- H Pitkin, “Obligation and Consent—II” (1966) 60 The American Political Science Review 52.
- These political actors, here, can be seen not only as the state's formal institutions, but also the informal sources that influence political decision, that echo community's preferences and to some extent are capable of political agency.
- Paul Brest formulated in a clear way the importance of knowing who has the authority to interpret the constitution: ‘Hermeneutics has nothing to say about this question. But its recognition that interpretation is inevitably affected by the interpreter's experiences and interests makes it important to continue to ask how the allocation of constitutional decision-making authority might be made consistent with our commitment to democracy’ (See P Brest, “Who Decides?” (1985) 58 Southern California Law Review 671).
- This statement certainly touches some important inter-related questions of democratic theory: Can a community be democratic without democratic government? Does democratic community precede democratic government, as norm-users precede norm-givers? Can there be democratic government without a democratic society? A classical exploration of the relation between democratic society and democratic government is Tocqueville's Democracy in America.
- Paul Kahn has also discussed the relation between the ruler and the rule-follower within democracy: ‘The discourse of constitutional theory has in large measure been a conversation about the self of self-government. If the divergence about the self and self-government is too great, then the constitutional system loses its appearance of legitimacy. It would be a mistake, however, to assume that government has been measured against a stable concept of the self. The self-identity of the citizen has been as much the product as the starting point of this conversation’ (See P Kahn, Legitimacy and History: Self-Government in American Constitutional Theory (New Haven, Yale University Press, 1995), 3).
- ‘Normal politics' refers to the ordinary decisions takes by established authorities and is opposed to ‘constitutional moments', when ‘the people’ take foundational decisions regarding the constitution. See B Ackerman, “The Storrs Lectures: Discovering the Constitution” (1984) 93 Yale Law Journal 1013.
- The arguments presented here are only applicable to regimes that share some common institutional denominators: a constitution and a bill of rights coupled with some kind of judicial review of legislation. There are other additional variations that have a relevant impact in the discussion (like strong and weak judicial review, for example). My analytical framework, however, stands at a level of generality that intends to be useful for various systems of judicial review. Each argument, as might be expected, might have a variable degree of relevance to each particular regime.
- Theories of institutional dialogue provide a different approach to the problem of judicial review. For an American version of it, see B Friedman, “Dialogue and Judicial Review” (1993) 91 Michigan Law Review 577. In Canada, the founding text of this kind of argument was in P Hogg and A Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter Rights Isn't Such a Bad Thing After All)” (1997) 35 Osgoode Hall Law Journal 75. For a fairly comprehensive overview, see C Bateup, “The Dialogic Promise” (2006) 71 Brooklyn Law Review 1109.
- The complete passage is this: “There is nothing about legislatures or legislation in modern philosophical jurisprudence remotely comparable to the discussion of judicial decision-making. No one seems to have seen the need for a theory or ideal-type that would do for legislation what Ronald Dworkin's model of judge, ‘Hercules', purports to do for adjudicatory reasoning. (…) Not only do we not have the normative or aspirational models of legislation that we need, but our jurisprudence is pervaded by imagery that presents ordinary legislative activity as deal-making, horse-trading, logrolling, interest-pandering, and pork-barreling – as anything indeed, except principled political decision-making. And there's reason for this. We paint legislation up in these lurid shades in order to lend credibility to the ideal of judicial review (…), and to silence what would otherwise be our embarrassment about the democratic or ‘counter-majoritarian’ difficulties that judicial review is sometimes thought to involve. And so we develop and idealized picture of judging and frame it together with a disreputable picture of legislating” (See J Waldron, The Dignity of Legislation (Cambridge University Press, 1999), 1–2).
- Waldron continues in his provocative assessment: “Political scientists do better of course. Unlike law professors, they have the good grace to match a cynical model of legislating with an equally cynical model of appellate and Supreme Court adjudication. Part of what I'm interested in doing in these lectures is to ask, ‘What would it be like to develop a rosy picture of legislatures that matched, in its normativity, perhaps in its naivete, certainly in its aspirational quality, the picture of courts – the ‘forum of principle’, etc. – that we present in the more elevated moments of our constitutional jurisprudence?” (ibid, 1–2).
