequently in polities facing secessionist challenges, ranging from Catalonia and Scotland (Walters 3 4
R v. Oakes [1986] 1 S.C.R. 103. Reference re Secession of Quebec [1998] 2 S.C.R. 217.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 4 /
Date: 15/8
JOBNAME: Delaney PAGE: 5 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and the politics of comparative citations 407 1999) to Chechnya (Draganova 2004), Taiwan (Charney and Prescott 2000) and the former Yugoslavia (Oklopcic 2011). It has likewise become a main point of reference for general scholarly debate about the constitutional law and international law of secession (see, e.g., Doyle 2010; Levinson 2016). As indicated earlier, the increasing significance of and reference to Canadian Supreme Court rulings are indicative of the changing scope and nature of the foreign citation marketplace with respect to both “givers” and “takers” of constitutional ideas.
B. EXPLANATORY FACTORS, PAST AND PRESENT What explains where, when, and how the judicial imagination travels in its search for comparative reference? Possible answers emanate from several sources: (1) historical accounts of engagement with the constitutive laws of others; (2) recent scholarship in comparative public law that stresses the significance of various structural and disciplinary elements in elucidating patterns of transnational judicial dialogue; and (3) social science accounts that stress the significance of strategic and socio-political factors in explaining selective judicial engagement with the constitutive laws of others. 1. Early Experience: Need-based and Political Explanations Little is known about the scope and nature of the comparative reference practice by courts and judges in pre-modern times. What is known suggests that law-makers, jurists and political thinkers drew selectively on comparative sources for two main reasons: necessity and quest for political change. An obvious illustration of the former factor—necessity-driven engagement with foreign sources—is the need of ancient empires (e.g., the Roman Empire) to deal with the vast legal divergence within their bounds. As is well known, the Roman Empire developed a distinction between jus civile, applicable to Romans, and jus gentium, the law of nations. Under the latter, the praetor peregrinus of the Roman Republic engaged in legal comparisons and consideration of foreign circumstances to settle disputes to which non-citizens were party (Clark 1919, 243). As Henry Clark explains in his classic early twentieth-century piece (Clark 1919, 247): The praetor peregrinus studied the laws and legal theories of all cities, tribes, and nations, and extracted therefrom those rules and principles which were the best and most universal. These he published in a document called an edict. Each succeeding praetor was called upon to repeat this study and annually, upon taking office, to publish his edict. This system of laws so collected by the praetor peregrinus acquired the name of Jus Gentium.
Another illustration of a necessity-driven early engagement with foreign laws is the survival-driven legal adaptation by minority religious communities (e.g., Jewish communities in Europe, the Mediterranean, and northern Africa) forced to engage with the constitutive laws of others. The Halakha—the collective body of Jewish law—generally takes a negative attitude toward other legal systems. Although it recognizes non-Jewish law, it designates courts that base their rulings on such law as illegitimate institutions. At the same time, the variety of social, economic, and political realities the Jews have
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 5 /
Date: 11/7
JOBNAME: Delaney PAGE: 6 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
408 Comparative judicial review been through since ca. 70 CE has given rise to a notably more pragmatic approach to non-Jewish law. As the context within which Jewish tribunals operated changed over time, so too did the strictness or leniency with which they treated legal concepts restricting engagement with or reference to foreign law directives (Hirschl 2016). Studies of judicial behavior in medieval Jewish tribunals suggest that even within each of various periods of diasporic Judaism, considerable need- or survival-based variation existed among Jewish communities and their tribunals with regard to attitudes toward, and actual engagement with, foreign law and the legitimacy of litigation before non-Jewish tribunals (Simonsohn 2011). For example, the attitude of Jewish tribunals in medieval Ashkenaz toward engagement with “gentile” laws and tribunals differed at times from the approach toward the practice by Jewish communities in northern Africa. This was in part because the non-Jewish legal environment in Ashkenaz, unlike Muslim communities in northern Africa, which viewed Jewish litigation in Muslim courts as an act of conversion or acceptance of Muslim supremacy, viewed such Jewish engagement with outside law in considerably more casual terms (Libson 2003). The second factor—quest for political change through comparative engagement—is evident in the reference to foreign laws by legal thinkers in early-modern Europe (see Hirschl 2014a, 112–50). The list of prominent intellectuals who drew upon comparative materials to advance their political ideas or agenda is impressive; it includes the likes of Thomas More (e.g., his 1516 classic Utopia), John Selden’s De Iure Naturali et Gentium Juxta Desciplinam Ebraeorum (On Natural Law and Nations, according to the Teaching of the Jews, 1640), Montesquieu’s Lettres persanes (Persian Letters, 1721) and De l’esprit des lois (The Spirit of the Laws, 1748), as well as the multiple comparative legal writings of Francis Bacon, Hugo Grotius, Samuel von Pufendorf, Jean-Jacques Rousseau, and Henri-Benjamin Constant. All are masterpieces (some acknowledged as such more than others) of early comparative public law scholarship with an express political tilt. The work of Jean Bodin (1530–1596) provides a textbook illustration of this type of politically driven comparative reference. Bodin was arguably the chief figure in the intellectual quest to challenge the authority of Roman law through a comparative public law inquiry. Unlike Huguenot thinkers of his time, Bodin’s objection to a blanket acceptance of Roman law was not driven by opposition to Roman Catholicism per se, but by his support for the monarch’s undisputed legal authority over France. In 1566, he published Methodus ad facilem historiarum cognitionem (Method for the Easy Comprehension of History), which included “a very self-conscious effort to apply a comparative method to public law” (Kelly 1981, 270). Bodin forcefully states the book’s premise at the outset (quoted in Franklin 1963, 69–70): I shall not mention the absurdity of wishing to draw conclusions about universal law from the laws of Rome … [T]he only way to arrange the laws and govern the state … is to collect all the laws of all or the most famous commonwealths, to compare them and derive the best variety.
The lengthy (over 130 pages) chapter 6 of Methodus, titled “The Types of Government in States,” engages in comparative analysis of what we would call today the constitutional foundations or basic rules of government. Bodin compares the laws of ancient empires, medieval polities, and the kingdoms, grand duchies, and city-states of his time
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 6 /
Date: 11/7
JOBNAME: Delaney PAGE: 7 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and the politics of comparative citations 409 on a variety of public law matters such as citizenship, municipal law, taxation, jurisdiction, and sovereignty. The underlying logic of the work can be summed up in two propositions: (i) the legal organization of a polity may be taken as an indicator of that polity’s political organization; and (ii) knowledge about various legal systems throughout history is essential for assessing the quality of present laws, as well as for effectively designing tomorrow’s. At the most abstract level, Bodin attempted to achieve legal renewal and political self-betterment through the identification of a “best practice” arrangement for political organization (Hirschl 2014a, 232–44). This legal and political transformation was to be promoted through a comparative inquiry into the constitutive laws of others, including what we would describe today as their constitutional law, and perhaps even their constitutional identity (Huppert 1970). Another illustration of the proximity of political agendas and comparative reference is provided by the constitutional preaching of Simón Bolívar, the great liberator of Spanish South America, and probably the first political leader to openly draw lessons from comparative constitutional law while at the same time expressing serious reservations about whether it was wise to allow the constitutional law of other states to shape domestic law. Selective reference to examples from overseas was an essential aspect of Bolívar’s development of a suitable constitutional platform for Latin America. On the one hand, Bolívar—an erudite and widely traveled leader—held the highest veneration for British, French, and American constitutional thought. On the other, he frequently cautioned against the blanket transplantation of grand foreign ideas that are unsuitable to the social conditions in Latin America. Arguably the best illustration of Bolívar’s ambivalence toward comparative constitutional wisdom is his famous Angostura Address (February 15, 1819), given on the occasion of the gathering of the Congress of Angostura (today’s Ciudad Bolívar), Venezuela’s second legislative congress. “Passing from ancient to modern times,” he states, “we find England and France arousing the admiration of all nations and offering eloquent lessons on every aspect of government” (quoted in Bushnell 2003, 41). He continues (quoted in Bushnell 2003, 42): Let us not forget the lessons of experience; let the schools of Greece, Rome, France, England, and America instruct us in the difficult science of creating and preserving nations with laws that are appropriate, just, legitimate, and above all practical … Rome and Great Britain are the two outstanding nations of ancient and modern times; both were born to rule and be free; both were formed not with brilliant modes of freedom but on solid foundations. Therefore, Representatives, I suggest that you study the British constitution, which is the one that seems destined to bring the greatest good to the peoples who adopt it. However, for all its perfection, I am far from recommending servile imitation of it. When I speak of the British government, I refer only to its republican features.
With respect to federalism, Bolívar states (quoted in Bushnell 2003, 37): I should say that however successful this form of government proved for North America, it never entered my mind to compare the situation and nature of two states as diametrically different as English America and Spanish America. Would not it be difficult to apply to Spain England’s political, civil and religious Charter of Liberties? Well, it is even more difficult to adapt the laws of North America to Venezuela.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 7 /
Date: 11/7
JOBNAME: Delaney PAGE: 8 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
410 Comparative judicial review Referring directly to Montesquieu’s main thesis, Bolívar continues (quoted in Bushnell 2003): Do we not read in the Spirit of the Laws that [laws] must be suitable for the country for which they are written? That it is an astonishing coincidence for the laws of one nation to be applicable to another? That they must take into account the physical aspect of the country, its climate, the nature of its terrain, its location, size and the way of life of its people? That they must reflect the degree of freedom that the constitution can support, the religion of the inhabitants as well as their inclinations, their standard of living, their number, their commerce, their customs and their character? This then is the code we should consult, not the one written for Washington!
2. Contemporary Studies: Structural and Disciplinary Factors Recent comparative public law studies, both quantitative and qualitative, provide more concrete, empirically grounded accounts of how and why judicial engagement with comparative sources occurs. These studies identify several structural and disciplinary factors that account for the choice of which courts to reference, most notably linguistic permeability and similarity of legal tradition (Mak 2012; Mak 2015; Gelter and Siems 2012; Bobek 2013). The rationale behind the language factor is quite obvious—judges are far more likely to cite rulings written in a language they can follow. Likewise, courts tend to cite rulings from jurisdictions with a legal tradition (common law, civil law, and so on) similar to their own. This is due to the relative equivalence of terms and concepts across jurisdictions that share the same legal tradition, as well as similarities in how they understand the role of the judiciary and the nature of judging. Other common explanatory factors identified in the literature are: trajectory of legal education or institutional capacity (e.g., the existence of comparative law research units or special law clerks charged with the task of foreign references) that affect a given apex court’s resources, ability, and willingness to cite foreign jurisprudence (Law and Chang 2011; Law 2015); court newness (the newer a given court is or the thinner its body of precedents is, the greater the likelihood it engages favorably with foreign precedents) (Aft 2011); constitutional provisions that call for foreign citations (e.g., Article 39 of the South African Constitution discussed earlier); and long-standing interpretive doctrines that limit engagement with foreign law (e.g., traditional judicial nationalformalism that sees a country’s constitution as reflecting its unique heritage and its deep-rootedness in history and political traditions) (Thiruvengadam 2009; Belov 2013). Of these factors, the language and legal family commonality (these are often associated with some form of shared colonial past) seem to provide the most consistent and powerful explanation for where courts turn their gaze in search of foreign citations. These factors also explain the emergence of sub-communities of comparative reference (e.g., a Portuguese-based sub-community of reference that includes Portugal, Brazil, Angola, Mozambique, Guinea Bissau, and Timor-Leste; or a French-based subcommunity of reference in francophone Africa). Whereas these accounts provide illuminating explanations for the rise and variance in the practice of global judicial dialogue, they leave out a crucial factor: the socio-political context within which constitutional courts and judges operate, and how this affects whether and where the judicial mind travels in its search for pertinent foreign sources to reference.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 8 /
Date: 11/7
JOBNAME: Delaney PAGE: 9 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and the politics of comparative citations 411 3. Insights from Social Science A different body of scholarship advances a more social science-oriented, explanatory line: It identifies ad hoc strategic considerations as well as deeper identity-formation factors that are conducive to selective judicial reference to comparative sources. Theoretical accounts of the strategic line emphasize factors such as judicial instrumentalism (i.e., selective reference to foreign law as an authority-, prestige- or legitimacy-enhancing practice) (Tripathi 1957)5 and the importance of the professional networks that judges operate in (e.g., judicial urge to join or be associated with an international epistemic community of cosmopolitan jurists) (Slaughter 2003). Several other studies suggest, for instance, that incorporation of international standards into domestic law by new or volatile democracies may be aimed at “locking-in” or signaling commitment to liberal or democratic worldviews and policy preferences, particularly during times of political transition or uncertainty as to the future of democracy in a given polity (Moravcsik 2000; Ginsburg 2006). Having defeated President Musharraf in the February 2008 election, and anticipating a Phoenix-like rise from the ashes of a military regime, the newly elected government of Pakistan, led by the Pakistan People’s Party, quickly ratified the International Covenant on Economic, Social and Cultural Rights and signed the International Covenant on Civil and Political Rights. A similar logic may explain the 1994 incorporation of ten international human rights covenants into Argentine constitutional law following years of military rule, and perhaps also the 1991 constitutionalization of rights in British-ruled Hong Kong that took place shortly after the British Parliament had ratified the Joint Declaration on the Question of Hong Kong, whereby Britain was to restore Hong Kong to China in July 1997. Such measures commit future governments to certain democratic and human rights standards, and may also signal the “right” message to the international community and to important domestic interest groups. Judicial application of these commitments may likewise allow courts to demonstrate to both domestic and international observers that they are willing to adopt widely shared best practices and are serious about the rule of law. Johanna Kalb argues that in countries in transition, such as Uganda, reference to foreign sources may be seen as a strategic “public relations” practice that signals the court’s independence, legitimacy, and accountability to the outer world (Kalb 2013). As with the incorporation of international law standards, such reference to the “right” set of foreign laws may communicate that the new, post-transition court should be taken seriously by the international community. This in turn may suggest that a given court’s selective reference to the constitutional jurisprudence of a small group of liberal democratic countries may not be explained in isolation from that court’s position and role, real or self-professed, with respect to the foundational political and social struggles of the country it serves. Selective recourse to foreign law may also be driven by an ad hoc judicial calculus, in line with the large body of scholarship concerning strategic patterns of judicial 5 Tripathi suggests that courts and judges use foreign precedents instrumentally so as to support or legitimize the preconceived adjudicative results they wish to advance. This is particularly true, he suggests, in the fairly open-ended realm of constitutional jurisprudence.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 9 /
Date: 11/7
JOBNAME: Delaney PAGE: 10 SESS: 9 OUTPUT: Thu Aug 23 10:51:28 2018
412 Comparative judicial review behavior, most evident in politically charged cases. A recent study suggests that the Supreme Court of India’s extensive reference to foreign (almost exclusively Western) constitutional precedent helped the Court to bolster its political significance and position itself as the ultimate guardian of the rights of the accused against police abuse (Halabi 2013). Many lesser-known illustrations of strategic judicial use of foreign references are equally telling. The Supreme Court of Uganda legitimized the results of that country’s 2001 and 2006 presidential elections (both won by Yoweri Museveni, uninterrupted ruler of Uganda since 1986) despite having acknowledged massive problems with the electoral process and gross violations of key constitutional principles.6 In both rulings the Court found that election malpractices committed by state agents had not been committed with Museveni’s knowledge or approval. As to who in fact was responsible for the systematic, wide-ranging violations it identified, the Court did not speculate. An invisible hand, perhaps. (The reader can make an educated guess as to what Museveni’s reaction would have been had the Court ruled otherwise.) To reach its decision in both cases, the Court drew on British jurisprudence on evidence and on elections law; sources such as Phipson on Evidence, quotations from Lord Denning, the Hackney Case (1874), and Halsbury’s Laws of England. The questionable relevance of British evidence or election rules—some of which were designed to apply to elections in rural communities in nineteenth-century England—to a Uganda ruled by a 30-year leader (who for 19 years banned the entire party system, amended the constitution to remove a two-term limit, pushed his main political rival (the petitioner in the two cases) to exile, and who has otherwise clung to power by all means available to him), did not seem to bother the judges at all. The Court treated their recourse to British law that evolved within a very different political context as a natural, seamless choice, as if these two settings were perfectly comparable. Nowhere in the election appeal rulings can a reader find reference to the fact that Britain was a stable democracy with routine, free, and open elections whereas Uganda had been under authoritarian or semi-authoritarian rule for most of its post-colonial life. A similar ad hoc selectivity with respect to foreign sources can be seen in Romania, where party politics has occasionally escalated into an all-out constitutional war. In 2012, the Romanian Constitutional Court ruled that the impeachment of President Traian Băsescu through a national referendum was invalid, since less than 50 percent of the electorate had cast their vote.7 Sixty-nine percent support in parliament for removal and the 87.5 percent support in a national referendum were deemed insufficient by the Court because only 46 percent of the electorate participated in the referendum. This decision triggered a massive political backlash against the Court, a backlash orchestrated by Prime Minister Victor Ponta, Băsescu’s main political rival and the clear winner of the December 2012 parliamentary elections. And so, in July 2013, less than a year after its initial ruling on the matter, the reconstructed Court (now including three new Ponta-appointed judges) approved a proposed amendment to the referendum law 6 Election Petition 1/2001, Col. Dr. Besigye Kiiza v. Museveni Yoweri Kaguta, Electoral Commission [2001] UGSC 3; Election Petition 1/2006, Rtd. Col. Dr. Kizza Besigye v. Electoral Commission, Yoweri Kaguta Museveni [2007] UGSC 24. 7 Constitutional Court Advisory Opinion No. 1/2012 (President Băsescu Suspension Case) [July 6, 2012].
