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The Relation Between Political Constitutionalism and Weak-Form Judicial Review

Published online by Cambridge University Press:  06 March 2019

Mark Tushnet

Abstract

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At least in some subject-matter domains—most notably, social and economic rights— weak-form constitutional review may have become the predominant form of constitutional review in practice. This essay describes the obvious connections between weak-form review and political constitutionalism: Weak-form review allows the courts to bring to legislatures' attention constitutional difficulties that may have been overlooked in the process of enactment. This may occur because of the burdens of inertia and coalition-building, as identified by Rosalind Dixon, or because of unanticipatable difficulties of application in individual cases, the sort of difficulties that are central to Alon Harel's account of constitutional review as justified by a right to a hearing. Once legislatures have been so notified, they can address—or deliberatively refuse to address—the difficulties the courts have identified. Political constitutionalism provides an account of how they do so. This essay then discusses some of the political conditions that must be in place for political constitutionalism to be normatively attractive, relative to judicial constitutionalism. It concludes with some speculations about the utility of weak-form review in dealing with matters at the core of first-generation rights, such as seditious speech, after describing its utility in dealing with more “modern” problems associated with first-generation rights, such as hate speech and sexually explicit expression.

Type
Part II: The Relationship Between the Courts and Political Institutions
Information
German Law Journal , Volume 14 , Issue 12: Special Issue—Political Constitutions , 01 December 2013 , pp. 2249 - 2263
Copyright
Copyright © 2013 by German Law Journal GbR

Footnotes

*

William Nelson Cromwell Professor of Law, Harvard Law School, mtushnet@law.harvard.edu. I thank Rosalind Dixon, Vicki Jackson, Christopher McCorkindale, and Frank Michelman for their comments on a draft of this essay.

References

1 I believe that the more common term is “legal constitutionalism,” which I believe is inapt. In brief: Political constitutionalism is instantiated in institutions established by law. It operates within a framework established by law, and through procedures established by law. For these purposes, I regard strong conventions about the way in which political institutions operate as themselves legal, even if not ordinarily enforceable in courts. I leave a more complete development of the terminological point, especially in connection with conventions, for another occasion, because rather little in what follows turns on terminology.Google Scholar

2 Proponents of judicial constitutionalism acknowledge that “complete” independence is undesirable because the people and their representatives should have some degree of control over initial judicial appointments. Most judicial constitutionalists advocate for appointment and retention methods that reduce that degree to a rather low level: Judicial nominating commissions rather than appointment at the executive's sole discretion, for example, and long terms for judges on constitutional courts. For present purposes, I put these questions to one side, noting however that advocates for weak-form constitutional review have devoted relatively little attention to questions of institutional design at that level of detail.Google Scholar

3 Hogg, Peter W. & Bushell, Allison A., The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such A Bad Thing After All), 35 Osgoode Hall L.J. 75 (1997). Whether the specific Canadian version of weak-form review that Hogg and Bushell describe is dialogic in practice is a matter of some controversy.Google Scholar

4 See infra note 7. For reasons mentioned therein, political constitutionalists focus on constitutional review of legislation, and are comfortable with review—either “administrative” or “judicial in the traditional sense”—of executive action to determine its conformity with authorizing legislation.Google Scholar

5 For a more complete discussion of the iterative structure of weak-form review, see Mark Tushnet, Dialogue and Constitutional Duty (Harvard Law Sch. Pub. Law & Legal Theory Working Paper Series, Paper No. 12–10, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2026555.Google Scholar

6 No consensus exists on whether the review should take place in a specialized constitutional court or in a general court with jurisdiction over constitutional matters; there is also disagreement whether constitutional review should be centralized or distributed widely within the judicial system. In my view, which of these designs is chosen is of relatively little significance for stable democracies. I should note that in some of my earlier work I rejected constitutional review altogether, a position I have reconsidered in light of the inconsistency of that position with modern constitutionalism's requirements.Google Scholar

7 But see infra text accompanying note 14. I put to one side two forms of “sub-constitutional” review that are consistent with political constitutionalism without weak-form review: (1) Judicial interpretation of statutes influenced by constitutional concerns (“reading down” statutes), and (2) the considerable extent to which judicial review in the traditional administrative law sense—that is, examination of actions by executive officials to determine whether those actions were authorized by law—involves the judicial interpretation of the authorizing statutes influenced by constitutional concerns. For reasons discussed in the text, even in systems in which political constitutionalism is robust, legislatures might sometimes enact statutes that clearly authorize actions that infringe on constitutional values, and so cannot be constrained by sub-constitutional review. Indeed, the point of calling these forms of review “sub-constitutional” is precisely that they allow legislative responses in the form of clear enactment (or reenactment) of constitutionally problematic statutes.Google Scholar

