Constitutional courts and democratic hedging

Georgetown Law Journal

Volumn 99, Issue 4, 2011, Pages 961-1012

  Issacharoff, Samuel ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 79956145743     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (333)

1. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16-17 (2d ed. 1986).
2. Id. at 17.
3. See Baker v. Carr, 369 U.S. 186, 226-28 (1962) (finding that a challenge to a state apportionment statute did not present a nonjusticiable political question because of "well developed and familiar" judicial standards under the Equal Protection Clause);
4. see also Reynolds v. Sims, 377 U.S. 533, 557-59 (1964) (affirming that controversies over legislative apportionment schemes present justiciable controversies).
5. Baker, 369 U.S. at 226.
6. Id. at 218. For an argument in favor of utilizing the Republican Guaranty Clause in redistricting cases (rather than the "embarrassingly standardless" Equal Protection Clause doctrine currently used)
7. see Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 HARV. J.L. & PUB. POL'Y 103, 116 (2000).
8. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
9. See JOHN HART ELY, DEMOCRACY AND DISTRUST: ATHEORY OF JUDICIAL REVIEW (1980).
10. See generally Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 YALE L.J. 153 (2002).
11. Although this is formally the case, the use of special processes of referring constitutional concerns to these specialized courts has increasingly brought constitutional judicial review closer to the ordinary workings of the judiciary. See Pasquale Pasquino, Constitutional Adjudication, Italian Style (2010) (unpublished manuscript) (on file with author) (describing how the judicially created doctrine of referral in Italy has created new mechanisms of constitutional review of as-applied challenges in ordinary legal disputes).
12. See WOJCIECH SADURSKI, RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE xiii (2005) ("European constitutional adjudication has not developed a tradition of self-doubt, agonising over legitimacy, or 'exercising the utmost care' whenever 'breaking new ground' in constitutional matters.").
13. See Robert A. Burt, Inventing Judicial Review: Israel and America, 10 CARDOZO L. REV. 2013, 2017-27 (1989)
14. (comparing the Israeli Supreme Court's development of an independent, interpretive role for the courts to Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803));
15. infra Part IV.
16. I leave to the side two arguments about the operation of distinct court systems. The first is the claim by Victor Ferreres Comella, among others, that the limited authority of constitutional courts, as opposed to the broader jurisdiction of supreme courts, leads courts of last instance to overly constitutionalize the law as they exercise their judicial functions. See Victor Ferreres Comella, The Consequences of Centralizing Constitutional Review in a Special Court: Some Thoughts on Judicial Activism, 82 TEX. L. REV. 1705, 1718, 1730 (2004).
17. The second is the claim by Ran Hirschl that the forms of judicial review obscure the broader role of constitutional courts in suppressing popular democratic impulses often inspired by religious ardor. See RAN HIRSCHL, TOWARDS JURISTOCRACY (2004). In this Article, I am primarily concerned with emerging democracies, almost all of which have chosen the constitutional court model. There are virtually no supreme courts whose intervention into contested political issues is premised on a general grant of jurisdiction. With regard to Hirschl, it may be that courts reinforce elite educated sentiment in some countries, as he argues. In the countries under consideration here, I will suggest that the emergence of strong courts is most often the product of elite compromise among the leaders of contending rival forces.
18. Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405 (2007).
19. The sparest definition may be found in Jon Elster, Introduction to CONSTITUTIONALISM AND DEMOCRACY 1, 1 (Jon Elster & Rune Slagstad eds., 1988) (arguing that democracy is "simple majority rule, based on the principle 'One person one vote'").
20. I rely here on a more dynamic, though still spare, definition of democracy that focuses on the ability to remove incumbents from office. There are many variants of such minimal definitions of democracy. For application to the nascent democracies of the former Soviet orbit, it is useful to follow the four thresholds set forth by Adam Przeworski and his coauthors: (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. ADAM PRZEWORSKI, MICHAEL E. ALVAREZ, JOŚE ANTONIO CHEIBUB & FERNANDO LIMONGI, DEMOCRACY AND DEVELOPMENT: POLITICAL INSTITUTIONS AND WELL-BEING IN THE WORLD, 1950-1990, at 18-27 (2000).
21. For the most sophisticated assessment of the democratic viability of governments around the world, see José Antonio Cheibub, Jennifer Gandhi & James Raymond Vreeland, Democracy and Dictatorship Revisited, 143 PUBLIC CHOICE 67 (2010), available at https://netfiles.uiuc.edu/cheibub/www/DD- page-files/Cheibub%20Gandhi%20Vreeland%20DD%20Revisited.pdf.
22. The formulation that this is the nub of democracy is from G. BINGHAM POWELL, JR., ELECTIONS AS INSTRUMENTS OF DEMOCRACY 47 (2000).
23. The underlying view holds that "the primary function of the electorate" in a democracy is not only creating "a government (directly or through an intermediate body)" but also "evicting it." JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY 272 (3d ed. 1975).