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 10 /
Date: 20/8
JOBNAME: Delaney PAGE: 11 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and the politics of comparative citations 413 that lowered the validity threshold to 30 percent of the electorate.8 The main basis for the 2013 decision was respect for “the sovereignty of the Romanian people.” The Court did not explain why this was such an important principle in 2013 but not in 2012. To support its ruling, the Court drew heavily on the Council of Europe’s Venice Commission Code of Good Practice on Referendums 2007, which strongly disapproves of the imposition of a participation quorum. In 2012, by contrast, the then pro-Băsescu court disregarded the recommendation of the Venice Commission Code altogether (Selejan-Guţan 2013). Yet another “political” explanation for selective judicial engagement with comparative materials emphasizes the deeper, identity-formation function of foreign references, and how this affects whether and where the judicial mind travels in its search for pertinent foreign sources to reference (Jacobsohn 2004; Hirschl 2014b). In the realm of voluntary reference to foreign law, judicial choices as to what to cite and what not to cite cannot be understood in isolation from the views of constitutional courts and judges with respect to the interplay between the “domestic” and the “foreign,” the “particular” and the “universal,” the “traditional” and the “modern.” What constitutional courts and judges regard as relevant or irrelevant sources of reference reflects their vision of a concrete set of values they wish their country to be associated with and the club of nations they prefer their country to belong to. It is intimately linked to the “identity-formation” dimension—the attempt to define who “we” are as a political community, and to articulate in a public way what “our image” or “place” in the world is or should be. Importantly, the foreign references that apex courts in discordant constitutional settings (e.g., Israel, Pakistan, Malaysia, India, Turkey, Egypt) select, reject, or ignore reflect the judicial position vis-à-vis the nation’s contested collective identity quandaries. These judicial picks may thus be a channel for and an indicator of constitutional and political identity formation. Elsewhere (see, e.g., Hirschl 2014b), I illustrate these dynamics at work by looking at patterns of foreign reference in Israel—a bastion of Western constitutional thought in the Middle East, as well as a country that has long been torn between its particular (“Jewish”) and universal (“democratic”) aspirations. Israel also is a polity that has witnessed a continuous decline in the political power and societal dominance and representation of its historically hegemonic Ashkenazi constituencies (mostly Jews of European descent, often with Western cultural propensities, and—at least during the first few decades of statehood—better off socioeconomically compared with Mizrahi Jews, who are mostly of North African and Middle Eastern origin) (Hirschl 2004; Hirschl 2009b; Halmai 2016). The Supreme Court of Israel (SCI) regularly refers to case law and scholarly commentary from the United States, Canada, Germany, the United Kingdom, and various European and international sources of law. However, it seldom refers to non-Western democratic countries such as India that share a similar experience of identity-based and ethnic-religious rifts. Likewise, it rarely, if ever, cites rulings by the national high courts of Pakistan, Turkey, Malaysia, or Egypt even though the tensions between secularism and religiosity in these countries’ constitutional landscapes resemble tensions embedded in Israel’s self-definition as a “Jewish and democratic” state. It 8
Constitutional Court Decision No. 334/2013 (Referendum Law Case) [June 26, 2013].
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 11 /
Date: 11/7
JOBNAME: Delaney PAGE: 12 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
414 Comparative judicial review is equally telling that Israeli secular judges (who represent the vast majority of those appointed to the bench) hardly ever treat Jewish law as a relevant source of comparative insight, despite Israel being the sole Jewish country in existence, the explicit constitutional emphasis of the country’s Jewish character, and the fact that Jewish law is one of the main sources to which the law itself refers judges when they encounter a lacuna.9 Instead, the typical secular Israeli judge prefers to look to “the West” as a source of comparative and international law, and in doing so to affirm the state’s desire, or at least the Court’s, to be included in the liberal democratic club of nations. Consider the following pair of examples. In what many view as the Court’s most significant ruling of the last decade—the Citizenship Law/Family Unification case (2006), wherein a divided 6–5 bench essentially gave priority to Israel’s “Jewish” constitutional pillar of collective identity over the “democratic” one—the Court made reference to 246 judicial decisions: 183 of its own, as well as rulings of apex courts in the US (30), Canada (9), European Court of Human Rights (8), United Kingdom (6), South Africa (3), Germany (3), and Ireland (1). Although this legal dispute cannot be understood outside the foundational, if not existential, tensions between the competing particularist and universalist visions of the polity, no reference whatsoever was made to other discordant constitutional jurisdictions that struggle with related challenges. For instance, the Malaysian and Pakistani constitutional courts have had to deal with similar conundrums growing out of constitutionally enshrined sectarian (there, “Muslim”) and universal values that operate as the main tenets of their collective (and constitutional) identity (see Hirschl 2010; Tew 2016). Likewise, no reference was made to countries such as Serbia, Thailand, or Sri Lanka where religion, ethnicity, and nationhood are closely entangled. And no reference was made either to the many predominantly Catholic polities (e.g., Poland, Slovakia, Italy, the Philippines, or the entire Latin America), despite the fact that in many of these countries, religious affiliation, symbolism, and morality all remain central markers of collective identity and public discourse while often colliding with constitutional rights provisions. The distribution of foreign references in the Citizenship Law/Family Unification case is telling. In this ruling, the SCI upheld a temporary amendment to the new Citizenship and Entry to Israel Law that imposed age restrictions on the granting of Israeli citizenship and residency permits to Arab residents of the Occupied Territories who marry Israeli citizens.10 Because the practice of marrying Palestinians is far more common among Israel’s Arab minority, the law limiting family unification and spousal naturalization effectively singled out Arab citizens while maintaining the demographic balance in favor of members of Israel’s Jewish population, who seldom marry Palestinians and whose noncitizen spouses are often naturalized by way of marriage to an Israeli (Jewish) citizen. Interestingly, the majority of six justices prioritized the first tenet in Israel’s self-definition, that Israel is a Jewish state. The other five sitting justices (including then-Chief Justice Aharon Barak) gave priority to the second tenet, that Israel is a democratic state. Both the majority and minority opinions are exceptionally erudite, and cite a variety of iconic sources, including Greek philosophers and Roman poets (though not Muslim thinkers or Hindi authors, to be sure). But when 9 10
See Hok Yesodot Ha’Mishpat [Act for the Foundations of Law] (1980). HCJ 7052/03 Adalah v. Minister of Interior [2006] 2 TakEl 1754.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 12 /
Date: 11/7
JOBNAME: Delaney PAGE: 13 SESS: 8 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and the politics of comparative citations 415 it comes to references to constitutional cases overseas, there is a clear division: of the 63 references made in the ruling to foreign constitutional cases, 58 (92 percent) are made in the dissenting opinion (the pro-“Democratic” tenet opinion), while only five (8 percent) are made in the majority opinion (the pro-“Jewish” tenet opinion). The first paragraph of the majority opinion (authored by then-Deputy Chief Justice Mishael Cheshin) seems to capture neatly the majority opinion’s attitude toward the consideration, or even preliminary relevance, of foreign sources in core cases such as this. It states that CJ Barak’s minority opinion, while perhaps applicable to the imagined “State of Utopia,” is not applicable to the here-and-now State of Israel. In 2012, the SCI upheld (6–5) the final version of the Citizenship Law.11 The majority ruled that “the right to a family life does not necessarily have to be realized within the borders of Israel.” The Court’s then-Chief Justice, Asher Grunis, wrote that “human rights cannot be enacted at the price of national suicide” (referring to what has been termed in Israeli public discourse as “the demographic threat” to the Jewish character of the state). In its 230-page ruling, the Court made reference to numerous scholarly works of North American and European jurists, including the late Antonin Scalia (US Supreme Court Justice), Dieter Grimm (former judge of the German Federal Constitutional Court), and András Sajó (then-judge of the European Court of Human Rights). It also cited 47 foreign court decisions, of which 26 were US Supreme Court rulings; the others included decisions from the European Court of Human Rights (9), the European Court of Justice (4), the apex courts of Canada (4), the United Kingdom (2), and Germany (2). How legitimate or relevant judicial reference is to foreign constitutional jurisprudence is an interesting and widely debated question. But even when we leave aside (or for that matter accept) the legitimacy and relevance of foreign citations, the repertoire of sources itself presents us with a puzzle. Naturally, none of these cited courts’ jurisprudence is written in Hebrew. The United States, the United Kingdom, Canada, and Australia are common law jurisdictions, but Germany and other continental European jurisdictions are not. None of these countries is in Israel’s region, however broadly defined. (The SCI has never cited a single ruling of any of its neighbor countries, or any other predominantly Muslim country in northern Africa or in Asia). The “learning from the experience of others” explanation seems forced—none of the countries the SCI refers to faces a fundamental constitutional disharmony (to borrow Gary Jacobsohn’s phrase) stemming from a constitutional commitment to two apparently contradictory tenets. The “new court” factor is not relevant either—the SCI was established nearly 70 years ago. Its cumulative body of jurisprudence is very rich, and its landmark rulings carry great symbolic weight in Israel and abroad. What is more, the German Federal Constitutional Court—established at the same time as its Israeli counterpart—seldom cites foreign precedents and “has developed a style of reasoning where it basically cites only its own precedents” (Bryde 2006, 298). In short, none of the common explanations for extensive judicial recourse to foreign law—language, legal tradition, region, “sameness,” or court newness—applies to this case. Enter the identity-formation factor I discuss above. 11 HCJ 466/07 MK Zahava Gal-On (Meretz-Yahad) et al v. Attorney General et al. (decision delivered on Jan. 11, 2012).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 13 /
Date: 15/8
JOBNAME: Delaney PAGE: 14 SESS: 8 OUTPUT: Thu Aug 23 10:51:28 2018
416 Comparative judicial review In a famous medieval poem written in twelfth-century Al-Andalus, Yehudah Ha-Levi, a Jewish physician, poet, and philosopher, memorably wrote: “My heart is in the East and I am at the edge of the West,” reflecting the unremitting yearning of a diasporic people for their ancestral homeland, the land of Israel (or Zion, as Ha-Levi refers to it in other poems). Paradoxically, today, when the SCI is back in Zion and located in Jerusalem, we can paraphrase Ha-Levi to say that the choice of foreign references by Israel’s jurists reflects a new post-independence reality: “My heart is in the West and I am at the edge of the East.” As I have shown elsewhere, similar collective identity-based selective reference trends manifest themselves in other constitutionally discordant settings, where apex court judges are frequently called upon to determine disputes that deal with foundational state and religion, and broader national identity, dilemmas (Hirschl 2014b). Their choices of which foreign precedent or persuasive authority to turn to from abroad, and which to reject, denote not only legal doctrinal considerations, but also the judges’ positionality in their own respective society and their view of its place in the world. The Supreme Court of Pakistan—a bastion of relative cosmopolitanism in that country—frequently cites British rulings, but seldom if ever refers to constitutional jurisprudence from Bangladesh, the other predominantly Muslim country in the Indian subcontinent. Similarly, apex courts in Taiwan or Hong Kong seldom cite court rulings from mainland China. The Supreme Court of Ireland and the Court of Judicature of Northern Ireland (which was known as the Supreme Court of Judicature until 2009), very rarely cite each other. The Supreme Court of Appeal of Timor-Leste (East Timor) frequently cites jurisprudence from Portugal and Europe more generally; reference to Indonesian court rulings is a political nonstarter.12 In Korea, reference to German rulings is far more prevalent than reference to Japanese law (Law 2015). The Malaysian Federal Court—Malaysia’s apex constitutional tribunal—has found English constitutional cases to be more persuasive and relevant to its interpretive framework than Indian cases, even though the Constitution of Malaysia is nearer in content and structure to the Constitution of India than to Britain’s, and even though the tensions of ethnicity, religion, and federalism in Malaysia are far closer to those in India or Indonesia than to those in Britain (Harding 2012, 206). At a time when the very essence of Malaysia as an Islamic state is hotly contested in the political sphere, the Malaysian Federal Court seldom references the constitutional jurisprudence of other predominantly Muslim countries. And in Sri Lanka, the Supreme Court commonly cites Indian rulings, albeit sometimes in a selective, even opportunistic way that is “consistent with the larger judicial effort to secure the constitutional moorings upon which the identity of the Sri Lankan state was tethered, chief among which is Sinhalese Buddhism” (Jacobsohn and Shankar 2013, 180). The Supreme Court of India itself makes considerably more extensive use of foreign jurisprudence in periods when it wishes to advance more socially progressive rights jurisprudence (Smith 2006). For example, in its 2014 ruling recognizing transgender 12
In 2003, the newly established Timorese Supreme Court of Appeal ruled that law in the new nation should be based on Portuguese legal heritage, not Indonesian. Because Indonesia’s occupation (1975–2002) was unlawful, the Court ruled, the United Nations-drafted legal system adopted after independence (which left many Indonesian legal structures intact) was invalid.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 14 /
Date: 11/7
JOBNAME: Delaney PAGE: 15 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and the politics of comparative citations 417 constitutional rights of equality as “third gender,” the Supreme Court of India cited cases and legislation from Argentina, Australia, Canada, the Council of Europe, the European Court of Human Rights, Germany, Malaysia, Nepal, the Netherlands, New Zealand, South Africa, the United Kingdom, and the United States; the apex courts of Illinois, Massachusetts, and New South Wales (Australia); a host of international covenants including the Universal Declaration of Human Rights; and the writings and ideas of Aristotle, John Locke, Immanuel Kant, and John Rawls.13 Likewise, in its much discussed decision in the 2009 NAZ Foundation case, the High Court of Delhi drew extensively on foreign rulings in support of arguments from equality, privacy, and dignity to strike down India’s sodomy laws (see generally Choudhry 2013). And vice versa: In its landmark ruling in Koushal v. NAZ Foundation (2013), the Supreme Court of India reversed the 2009 decision of the Delhi High Court, which held that Section 377 of the Indian Penal Code was unconstitutional under the India Constitution, upholding India’s sodomy law as constitutional. The Supreme Court ruled that a presumption of constitutionality ought to be applied in this atypically conservative ruling, given the “importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody.” The Court’s opinion lambasts the Delhi Court’s extensive reliance on foreign sources to support its progressive ruling. Justice Singhvi who authored the opinion did not mince words in stating: In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.14
In other words, much as in Israel, the United States, and elsewhere, foreign reference is more likely to fly in support of a universalist position, much as a rejection of such sources is more likely in support of a particularist position. There are, to be sure, notable exceptions to this trend, but as notable Polish scholar Wiktor Osiatynski puts it, “culture usually tends to resist borrowing” (Osiatynski 2003, 261).
C. METHODOLOGICAL CHALLENGES Its considerable advancement in recent years notwithstanding, the study of foreign references by constitutional courts still reflects some of the core methodological challenges facing the broader enterprise of comparative constitutional law. First, contemporary discussions about comparative reference, and comparative constitutional law more generally, often proceed as if there is no past, only present and future. The reality is that critical encounters with the constitutive laws of others have 13 Writ Petition (Civil) 400/2012 and Writ Petition (Civil) 604/2013, National Legal Services Authority v. Union of India and others (decision released April 15, 2014). 14 Civil Appeal 10972/2013 Koushal v. NAZ Foundation (decision released Dec. 11, 2013).
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 15 /
Date: 11/7
JOBNAME: Delaney PAGE: 16 SESS: 8 OUTPUT: Thu Aug 23 10:51:28 2018
418 Comparative judicial review been taking place since well before the last two or three decades. Granted, some of the specifics are indeed new. The migration of constitutional ideas, the ascendance of constitutional guarantees of rights and entitlements, the rise of a new transnational legal order and judicial class, and the corresponding decrease in the autonomy of “Westphalian” constitutionalism are among the developments that have inspired debates over the last few decades. And it is also true that the tremendous improvement in the quality and accessibility of data sources on constitutional systems and comparative constitutional jurisprudence worldwide, and the rapid development of sophisticated platforms for information retrieval and sharing, have already had an effect on the way comparative constitutional inquiries are pursued. Taken as a whole, however, the history of engagement with the constitutive laws of others is much longer and richer than is reflected in the field’s current renaissance. The fact remains that very few quality studies exist that shed light on the scope and nature of comparative reference prior to the current era of “new constitutionalism.” Second, the available evidence on comparative reference refers almost exclusively to constitutional settings in the Western, liberal democratic world and a handful of major jurisdictions elsewhere (Hirschl 2014a, 192–223). Patterns of comparative reference in entire regions—from sub-Saharan Africa to Central America and Eurasia—remain largely a terra incognita, understudied and generally overlooked. Those regions include large and constitutionally vibrant settings such as Indonesia (population 250 million), Brazil (200 million), Pakistan (185 million), Nigeria (160 million), Bangladesh (155 million), the Philippines (100 million), and Vietnam (90 million), to pick just a few glaring omissions. The unfortunate yet inevitable result is that purportedly universal insights concerning voluntary judicial reference to foreign sources are based, more often than not, on a handful of frequently studied and not always representative settings or cases. Third, there is the obvious challenge of “cherry-picking.” While increasingly common and certainly more intuitively “comparative” than freestanding, single-country studies, the comparative reference approach is still lacking in methodological coherence. When executed poorly, it amounts to little more than result-oriented “cherrypicking” of favorable cases, which is precisely the kind of practice that opponents of reference to foreign law, most notably Justice Antonin Scalia of the US Supreme Court, base their objections on. In that respect, I concur with those who argue (e.g., Haupt 2016) that when separated from his confrontational rhetoric, Justice Scalia’s criticism of “cherry-picking” might compel comparative constitutional law scholars and constitutional jurists alike to think more rigorously about and pay closer attention to questions of methodology and case selection. Fourth, akin to other research areas that are confined to “positivist” visible, detectable, or measurable phenomena, the study of voluntary reference to foreign sources is limited in its capacity to measure indirect or passive “importation” of comparative constitutional thought—a process that may predictably occur on an ordinary basis as judges are not obliged to cite or disclose every source of every idea they develop in their written opinions. It is quite plausible to assume that the level of tacit, unattributed influence of foreign sources on judicial decision-making is considerably higher than what is readily measurable through simple counting of foreign citations by a given judge or a given court.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 16 /
Date: 15/8
JOBNAME: Delaney PAGE: 17 SESS: 7 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and the politics of comparative citations 419 Fifth, the study of judicial reference of comparative sources, much like comparative constitutional scholarship more generally, could benefit considerably from engaging more closely with pertinent conversations in other areas of study that explore the dynamics of inter-jurisdictional norm diffusion and institutional emulation, ranging from comparative law (e.g., Watson 1974), to comparative sociology (e.g., Beck, Drori, and Meyer 2012) to institutional diffusion theory (e.g., Elkins 2010; Alter 2012). What is known about comparative reference suggests that despite having little in common in some pertinent respects, constitutional courts in different places refer to a roughly similar set of jurisdictions and to the world supposed “canon” of comparative constitutional law. This could be explained by a world culture whose values are ontologically prior to nation-states and their cultural idiosyncrasies. Or it may reflect a process of diffusion in which reference choices of one court affect the choice set and the calculus of others. Either way, reference to and emulation of these supposedly global values increase the borrower’s legitimacy and sense of timeless universalism and cosmopolitanism vis-à-vis its particularist social surroundings. Finally, the complex symbioses of today’s world admit neither constitutionalism-free political systems nor apolitical constitutional law. As we have seen, this is readily evident in the realm of comparative reference. In order to identify expressive, collective identity-building effects of comparative constitutional engagement, it is necessary to undertake a process of elimination, whereby orthodox legal or instrumental justifications for such engagement are accounted and controlled for. This, in turn, requires familiarity with and awareness of, principles of case selection, research design, and data analysis in addition to mastery of comparative jurisprudence and modes of judicial interpretation. It also requires a fair degree of knowledge about and expertise in the studied jurisdictions and their political context in addition to their legal and constitutional traditions. This is no easy task. But an interdisciplinary turn in comparative constitutional studies, already underway in some important respects, seems to be the call of the hour. Such a turn is facilitated in part by the improved availability of pertinent comparative materials and by the impressive growth of the field in recent years. It may be further supported by putting greater emphasis on jointly authored work and greater openness to collaborative group projects; by assigning higher reputational value to cross-disciplinary expertise and publications; and by experimenting with out-of-the-box research techniques, from interviews and participatory observations to large-N statistical analyses and computerized algorithmic examination of textual and jurisprudential cross-referencing worldwide.