- Needless to say, these methods vary from country to country and assign different roles to the Executive and the Legislative branches in the nomination process.
- “Court should not act as an elite impediment to what it takes to be the substantive excesses of the politically responsible branches but, on the contrary, as a perfecter of the democratic process” (J H Ely, “The Apparent Inevitability of Mixed Government” (1999) 16 Constitutional Commentary 283).
- “The approach to constitutional adjudication recommended here is akin to what might be called an ‘antitrust’ as opposed to a ‘regulatory’ approach to economic affairs – rather than dictate substantive results it intervenes only when the ‘market’, in our case the political market, is malfunctioning” (Ely, supra, n 12, 488).
- The expression “insular and discrete minorities” is in the footnote n. 4 of Justice Stone's opinion in the case Carolene Products, 1938. R Cover does a detailed analysis of this footnote in “The Origins of Judicial Activism in the Protection of Minorities” (1982) 91 Yale Law Journal 1287.
- The canonical representative of this position J H Ely, who proposed the “participation-oriented, representation-reinforcing approach to judicial review’, as opposed to the ‘value-protecting approach”, see J H Ely, “Toward a Representation-Reinforcing Mode of Judicial Review“ (1978) 37 Modern Law Review 471). He defends a non-interpretivist method, but that does not fall in the temptations of substantivism. For him, democratic process is a market of interests that should be aggregated. R Dahl follows a quite similar line, and accepts judicial review only on those terms, which he calls quasiguardianship (in J H Ely, Democracy and Its Critics (New Haven, Yale University Press, 1991)). With precise qualifications as to their underlying conception of legitimate politics, it would be possible to include under the heading of the “proceduralists” some authors of deliberative democracy. These authors add some further rights to the list of legitimate judicial enforcement, but do not go as far as Dworkin. They draw a dividing line between rights that can be judicially enforced and others. I refer, specially, to J Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, W Regh (tr), (Cambridge, MA, MIT Press, 1998); C S Nino The Constitution of Deliberative Democracy (New Haven, Yale University Press, 1996) and C Zurn Deliberative Democracy and the Institutions of Judicial Review (Cambridge University Press, 2008). This grouping of different sorts of “proceduralist“, despite not doing justice to the fine distinctions between them, is adequate to shed light on the similar practical recommendations that, eventually, these authors make to courts..
- Other authors could also be included in this line of defence, like John Rawls, Michael Perry, Laurence Tribe, Samuel Freeman and Stephen Holmes.
- Dworkin develops different parts of this broad argument in different places. The main sources are: R Dworkin, Freedom's Law (Cambridge, MA, Harvard University Press, 1996), “Introduction”; R Dworkin, Sovereign Virtue (Cambridge, MA, Harvard University Press, 2002), chapters 1 and 2; R Dworkin, “Equality, Democracy and Constitution: We the People in Court” (1990) 28 Alberta Law Review 324.
- See Dworkin, Freedom's Law, supra, n 17, 33.
- This is a distinction that Dworkin draws between “legitimate majority rule” and “mere majoritarianism”, R Dworkin, “Constitutionalism and Democracy” (1995) 3 European Journal of Philosophy 1.
- See R Dworkin, A Matter of Principle (Cambridge, MA, Harvard University Press, 1996), 58.
- “Judges charged with identifying and protecting the best conception of democracy cannot avoid making exactly the kinds of decisions of political morality that Ely is most anxious to avoid: decisions about individual substantive rights” (ibid, 64). “He thinks it allows judges to avoid issues of substance in political morality. But it does so only because the theory itself decides those issues, and judges can accept the theory only if they accept the decisions of substance buried within it.” (Ibid, 67).
- As Waldron exemplifies: “I am tired of hearing opponents of judicial review denigrated as being rights-skeptics. The best response is to erect the case against judicial review on the ground of a strong and pervasive commitment to rights” (J Waldron, “The Core of the Case Against Judicial Review” (2006) 115 Yale Law Journal 1366).
- Waldron develops this argument in Law and Disagreement (Oxford University Press, 2001).