24. I have previously argued that U.S. policy abroad is overly fixated on the fact of elections being held, rather than whether the institutional prerequisites to democratic accountability have been established. For an assessment of the first elections in Iraq from this perspective, see Samuel Issacharoff, Democracy Isn't Built on One Election Alone, WASH. POST, Jan. 23, 2005, at B1.
25. See Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998). (Pubitemid 128426601)
26. The phrase "one man, one vote, one time" captures the proclivity of new democracies to succumb to strongman rule by the first elected governor. The phrase is attributed to former Assistant Secretary of State and U.S. Ambassador to Syria and Israel Edward Djerejian. See Ali Khan, A Theory of Universal Democracy, 16 WIS. INT'L L.J. 61, 106 & n.130 (1997).
27. The data set compiled by Cheibub, Gandhi & Vreeland, supra note 15, reveals that in the immediate post-Soviet period from 1991-1993, six new democracies adopted pure parliamentary systems, five adopted presidential systems, and twelve adopted some form of mixed system. The data set is available online.
28. See José Antonio Cheibub, Jennifer Gandhi & James Raymond Vreeland, Democracy and Dictatorship Revisited, DD PAGE, https://netfiles.uiuc. edu/cheibub/www/DD-page.html (last visited Jan. 14, 2011). My thanks to Oona Hathaway for organizing the information in this fashion.
29. Estonia has a "Constitutional Review Chamber," one of several chambers of the highest National Court. In effect, it functions as a specialized court directed to constitutional review of legislative acts. Formally, however, it is part of the central court structure. SADURSKI, supra note 10, at 5.
30. See TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 6, 7-8 & tbl.1.1 (2003) ("[A]lthough there are institutional variations, providing for a system of constitutional review is now a norm among democratic constitution drafters.").
31. On the importance of anticipated EU or NATO membership in stabilizing the transition away from Soviet rule and keeping the former Communist parties at bay electorally, see Jeffrey S. Kopstein & David A. Reilly, Geographic Diffusion and the Transformation of the Postcommunist World, 53 WORLD POL. 1, 25-32 (2000).
32. See Bruce Ackerman, Essay, The Rise of World Constitutionalism, 83 VA. L. REV. 771, 776 (1997) (observing that Eastern European leaders understand "that highly visible confrontations with their domestic constitutional courts will gravely threaten prospects for early entry into the European Union"). (Pubitemid 127445632)
33. One of the three governing Copenhagen criteria requires: "stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities." Enlargement-Accession Criteria, EUR. COMMISSION, http://ec.europa.eu/enlargement/enlargement-process/accession- process/criteria/index-en.htm (last visited Nov. 15, 2010).
34. See Wojciech Sadurski, Judicial Review in Central and Eastern Europe: Rationales or Rationalizations? 7 (Univ. of Sydney, Sydney Law Sch., Legal Studies Research Paper No. 09/38, 2009), available at http://ssrn.com/abstract= 1401242.
35. Id. at 20.
36. Id. at 3, 7.
37. See SADURSKI, supra note 10, at 5.
38. Id.
39. See Preface to FOCUS ON POLITICS AND ECONOMICS OF RUSSIA AND EASTERN EUROPE vii-viii (Ulric R. Nichol ed., 2007).
40. See Steven Lee Myers, Stalled by Conflict, Ukraine's Democracy Gasps for Air, N.Y. TIMES, June 1, 2007, at A4;
41. see also Yulia Tymoshenko, Save Ukraine's Democracy, WSJ.COM (Oct. 29, 2010), http://online.wsj.com/article/ SB10001424052702303362404575579890814896292.html.
42. See JULIA PRESTON & SAMUEL DILLON, OPENING MEXICO: THE MAKING OF A DEMOCRACY 496-99 (2004);
43. Jamin Raskin, A Right-To-Vote Amendment for the U.S. Constitution: Confronting America's Structural Democracy Deficit, 3 ELECTION L.J. 559, 564 (2004) (describing the key role of independent electoral commissions in making political change possible).
44. See Francisco Ramos Romeu, The Establishment of Constitutional Courts: A Study of 128 Democratic Constitutions, 2 REV. L. & ECON. 103, 107-09 (2006);
45. cf. GINSBURG, supra note 22, at 9-10 (arguing that decentralized review is particularly unattractive for new democracies).
46. See Sarah Wright Sheive, Central and Eastern European Constitutional Courts and the Antimajoritarian Objection to Judicial Review, 26 LAW & POL'Y INT'L BUS. 1201, 1207-08, 1215-16 (1995).
47. See Ferreres, supra note 12, at 1730 (arguing that specialized constitutional courts will tend to be relatively less deferential because "[a] constitutional court is not likely to earn its own space in the institutional system if it regularly upholds the statutes that are challenged before it").
48. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).
49. Martin Shapiro, The Success of Judicial Review, in CONSTITUTIONAL DIALOGUES IN COMPARATIVE PERSPECTIVE 193, 205 (Sally J. Kenney et al. eds., 1999).