REFERENCES Aft, Aaron. 2011. “Respect My Authority: Analyzing Claims of Diminished U.S. Supreme Court Influence Abroad.” Indiana Journal of Global Legal Studies 18: 421–54. Allan, James, Grant Huscroft, and Nessa Lynch. 2007. “The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?” Otago Law Review 11: 433–67. Alter, Karen. 2012. “The Global Spread of European Style International Courts.” West European Politics 35: 135–54. Andenaes, Mats and Duncan Fairgrieve, eds. 2015. Courts and Comparative Law. Oxford: Oxford University Press.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 17 /
Date: 11/7
JOBNAME: Delaney PAGE: 18 SESS: 8 OUTPUT: Thu Aug 23 10:51:28 2018
420 Comparative judicial review Arcioni, Elis and Andrew McLeod. 2015. “Cautious But Engaged – An Empirical Study of the Australian High Court’s Use of Foreign and International Materials in Constitutional Cases.” International Journal of Legal Information 42: 437–70. Barak, Aharon. 2006. The Judge in A Democracy. Princeton, NJ: Princeton University Press. Beck, Colin, Gili Drori, and John Meyer. 2012. “World Influences on Human Rights Language in Constitutions: A Cross-National Study.” International Sociology 27: 483–501. Belov, Sergey. 2013. “Using of Foreign Constitutional Precedents by the Russian Constitutional Court: Explicit Citation and Implicit Influence.” In The Use of Foreign Precedents by Constitutional Judges, edited by Tania Groppi and Marie-Claire Ponthoreau. Oxford: Hart Publishing. Bentele, Ursula. 2009. “Mining for Gold: The Constitutional Court of South Africa’s Experience with Comparative Constitutional Law.” Georgia Journal of International & Comparative Law 37: 219–40. Blanke, Hermann-Josef and Yasser Abdelrehim. 2014. “Catalonia and the Right to Self- Determination from the Perspective of International Law.” Max Planck Yearbook of United Nations Law 18: 532–64. Bobek, Michal. 2013. Comparative Reasoning in European Supreme Courts. Oxford: Oxford University Press. Breyer, Stephen. 2015. The Court and the World: American Law and the New Global Realities. New York, NY: Knopf. Bryde, Brun-Otto. 2006. “The Constitutional Judge and the International Constitutional Dialogue.” In Judicial Recourse to Foreign Law: A New Source of Inspiration?, edited by Basil Markesinis and Jörg Fedtke. London: Routledge. Bushnell, David. 2003. El Libertador: Writings of Simón Bolívar. New York, NY: Oxford University Press. Canale, Damiano. 2015. “Comparative Reasoning in Legal Adjudication.” Canadian Journal of Law & Jurisprudence 28: 5–27. Charney, Jonathan and J. R.V. Prescott. 2000. “Resolving Cross-Strait Relations between China and Taiwan.” American Journal of International Law 94: 453–77. Choudhry, Sujit. 2004. “The Lochner Era and Comparative Constitutionalism.” International Journal of Constitutional Law 2: 1–55. Choudhry, Sujit. 2013. “How to Do Comparative Constitutional Law in India: Naz Foundation, Same Sex Rights, and Dialogical Interpretation.” In Comparative Constitutionalism in South Asia, edited by Sunil Khilnani, Vikram Raghavan, and Arun Thiruvengadam. New Delhi: Oxford University Press. Clark, Henry. 1919. “Jus Gentium: Its Origins and History.” Illinois Law Review 14: 243–65. Dodek, Adam. 2016. “The Canadian Override: Constitutional Model or Bete Noire of Constitutional Politics?” Israel Law Review 49: 45–65. Dorsen, Norman. 2005. “The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer.” International Journal of Constitutional Law 3: 519–41. Doyle, Don H., ed. 2010. Secession as an International Phenomenon. Athens, GA: University of Georgia Press. Draganova, Diana. 2004. “Chechnya’s Right of Secession under Russian Constitutional Law.” Chinese Journal of International Law 3: 571–89. Elkins, Zachary. 2010. “Diffusion and the Constitutionalization of Europe.” Comparative Political Studies 43: 969–99. Franklin, Julian. 1963. Jean Bodin and the Sixteenth Century Revolution in the Methodology of Law and History. New York, NY: Columbia University Press. Gardbaum, Stephen. 2001. “The New Commonwealth Model of Constitutionalism.” American Journal of Comparative Law 49: 707–60. Gardbaum, Stephen. 2013. The New Commonwealth Model of Constitutionalism: Theory and Practice. Cambridge: Cambridge University Press. Gelter, Martin and Mathias Siems. 2012. “Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe’s Highest Courts.” Utrecht Law Review 8: 88–99. Gelter, Martin and Mathias Siems. 2014. “Citations to Foreign Courts—Illegitimate and Superfluous, or Unavoidable? Evidence from Europe.” American Journal of Comparative Law 62: 35–86. Gentili, Gianluca. 2015. “Enhancing Constitutional Self-Understanding through Comparative Law: An Empirical Study of the Use of Foreign Case Law by the Supreme Court of Canada (1982–2013).” In Courts and Comparative Law, edited by Mats Andenaes and Duncan Fairgrieve. Oxford: Oxford University Press. Ghai, Yash. 1997. “Sentinels of Liberty or Sheep in Wolf’s Clothing? Judicial Politics and the Hong Kong Bill of Rights.” Modern Law Review 60: 459–80.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 18 /
Date: 15/8
JOBNAME: Delaney PAGE: 19 SESS: 8 OUTPUT: Thu Aug 23 10:51:28 2018
Judicial review and the politics of comparative citations 421 Ginsburg, Tom. 2006. “Locking in Democracy: Constitutions, Commitment, and International Law.” Journal of International Law & Politics 38: 707–59. Glenn, H. Patrick. 1987. “Persuasive Authority.” McGill Law Journal 32: 261–98. Groppi, Tania and Marie-Claire Ponthoreau, eds. 2013. The Use of Foreign Precedents by Constitutional Judges. Oxford: Hart Publishing. Halabi, Sam. 2013. “Constitutional Borrowing as Jurisprudential and Political Doctrine in Shri D.K. Basi v. State of West Bengal.” Notre Dame Journal of International & Comparative Law 3: 73–121. Halmai, Gabor. 2016. “Constitutionalism, Law, and Religion in Israel: A State’s Multiple Identities.” Journal of Civil & Legal Science 5 (online journal). Harding, Andrew. 2012. The Constitution of Malaysia: A Contextual Analysis. Oxford: Hart Publishing. Haupt, Claudia E. 2016. “Leading by Opposition: Justice Scalia and Comparative Constitutional Law.” ICONnect Blog (International Journal of Constitutional Law). Hirschl, Ran. 2004. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, MA: Harvard University Press. Hirschl, Ran. 2009a. “Canada’s Contribution to the Comparative Study of Rights and Judicial Review.” In The Comparative Turn in Canadian Political Science, edited by Linda A. White, Richard Simeon, Robert Vipond, and Jennifer Wallner. Vancouver: University of British Columbia Press. Hirschl, Ran. 2009b. “The Socio-Political Origins of Israel’s Juristocracy.” Constellations 16: 476–92. Hirschl, Ran. 2010. Constitutional Theocracy. Cambridge, MA: Harvard University Press. Hirschl, Ran. 2014a. Comparative Matters: The Renaissance of Comparative Constitutional Law. Oxford: Oxford University Press. Hirschl, Ran. 2014b. “In Search of an Identity: Voluntary Foreign Citations in Discordant Constitutional Settings.” American Journal of Comparative Law 62: 547–84. Hirschl, Ran. 2015. “‘Remembrance of Things Past’: Early Encounters with the Constitutive Laws of Others.” International Journal of Constitutional Law 13: 1–8. Hirschl, Ran. 2016. “Early Engagements with the Constitutive Law of Others: Possible Lessons from Pre-Modern Religious Law.” Law & Ethics of Human Rights 10: 71–108. Hirschl, Ran. 2017. “Going Global: Canada as Importer and Exporter of Constitutional Thought.” In Canada in the World: Comparative Perspectives on the Canadian Constitution, edited by Richard Albert and David Cameron. Cambridge: Cambridge University Press. Hogg, Peter and Allison A. Bushell. 1997. “The Charter Dialogue Between Courts and Legislatures (or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All).” Osgoode Hall Law Journal 35: 75–124. Huppert, George. 1970. The Idea of Perfect History: Historical Erudition and Historical Philosophy in Renaissance France. Urbana, IL: University of Illinois Press. Jackson, Vicki. 2004. “Comparative Constitutional Federalism and Transnational Judicial Discourse.” International Journal of Constitutional Law 2: 91–138. Jackson, Vicki. 2010. Constitutional Engagement in a Transnational Era. Oxford: Oxford University Press. Jackson, Vicki and Mark Tushnet. 2014. Comparative Constitutional Law. St. Paul, MN: Foundation Press. Jacobsohn, Gary J. 2004. “The Permeability of Constitutional Borders.” Texas Law Review 82: 1763–819. Jacobsohn, Gary J. and Shylashri Shankar. 2013. “Constitutional Borrowing in South Asia: India, Sri Lanka, and Constitutional Identity.” In Comparative Constitutionalism in South Asia, edited by Sunil Khilnani, Vikram Raghavan, and Arun Thiruvengadam. New Delhi: Oxford University Press. Kalb, Johanna. 2013. “The Judicial Role in New Democracies: A Strategic Account of Comparative Citation.” Yale Journal of International Law 38: 423–65. Kelly, Donald. 1981. “Civil Science in the Renaissance: Jurisprudence in the French Manner.” History of European Ideas 2: 261–76. Law, David. 2015. “Judicial Comparativism and Judicial Diplomacy.” University of Pennsylvania Law Review 163: 927–1036. Law, David and Wen-Chen Chang. 2011. “The Limits of Global Judicial Dialogue.” Washington Law Review 86: 523–77. Law, David and Mila Versteeg. 2012. “The Declining Influence of the United States Constitution.” New York University Law Review 87: 762–858. Levinson, Sanford, ed. 2016. Nullification and Secession in 21st Century Constitutional Thought. Lawrence, KS: University of Kansas Press. Libson, Gideon. 2003. Jewish and Islamic Law: A Comparative Study of Custom during the Geonic Period. Cambridge, MA: Harvard University Press. Lyke, Sheldon. 2012. “Brown Abroad: An Empirical Analysis of Foreign Judicial Citation and the Metaphor of Cosmopolitan Conversation.” Vanderbilt Journal of Transnational Law 45: 83–144.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 19 /
Date: 15/8
JOBNAME: Delaney PAGE: 20 SESS: 8 OUTPUT: Thu Aug 23 10:51:28 2018
422 Comparative judicial review Mak, Elaine. 2012. “Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands: Explaining the Development of Judicial Practices.” Utrecht Law Review 8: 20–34. Mak, Elaine. 2015. “Comparative Law before the Supreme Courts of the UK and the Netherlands: An Empirical and Comparative Analysis.” In Courts and Comparative Law, edited by Mats Andenaes and Duncan Fairgrieve. Oxford: Oxford University Press. McCrudden, Christopher. 2000. “A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights.” Oxford Journal of Legal Studies 20: 499–532. McLachlin, Beverley. 2013. “The Canadian Charter of Rights and Freedoms’ First 30 Years: A Good Beginning.” In Canadian Charter of Rights and Freedoms/Charte canadienne des droits et libertés, edited by Errol Mendes and Stephane Beaulac. Toronto: LexisNexis Canada. Moravcsik, Andrew. 2000. “The Origins of Human Rights Regimes.” International Organization 54: 217–52. Moseneke, Dikgang. 2010. “The role of comparative and public international law in domestic legal systems: a South African perspective.” Advocate, December. Oklopcic, Zoran. 2011. “The Migrating Spirit of the Secession Reference in Southeastern Europe.” Canadian Journal of Law & Jurisprudence 24: 347–76. Osiatynski, Wiktor. 2003. “Paradoxes of Constitutional Borrowing.” International Journal of Constitutional Law 1: 244–68. Rautenbach, Christa and Lourens du Plessis. 2013. “In the Name of Comparative Constitutional Jurisprudence: The Consideration of German Precedents by South Africa Constitutional Court Judges.” German Law Journal 14: 1539–77. Scheppele, Kim Lane. 2003. “Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Constitutional Influence through Negative Models.” International Journal of Constitutional Law 1: 296–324. Selejan-Guţan, Bianca. 2013. “One Year After: How the Romanian Constitutional Court Changed Its Mind.” ICONnect Blog (International Journal of Constitutional Law). Simonsohn, Uriel. 2011. A Common Justice: The Legal Allegiances of Christians and Jews Under Early Islam. Cambridge, MA: Harvard University Press. Slaughter, Anne-Marie. 2003. “A Global Community of Courts.” Harvard International Law Journal 44: 191–219. Smith, Adam. 2006. “Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence—the Indian Case.” Berkeley Journal of International Law 24: 218–72. Tew, Yvonne. 2016. “On the Uneven Road to Constitutional Redemption: The Malaysian Judiciary and Constitutional Politics.” Washington International Law Journal 25: 673–96. Thiruvengadam, Arun Kumar. 2009. “Comparative Law and Constitutional Interpretation in Singapore: Insights from Constitutional Theory.” In Evolution of a Revolution: Forty Years of the Singapore Constitution, edited by Kevin Tan and Thio Li-ann. London: Routledge-Cavendish. Tripathi, Pradyumna K. 1957. “Foreign Precedents and Constitutional Law.” Columbia Law Review 57: 319–47. Tushnet, Mark. 2006a. “Referring to Foreign Law in Constitutional Interpretation: An Episode in the Culture Wars.” University of Baltimore Law Review 35: 299–312. Tushnet, Mark. 2006b. “Weak-Form Judicial Review and ‘Core’ Civil Liberties.” Harvard Civil Rights-Civil Liberties Law Review 41: 1–22. Waldron, Jeremy. 2005. “Foreign Law and the Modern Ius Gentium.” Harvard Law Review 119: 129–47. Walters, Mark. 1999. “Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and Its Lessons for the United Kingdom.” Modern Law Review 62: 371–96. Watson, Alan. 1974. Legal Transplants: An Approach to Comparative Law. Athens, GA: University of Georgia Press. Weinrib, Lorraine. 1993. “The Canadian Charter of Rights and Freedoms as a Model for the New Israeli Basic Laws.” Constitutional Forum 4: 85–7.