- Among others, two schools of legal thought are renowned for this attack against the supposed neutrality of judicial decision: American Realism during the 20's and 30's and the Critical Legal Studies during the 70's and 80's. In political science, this vision of adjudication echoed in empirical studies that take the political and ideological judge for granted, a more evident approach in the strand of the “attitudinal studies”.
- M Shapiro, “Apa: Past, Present and Future” (1986) 72 Virginia Law Review 461.
- This is an important distinction made by Waldron. A “topical” majority or minority corresponds to the group of people that suffer the effects of the decision, either for increase or decrease of rights. A “decisional” majority or minority refers to those who vote in each side. People that take rights seriously take a stand regardless of being harmed or privileged by the final decision. Only when the “decisional” minority continuously coincides with the “topic” minority there is a sign, for Waldron, that a “discrete and insular” minority may be suffering a tyranny of the majority, see Waldron, supra, n 22, 1401.
- “Democratic institutions will sometimes reach and enforce incorrect decisions about rights. This means they will sometimes act tyrannically. But the same is true of any decision process. Courts will sometimes act tyrannically as well. Tyranny, on the definition we are using, is more or less, inevitable. It is just a matter of how much tyranny there is likely to be.” (ibid, 1396).
- R Dahl, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker” (1957) 6 Journal of Public Law 279.
- As Robert Bork has said: “Majority tyranny occurs if legislation invades the areas properly left to individual freedom. Minority tyranny occurs if the majority is prevented from ruling where its power is legitimate”, see R Bork, “Neutral Principles and Some First Amendments Problems” (1971) 47 Indiana Law Journal 8.
- See Ackerman, supra, n 6, 1013.
- These images were used by Hayek and Elster.
- See S Holmes, “Precommitment and the Paradox of Democracy“, in L Alexander (ed), Constitutionalism (Cambridge University Press, 1988) and S Freeman, “Constitutional Democracy and the Legitimacy of Judicial Review” (1990) 9 Law and Philosophy 327.
- See O Fiss, “Between Supremacy and Exclusivity” (2007) 57 Syracuse Law Review 201.
- Countries like Germany, India and Brazil, among others, adopt a model of maximum constitutional rigidity, by having constitutional provisions that cannot be amended. The courts of India and Brazil, moreover, have already declared the unconstitutionality of constitutional amendments. In this situation, one could say, the only escape valve is the institutional break by a new constitutional foundation.
- Elements of the internal morality of law, in the classical formulation of L Fuller, The Morality of Law (New Haven, Yale University Press, 1969).
- This is the logic that inspires the invention of judicial review by the American Supreme Court in Marbury v Madison, 1803. That logic has similar features to Kelsen's defence of a constitutional court. Both arguments are analysed and compared by Nino, supra, n 15.
- Frederick Schauer and Larry Alexander defend this position on the basis of the rule of law and its necessity of single, stable and predictable decision, see F Schauer and L Alexander, “On Extrajudicial Constitutional Interpretation” (1997) 110 Harvard Law Review 1359; See Fiss, supra, n 33.
- Nino called this claim as the ‘Marshall's fallacy’, see Nino, supra, n 15, 192).
- F Michelman, Brennan and Democracy (Princeton University Press, 2005), 135.
- Keith Whittington develops a sophisticated response against those who criticize the possibility of extrajudicial interpretation (K Whittington, “Extrajudicial Constitutional Interpretation: Three Objections and Responses” (2002) 80 North Carolina Law Review 773).
- This argument is frequent in Waldron's texts: “Facile invocations of nemo iudex in sua causa are no excuse for forgetting the elementary logic of authority: people disagree and there is need for a final decision and a final decision-procedure” (Waldron, supra, n 23, 297).
- Waldron again: “The need for settlement does not make the fact of disagreement evaporate; rather, it means that a common basis for action has to be forged in the heat of our disagreements”, see Waldron, supra, n 22, 1370, 1371).
- See J Madison, in Federalist Papers, n. 51.
- See M Tushnet, Taking the Constitution Away From the Courts (Princeton, Princeton University Press, 2000), 167. Madison changed his position later, when he supported the enactment of the American Bill of Rights through constitutional amendments.