8 The first two possibilities are examined in Rosalind Dixon, A Democratic Theory of Constitution Comparison, 56 Am. J. Comp. L. 947 (2008).CrossRefGoogle Scholar

9 A similar argument can be made for weak-form review of legislation within the jurisdiction of subnational governments in federal systems, where legislation widely adopted years ago has been repealed incrementally in most subnational jurisdictions, but remains on the books in a handful of outliers.Google Scholar

10 Notably, weak-form review in this context provides a systematic check on the possibility of judicial error in assessing contemporary constitutional values; this is true although it cannot be contended that the possibility of legislative responses in a weak-form system is a perfect mechanism for correcting such errors because of the burden of inertia that weak-form review shifts.Google Scholar

11 Notably, the British Human Rights Act can serve this function even though it does not shift the burden of inertia because it gives parliament no direct incentives to reconsider the legislation it enacted. The only potential incentive is perhaps triggering a desire to conform the legislation to the judiciary's views of the constitution or, more precisely, the relevant provisions of the European Convention's meaning.Google Scholar

12 See Eylon, Yuval & Harel, Alon, The Right to Judicial Review, 92 Va. L. Rev. 991 (2006); Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial Review, 2 J. Legal Analysis 227 (2010).CrossRefGoogle Scholar

13 The argument must be that the statute clearly applies to them, so that the courts cannot avoid constitutional review by holding the statute inapplicable on the ground that the legislature would not have intended to apply the statute in cases where it would have the unfair effect. One puzzling aspect of Harel's argument is how the generalized principle of fairness gets brought to ground with respect to specific constitutional rights like freedom of speech or religious exercise.Google Scholar

14 I note that some difficulties—such as a lack of resources or asymmetries in available resources—might give one group systematic advantages over another who seek to mobilize the courts (e.g., the “rich” as against the “poor”). But, (1) those difficulties and asymmetries are likely to attend both weak- and strong-form constitutional review in the courts, and (2) they are likely as well to impede mobilization in the legislature. These difficulties and asymmetries, then, probably do not provide a ground for choosing among political constitutionalism or judicial constitutionalism in either its weak or strong form.Google Scholar

15 For present purposes, I assume that weak-form review is a stable institutional design, one that will “degenerate” neither into strong-form review nor into pure political constitutionalism.Google Scholar

16 Waldron, Jeremy, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006).CrossRefGoogle Scholar

17 Programs of civic education are likewise the product of policy choices made by political actors.Google Scholar

18 For reasons I discuss, I suspect that the best institutional arrangements one can hope for are institutions that are conducive to the goal of generation and stability of cultural conditions, not institutions whose ordinary operations increase by a large degree the likelihood that the required culture will emerge and be sustained.Google Scholar

19 I am indebted to Rosalind Dixon for these points.Google Scholar

20 I merely note here the unsuitability of weak-form review in systems where one political party has a dominant role and the uselessness of any form of constitutional review in systems where one political party regularly obtains majorities larger than needed to amend the constitution. These results follow entirely apart from the dominant party's control over judicial appointments and promotions.Google Scholar

21 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004); Matthew C. Stephenson, “When the Devil Turns … “: The Political Foundations of Independent Judicial Review, 32 J. Legal Stud. 58 (2003).Google Scholar

22 Here too I acknowledge the contribution of Rosalind Dixon to my thinking.Google Scholar

23 I acknowledge the possibility that the domestic constitution might constrain the actions of national officials acting abroad. For a discussion of constitutional influences abroad, see Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996). I believe that it would do so for reasons that combine a concern that the actions might lead to a reaction at home, and a weak concern for the interests of non-nationals abroad. “Weak” here means substantially weaker than the concern the constitution has for the nation's own citizens.Google Scholar

24 In the United States, David Cole has been the most forceful proponent of this argument. See David D. Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003).Google Scholar

25 This requirement extends beyond the application of a weak standard precluding arbitrariness in substance and perhaps a more robust standard of procedural fairness in allocating the goods protected by social and economic rights.Google Scholar