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: 20_Chapter20_ts
/Pg. Position: 20 /
Date: 15/8
JOBNAME: Delaney PAGE: 1 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index
abstract review 8, 166, 179, 182, 318, 322–4, 327, 354–5 Abu-Karaki, Muddather 125 Abu-Odeh, Lama 124, 125 accommodational arrangements 109 accountability 99, 149, 190, 282, 411 democratic 70 Acemoglu, Daron 293 Ackerman, Bruce 16, 77, 93, 104 acontextualism 61–2 activism 17, 143, 152–3, 159–60, 204, 206, 227, 235 judicial 142, 227, 229, 235, 239, 241, 348, 379 actors 138–9, 218, 226–7, 230, 232, 235, 293, 295 civil society 155, 233 external 7, 230, 235, 272, 276–9, 283, 286 international 154, 230, 235, 240 legal-cultural 213, 218, 221–2 political 4–5, 38–9, 42–3, 48, 53–4, 130–31, 228, 230–31 state 29, 247, 250 adaptation condition 6, 186–7, 197–8, 200 adaptive efficiency 189 adjudication 21–2, 126, 177, 180, 182, 231, 354, 361 adjudicative process 14, 16, 20, 22 Adler, Matthew D. 186 administrative action 174, 177 administrative cases 165, 174, 176 administrative rules 166–9, 171–2, 175–6, 179, 182, 257 Afghanistan 67, 129, 133–4, 139 African National Congress see ANC Aft, Aaron 410 agency 6, 241, 294, 296 costs 295 agents 7, 15, 143, 159, 293–5, 304 change 159, 237 Agmon, Iris 121 Agrawala, Rajkumari 108 Ahmed, Dawood 118, 120 Alabama 300, 383 al-Ali, Zaid 103 Albert, Richard 294
Alberta 347–8, 371 Alberts, Susan 186 Aleinikoff, T. Alexander 25 Alexander, Gregory S. 46 Alexander, Larry 16 Algeria 119, 325 Ali, Ifzal 51 Allahabad High Court 92, 214 Allan, James 405 alliances 131, 136, 230, 232–3, 235 allies 63, 144, 146, 226, 230, 232, 236, 240 Alter, Karen J. 6–7, 10, 43, 142, 148, 244–69, 419 alternative legitimating ideology 210, 213 alternative theory of constitutional design 7, 290, 292 Amar, Akhil Reed 83, 190, 193, 379 Ambedkar, B.R. 391–3 ambiguous language 99–100, 105, 108, 112, 167 amendment 74, 130–31, 136, 284, 293, 297, 300, 303–5 constitutional 37–9, 47, 72–5, 90–91, 175, 302, 304, 310–11 rules 105, 296–7 amparo system 233, 260 Anaya, James S. 260 ANC (African National Congress) 42, 50, 54–5, 63–4, 77–9, 208 Andean law 254–7 Andean Secretariat 255–6 Andean Tribunal of Justice (ATJ) 251, 254–7 Andenaes, Mats 403 Angola 326, 410 Angostura Address 409 Ansolabehere, Karina 231, 233 antidefection provisions 78 anti-politics 208, 221–2 apartheid 63–4, 66, 77–8, 87–8, 153, 155, 208–9, 217–18 apex courts 74, 76, 272–3, 279, 390, 399, 405, 413–17 appointment 44, 169, 171, 175, 207, 211, 325–6, 392 processes 5, 53, 134, 211, 231, 392 Arab Spring 117, 125
423
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 1 /
Date: 22/8
JOBNAME: Delaney PAGE: 2 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
424 Comparative judicial review Arantes, Rogério Bastos 310–11 Arato, Andrew 103, 297 arbiters 3, 68–9, 71, 99, 195, 248, 264, 290 Arcioni, Elis 404 Argentina 71–2, 272, 276–7, 279, 325, 327, 411, 417 Arguelhes, Diego Werneck 273, 281 Aristotelean approach 60–62 Ariza, Libardo Jose 29 Arizona 252–3 Arjomand, Said Amir 127, 128 arrest 42, 44, 214 warrants 192 Ashkenaz 408 Asia 38, 164, 403, 415 Central 67, 80 East 159 aspirations 3, 7, 125, 152, 272, 413 assertive decisions 144–6, 150, 153, 156, 158–9 assets 42, 44, 50, 185, 188, 262 Atatürk, Mustafa Kemal 382 Atiyah, P.S. 206, 210 ATJ see Andean Tribunal of Justice attainder, bills of 364–7 Austin, Granville 75, 207, 214, 215, 220, 392 Australia 83–4, 204–5, 211–12, 216–17, 221, 359, 390–91, 417 Constitution 207, 351, 361, 390 High Court 92, 211, 281, 342, 351, 360, 390 Austria 300, 308, 319–20, 322, 327, 330 Constitution 307, 320 authoritarian populism 245, 268 authoritarian rule 66–8, 77, 80, 244, 263, 268–9, 308, 310 authority 60, 73–7, 112, 157–9, 166–8, 205–8, 291, 350 judicial 72–4, 76, 158, 166, 169–70, 244 persuasive 404, 416 political 62, 68, 142–3, 151–2, 158, 209–10, 213, 218 state 66, 69, 71, 74, 79, 350 superior 174, 179, 182 autocracy 67–8, 70, 145, 152–3, 311 automatic review 253 autonomy 143, 149, 207, 371–2, 394, 417–18 of law 6, 204–5, 209–10, 212–13, 217–18, 221–2, 225 Avena 253–4 average entrenchment scores 300–302, 306, 309
Columns Design XML Ltd
/
avoidance 279–80, 283 Avril, Pierre 322 Babcock, Gary 29 Babcock, Sandra 254 backlash 142, 158, 199, 262, 390, 412 political 100, 149, 152, 155–6, 158, 228, 232, 412 popular 190, 199 Bacon, Francis 408 Bahrain 119, 121, 124 Bailey, Kenneth 331 Baird, Vanessa A. 187, 196, 200, 249 Bâli, Asli 101, 104, 107 Balkin, Jack 294, 379, 383 Bandes, Susan 24 Bangladesh 416, 418 Bank Hamizrachi 157 Bánkuti, M. 142 Barak, Aharon 54, 109–10, 155, 282, 341, 405–6, 414 Barnett, Randy E. 379 Barron, Jerome A. 351 Bãsescu, President Traian 412 basic rights 60, 75, 107–8, 172–3, 264, 268, 307 basic structure doctrine 72, 74–5, 94–5, 137–8, 147, 207, 392, 400 Bastid, Paul 320 Bates, Ed 249 Baude, William 379, 384 Baum, Lawrence 230 Bavaria 91, 352–3 Baxi, Upendra 207, 215, 220 Beard, Charles A. 294 Beck, Colin 61, 419 Belgium 103 beliefs 16, 32, 56, 132, 139, 144, 338, 343 Belov, Sergey 410 Benedict, Jeff 199 Benshoof, Janet 42 Bentele, Ursula 405 Bentes, Fernando R.N.M. 234, 239, 240 Benvenisti, Eyal 258, 263 Benvindo, Juliano Zaiden 43 Bhagwati, P.N. 23, 155, 207, 215, 220–21 Bhan, Gautam 393 Bickel, Alexander M. 19, 85, 186, 294, 381 Bihar 156, 214 Bilchitz, David 232, 371 Bilder, Mary S. 85, 86 bills of attainder 364–7
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 2 /
Date: 22/8
JOBNAME: Delaney PAGE: 3 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index 425 bills of rights 66, 83, 87–8, 94, 109, 148, 153, 159 binding force 125–7, 177–8, 245–7, 249–50, 253–5, 258, 264, 328–9 Binmore, Ken 69 Birchfield, Lauren 236, 238 Black, Hugo 384 Black, Ryan C. 277 Black Codes 87–8 Blume, Andreas 69 Board, Oliver 69 Bobbitt, Philip 77, 384 Bobek, Michal 404, 410 Bodin, Jean 408–9 Bolívar, Simón 409–10 Bolivia 263, 310, 326 Bombay 92–3, 215 Bomhoff, Jacco 206, 216, 359 Bommai 93 Bongiovanni, Giorgio 320 Bookman, Pamela K. 254 borrowing 96, 404, 417 Botha, Henk 208 Botswana 404 boycotts 74, 91 Boyer, Allen D. 85 Brazil 231, 233–5, 238–41, 300, 318–19, 324–5, 327, 329 Brest, Paul 349 Brewer-Carias, Allan R. 324 Breyer, Stephen 197, 362–3, 405 Brinks, Daniel M. 233, 234 British India 92, 135 British North America Act 386–7 broad-based legal-cultural movement 6, 205, 215–16, 218, 220–22 Brodie, Ian 278 Brown, Nathan 122 Bryde, Brun-Otto 415 Buck, Solon Justus 303 budgets 30, 239, 275 Bugaric, Bojan 272, 273, 274 Burbank, Stephen 142 Burdeau, Georges 320 bureaucracy 43, 148, 150, 157, 160, 229, 239–40, 242 Burgis, Michelle 125 Bushell, Alison 329, 406 Bushnell, David 409–10 Butt, Simon 39, 148 Calabresi, Steven G. 3, 10, 83–96 Caldeira, Gregory A. 206, 210, 249
Columns Design XML Ltd
/
Cameron, Charles M. 275 Cameron, Edwin 217 Campbell, Michael 260–62 Canada 83–4, 343–4, 346, 357–8, 371–3, 386–7, 404–6, 413–15 Charter of Rights and Freedoms 28, 73, 285, 292, 346, 348, 358, 406 Supreme Court 278, 280, 285, 346–7, 383, 386–7, 389, 405–7 Canale, Damiano 404 Canotilho, J.J. Gomes 319 capital punishment 381, 389 Cappelletti, Mauro 84, 170 career judges 176, 181, 234 Cardenas, Jaime 233 Carrubba, Clifford J. 274, 278 Cartagena Agreement 254–5 Cassels, Jamie 23 Cassillas, Christopher J. 279 Castillejos-Aragón, Monica 150, 153 Castles, Francis G. 41 Castagnola, Andrea 231 Casto, William R. 85 Catalonia 406 categorization 8, 118, 156, 324, 329, 338 causal factors 150–52 causal model 151–2 Cavallaro, James L. 259 central government 93, 143, 145, 255 centralization 322–4, 334 centralized review 8, 165–6, 320, 322 Cepeda-Espinosa, Manuel José 29 Chan, Johannes 394 Chandrachud, Y.V. 93, 211, 215, 391 Chang, Wen-Chen 5, 10, 164–82, 410 change 48–50, 197, 211–13, 228–9, 249, 265–6, 268–9, 293–5 agents 159, 237 Chanock, Martin 221 charismatic judges 6, 205, 207, 215–16, 218, 221–2 Charney, Jonathan 407 Chaskalson, Matthew 42 Chayes, Abram 29 Chechnya 407 Chen, Albert H.Y. 170, 394–5 Cherokee 384 chief justices 169, 171, 175, 180, 215, 384–5, 392, 405 Chien-Chih Lin 54 children 24, 237, 344, 364–6 Chile 44, 147, 154, 238, 325–6 China 66, 155, 262, 272, 394, 411, 416
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 3 /
Date: 22/8
JOBNAME: Delaney PAGE: 4 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
426 Comparative judicial review choicefulness 359, 362 choices 9, 106–9, 196–7, 232–3, 357, 359, 364, 366–7 controversial 105, 108, 112 institutional 16, 165 Chon, Jong-ik 172–4, 180, 181 Choper, Jesse H. 72, 88, 89 Choudhry, Sujit 61, 99, 101, 103, 125, 208, 292, 358, 391, 393, 405, 417 Chowdhury, Rishad Ahmed 280 Christian Democrats 39, 52, 91 Christianity 130–33, 149, 352–3 Chuan, Gan Ching 23 citations comparative 10, 403, 407, 409 foreign 10, 403–5, 407, 410–18 citizen rights 186, 188 citizens 19–21, 63–4, 144–5, 185–9, 191–5, 199–201, 337–40, 384–5 individual 45, 327, 339 citizenship 112, 353, 409, 414–15 civil courts 131–2 civil law 92, 234, 328, 359, 383, 410 civil rights 41, 88, 199, 254 civil servants 176–7, 234, 311, 386 civil society 1, 6, 66–7, 73, 226–7, 229, 235–7, 240 actors 155, 233 groups 226, 228–33, 236–7, 241 international 6, 232, 242 civil wars 66, 88, 103, 148, 185, 189, 191, 197 Clark, Henry 407 Clark, Tom S. 274 Classical Legal Thought 206, 213–14, 218–19 classification 118, 177, 319, 323, 325, 330, 333–4, 342 binary 323, 325 dualist 333–4 clauses of constitutional Islam 4, 117–19, 121, 133, 138 clemency 253, 399 Clinton, Robert L. 85 coalitions 52, 54, 149, 231, 235, 278, 285, 290 political 49, 53–4, 211, 228, 291, 293 Cohen, Linda 200 Cohen, William 84, 191, 200 Cohen-Eliya, Moshe 25, 142, 206, 341, 359 coherence 14, 16, 418 Cold War 37, 63, 66, 268 collaboration 5, 29, 164–5, 169, 171, 176, 181
Columns Design XML Ltd
/
collective bargaining 304, 346 collegial courts 178–80 collegial relationships 165, 181 Collins, Paul M., Jr. 278 Colombia 23–5, 29–30, 72–3, 229, 231, 233–41, 251, 254–7 Constitutional Court 24, 30, 71, 73, 234–7, 255–7, 285 Supreme Court 235, 254 colonialism 64, 87, 93, 323–4 Colón-Ríos, Joel I. 332 Comella, Victor Ferreres 168, 318, 322 common law jurisdictions 156, 328, 371, 383, 415 community standards, contemporary 283–4 comparative analysis 6, 13, 20–21, 32, 204, 209, 226, 229 comparative citations 10, 403, 407, 409 comparative constitutional law 1, 3, 8, 60–63, 77, 226, 405–6, 417 comparative reference 10, 405, 407–10, 417–19 comparative sources 407, 410–11, 419 compensation 50, 168, 189, 194–5, 262, 304 competences 84, 86, 166, 171, 176, 179, 282, 350 competition 5, 143, 164–5, 169–72, 178, 181, 309 political 39, 41, 53, 56, 67–8, 210 competitive elections 66, 77 competitive party system 153, 274 complexity 3, 8, 36, 129, 137, 330–31 compliance 121, 123, 128–9, 134, 228–9, 237, 277, 339 constitutional 1, 5, 185, 188, 291 monitoring 228, 232 comprehensive doctrines 339–40, 352 compromises 48, 52, 102–3, 106–7, 110, 119, 121, 188–9 compulsory jurisdiction 245, 252 Concordat Case 90, 388 concrete review 166, 176–7, 179, 318–19, 322, 324, 330, 333 conflict 4–5, 101–4, 107, 109, 111–12, 145, 165–9, 174 resolution 99, 101, 104 conflicting national law 246, 255–7 Congress Party 93, 204, 214 Conrad, Coutenay Ryals 275 consensus 69, 107, 119, 186–8, 200, 284 condition 5, 186–8, 195, 199–200 overlapping 102, 351, 355 consent 171, 175, 180, 252–3, 278, 339
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 4 /
Date: 22/8
JOBNAME: Delaney PAGE: 5 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index 427 consistency 176, 197, 354 consociational solutions 64, 79, 103, 109 consolidation 67–8, 79, 190, 205, 207, 214 constituent assemblies 64–5, 71, 103, 105, 109, 122–3, 392–3 constitutional adjudication 61, 172–3, 206, 210, 212, 214, 217, 220–2 constitutional amendments 37–9, 47, 72–5, 90–91, 175, 302, 304, 310–11 constitutional arrangements 20, 52, 62, 64, 99, 101, 107–10, 112–13 permissive 104, 109 constitutional authority 62, 71, 73–4, 147, 245 constitutional bargains 47–9, 56, 69, 396 constitutional change 37, 47–50, 56, 295, 297, 301–2, 305, 311 constitutional commitments 4, 28, 117–18, 138, 293, 406, 415 constitutional constraints 3, 54, 76, 195, 293, 311 constitutional conventions 186, 189, 303–4, 309 constitutional courts 37–9, 52–6, 65–72, 89–91, 121–4, 164–82, 256–7, 318–29; see also under individual countries independent 41, 125, 164, 180, 311 new 3, 45, 47, 62–3, 155, 159, 164, 170–71 specialized 5, 45, 121–2, 124–5, 307, 354 strong 62–3, 70, 72, 100 constitutional cultures 6, 206–7, 209–14, 220, 269, 391, 399–400, 405 constitutional democracies 65, 77–8, 85, 150–51, 153, 159, 333, 367 constitutional design 3–4, 70, 72–3, 79, 103, 113, 300–301, 400 constitutional drafters 100, 102, 104–5, 111, 113, 292, 304–5, 307–8 constitutional goals 15–16, 29 constitutional governance 61, 64, 78, 300, 394 constitutional history 9, 379–80, 384, 388–9, 391–3, 396–7, 399–400 constitutional identity 10, 267, 409 constitutional insurance 37–8, 40–41, 43, 46–9, 52–6 constitutional interpretation 9, 21–2, 121, 361, 363, 386–7, 398–9, 403–4 constitutional Islam, clauses of 4, 117–19, 121, 133, 138 constitutional jurisprudence 54, 394, 398, 404, 406, 411, 416, 418 constitutional meaning 4–5, 21–2, 143, 195
Columns Design XML Ltd
/