- R Cover, “The Origins of Judicial Activism in the Protection of Minorities” (1982) 91 Yale Law Journal 1316.
- See M Tushnet, “Policy Distortion and Democratic Debilitation: Comparative Illumination of the Counter-Majoritarian Difficulty” (1996) 94 Michigan Law Review 245.
- One could rightly state that this argument applies less to standard European models of judicial review, in which constitutional courts analyse the constitutionality of statutes only in the abstract. At any rate, it is possible to claim that at least the incremental character of judicial decision-making may still be an important quality of adjudication in these countries.
- This idea is defended, for example, by Jeremy Webber: “If legislatures or Executives made all the decisions, we would run the risk of losing sight of individuals' interests in our rush to achieve a social aim. (…) different types of institutions carry different advantages — and different biases — in rights definition. Courts excel at the sober analysis of specific claims in a manner that pays close attention to individuals and that is isolated (though only in relative terms) from broader political concerns”. See J Webber, “Institutional Dialogue Between Courts and Legislatures in the Definition of Fundamental Rights” (2003) 9 Australian Journal of Human Rights.
- See W Waluchow, A Common Law Theory of Judicial Review (Cambrige University Press, 2007). Waluchow inserts this argument along the discussion about the common law method of adjudication. One could claim that in the systems of civil law the methodology would be different, with marginal role for precedents. However, specially in the constitutional domain, these differences are hardly applicable, both from the empirical point of view (we just need to look at how courts have been dealing with precedents), and from the theoretical one (the hypothesis that civil law court should not have any regard to precedents is untenable). T R S Allan notices that connection between the common law argumentative technique and constitutional adjudication: “Constitutional adjudication under a charter of rights is inevitably closer to common law legal reasoning, where the common law is developed as a vehicle for protecting rights, rather than to the narrower, more formal manner of statutory interpretation” (T R S Allan, “Constitutional Rights and Common Law” (1991) 11 Oxford Journal of Legal Studies 453, 479). Fuller has a quite similar perception about the better position of the judge, but warns to the dangers of lawyers' tendency to judicialize questions that do not fit well to the judicial form of decision-making (see Fuller, supra, n 35, 104, 176).
- Michelman, supra, n 39, 60.
- Other authors should also be included in the literature that relates the common law methodology to the discussion about the legitimacy of judicial review. Dworkin himself, by defending the ideal of integrity, also fits, to some extent, in this tradition.
- See Waldron, supra, n 22, 1370.
- See Michelman, supra, n 39, 22.
- Dworkin traditionally defends this argument: “Adding to a political system a process that is institutionally structured as a debate over principle rather than a contest over power is nevertheless desirable, and that counts as a strong reason for allowing judicial interpretation of a fundamental constitution”, Dworkin, supra, n 19, 11.
- Owen Fiss, again: “The foundation of judicial power is process. Judges are entrusted with power because of their special competence to interpret public values embodied in authoritative texts, and this competence is derived from the process that has long characterized the judiciary and that limits the exercise of its power. (…) We accept the judicial power on these terms” (see O Fiss “The Bureaucratization of the Judiciary” (1983) 92 Yale Law Journal 1443). Ely also see in this adversarial logic the special judicial skill: “Lawyers are experts on process writ small, the processes by which facts are found and contending parties are allowed to present their claims” (J H Ely “Toward a Representation-Reinforcing Mode of Judicial Review” (1979) 37 Maryland Law Review 485).
- Herbert Wechsler, Alexander Bickel, Ronald Dworkin, Frank Michelman, Owen Fiss, John Rawls, among others, develop this argument.
- Like Sunstein said: “From the moral point of view, insulation from majoritarian pressures is sometimes the problem, not the solution” C R Sunstein, “Testing Minimalism” (2005) 104 Michigan Law Review 128).
- Dworkin also advances this argument: “The public participates in the discussion (…) but it does so not in the ordinary way, by pressuring officials who need their votes or their campaign contributions, but by expressing convictions about matters of principle”, see Dworkin, supra, n 19, 11.