26 See Octavio Luis Motta Ferraz, Harming the Poor Through Social Rights Litigation: Lessons from Brazil, 89 Tex. L. Rev. 1643 (2011).Google Scholar

27 Jacobsohn, Gary, The Permeability of Constitutional Borders, 82 Tex. L. Rev. 1763, 1770 (2004) (quoting a speaker during the debates over the adoption of the Irish directive principles: “They will be there as a constant headline … something by which the representatives of the people can be judged”).Google Scholar

28 Landau, David E., The Realities of Social Rights Enforcement, 53 Harv. Int'l L.J. 189 (2012).Google Scholar

29 Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (1980).CrossRefGoogle Scholar

30 To state specifically a point already made: The problem of externalization of constitutional costs occurs because the adversely affected population—notably, resident aliens—lacks the right to vote.Google Scholar

31 Briefly, almost any enfranchised group, no matter how small, can engage in political bargaining by trading its votes on matters less important to it for a near-majority's votes on the matters the minority cares strongly about. The exception is the “pariah” group, with whom no one will deal even if their support would be enough to convert a coalition from one having just under majority support to one have just over a majority. But, it should be noted, pariah groups are different from groups that are merely small ones, and the cases found in actual practice are rare: Arab citizens of Israel, and (in some European nations) Romany people are the most prominent examples. The reason is that “majority” politicians have strong political incentives to form alliances with small groups up to the point where adding the group to the politician's coalition reduces the coalition's support.Google Scholar

32 In theory, I suppose, a law against hate speech could be invoked against someone who advocated its repeal, but that seems to me highly unlikely and controllable by sub-constitutional review in nearly every imaginable case. And—a point that Learned Hand made that is often parroted but rarely taken to heart—judicial constitutionalism is unlikely to help much in a nation where hate speech regulations were definitively interpreted to bar criticism of hate speech laws. Note that the point here is different from that made by critics of the prevalence of hate speech: That its dissemination devalues the voices of its targets and thereby makes it difficult to secure the enactment of hate speech regulations in the first place.Google Scholar

33 Although this is not necessarily true in the United States, where privacy (as repose and seclusion) is not expressly constitutionally protected.Google Scholar

34 Indeed, I believe that the emergence of proportionality as a general doctrine was one of the important reasons for the development of weak-form review: With proportionality as the dominant doctrine developed initially in strong-form systems, institutional designers could readily see the advantages of weak-form review applying that doctrine.Google Scholar

35 This response is not available at the final stage where the court assesses “proportionality as such,” but my sense is that courts rarely reach that stage.Google Scholar

36 Something along those lines is the usual defense of denials of the franchise on the basis of youth and mental competence, with older people and those regarded as sufficiently competent said to serve as virtual representatives of those groups.Google Scholar

37 The solution of locating legislative authority in national-level institutions raises important questions about the role of national courts in federal systems or systems with substantial devolved power. As a design matter for weak-form review, national-level courts in such systems might need the power to invalidate subnational legislation, but, if they do, the national legislature must have the power to exercise an “override” of the courts. This is necessary even in areas where, in general, legislative authority lies with the subnational government.Google Scholar

38 One risk remains: That the highest court itself will be unable to resist the pressures of circumstances and will apply a nominally categorical doctrine flexibly. See, for example, Holder v. Humanitarian Law Project, 560 U.S. 1 (2010). Note that this risk exists even when the constitutional court is a strong-form one, and so provides no ground for choosing between weak- and strong-form review.Google Scholar

39 For a discussion of the possibility that constitutional analysis tends to evolve toward categorical solutions, see Frederick Schauer, Freedom of Expression Adjudication in Europe and America: A Case Study in Comparative Constitutional Architecture, in European and U.S. Constitutionalism 49 (Georg Nolte ed., 2005).CrossRefGoogle Scholar

40 Tushnet, Mark, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008).CrossRefGoogle Scholar

41 Examples of allocational pairing include these: The Canadian override mechanism is applicable to many but not all Charter provisions, and the “basic structure” doctrine as developed in India and elsewhere immunizes some constitutional provisions from amendment entirely. The latter example is not precisely on point to this discussion, but it illustrates the allocational strategy.Google Scholar

42 Consider electoral commissions, anti-corruption agencies, and other “transparency” institutions.Google Scholar