constitutional obedience 244–5, 247–8, 250, 252, 254, 257, 264–5, 268–9 cultures of 244–5, 247–50, 258 constitutional orders 60, 74, 112, 146, 180, 268, 396 constitutional permissiveness 104, 109, 113 constitutional politics 16, 205, 300 constitutional principles 9, 55, 63, 72, 108, 122, 146, 149 constitutional provisions 44–5, 54, 56, 123–4, 303–5, 379–80, 383–4, 387–90 constitutional reforms 38–9, 72, 170, 233, 322, 406 constitutional review 4–7, 36, 74–5, 121, 124–5, 164–5, 244–8, 321–3 international 6, 244, 246–7, 259, 268–9 constitutional revolutions 109, 154–5, 406 constitutional rights 21–2, 29, 31, 128, 131–2, 206, 391, 397 constitutional specificity 291, 293, 300–301, 303–5, 307, 310 constitutional stability 185–94, 196–7, 201 constitutional structure 3, 10, 42, 74, 78, 385, 404 constitutional systems 2, 5, 8, 10, 185, 212–13, 323, 404 constitutional theory 13, 61, 292, 294, 300, 311–12 constitutional transgressions 185–6, 188, 194–5 constitutional values 14–15, 21, 43, 146, 193–4, 264, 388 constitutional-cultural salience 205, 210, 212 constitutional-cultural transformation 204, 211–12, 216–18, 221 constitutionalism 16–17, 37, 62, 64, 76–7, 79, 83, 291–2 court-centered 62, 340 democratic 181, 311 modern 72, 293 popular 22, 25 constitutionality 87–8, 166–9, 171–2, 176–7, 321–3, 350, 385–6, 417 of laws/legislation 83, 85–6, 122–4, 166, 172, 175–7, 179, 322 constitutionalization 43, 46, 88, 304, 411 constitution-makers 291, 293–4, 301, 311–12 constitutions 99–106, 117–31, 133–8, 185–90, 290–8, 300–305, 307–12, 383–93; see also under individual countries average entrenchment scores 300–302, 306, 309 average word count 298, 301–3, 306, 310
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 5 /
Date: 22/8
JOBNAME: Delaney PAGE: 6 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
428 Comparative judicial review continental European 305–6, 308 democratic 295–8, 300–301, 311 flexible 7, 291–2, 295–6, 302, 307, 312 formal 64, 76, 99, 103–4, 107–8, 294 self-stabilizing 5, 185–6, 188–9, 197, 200–201 un-entrenched 295, 301, 312 written 37, 77, 83, 87, 108–9, 112, 300, 304 constitutive laws 407, 409, 417–18 constraints 74, 230, 232, 338, 340, 354, 359, 363 constitutional 3, 54, 76, 195, 293, 311 consultative assemblies 39, 127–8 contemporary community standards 283–4 contextual dynamics 164–5, 170, 179–82 Contiades, Xenophon 294 contract 46, 49, 68–9, 143, 219 control 4, 7, 52–3, 180, 259, 291–2, 294–5, 304 democratic 302–3, 311–12 docket 229, 280 enhanced 305, 312 loss of 43, 56, 292 popular 7, 301–2, 305, 307 social 143, 310 controversial decisions 4, 104, 158, 187, 191, 196, 285, 352 convergence 25, 373, 403 cooperation 5, 179–80, 186, 189 model 169, 175, 179–80 coordination 5, 16, 188, 194, 196–7, 201 dilemmas 186, 188, 193, 195 mechanisms 187, 197 Corley, Pamela C. 277 corruption 41, 78, 144, 148, 153, 214, 249, 385 official 78, 145, 149 Corsi, Jessica 236, 238 cosmopolitanism 411, 416, 419 Costa Rica 229, 325–6 costs 46, 275–7, 281, 283, 285–6, 293–4, 369–71, 374 external 251, 259 Cotterrell, Roger 209 Council of Grand Justices 155, 164, 171, 174 Council of Islamic Ideology 129, 135 counter-majoritarian approach 53, 55, 62, 359 coups 40, 71, 119, 185, 188 court-centered constitutionalism 62, 340 court-packing 187, 191 Couso, Javier A. 144 Couto, Cláudio G. 310–11
Columns Design XML Ltd
/
Coxe, Brinton 85 Crane, William W. 61 credible threats of punishment 187, 191 criminal law 130, 345 criminal punishment 41, 50, 366 Croatia 326 Cross, Frank B. 296 cross-collateralized promises 49 Crosskey, William W. 85 Crouch, Melissa 39 Crow, Jim 88 Cruz, Ted 254 Cuba 66 cultures 80, 156, 158, 209, 213, 234–5, 248–9, 268 constitutional 6, 206–7, 209–14, 220, 269, 391, 399–400, 405 of constitutional obedience 244, 247–50, 258 political 21, 146, 245, 248, 264 Cyprus 79 Czarnota, Adam 143 Czech Republic/Czechoslovakia 63, 307, 320, 327 Dahl, Robert A. 273, 293, 294 Daly, Tom 1, 185 Damsa, Liviu 39, 55 Dawson, Benjamin 132 de-adjudication 14, 22, 32 death penalty 178, 252, 254, 284, 290, 381, 398, 404 De Búrca, Gráinne 246, 265 decency 284 decentralization 43, 56, 322–4 decision-making processes 8, 325, 328, 332 declarations of unconstitutionality 8, 322, 327–8, 333 deeply divided societies 4, 99–105, 108 deference 274, 279, 281–3, 344, 349, 373, 399, 405 deferral 49, 71–3, 75, 99, 105–7, 373 first-order 72–3 second-order 73–4 de Figueiredo, Rui J.P. Jr. 185, 188 Delaney, Erin 3, 24, 84, 145, 157, 280–81, 373 delay 47, 73, 157, 281, 369–70, 372, 375–6 democracy 62–4, 66–7, 69–72, 74–7, 79–80, 146–7, 153–4, 310–12 constitutional 65, 77–8, 85, 150–51, 153, 159, 333, 367 fragile 1, 41, 60, 76, 80, 145, 151, 259
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 6 /
Date: 22/8
JOBNAME: Delaney PAGE: 7 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index 429 liberal 210, 337 new democracies 64, 67–8, 70, 80, 144–5, 164, 170, 291 weak 62, 80 democratic accountability 70 democratic constitutionalism 181, 311 democratic constitutions 295–8, 300–301, 311 democratic control 302–3, 311–12 democratic elections 2, 36, 38–9, 46–7, 52, 56, 79 democratic governance 3, 64, 66–7, 69, 72–3, 77, 80, 376 democratic governments 3, 63, 101, 152, 171, 251, 301 democratic institutions 60–61, 63, 65, 67, 69, 71, 73, 75 democratic legitimacy 64, 67, 77, 180, 182 democratic majorities 65, 291, 294–5, 312 democratic politics 76, 159, 207 democratic polities 292, 297–8, 300–301 democratic pressures 295, 308, 310 democratic processes 60, 76–7, 146 democratic self-governance 62, 294, 371–2, 376 democratic self-government 76, 79 democratic society 2, 7, 76, 79, 158, 343, 358, 374 democratic stability 3, 67 democratic transitions 3, 143, 146, 170–71, 179 democratization 54, 164–5, 176, 180–82, 301, 305, 309, 312 Den Otter, Ronald C. 338 Denmark 300 Dershowitz, Alan 84 design strategies 292–3, 296 Desposato, Scott W. 78 destabilization 6, 68, 79, 165, 187, 191, 206, 213–15 detention 42, 44–5, 209, 215, 217 Deva, Surya 238 development, economic 198–9, 285, 297 de Visser, Maartje 8 De Vos, Pierre 208 dialogue 73, 237, 240, 264, 291, 329, 373, 406 Dienes, C. Thomas 351 Diermeier, Daniel 275 diffuse review 318, 330, 333 dignity 60, 160, 238, 339, 343, 417 Dinan, John J. 291, 295, 302, 304–5 discretion 24, 28, 187, 196, 279–80, 283, 291–2, 295–6
Columns Design XML Ltd
/
interpretive 291–2 judicial 281, 290–3, 295–6, 299, 303, 307, 309, 311 legislative 173 unreviewable 281 discrimination 76, 126, 135, 147, 348, 371, 373 displaced persons 30, 236 disproportionality 343, 366–7; see also proportionality dissents 92, 188, 192–3, 198–200, 215, 219, 328, 344–5 distrust 170, 180, 190, 304, 312, 341 Diver, Colin S. 29 divided powers 79, 147 divided societies 4, 79, 99–105, 108, 110–11, 113, 312 Dixon, Rosalind 1–12, 13, 28, 36–57, 71, 72, 75, 105, 107, 117, 148, 155, 157, 188, 197, 239, 274, 279, 281, 292, 295, 296,311, 312, 372 docket control 229, 280 doctrines 8–9, 22–3, 207, 281–3, 357, 360–61, 363–4, 376 basic structure 74–5, 94, 207, 392, 400 limiting 7, 276, 279, 281 political question 71, 89, 156, 281–3, 286 proportionality 357–64, 368, 370, 372–3, 375–6 Solange 265, 267 Dodek, Adam 406 domestic civil society groups 226, 230, 232 domestic law 247, 250–51, 256, 258–9, 269, 409, 411 dominant elites 37–8, 40, 47, 52–3 dominant parties 40, 68, 144, 231–2 Dorsen, Norman 403 Doyle, Don H. 407 drafters 99–100, 105–8, 111–12, 290, 292, 380–81, 383, 385–8 constitutional 100, 102, 104–5, 111, 113, 292, 304–5, 307–8 Draganova, Diana 407 Dred Scott 88, 187, 201, 384–5 Drori, Gili 61, 419 dualism 15–16, 137, 319, 329 Europe-model 323, 332–3 dualist classification 333–4 dualist typologies 330–31 due process 41, 45, 95, 146, 150, 156, 214–15, 394 Dugard, John 217 du Plessis, Lourens 405
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 7 /
Date: 22/8
JOBNAME: Delaney PAGE: 8 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
430 Comparative judicial review Dupuy, Pierre-Marie 253 duties 17–22, 26–7, 32, 123, 126, 195, 198, 339–40 fundamental 2, 14 Duxbury, Neil 219, 220 Dworkin, Ronald 170, 197, 339 Dyzenhaus, David 206, 217 East Asia 159 Eastern Europe 37, 159, 272, 308 Eaton, Amasa M. 304 Eberle, Christopher J. 338 Ebobrah, Solomon 261 ECHR see European Court of Human Rights ECJ see European Court of Justice economic crisis 151, 233–4, 302 economic development 198–9, 285, 297 economic governance 159 economic redistribution 51, 294 economic reforms 180, 310 economic rights 60, 150, 155, 285 ECtHR see European Court of Human Rights Ecuador 251, 254–7, 263, 310 education 88, 90, 126, 150, 154, 160, 200, 298 effectiveness 1, 5–7, 21, 30, 54, 56, 228, 285 effects-oriented scrutiny 9, 338, 347 efficacy 3, 7, 46, 48, 56, 272–3, 275–6, 281 Egypt 102, 106, 118–22, 124–5, 138–9, 142, 149, 413 Eisenberg, Theodore 349 Eisenmann, Charles 320 Eisenstadt, Todd A. 312 Eisgruber, Chris 54, 294 elected actors 273–4, 283, 285 elected representatives 122, 175, 291, 373 elections 52–3, 67, 70, 77, 79, 279–80, 350, 411–12 competitive 66, 77 critical 144, 154 democratic 2, 36, 38–9, 46–7, 52, 56, 79 parliamentary 52, 123, 412 presidential 133, 156–7, 190, 234, 412 electoral laws 41, 105, 146 electoral majorities 66, 292, 304–5 electoral power 37, 39, 41–2, 46, 290 electoral processes 66, 70, 412 elite hegemonic entrenchment 84, 87 elites 37, 40, 42–4, 46–7, 293–5, 305, 307, 311 dominant 37–8, 40, 47, 52–3 hegemonic 83, 87–8, 91
Columns Design XML Ltd
/
political 1–3, 36–7, 40–43, 45–7, 52, 56, 96, 294 ruling 40, 48, 120, 294, 305 Elkins, Zachary 70, 185, 295, 297, 298, 312, 419 Ellman, Stephen 208, 217 Elster, Jon 107, 143, 292 Emmert, Frank 37 empowerment, judicial 6, 38, 52, 88, 144, 228, 285 enforcement 3, 23–4, 54, 83, 229, 238, 293, 295 judicial 3, 83, 87, 136, 257–8 entrenched constitutions 105, 293–6 entrenched documents 294–5, 312 entrenching 43, 46, 145, 199, 286, 292–3 entrenchment 7, 73, 293–4, 296, 298, 301, 308–9, 312 elite hegemonic 84, 87 scores 297, 300, 305, 308–9 average 300–302, 306, 309 environmental changes 186, 189, 200 Epp, Charles 6, 37, 145, 226–30, 238 Epperly, Brad 36, 40, 41, 56 Epstein, Lee 7, 144, 150, 152, 158, 196, 272–86, 324, 366 equal rights 132, 181 equality 94, 135, 150, 174, 196, 343, 348, 417 rights 371, 373 equity 5, 373–4, 384 effects 233, 239 Eskridge, William N., Jr. 273, 274, 276, 294 establishment clauses 4, 124, 130, 138, 383 Islamic 4, 117, 120, 126–7, 129 ethnicity 64, 101, 414, 416 Europe 275, 282, 307–9, 318–20, 322–3, 328, 333, 416–17 Eastern 37, 159, 272, 308 European Community see European Union European constitutional courts 282, 322, 388 European Court of Human Rights (EC(t)HR) 142, 153, 248, 355, 357, 404–5, 414–15, 417 European Court of Justice (ECJ) 142, 148, 153, 264–6, 278, 415 European law 153, 264–5, 267 European model 8, 318–25, 328–9, 332–4 European Union 67, 72, 153, 255, 261, 264–5, 267 Evans, Carolyn 397 executive action 48, 83, 121, 198 executive branch 51, 83, 127, 258, 326
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 8 /
Date: 22/8
JOBNAME: Delaney PAGE: 9 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index 431 executive power 42, 50, 72, 74 Exigency Council 127–8 exogenous shock 6, 205, 213–18, 221–2 expansive interpretations 145, 191, 397 expectations 69, 128, 248, 380, 382, 384, 386, 404 coordinating 194–5, 198 expertise 17, 92, 419 external actors 7, 230, 235, 272, 276–9, 283, 286 incoming 7, 276, 279 external support 6, 226, 229, 234, 236, 240–41 extra-constitutional action 185, 188 extra-legal values 211, 216, 221 Eylon, Yuval 14 Fairgrieve, Duncan 403 Falleti, Tulia G. 204 Fallon, Richard H. Jr 19, 321 family law 105, 108, 121, 130, 136–7 Farber, Daniel A. 37, 46, 145, 159 Farrand, Max 189 Favoreu, Louis 322, 329, 333 FCC see Federal Constitutional Court Federal Constitutional Court (FCC) 90–91, 254, 264–5, 267–8, 280–82, 380–81, 387–9, 415 Federal Court of India 92–3 federal legislation 195, 199, 274 Federal Sharia Court 129, 134–8 federalism 42, 44–5, 83–90, 187, 191, 194–7, 404, 409 Fedtke, Jorg 103 Feeley, Malcolm M. 29, 153, 237 Feldman, Noah 117, 206 Ferejohn, John 26, 144, 153, 159, 187, 190, 275, 285, 294, 307, 318, 324, 328 Fernández Segado, Francisco 324, 331 Fernando, Joseph 130, 396 Ferraz, Octavio Luiz Motta 233, 239 Ferrer Mac-Gregor, Eduardo 324 Ferreres Comella, Victor 318, 322 final courts 165–6, 171, 174, 176, 178, 181, 217 multiple 5, 164, 174 Finkel, Jodi 2, 36, 39, 47, 51, 70, 144, 231 First Amendment 21, 189, 196, 351, 362 Fischman, Joshua B. 196 Fish, Eric S. 371 Fisher, Louis 24 Fiss, Owen M. 15, 29 Fitzgibbon, Russell H. 310
Columns Design XML Ltd
/
Fix-Zamudio, Héctor 233 Flemming, Roy B. 280 flexibility 105, 143, 291, 295–8, 300–302, 304, 308–9, 311 flexible constitutions 7, 291–2, 295–6, 302, 307, 312 Florida 146 Fombad, Charles 78 Fontana, David 117, 280–81 food 30, 236–8 right-to-food 236–7 foreign citations 10, 403–5, 407, 410–18 foreign jurisprudence 403, 405, 410, 416 foreign law 404–5, 407–8, 410–11, 413, 415, 418 formal constitutions 64, 76, 99, 103–4, 107–8, 294 formalism 204, 209, 214, 219, 247, 256, 371, 399 textual 219, 351 value 216 Fotiadou, Alkmene 294 Fourteenth Amendment 88, 196, 205, 214, 219, 380–81 Fourth Amendment 192, 363 fragile democracies 1, 41, 60, 76, 80, 145, 151, 259 France 44, 83, 249, 322, 325, 355, 408–9 Constitutional Council 322–3, 325–6, 328 franchise 44–5, 76, 305, 350 Franklin, Julian 408 free speech 45, 91, 135, 181, 196, 385 freedoms 42, 44, 73–4, 76, 150, 342–3, 357–8, 409–10 of movement 42, 44 of political communication 208, 342, 360 of religion 126, 131–2, 342, 344, 351–2, 397 Freeman, Samuel 340 Friedman, Barry 3, 84, 144–5, 186, 187, 189–92, 199, 228, 279 Friedman, Lawrence 160 Friedrich, Carl J. 25, 107 Fritz, Christian 302, 305 Frosini, Justin O. 324, 331 Fuller, Lon L. 216 fundamental rights 23, 90, 108, 206, 209, 212, 217, 265 Fusaro, Carlo 293, 294 Gadbois, George H., Jr. 215 Galligan, Brian 208 Gandhi, Indira 94–5, 146–7, 207, 214, 220
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 9 /
Date: 22/8
JOBNAME: Delaney PAGE: 10 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