- Many authors could also be mentioned here. Christopher draws a good comparison as to how John Rawls, Christopher Eisgruber and Frank Michelman hold this idea: Rawls defends that the court is specialized in the appropriate moral language to discipline the relation between citizens; for Eisgruber, the court represents the moral reason of the people; for Michelman, the court talks with the people, (Zurn, supra, n 15, 175). Robert Alexy also defends the idea of “argumentative representation”, see R Alexy, “Balancing, Constitutional Review and Representation” (2005) 3 International Journal of Constitutional Law. Finally, it is possible to say that the authors who defend the “precommitment argument” also have a representative demand upon court, even if slightly different: the court would represent the People in the special moments of civil engagement (the “constituent People“). Hamilton, in the Federalist Papers n 78, also relies on this idea.
- See Michelman, supra, n 39.
- See C R Sunstein, The Partial Constitution (Cambridge MA, Harvard University Press, 1998).
- The “educative thesis” was aired by Bickel and Dworkin.
- For Waldron, the records of parliamentary debates sometimes show high argumentative quality: “The difference is that lawyers are trained to close study of the reasons that judges give; they are not trained to close study of legislative reasoning”, see Waldron, supra, n 22, 1382).
- See R Knopff, “Courts Don't Make Good Compromises” [1999, April] Policy Options 31.
- This is Gerald Rosenberg's thesis. Instead of celebrating Brown v Board of Education, he considers the role of the American Supreme Court during the ratial desegregationist movements of the sixties to be small, G Rosenberg, The Hollow Hope (Chicago, University of Chicago Press, 1993).
- See C R Sunstein, One Case at a Time (Cambridge, MA, Harvard University Press, 2001), 36, and M A Glendon, Rights Talk (New York, Free Press, 1970), 58.
- Waldron, supra, n 22, 1381.
- Owen Fiss ellaborates this idea: “The democratic ideal should be applied to the political system as a whole and should not be used to ascertain the legitimacy of each component within the system. As a test of the system, democracy only requires that each component be linked to public officials and institutions that are responsive to popular sentiment. (…) Democracy only requires that those links between the judiciary and popular sentiment are sufficiently robust to justify the judiciary as part of the larger system”, see Fiss, supra, n 33, 201.
- See J B Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law” (1893) 7 Harvard Law Review 129.
- Learned Hand in his classical passage: “It would be irksome to be ruled by a bevy of Platonic Guardians (…). Of course I know how illusory would be the belief that my vote determined anything; but nevertheless when I go to the polls I have a satisfaction in the sense that we are all engaged in a common venture” (The Bill of Rights, Harvard University Press, 1958, 73–74).
- See J M Pickerill, Constitutional Deliberation in Congress (Duke University Press, 2004), 64–65.
- The likelihood of this kind of dissonance varies from country to country according to the kind of tenure judges receive.
- It would be possible to add other elements to the positive case for parliaments, like the “wisdom of the crowds“, the internal deliberative quality of parliaments, their competence to deal with “polycentric conflicts”, among others.
- Waldron, supra, n 22, 1347.
- For a good overview of “weak models of judicial review”, see S Gardbaum, “Commonwealth Constitutionalism” (2001) 49 American Journal of Comparative Law 707.
- Waldron briefly explains what he means by that: representative parliament elected by universal suffrage, periodical elections, legislators that take their functions as representatives seriously and are used to deal with questions of justice etc. (Waldron, supra, n 22, 1361).
- Nadia Urbinati illuminates this distinction: “Elections ‘make’ representation but do not ‘make’ representatives. At a minimum they make responsible and limited government, but not representative government”, see N Urbinati, Representative Democracy (Chicago, University of Chicago Press, 2008), 224.
- About the distinction between authentic and inauthentic interests of the constituents, see Waluchow, supra, n 49.
- See B Manin, The Principles of Representative Government (Cambridge University Press, 1997), 234.
- As stated by Nadia Urbinati: “A Janus-faced institution, elections give representation a democratic face and democracy an aristocratic twist” (N Urbanati, Representative Democracy (Chicago, University of Chicago Press, 2008), 3).