432 Comparative judicial review Gandhi, Mahatma 93–4 Gandhi, Maneka 95, 394 Gandhi, Sanjay 95 Gardbaum, Stephen 27, 290, 291, 296, 318, 329, 406 Garditz, Klaus Ferdinand 254 Gargarella, Roberto 309–11 Garlicki, Lech 164, 166, 170 Garoupa, Nuno 47, 166 Garrett, Geoffrey R. 148 Gatmaytan, Dante 36, 39 Gelter, Martin 404, 410 general jurisdiction 5, 45, 62, 166–8 Gentili, Gianluca 404 Georgia 146, 154, 196, 300, 384 Gerber, Scott D. 85 Germany 89–91, 206–7, 212, 216–18, 251–4, 264–7, 389, 413–15 Constitution/Basic Law 90, 254, 264–7, 388 Federal Constitutional Court (FCC) 90–91, 254, 264–5, 267–8, 280–82, 380–81, 387–9, 415 Nazi 216–17, 221 Ghai, Yash 103, 406 Giblin, Colleen E. 47 Gibson, James L. 206, 210, 249, 280 Gicquel, Jean 322 Giles, Michael 279 Gillman, Howard 213–14, 218–19, 235, 279 Ginsburg, Tom 1, 2–3, 13, 23, 36–57, 68–70, 83–4, 85, 100, 105, 107, 143–6, 153–5, 158, 159, 164, 166, 169, 173, 174, 179, 185, 197, 228, 269, 272–4, 279, 290–91, 293, 295–8, 312, 324–6, 328, 385, 411 Glazer, Nathan 101 Glenn, H. Patrick 404 globalization 159, 258, 263, 403 Gloppen, Siri 1, 241, 311 goals 15–17, 227–9, 236, 241, 284–5, 331–2, 342, 357 constitutional 15–16, 29 general 29, 129, 285 legitimate 366, 375 policy 6, 50, 295, 346 political 204–5, 210, 212, 228 Goldstein, Leslie F. 85 Goldsworthy, Jeffrey 329, 361, 390 good government 148, 357, 367 Gopalan 393–4 governance 43, 86, 125–6, 142–5, 150–53, 158–9, 272, 295 anti-democratic 311
Columns Design XML Ltd
/
constitutional 61, 64, 78, 300, 394 democratic 3, 64, 66–7, 69, 72–3, 77, 80, 376 judicial roles in 142–3, 145, 147, 150–51, 153, 155, 158–60, 163 government 26–7, 29–31, 109–10, 146–7, 250–51, 257–63, 275–7, 373–5 action 5, 54, 75, 185, 188–9, 194, 197, 348 agencies 157, 166, 172–3, 175 central 93, 143, 145, 255 democratic 3, 63, 101, 152, 171, 251, 301 federal 90, 93, 190–91, 278 good 148, 357, 367 local 43, 50–51, 56, 143, 148, 166, 172 national 56, 87, 90, 145, 147, 195 officials 122, 126, 148, 259, 304 representative 16, 362 state 90–91, 93, 131, 352 subnational 44, 145, 147 governmental power 42, 44, 71, 75–6, 172 Graber, Mark 148, 228, 290 Grant, J.A.C. 319 Greene, Jamal 9, 10, 370, 379–400 Grey, Thomas C. 85 grievances 2, 13, 17–22, 24–5, 27–8, 32, 144–5 individual 19, 22, 24, 27, 32, 166, 172–4, 179 Griffin, Stephen M. 294 Grimm, Dieter 285, 344, 415 Groppi, Tania 403 Guardian Council 127–8 Guarnieri, Carlo 144, 149, 153, 154 Guha, Ramachandra 214 Gulener, Serdar 43 habeas corpus 156, 207, 215 Hadfield, Gillian K. 186, 188, 295 Hailbronner, Michaela 206, 212, 216, 220–21 Halabi, Sam 412 Ha-Levi, Yehudah 416 Hall, Melinda Gann 274 Halliday, Terrence C. 153 Halmai, Gabor 160, 168, 414 Hamburger, Philip 85, 86, 87 Hamilton, Alexander 71, 85–6, 190, 194–5, 320 Hardin, Russell 186, 293 Harding, Andrew 416 Harel, Alon 2, 13–33, 100, 185, 251, 264 harm 21, 30, 69, 229, 362–3, 369, 371–2, 375 harmony 129, 210, 373, 396 Harrington, Matthew P. 85
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 10 /
Date: 22/8
JOBNAME: Delaney PAGE: 11 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index 433 Hart Ely, John 16, 76, 342 Haupt, Claudia E. 418 Hawkins, Darren G. 250, 259 Hayek, F.A. 186 health 30, 89, 219, 232–3, 238–9, 255, 363 hearing(s) 2, 13–15, 17–22, 25–8, 31–3, 156, 178, 214 hegemonic elites 83, 87–8, 91 Helfer, Laurence 255, 257, 259, 261, 262 Helmke, Gretchen 46, 273–5, 279 Hendrianto, Stefanus 39, 155 Hertel, Shareen 237 heterogeneity 6, 226–7, 230, 380 hierarchical order 171, 180, 182 hierarchy 131, 137–8, 343 Higginson, Stephen A. 21 Hilbink, Lisa 37, 40, 144, 210 Hill, Enid 122 Hirschl, Ran 1, 2, 8, 9–10, 36, 38, 39, 43, 61, 83–5, 87, 88, 96, 99, 100, 111, 118, 142, 144, 149, 155, 157, 228, 290, 293, 294, 403–18 Hirschman, Albert O. 102 historical argument 380, 384–5, 389, 392–3, 395–7, 399–400 historical meanings 364, 382, 390 historical wrongs 3, 83, 87, 89, 96 history 9–10, 85–6, 379–85, 387–9, 391–2, 394, 397–400, 408–10 constitutional 9, 379–80, 384, 388–9, 391–3, 396–7, 399–400 legislative 344, 391, 399 use 9, 383, 393, 400 Hobbs, Harry 361 Hoffman, Elizabeth 47 Hoffmann, Florian 234, 239, 240 Hogg, Peter W. 329, 346, 406 Holden, Richard 298 Hollis-Brusky, Amanda 142 Holmes, Oliver Wendell 214, 219–20, 366 Holmes, Stephen 105 Holocaust 87, 90–91, 389 Hong Kong 28, 272, 379, 394–5, 404, 411, 416 Basic Law 394–5 courts 394–5 Horowitz, Donald L. 19, 101, 104, 113 Horwitz, Morton 186, 205–6, 213–14, 218–19 housing 30, 50, 150, 234, 238 Howell, P.A. 92 Huls, Nick 148, 153 human dignity see dignity
Columns Design XML Ltd
/
human rights 60, 63, 246, 249, 258–61, 404–5, 415, 417 Huneeus, Alexandra 144, 258, 259, 263 Hungary 37, 63, 68, 142, 269, 280, 404 Constitutional Court 142, 168, 274, 280 Huntington, Samuel 67 Huppert, George 409 hybrid systems 4, 118, 125, 129, 133–4, 138–9, 319, 333–4 IACtHR see Inter-American Court of Human Rights Iaryczower, Matias 273, 276–7 ICCPR see International Covenant on Civil and Political Rights ICJ see International Court of Justice ideal types 23, 209, 324, 333 ideational conflicts/tensions 99–100, 103, 105–7, 111, 113 identity 19, 100–101, 414, 416 conflicts 101, 103, 105 constitutional 10, 267, 409 groups 102–3, 109 linguistic 100–101, 105 national 99, 101, 104–6, 217, 397, 416 identity-formation factors 411, 413, 415 ideological projects 208, 211–12 ideologies 144, 206, 210–11, 216 legitimating 6, 204, 206, 209–10, 213, 216, 218, 222 illicit motives 341, 343, 347–9 immanent values 206, 217 incentives 37, 46, 48–9, 53, 185, 187, 190–91, 240 Inclán, Silvia Oseguera 26, 39, 40 incumbents 5, 43, 54, 144–6, 158, 185, 188, 228 independence, judicial 40–41, 51–4, 64, 125, 190, 282–3, 311, 392 independent judicial review 3, 36, 40, 52–3 India 23–4, 92–6, 107–12, 210–12, 215–18, 236, 391–2, 394 Constitution 23, 75, 93–5, 211, 214, 220, 391, 393–4 Supreme Court 72, 74, 92–5, 110, 155–8, 227, 229, 416–17 indigenous rights 259–60 individual grievances/complaints 19, 22, 24, 27, 32, 166, 172–4, 179 individual rights 42, 45, 87–8, 91, 95, 383, 385–6, 390–91 Indonesia 39, 102, 119, 167, 326, 416, 418 inertia 369–70, 376
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 11 /
Date: 22/8
JOBNAME: Delaney PAGE: 12 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
434 Comparative judicial review influence loss of 42–3, 51, 56 policy 3, 36, 41, 56 political 36, 249 injunctions 29, 74, 134–6, 232, 238, 261 institutional design 2, 5, 113, 118–19, 164–5, 168–9, 178–82, 340–41 institutional legitimacy 7, 29, 155, 273, 281, 391 institutional prestige 169–70, 180–81 Institutional Revolutionary Party see PRI institutional structures 2, 16, 47, 65, 118, 120 institutions 15–17, 19–21, 29–30, 103–4, 109–10, 275–6, 323–4, 326–7 democratic 60–61, 63, 65, 67, 69, 71, 73, 75 international 246, 262, 267 mediating 66, 68 political 32, 60, 105, 153, 181, 189, 340, 343 instrumentalism 15–16, 19, 206, 210–12, 216, 218, 220–22, 411 insurance 2–3, 36–9, 42, 44–8, 50–53, 56, 84, 87 constitutional 37–8, 40–41, 43, 46–9, 52–6 contracts 48–9 idea of 36–7, 43–4, 56 personal 44–5 policy-based 43–5, 51 political 2–3, 36–40, 44–6, 48, 52–6, 144 power-based 41–2, 44–5 theory 3, 38–40, 44, 46, 56, 273–5 two-sided 38, 46, 49–50, 52 insurance-based logic 50–51, 54 intent 236, 276, 341, 365, 388, 392–3, 395–8 original 379, 386, 395, 398 intentions 9, 54, 296, 380, 383–4, 386–8, 390, 397 legislative 341, 352 Inter-American Court of Human Rights (IACtHR) 249, 259–60, 263 interdisciplinary approach 1–2, 419 internally displaced persons 30, 236 international constitutional review 6, 244, 246–7, 259, 268–9 International Court of Justice (ICJ) 175, 246, 251–3 international courts 1, 6–7, 244–7, 249, 259, 262–3, 268–9; see also individual courts International Covenant on Civil and Political Rights (ICCPR) 178, 411, 417 international institutions 246, 262, 267
Columns Design XML Ltd
/
international judicial review 246, 259, 262–3, 268 international law 6–7, 244–52, 254, 257–60, 263–5, 267–9, 405, 407 culture of constitutional obedience to 244, 247–8, 268 violations of 246–7, 250, 262 international legal review 247, 249, 259 international treaties 133, 153, 246, 251–2, 257–8 interpretation 9–10, 100–1, 118, 120–21, 174, 176–9, 382, 395 constitutional 9, 21–2, 121, 361, 363, 386–7, 398–9, 403–4 expansive 145, 191, 397 purposive 380, 397, 404 statutory 196, 380, 390 invalidation 164, 168, 349–50, 353, 369, 372, 375, 383 invalidity, suspended declarations of 372–3, 376 Ip, Eric C. 394, 395 Iran 118–20, 123, 125, 127 Guardian Council 127–8 Islamic Consultative Assembly 127–8 Iraq 67, 103, 119, 121–2 Ireland 414, 416 Islam 4, 112, 117–20, 122, 126–30, 132–8, 396; see also Muslims constitutional commitment to 4, 117–18, 138 role 4, 112, 126, 135, 139 Islamic Consultative Assembly 127–8 Islamic establishment clause 4, 117, 120, 126–7, 129 Islamic judicial review 118, 125, 129, 135, 138–9 Islamic law 92, 117–20, 125–6, 132, 134–5, 137, 139 Islamic model 129, 138 Islamic principles 127, 136–7 Islamic review 118, 135 Islamic revivalism 117, 131 Islamic Sharia see Sharia Islamic state 4, 111, 117–18, 120, 127, 138, 416 Islamism 111, 123–4, 131, 136, 138–9, 155, 397 Israel 23–4, 75–6, 100, 102, 108–12, 155, 405, 413–17 self-definition 413–14 Supreme Court 31, 109–10, 154–5, 280, 282, 326, 405, 413–16
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 12 /
Date: 22/8
JOBNAME: Delaney PAGE: 13 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index 435 Issacharoff, Samuel 1, 3, 43, 60–80, 100, 157, 208, 279, 281, 282, 291, 311, 372, 373 Italy 39, 52, 60, 63, 83, 148, 326, 355 Iturralde, Manuel 23 Jackson, Michael 211 Jackson, Vicki C. 9, 10, 357–76, 403, 404, 406 Jacobi, Tonja 5, 10, 13, 185–201, 275 Jacobsohn, Gary 105, 111, 413, 415, 416 Japan 38, 83, 92, 297, 300, 380, 406, 416 Jefferson, Thomas 294 Jeffries, John C. Jr 29 Jellinek, Georg 320 Johnsen, Dawn E. 20 Johnson, Timothy R. 278 Jolowicz, H.F. 21 Jordan 121, 125 Joy, Lina 131–2, 396–7 judges 143–6, 175–6, 230–32, 272–7, 279–80, 282–6, 324–9, 339–41 appointment 325–6 career 176, 181, 234 charismatic 6, 205, 207, 215–16, 218, 221–2 ordinary court 177, 226, 230, 232, 242 politically committed 207, 220 judicial action 5, 143–5, 154, 158–9, 241 judicial activism 142, 227, 229, 235, 239, 241, 348, 379 judicial appointments 37, 44, 53, 95, 147, 169, 175, 211 judicial authority 72–4, 76, 158, 166, 169–70, 244 judicial behavior 6–7, 40, 226, 230, 233, 272–3, 408 judicial decisions 17, 27–8, 166–9, 172–3, 177–8, 181–2, 228, 235–6 constitutionality 166, 168, 171 judicial deference see deference judicial discretion 281, 290–93, 295–6, 299, 303, 307, 309, 311 judicial empowerment 6, 38, 52, 88, 144, 228, 285 judicial enforcement 3, 83, 87, 136, 257–8 judicial independence 40–41, 51–4, 64, 125, 190, 282–3, 311, 392 judicial intervention 100, 109, 151, 238 judicial legitimacy 158–9, 272, 284, 373 judicial power 88–9, 157–8, 165, 170–72, 180–82, 193, 226–7, 241
Columns Design XML Ltd
/
judicial reasoning 23, 193, 205, 338, 350, 354, 363 judicial roles 3, 5, 142–3, 145, 150–55, 158, 231, 234–5 judicial supremacy 22, 27, 71, 84, 158, 291, 301 judicialization 7, 111, 290, 292 jurisdiction 42–5, 51–3, 131–2, 136–7, 165–6, 171–2, 320–21, 399–400 compulsory 245, 252 exclusive 92, 99, 121, 129 general 5, 45, 62, 166–8 jus gentium 407 justification analysis 342–3, 373 Kagan, Robert 5, 142–60, 204–5, 210 Kahan, Dan M. 363 Kalb, Johanna 411 Kapiszewski, Diana 1, 5, 142–60, 311 Kaplow, Louis 294, 369 Katyal, Sonia K. 393 Keller, Helen 251 Kelly, Donald 408 Kelsen, Hans 307–8, 319–20, 333 Kende, Mark 142 Kennedy, Duncan 206, 212 Khomeini, Ayatollah 127 Kiefel, Susan 359–62 Kim, Jongcheol 171, 181 Kirby, Hon. Justice Michael 391 Kirp, David L. 29 Klare, Karl E. 208, 211–12, 221 Klarman, Michael J. 381 Klug, Heinz 99, 144, 146, 150, 153–6, 158, 285, 292, 294, 297 Knapp, Steven 380 Koh, Harold Hong 258 Komesar, Neil K. 16, 17 Kommers, Donald 62, 167, 205, 387–90 Koopmans, Tim 282 Korea see South Korea Kramer, Larry 22, 187–92, 291 Krehbiel, Jay N. 273, 275 Krisch, Nico 251 Krishna Iyer, V.R. 155, 207, 215, 220–21 Krishhnaswamy, Sudhay 72 Kronman, Anthony T. 54 Kull, Andrew 69 Kumm, Mattias 337–8, 341 Kümmel, Gerhard 266 Kuwait 118–19, 121–5, 138, 149, 155 Kymlicka, Will 104, 338
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 13 /
Date: 22/8
JOBNAME: Delaney PAGE: 14 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
436 Comparative judicial review Lalander, Rickard 310 land reform 94, 261 land rights 259–61 Landau, David 6, 10, 29, 30, 45, 61, 113, 226–42, 295, 311, 312 Landes, William M. 38, 281 language 61, 64, 124–5, 354, 386–7, 393, 395, 410 ambiguous 99–100, 105, 112, 167 La Porta, Raphael 296 Lasser, Mitchel de S.-O.-’E. 153, 328 Latin America 238, 240, 260, 268–9, 308–11, 324–5, 327–8, 409 Lau, Martin 135–8 Laws, John 25 Lawson, Gary 21 leaders political 40–41, 44, 49, 143–4, 146–8, 150–51, 153–4, 157–9 religious 110, 127, 138 Leahy, James E. 304 Lee, Yi-Li 164–82 legal cultures 86, 159, 170, 238, 245, 247, 250, 257 legal positivism see positivism legal realism 204–6, 212, 214, 217–20, 296 legal traditions 92, 205, 227, 269, 329, 338, 410, 415 legal-cultural actors 213, 218, 221–2 legalism 6, 206–12, 215–18, 220–22, 361, 390–91 legality 86–7, 168, 172–3, 176, 244, 246, 263, 268 legislation 120–2, 125–6, 128–9, 166–7, 320–25, 332–4, 344, 346–9; see also statutes constitutionality 83, 85–6, 90, 123, 166 federal 195, 199, 274 ordinary 100, 105, 108, 136, 157, 318–20, 322–5, 327 review 85, 87, 123, 137, 318, 320–25, 328, 333–4 legislative action 36, 296, 341, 346, 348, 352, 372 legislative branch 104, 147, 326, 328–9, 332, 348 legislative history 344, 391, 399 legislative majorities 41, 46, 48, 53, 55–6, 71, 399 legislative motives 342, 352–3 legislative powers 190, 292, 367 legislative purpose 344, 353, 355, 364–5 Legislative Yuan 175–6, 180