- Ibid, 162.
- Ibid, 238.
- See Nino, supra, n 15, 171.
- See Pickerill, supra, n 71, 64–65.
- This behaviour is usually dubbed as log-rolling, pork barreling, horse-trading etc.
- This is the premise upon which influential strands of political science usually analyse the relationship between the executive and legislative branches (see D Mayhew, Congress: the Electoral Connection (New Haven, Yale University Press, 1975)).
- See D Gambetta, “‘Claro!’ An Essay on Discursive Machismo“, in J Elster (ed), Deliberative Democracy (Cambridge University Press, 1998).
- The act of choosing the representative is not a necessary element for the act of representing. There are several situations in which the representative was not chosen (see Waluchow, supra, n 45, 81).
- As stated by Frank Michelman: “Congress is not us. The President is not us. The Air Force is not us. We are not ‘in’ those bodies. Their determinations are not our self-government. Judges overriding those determinations do not, therefore, necessarily subtract anything from our freedom, although the judges also, obviously, are not us. Their actions may augment our freedom. As usual, it all depends. One thing it depends on, I believe, is the commitment of judges to the process of their own self-government”, F Michelman, “Foreword – Traces of Self-Government” (1986) 100 Harvard Law Review 75. In the same article, the distinction between “effective” and “virtual” representation can also help to refine the discussion.
- See Gargarella, “Full Representation, Deliberation and Impartiality“, in Elster (ed), supra, n 87, 261.
- Quoted by Urbinati, supra, n 77, 2.
- “It marks the end of a yes/no politics and the beginning of politics as open arena of contestable opinions and ever-revisable decisions” (Representative Democracy, supra, n 76, 224).
- Waldron, supra, n 22, 1405.
- As stated by Keith Whittington: “In striving to paint a rosy picture of legislatures, Waldron analysis suffers from an unwillingness to consider basic aspects of institutionalized politics. (…) Taking institutions seriously becomes particularly important in evaluating the justifications for judicial review and engaging in the type of comparative institutional analysis that Waldron advocates”, see K Whittington, “In Defense of Legislatures” (2000) 28 Political Theory 696–97.
- Here, the difficulty refers to the place that someone who does neither agree nor disagree should occupy in democracy. He can even engage in the attempt to find the best solution, but he is not convinced and does not feel comfortable to go with the majority or the minority.
- For Dworkin, equality of impact is an empoverished notion, whereas equality of influence is an unobtainable and undesirable ideal. Therefore, we should be concerned with the “equality of consideration and respect” that court might promote, Dworkin, supra, n 17, Introduction.
- This is the well-known response by Rawls: “To the contrary, whenever questions of justice are raised, we are not to go by the strength of feeling but must aim instead for the greater justice of the legal order. (…) Where issues of justice are involved, the intensity of desires should not be taken into account”, J Rawls, A Theory of Justice (Oxford University Press, 1999), 230–31.
- I Shapiro, The State of Democratic Theory (Princeton, Princeton University Press, 2005), 12.
- Ibid, 15–16.
- Barry Friedman summarizes this position: “In a sense the countermajoritarian difficulty treats popular will as the aggregation of fixed exogenous preferences, when preferences necessarily are shifting and endogenous. Preferences are continually shaped and reshaped by public opinion. Every minute is an ordering and reordering for each of us about what we want and care about. The assumption that there is a ‘majority’ whose ‘will’ is embodied in governmental decisions is, at best, overstated. Decisions must be made at specific times. At best, there may be one brief moment when governmental decision does represent majority will, though that moment may come and go in an instant as views and choices change. The political process cannot possibly reflect individual's and society's constantly changing preferences”, see Friedman, supra, n 8, 641.
- B Friedman, “The Politics of Judicial Review” (2005) 84 (2) Texas Law Review 257.
- See Waldron, supra, n 9, 151.
- Pitkin, “Obligation and Consent—II”, supra, n 1, 52.
- Of course, the process usually involves intense participation of various agencies of the Executive branch as well, but still, the point is to emphasize interaction.
Legisprudence
Volume 3, 2009 - Issue 1