Columns Design XML Ltd
/
legislators 21, 31, 78, 337, 339–42, 344–6, 349, 352 legislatures, state 86, 130, 190, 208, 213, 219, 302, 304 legitimacy 70, 109–10, 112–13, 272–3, 276–7, 337, 339, 343 democratic 64, 67, 77, 180, 182 institutional 7, 29, 155, 273, 281, 391 judicial 158–9, 272, 284, 373 political 2, 156, 337 legitimate goals 366, 375 legitimating ideologies 6, 204, 206, 209–10, 213, 216, 218, 222 Leiter, Brian 206, 210, 214, 219 Lemaitre, Julieta 23, 238 Leongómez, Eduardo Pizarro 231 Lerner, Hanna 4, 10, 99–113, 293, 312 Lesaffer, Randall 305 Lever, Annabelle 17 leverage 31, 166, 226, 236–7, 244, 388 Levinson, Daryl 79, 293 Levinson, Sanford 293, 294, 407 liberal values 107, 149 liberalism 102, 112–13, 268, 337 Libson, Gideon 408 Liebenberg, Sandra 208, 232 life tenure 176, 190, 194, 275, 327 Lijphart, Arend 101, 103, 104 Lim, Jibong 172 limit condition 5, 185, 187–94, 196–200 limited unconstitutionality 173–4 limiting doctrines 7, 276, 279, 281 linguistic identity 100–101, 105 LIWC (Linguistic Inquiry and Word Count) 277 Llewellyn, Karl 219, 220, 296 Lo, P.Y. 394 local governments 43, 50–51, 56, 143, 148, 166, 172 Lochner 205, 207, 219, 394 Lombardi, Clark B. 112, 118, 120, 123, 135, 136 Lopez, Enrique Guillen 62 Lorenz, Astrid 296 Lovell, George 290 lower courts 166, 171, 174, 176–8, 181, 267, 276, 325–7 Ludsin, Hallie 103 Lupia, Arthur 295 Lustick, Ian 101 Lutz, Donald S. 296 luxury good 7, 245, 250–51, 257–8, 264, 268 Lyke, Sheldon 405
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 14 /
Date: 22/8
JOBNAME: Delaney PAGE: 15 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index 437 McBain, Howard Lee 307 McCann, Michael 229, 236 McCloskey, Robert G. 189, 191, 198 McCrudden, Christopher 403 McCulloch 93, 187, 191, 198, 200–201, 285 McGarry, John 101 McGuire, Kevin T. 279 McHugh, Michael 391 McLachlin, Beverley 405 McLeod, Andrew 404 Madison, James 71, 85, 87, 157, 186, 190, 195, 197 Madondo, Bongani 77 Magalhães, Pedro C. 144 Magaloni, Beatriz 145 Mahmood, Tahir 108 Mahoney, James 204 Mainwaring, Scott 231 majorities democratic 65, 291, 294–5, 312 legislative 41, 46, 48, 53, 55–6, 71, 399 political 38, 53, 56, 148 Mak, Elaine 410 Malaysia 117, 119, 129–31, 138–9, 155, 396–400, 413–14, 416–17 Constitution 129–30, 396, 398, 416 Mandel, Michael 142 Marbury v Madison 71, 73, 85, 87, 157, 195, 198, 281–2 marriage, same-sex 149, 229, 233, 281, 385 Marshall, John 86–7, 187, 191–2, 194–5, 198, 200, 320, 384 Maryland 93, 187, 285 Mason, Sir Anthony 205, 207–8, 211, 216–17, 221, 343, 362, 391 Massey, Calvin 348 Mate, Manoj 75, 146–7, 149, 155–8, 207, 285 meaning 137–8, 194, 197, 205–6, 283–4, 379–80, 383–4, 395–6 constitutional 4–5, 21–2, 143, 195 historical 364, 382, 390 original 380–81, 385, 390–91 Medellín 253–4 mediating institutions 66, 68 mega-politics 290 Mehta, Pratap Bhanu 110, 111, 207 Meierhenrich, Jens 218, 221 Mendes, Conrado 328 Merrill, Thomas W. 199 methodology 8, 10, 119, 317, 362, 403, 417–18 Mexico 39, 44, 51, 66, 70, 231–2, 238, 253–4 Constitution 309
Columns Design XML Ltd
/
PRI (Institutional Revolutionary Party) 39, 51, 231–2 Supreme Court 150, 284 Meyer, John 61, 419 Michaels, Walter Benn 380 Michelman, Frank I. 340–41 middle class 211, 233–4, 239 military rule 39, 72, 411 Mill, John Stuart 213, 338, 390 Miller, Bradley 387 Miller, Russell 62, 167, 205, 387–90 minimal impairment test 368–70, 372–6 minority rights 63, 144, 186, 295 Mittal, Sonia 5, 10, 13, 185–201 models 121, 125, 165–6, 311–12, 318–19, 322, 324, 332–4 causal 151–2 cooperation 169, 175, 179–80 European 8, 318–25, 328–9, 332–4 hybrid 4, 125, 129, 139 Islamic 129, 138 never again 91, 380, 388 secular review 118, 121, 129, 134, 138 United States 8, 319–21, 327, 329–30, 334, 341 Modi, Zia 95 Mohamed, Maznah 131 Möller, Kai 359 Mongolia 28, 38, 55 morality 149, 216–17, 345, 393, 414 political 17, 208, 216 Moravcsik, Andrew 248, 411 Morewedge. Carey K. 47 Morocco 119, 121, 125, 325 Moseneke, Dikgang 208, 405 Moses, Bernard 61 Moss, Randolph D. 29 motive inquiry/scrutiny 347–9 motives 8–9, 54, 155, 217, 338, 341–3, 345–9, 352–3 illicit 341, 343, 347–9 legislative 342, 352–3 Mourtada-Sabbah, Nada 72 Moustafa, Tamir 111, 117, 124, 131, 142–3, 145, 269 Moyo, Sam 261 Mugabe, President Robert 259, 261–3 Müller, Jan-Werner 268 multiculturalism 104, 406 multiple final courts 5, 164, 174 Munir, Muhammad 138 Mureinik, Etienne 217 Murphy, Walter F. 274
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 15 /
Date: 22/8
JOBNAME: Delaney PAGE: 16 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
438 Comparative judicial review Muslim Brotherhood 124, 139 Muslims 102, 129–30, 132, 134–7, 396, 414; see also Islam Myerson, Roger B. 185, 188 Nagel, Robert F. 21 Nakornin, Nat Taporn 326 national governments 56, 87, 90, 145, 147, 195 national identity 99, 101, 104–6, 217, 397, 416 national security 150, 210, 213 National Socialism 206, 216, 220–21 natural law 216–17, 408 natural resources 260, 297, 387 Navia, Patricio 324 Nazi Germany 216–17, 221 Nazism 84, 90–91 necessary and proper clause 191, 198, 200 necessity 9, 321, 341, 357, 359, 362, 364, 367 Negretto, Gabriel L. 308, 310, 311 Nelken, David 209 Nelson, Caleb 356 Nelson, William E. 85 Neo, Jaclyn Ling-Chien 130, 131, 397, 398 Netherlands 148, 322, 417 Neuborne, Burt 46, 394 neutral umpire 83–4, 89–90, 210 never again model 91, 380, 388 New South Wales 360, 417 New Zealand 27, 43, 142, 290, 300, 405, 417 NGOs 23, 226, 230, 236, 240, 259 Nicaragua 259–60 Nicholas, Barry 21 Niemeyer, E. Victor 309 Nikitinsky, Leonid 280, 282 Noel, Sid 104 Nohlen, Dieter 332 Noll, Alfred J. 320 noncompliance 191, 247, 255–7, 277, 283 Nonet, Philippe 160, 216 nonjusticiable provisions 99–100, 106 Nordlinger, Eric A. 101 Noriega, San Lopez 231 North, Douglass 159, 186, 293 nullification 3, 38, 46, 52–3, 56, 153, 157, 191 number of unique words 297–8 Nunes, Rodrigo 36, 37, 43 Nzelibe, Jide 258
Columns Design XML Ltd
/
Oakes test 9, 343, 357–8, 374, 406 Obergefell 193–4 office-holders 41, 69, 292–3, 296, 304, 311–12 O’Connor, Karen 294 O’Flynn, Ian 104 Ohlin, Jens David 249, 254 Oklopcic, Zoran 407 Okoth-Ogendo, H.W.O. 383 Oliver, Dawn 293, 294 Ordeshook, Peter C. 185 ordinary courts 43, 164, 168, 170, 172–4, 176–7, 179–81, 234 ordinary legislation 100, 105, 108, 136, 157, 318–20, 322–5, 327 original intent 379, 386, 395, 398 original meaning 380–81, 385, 390–91 originalism 206–7, 210, 379, 384–8, 391, 393–4, 398–9, 404 Osiatynski, Wiktor 417 Otto, Jan Michiel 118 Ottoman Empire 119–20 Pakistan 117–19, 129–30, 134–8, 154–5, 411, 413–14, 416, 418 Constitution 129, 134–5 Council of Islamic Ideology 129, 135 Federal Sharia Court 129, 134–8 Supreme Court 136, 149 Palmer, Matthew S.R. 78 Parenti, Michael 294 Paris, Michael 148 Park, Jonghyun 180 parliamentary elections 52, 123, 412 parties 29–31, 38, 43–4, 46–9, 51–4, 68–70, 78–9, 230–34 religious 43, 109–10 ruling 38, 48, 149, 151, 153 party politics 150, 258, 412 party systems 151, 153, 227–8, 231–2, 234, 240, 274, 412 Pasquino, Pasquale 26, 37, 282, 285, 328 Patapan, Haig 207, 217 Paulson, Stanley L. 320 Pegoraro, Lucio 324, 331 Perju, Vlad 359 permissiveness 4, 104, 106–7, 109, 113 Perry, H.W., Jr. 280 personal insurance 44–5 persuasive authority 404, 416 Petersen, Niels 74–5 Phelan, William 248 Philippines 39, 414, 418
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 16 /
Date: 22/8
JOBNAME: Delaney PAGE: 17 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index 439 Pickard, Duncan 99, 112 Pierce, Jason L. 205, 207, 217, 221 Pildes, Richard H. 70, 76, 350 Poland 37, 269, 274, 307, 325, 414 police power 213, 218–19, 366 policy goals 6, 50, 295, 346 policy influence 3, 36, 41, 56 policy-based insurance 43–5, 51 policymaking 291–2, 302–4, 307–8, 311–12 political actors 4–5, 38–9, 42–3, 48, 53–4, 130–31, 228, 230–31 political attacks 7, 234, 236, 239 political authority 62, 68, 142–3, 151–2, 158, 209–10, 213, 218 political backlash 100, 149, 152, 155–6, 158, 228, 232, 412 political branch 72–4, 76, 189–90, 280–81, 325, 367, 398–9 political changes 57, 229, 236, 268, 407–8 political coalitions 49, 53–4, 211, 228, 291, 293 political communication, freedom of 208, 342, 360 political competition 39, 41, 53, 56, 67–8, 210 political context 1, 6, 8, 228, 230, 412, 419 political culture 21, 146, 245, 248, 264 political developments 113, 216–17, 221, 294 political dynamics 2, 5, 37, 49, 113, 131, 151, 155 proximate 154 political elites 1–3, 36–7, 40–43, 45–7, 52, 56, 96, 294 political forces 39, 68, 76, 121, 123 political goals 204–5, 210, 212, 228 political institutions 32, 60, 105, 153, 181, 189, 340, 343 political insurance 2–3, 36–40, 44–6, 48, 52–6, 144 political leaders 40–41, 44, 49, 143–4, 146–8, 150–51, 153–4, 157–9 political legitimacy 2, 156, 337 political majorities 38, 53, 56, 148 political morality 17, 208, 216 political opposition 40–41, 43, 48, 51, 73, 249 political parties see parties political power 1–2, 4, 36–7, 41–2, 62, 70–72, 77–9, 88–9 political pressures 149, 152, 154, 215 political process 3, 16, 22, 25, 44, 70, 76, 213 political question doctrine 71, 89, 156, 281–3, 286
Columns Design XML Ltd
/
political realignment 213–14, 218 political rights 144, 150, 209 political risk 36, 38, 41, 43–4, 57, 142, 148 political science 1, 85–6, 144, 230, 239, 307, 309 political structures 5, 151–2, 155 political support 3, 53–4, 144, 158, 239, 241, 269 political systems 103, 105, 109, 112, 231–3, 238, 240–41, 259 political values 155, 212, 214, 217, 353 politically committed judges 207, 220 politicians 145, 148, 150, 154, 158–9, 290, 327, 337 politics 5–6, 142–4, 185, 187–8, 204–10, 212–14, 218, 221–2 constitutional 16, 205, 300 democratic 76, 159, 207 judicialization 111, 290, 292 national 207, 215, 220 ordinary 4, 107–8 party 150, 258, 412 stakes in 5, 185, 187–8, 190, 192, 197 polities 100, 143–5, 295, 297, 403–4, 406, 409, 413–14 democratic 292, 297–8, 300–301 Ponthoreau, Marie-Claire 403 popular constitutionalism 22, 25 popular control 7, 301–2, 305, 307 popular support 185, 228, 239–40 popularity 52, 73, 226, 234, 280, 285 populism 68, 220, 233, 240, 250–51, 263, 268–9, 303 Porat, Iddo 25, 206, 341, 359 Portugal 318–19, 322, 325, 410, 416 Posada-Carbó, Eduardo 72, 73 positive rights 94, 150, 238, 296, 359 positivism 204, 216–17, 220 Posner, R.A. 278, 281, 296–7, 312 Post, Robert C. 22, 190, 191 Pound, Roscoe 214, 219–20 Powe, Lucas A. 206 power 38–41, 51–6, 61–5, 67–76, 89–91, 93–6, 164–77, 179–82 exclusive 166–7, 177 executive 42, 50, 72, 74 governmental 42, 44, 71, 75–6, 172 judicial 88–9, 157–8, 165, 170–72, 180–82, 193, 226–7, 241 loss of 40, 43, 48, 51 police powers 213, 218–19, 366 political 1–2, 4, 36–7, 41–2, 62, 70–72, 77–9, 88–9
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 17 /
Date: 22/8
JOBNAME: Delaney PAGE: 18 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
440 Comparative judicial review separation of powers 78, 83–5, 87–9, 96, 99, 152–3, 369, 373 state 68–9, 79 power-based insurance 41–2, 44–5 Powers, David 121 Pozas-Loyo, Andrea 48, 52 PR see public reason Prakash, Saikrishna B. 85 precedents 121, 143, 147, 340, 354, 359, 410, 415 foreign 403, 410, 415–16 Prescott, J.R.V. 407 presidential elections 133, 156–7, 190, 234, 412 prestige, institutional 169–70, 180–81 Preuss, Ulrich 104 PRI (Institutional Revolutionary Party) 39, 51, 231–2 principles 9, 61–2, 64–6, 126–8, 350, 357, 370–76, 388 directive 45, 94 general 9, 105, 352, 357 Islamic 127, 136–7 prisoners 29, 156, 346 privacy 126, 168, 196, 417 private property 94, 195, 199, 385 promises, cross-collateralized 49 property 42, 44–5, 50, 155, 157, 189, 198–9, 366–7 private 94, 195, 199, 385 rights 42, 45–6, 50–51, 75–6, 94, 157, 309, 311 proportional representation 64, 78 proportionality 9, 207–8, 337, 341, 357–9, 362–8, 370–76, 404 doctrine, choicefulness 359, 362 general concept/principle 9, 357, 359–62, 370, 372, 375–6 sequenced 370, 375 structured 360–61 proximate political dynamics 154 prudence 54, 150, 281–2, 347 Przeworski, Adam 67, 185 public interest litigation 23–4, 149, 238, 285 public opinion 7, 186–7, 191, 228, 276, 279, 283–4 public policy 43, 144, 149, 206, 304, 310 public reason (PR) 8–9, 337–41, 347–54 public support 6, 47, 95, 109, 158, 279, 283, 285 public use limitation 198–9 punishment 41, 130, 187, 191, 364, 366, 389, 398–9
Columns Design XML Ltd
/
inhumane 364, 398 purposive approach 9, 45, 54, 380, 386–7, 394–5, 397, 404 Qatar 119, 124 Quebec 406 Queiroz, Cristina 319 Quint, Peter 74, 75 Quran 119, 126, 134–5 Radbruch, Gustav 206, 216 Rajah, Jothie 209, 210 Rakove, Jack N. 85, 185, 187, 189, 190, 191, 197 Ralston, Hayden 307 Ramachandran, Raju 75 Ramseyer, Mark 38, 53, 144, 274 Randazzo, Kirk A. 37, 40, 44, 53 ratification processes 65, 130, 388 Rautenbach, Christa 405 Rawls, John 102, 337, 339–40, 351–2, 417 Ray, Brian 31, 232 Raz, Joseph 294, 339 realignment, political 213–14, 218 reasonableness 27, 353, 362–3 reasoned deliberation 13, 20 reasoning, judicial 23, 193, 205, 338, 350, 354, 363 reciprocity 41, 165, 181, 337 Redding, Jeffrey A. 119, 134, 136 Reddy, O. Chinnappa 142 redistribution, economic 51, 294 references foreign 10, 403–5, 408, 410, 412–14, 416–18 voluntary 404, 413, 418 referenda 52, 296, 304–5, 412–13 reforms 125, 127, 136, 232–3, 235, 238, 257, 259 constitutional 38–9, 72, 170, 233, 322, 406 economic 180, 310 Reichman, A. 154–5, 157, 280 Reilly, Benjamin 104 religion 101–2, 111–12, 119–20, 129, 131–2, 351–3, 396–7, 416 freedom of 126, 131–2, 342, 344, 351–2, 397 official 127, 133 separation of state and religion 352, 380 religious communities 108, 111, 130, 407 religious law 44, 107, 120 religious leaders 110, 127, 138
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 18 /
Date: 22/8
JOBNAME: Delaney PAGE: 19 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index 441 religious parties 43, 109–10 religious status quo 108–9 religious symbols 352–3 remedies 6–8, 28–30, 32, 232, 237–8, 252–3, 259–60, 372 individual 229, 232–3 structural 229, 236 weak 30, 32 renegotiation 37–8, 46–9, 79 renewable terms 171, 175, 327 representation 44, 79, 88, 370, 413 proportional 64, 78 representation model 169, 179–80 representative bodies 109, 282 representative government 16, 362 representatives 42, 199, 385, 409 elected 122, 175, 291, 373 repudiation 3, 96, 196 repugnancy clauses 4, 117–18, 122, 127, 133–4, 136, 138 resistance 151, 153–5, 157–9, 170, 188, 405 resources 46–7, 50, 102, 151, 229, 382 natural 260, 297, 387 revivalism, Islamic 117, 131 Richman, Barak D. 273, 276, 277 rights 13–18, 22–6, 60–62, 83–5, 87–8, 237–9, 357–8, 367–73 basic 60, 75, 107–8, 172–3, 268, 307 bills of 66, 83, 87, 94, 109, 153, 159, 221 civil 41, 254 constitutional 21–2, 29, 31, 128, 131–2, 206, 391, 397 economic 60, 150, 155, 285 equal 132, 181 equality 371, 373 fundamental 23, 90, 108, 206, 209, 212, 217, 265 human 60, 63, 246, 249, 258–61, 404–5, 415, 417 indigenous 259–60 individual 42, 45, 87–8, 91, 95, 383, 385–6, 390–91 jurisprudence 61, 150, 233, 240, 265, 404, 416 land 259–61 minority 63, 144, 186, 295 parental 365 to petition 21 political 144, 150, 209 positive 94, 150, 238, 296, 359 property 42, 45–6, 50–51, 75–6, 94, 157, 309, 311
Columns Design XML Ltd
/
protections 45–6, 64, 233, 238, 264–5, 268, 394, 403 social 45, 94, 231–2, 238–9, 241 socioeconomic 30, 45, 229, 232–3, 236, 238, 309, 329 special group 103–4 veto 103, 189 women 99, 111 Rights from Wrongs hypothesis 84–5, 87–8, 90–91, 93–6 rights-based judicial review 14, 37 rights-infringing actions 363, 369 right-to-a-hearing conception 18–20 right-to-food 236–7 rigidity 105, 107–9, 293 Riker, William H. 195 Ríos-Figueroa, Julio 48, 52, 153, 324 risks 2–3, 36–42, 46, 48–52, 56–7, 103, 369, 375 political 36, 38, 41, 43–4, 57, 142, 148 Roach, Kent 47, 358, 372 Robinson, James A. 293 Robinson, Nick 46, 207, 211, 241 Rodríguez Franco, Diana 236, 237, 329 Rodríguez-Garavito, César 30, 236, 237, 310, 329 Rodríguez-Raga, Juan Carlos 311 Roeder, Philip G. 104 Rogers, Lindsay 307 Roman law 408 Romania 39, 55, 325, 412–13 Rose-Ackerman, Susan 274 Rosenberg, Gerald 228, 274 Rosenbluth, Frances 46, 275 Rosencranz, Armin 211 Rosenfeld, Michel 388 Rosenn, Keith S. 318 Rousseau, Dominique 323 Roux, Theunis 6, 48, 51, 55, 156, 204–23, 231, 232 Roznai, Yanev 312, 329 Rubenfeld, Jed 292, 381 Rubin, Edward L. 29, 237 Rubinstein, Amnon 108, 110 ruling elites 40, 48, 120, 294, 305 ruling parties 38, 48, 149, 151, 153 Rushin, Stephen 29 Russia 68, 72, 80, 262, 272, 274, 277, 280 Rutherglen, George A. 29 Sabel, Charles F. 29 Sachs, Stephen E. 381
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 19 /
Date: 22/8
JOBNAME: Delaney PAGE: 20 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
442 Comparative judicial review SADC (Southern African Development Community) 261–3 Sadurski, Wojciech 1, 8, 9, 62, 76, 143, 337–55 Safran, William 103 Sager, Lawrence 15 same-sex marriage 149, 229, 233, 281, 385 Sanchez Urribarri, Raul 159 Sarawak 132, 396 Satayanurug, Pawat 326 Sathe, S.P. 207 Saudi Arabia 117–19, 125–7, 129, 138 Saunders, Cheryl 361 Scalia, Antonin 193–4, 197, 199, 210, 379–80, 384, 415, 418 Schauer, Frederick 16, 26, 294 Scheingold, Stuart A. 229 Scheppele, K.L. 142, 144, 259, 269, 280, 308, 380, 388 Schneiderman, David 43 Schonthal, Benjamin 106, 111 Schwartz, Herman 308 Schwartzberg, Melissa 294 Scribner, Druscilla 147, 154 secession 406–7 Second Amendment 362, 382 secular review model 118, 121, 129, 134, 138 secularism 44–5, 102, 396–7, 413 security 7, 66, 144, 176, 199, 209 national 150, 210, 213 Segal, Jeffrey A. 144, 196, 276, 277 Seidman, Guy 21 Selejan-Guţan, Bianca 413 self-governance, democratic 62, 294, 371–2, 376 self-government, democratic 76, 79 self-stabilizing constitutions 5, 185–6, 188–9, 197, 200–201 Selway, Brad 391 Sengupta, Arjun 51, 393 separation of powers 78, 83–5, 87–9, 96, 99, 152–3, 369, 373 umpires 85, 87–9, 96 separation of state and religion 352, 380 sequenced proportionality 370, 375 sexual orientation 211, 348, 371, 393 Shaked, Avner 69 Shalakany, Amr 122 Shapiro, Daniel 41 Shapiro, Martin 25, 143–5, 158 Sharia 4, 111, 117–26, 128–9, 131, 133–5, 137–8 courts 129–32, 134–8
Columns Design XML Ltd
/
Sharia-based review 134, 136–7 Shaw, Stanford J. 119, 120 Sheive, Sarah Wright 68 Sherry, Suzanna 85 Shinar, Adam 2, 13–33 Shklar, Judith N. 204 Shuaib, Farid S. 131 Shukla 207, 215, 220 Siddique, Osama 137 Sieder, Rachel 290, 311 Siegel, Andrew 142 Siegel, Reva B. 22, 190, 191, 209 Siems, Mathias 404, 410 Sieyès, Emmanuel Joseph 320 Sikkink, Kathryn 249, 310 Silva, Virgílio Afonso da 8, 10, 318–34 Silverstein, Gordon 5, 142–60, 285 Simon, William H. 29 Simonsohn, Uriel 408 Singapore 285, 379, 396, 398–9 Sinnott-Armstrong, Walter 328 Skaar, Elin 311 Skach, Cindy 142 Skocpol, Theda 213, 218 Slaughter, Anne-Marie 61, 411 slavery 87–8, 191, 197 Sloss, David 249 Smith, Adam 190, 416 social rights 45, 94, 231–2, 238–9, 241 social science 206, 272, 407, 411 social security 238, 309 socioeconomic rights 30, 45, 229, 232–3, 236, 238, 309, 329 Solange doctrine 265, 267 Solomon, David 207, 217 Solomon, Peter H. 259 Solyom, Laszlo 168 Som, Reba 115 Somers, Margaret 213 Somin, Ilya 186, 199 Son, Hyun Hwa 51 Sosin, Jack M. 85 source of law clauses 4, 117, 120, 124, 138 South Africa 63–6, 77–9, 208, 212, 217–18, 221–2, 232, 405 Constitution 211, 290, 405, 410 Constitutional Court 26, 30, 71, 154, 205, 208, 231, 380–81 Southall, Roger 210 South Korea 38, 54, 146, 164–5, 169, 171, 178–82, 279 Constitutional Court 165, 171–2, 177–9, 181, 327
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 20 /
Date: 22/8
JOBNAME: Delaney PAGE: 21 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Index 443 Southern African Development Community see SADC sovereignty 84, 251, 267–8, 290–91, 394, 409, 413 popular 16, 67 special group rights 103–4 special power theory 177 specialized constitutional courts 5, 45, 121–2, 124–5, 307, 354 specialized courts 122, 321, 327 specificity 29, 152, 291, 293–8, 300–305, 307–12, 340, 365 Spiller, Pablo T. 196, 199, 273, 274, 275, 276, 277 Spitzer, Matthew L. 47, 200 Spriggs, James E. 278 Sri Lanka 106, 111, 414, 416 stability 4–6, 14, 16, 159, 186–7, 191, 193, 195 constitutional 185–94, 196–7, 201 democratic 3, 67 stabilization 3, 64, 66, 79–80, 159, 206, 211, 220 standards 9, 281, 284, 294, 342–3, 370, 374, 383 Staszak, Sarah 142 state actions 74, 86, 232, 245, 247, 350 state actors 29, 247, 250 state authority 66, 69, 71, 74, 79, 350 state government 90–91, 93, 131, 352 state legislatures 86, 130, 190, 208, 213, 219, 302, 304 state power 68–9, 79 Staton, Jeffrey K. 69, 144, 240, 273, 277, 284, 285 status quo, religious 108–9 statutes 27–8, 157, 172–4, 337–8, 346–7, 362–6, 368–73, 375–6; see also legislation constitutionality 172, 175, 177 unconstitutional 177, 179, 307, 318 statutory interpretation 196, 380, 390 Stein, Tine 104 Stelzer, Manfred 308 Stepan, Alfred 103, 109 Stephenson, Matthew C. 38, 47, 53, 54, 228, 274, 275 Sternglantz, Ruth E. 192 Stilt, Kristen 4, 10, 117–39, 149 Stone, Adrienne 361 Stone Sweet, Alec 142, 145, 158–9, 230, 244, 290, 307, 333–4 Stotsky, Irwin P. 143
Columns Design XML Ltd
/
Strauss, David A. 197, 384 structural injunctions 232, 238 structural remedies 229, 236 structured proportionality 360–61 structures basic 72, 75, 95, 137–8, 147, 293, 392 constitutional 3, 10, 42, 74, 78, 385, 404 federal 42, 86, 89 political 5, 151–2, 155 Stulz, René M. 49 Stuntz, William J. 369 Sturm, Susan 29 subnational governments 44, 145, 147 Summers, Robert S. 206, 210 Sunstein, Cass 73, 105, 191, 290 superior authority 174, 179, 182 support external 6, 226, 229, 234, 236, 240–41 political 3, 53–4, 144, 158, 239, 241, 269 popular 185, 228, 239–40 public 6, 47, 95, 109, 158, 279, 283, 285 structures 6, 226–31, 233, 235–41 supremacy 122, 124, 129, 132, 245, 249, 264, 266 of Andean law 255, 257 of European law 264 of international law 246–7, 258, 267 judicial 22, 27, 71, 84, 158, 291, 301 suspended declarations of invalidity 372–3, 376 Sutton, John 69 symbols, religious 352–3 Taiwan 38–9, 146, 164–5, 169, 171, 174, 176, 178–82 Constitutional Court 164, 171, 177–80, 182 Council of Grand Justices 155, 164, 171, 174 Legislative Yuan 175–6, 180 Supreme Administrative Court 165, 171 Tamanaha, Brian Z. 205, 210, 219 Tamir, Yael 104 Tarr, George Alan 103, 302 Tate, C. Neal 142, 290 taxonomy 9, 379–80, 384 Taylor, Matthew M. 311 Teitel, Ruti 143 Teles, Steven 142 tenure 133, 169, 263, 384, 391 life 176, 190, 194, 275, 327 Tew, Yvonne 9, 10, 379–400, 414 Texas 253–4, 300, 345 textual formalism 219, 351
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 21 /
Date: 22/8
JOBNAME: Delaney PAGE: 22 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
444 Comparative judicial review textualism 196, 286 Tezcür, Günes¸ Murat 128 Thailand 146, 154, 279, 414 Thayer, James B. 21, 85, 186 Thio, Li-Ann 397, 399 Thiruvengadam, Arun Kumar 410 threats 6–7, 37, 39–42, 75, 185, 187–8, 192, 194 Tiller, Emerson H. 196, 199, 200, 275 timing 7–8, 252, 280–81, 301, 325 tolerance intervals 150, 152, 157, 283, 285 top courts 164–6, 170, 177–9, 181–2, 406 traditions 80, 151, 192, 206–7, 221, 247, 340, 352 legal 92, 205, 227, 269, 329, 338, 410, 415 Trakman, Leon E. 368 transition 3, 68–9, 71, 78, 152–3, 218, 221–2, 411 democratic 3, 143, 146, 170–71, 179 transitional justice 145, 181 transitions, peaceful 65, 77 Treanor, William M. 85, 86, 87 treaties 90, 167, 246, 249, 252, 255, 258, 383 international 133, 153, 246, 251–2, 257–8 Tribe, Laurence H. 348–9 Tridimas, George 36 Tripathi, P.K. 405, 411 Trochev, A. 144, 146, 153–4, 156–8 Troper, Michel 329 trust 44, 94, 113, 304 Tully, James 104 Tunisia 99–100, 102, 106, 111–12, 119 Turkey 43, 102, 382, 413 Tushnet, Mark 27–8, 186, 200, 291, 352, 357, 403, 406 tutelas 23–4, 29, 236 Twight, Charlotte 37 Twining, William 218, 220 two-sided insurance 38, 46, 49–50 typologies 8, 36, 317, 319, 328, 330–32, 334 typology building 319, 330–31 Uganda 411–12 Ukraine 80, 146, 154, 156 umpires neutral 83–4, 89–90, 210 separation of powers 85, 87–9, 96 umpiring, federalism 87–8, 90–91, 93 unconstitutional statutes 177, 179, 307, 318 unconstitutionality 55, 173, 233, 321–2, 327, 347–9, 351, 353 declarations of 8, 322, 327–8, 333 limited 173–4
Columns Design XML Ltd
/
of ordinary legislation 318–20, 323–4 un-entrenched constitutions 295, 301, 312 unique words, number of 297–8 United Arab Emirates 119, 121, 124 United Kingdom 28, 83, 130, 322, 326, 405, 413–15, 417 United States 83–9, 204–7, 210–12, 215–18, 251–4, 318–21, 362–5, 383–6 Constitution 16, 21, 24, 185, 193–5, 291, 300, 321 model 8, 319–21, 327, 329–30, 334, 341 state constitutions 296–7, 301–2 Supreme Court 147, 149, 154, 156, 252–3, 279–81, 320–22, 325–7 Universal Declaration of Human Rights 60, 417 Urofsky, Melvin I. 186, 187, 197–200 use of history 9, 383, 393, 400 vagueness 4, 69, 155, 277 value formalism 216 values 14, 49–50, 99–100, 102, 343–4, 353–5, 380, 382 constitutional 14–15, 21, 43, 146, 193–4, 264, 388 extra-legal 211, 216, 221 immanent 206, 217 political 155, 212, 214, 217, 353 Vanberg, Georg 69, 144, 239, 273–7, 283 Van der Walt, A.J. 208 Varol, Ozan O. 382 VCCR see Vienna Convention on Consular Relations Vedel, Georges 322 Venezuela 159, 255, 263, 269, 409 Verdier, Pierre-Hugues 249, 257 Vermeule, Adrian 16, 17 Versteeg, Mila 7, 10, 13, 36, 40, 43, 52, 100, 249, 257, 273, 290–312, 325, 326, 328, 405 veto, rights 103, 189 Vienna Convention on Consular Relations (VCCR) 252–4, 264 Virginia 191, 284, 350 visibility 232, 234, 236–7, 240 Vogel, Frank 117, 126, 127 Vogel, Steven 159 Volcansek, Mary L. 36, 39, 52 Volokh, Eugene 192 voluntary reference 404, 413, 418 voters 78, 91, 112, 156, 274, 340, 361, 385 votes 42, 51–2, 78, 89–90, 174, 181, 345–6, 350
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 22 /
Date: 22/8
JOBNAME: Delaney PAGE: 23 SESS: 5 OUTPUT: Thu Aug 23 10:51:28 2018
Index 445 Wacks, Raymond 217 Wadehra, B.L. 23 Waheedi, Salma 117–39 Waldron, J. 54, 100, 292, 340, 354, 403 Wallis, John Joseph 303 Walters, Mark 406 Waluchow, Wil 292 Wang, Jen-Cheng 40 Wang, Wen 178 Watson, Alan 419 weak judicial review 2, 27–8, 31–2, 329 Webber, Jeremy 329 Weber, Max 158, 333 Wechsler, Herbert 89 Weill, Rivka 28, 76 Weingast, Barry R. 5, 10, 13, 145, 159, 185–201, 293, 295 Weinrib, Lorraine 406 Weis, Lael K. 390, 391 Westerland, Chad 276 White, G. Edward 206 Whittington, K.E. 158, 191, 228, 274, 290–91 Wilson, Bruce 229 Wilson, Stuart 30 Wolfe, Christopher 85
Columns Design XML Ltd
/
women 95, 108, 133, 137, 236, 264–6, 374, 386 Wood, Gordon S. 85 working classes 305, 310 written constitutions 37, 77, 83, 87, 108–9, 112, 300, 304 wrongs 50, 84–5, 87–8, 90, 95 historical 3, 83, 87, 89, 96 Yaacob, Mohamed Fauzi 130 Yamin, Alicia 233 Yap, Po Jen 1, 398 Yeh, Jiunn-rong 164, 171, 180, 181 Yepes, Rodrigo Uprimny 30 Yoo, John C. 85 Young, Ernest 292, 369 Young, Katharine G. 23, 236, 238, 368 Young, Simon 395 Zackin, Emily 7, 10, 13, 43, 100, 290–312 Zifcak, Spencer 142 Zimbabwe 261–3, 404 Zubaida, Sami 117 Zurn, Christopher F. 354
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 23 /
Date: 22/8
JOBNAME: Delaney PAGE: 24 SESS: 4 OUTPUT: Thu Aug 23 10:51:28 2018
Columns Design XML Ltd
/
Job: Delaney-Comparative_judicial_review
/
Division: Index
/Pg. Position: 24 /
Date: 22/8