50. See RONALD DWORKIN, LAW'S EMPIRE 413 (1986).
51. See JEREMYWALDRON, THE DIGNITY OF LEGISLATION 82-90 (1999).
52. This is common in the post-Soviet states. See Tom Ginsburg, Beyond Judicial Review: Ancillary Powers of Constitutional Courts, in INSTITUTIONS AND PUBLIC LAW: COMPARATIVE APPROACHES 225, 235 (Tom Ginsburg & Robert A. Kagan eds., 2005).
53. Youngjae Lee, Law, Politics, and Impeachment: The Impeachment of Roh Moo-hyun from a Comparative Constitutional Perspective, 53 AM. J. COMP. L. 403, 407 (2005).
54. Id. at 409-12.
55. Roh transgressed the law in the following ways: 1) violating a statute that required the political neutrality of officials during elections (Roh publicly stated his preference for the newly formed Uri Party prior to the parliamentary election), 2) not demonstrating proper respect for the Constitution and constitutional bodies by challenging the National Election Commission's ruling that he had violated political neutrality, and 3) illegally calling a national referendum to assess the nation's confidence in his leadership. Id. at 414.
56. Constitutional Court [Const. Ct.], 2004Hun-Na1, May 14, 2004, (16-1 KCCR, 609) (S. Kor.), available in English translation at http://english.ccourt.go. kr/.
57. Id.
58. See CATHERINE DUPŔE, IMPORTING THE LAW IN POST-COMMUNIST TRANSITIONS 13-16 (2003).
59. See Vicki C. Jackson, What's in a Name? Reflections on Timing, Naming, and Constitution-Making, 49 WM. & MARY L. REV. 1249, 1266 (2008).
60. See Kim Lane Scheppele, Democracy by Judiciary. Or, Why Courts Can Be More Democratic than Parliaments, in RETHINKING THE RULE OF LAW AFTER COMMUNISM 25, 44 (Adam Czarnota et al. eds., 2005);
61. see also Istvan Pogany, Constitutional Reform in Central and Eastern Europe: Hungary's Transition to Democracy, 42 INT'L & COMP. L.Q. 332, 341 (1993) (describing Hungary's court as pursuing its mission with "remarkable vigour").
62. One striking study found that among the courts with the fewest number of reported constitutional decisions on the political process (Czech Republic, Georgia, and Latvia), the rejection of legislation ranged from sixty to an astonishing eighty-five percent. See Shannon Ishiyama Smithey & John Ishiyama, Judicial Activism in Post-Communist Politics, 36 LAW & SOC'Y REV. 719, 723 tbl.1 (2002). My thanks to Ryan Kennedy of the University of Houston Political Science Department for alerting me to this study.
63. For background on the elected self-governments responsible for social security funds in Socialistera Hungary, see B́ELA TOMKA, WELFARE IN EAST AND WEST: HUNGARIAN SOCIAL SECURITY IN AN INTERNATIONAL COMPARISON, 1918-1990, at 92-95 (2004).
64. See Alkotmánybíróság (AB) [Constitutional Court] Mar. 25, 1994, MK.16/1994 (Hung.), translated in 1 EAST EUROPEAN CASE REPORTER OF CONSTITUTIONAL LAW 245-46 (Anton van de Plas & Adrie Labrie eds., 1994).
65. See SADURSKI, supra note 10, at 156 (reviewing the decision of the constitutional court upholding a time-limited exclusion of prefects and other police officials from presenting themselves as candidates in the first post-Communist election).
66. See Rishennia KSU (Konstyutsijnogo Sudu Ukrainy) [Constitutional Court] Jan. 26, 1998, Nos. 03/3600-97, 03/3808-97, 1-13/98 (Ukr.), summarized in EUROPEAN COMM'N FOR DEMOCRACY THROUGH LAW, THE BULLETIN OF CONSTITUTIONAL CASE LAW 146-48 (Ch. Giakoumopoulos et al. eds., 1998) (invalidating a categorical ban on persons from candidacy because of their former roles as judges, public prosecutors, or state employees).
67. See FYROM Constitutional Jurisprudence, U.br.2/97 off 12.03.1997, RIGAS NETWORK, http://www.cecl.gr/RigasNetwork/databank/Jurisprudence/FYROM/Jur-fyrom. htm (last visited Dec. 20, 2010) (invalidating the exclusion from election to local councils or mayoral office of members of armed forces, police, and intelligence officers).
68. See Trybunal Konstytucyjny [Constitutional Court] May 11, 2007, No. K. 2/07 (Pol.), translated in Judgment of 11th May 2007, file Ref. No. K 2/07, at 20, TRYBUNAL KONSTYTUCYJNY, http://www.trybunal.gov.pl/eng/summaries/documents/ K-2-07-GB.pdf (striking down sweeping disqualification of former "collaborators" as being of such scope as to render "the principle of the sovereignty of the Polish People ⋯ illusory").
69. See, e.g., Moldova: Setback for Russian Language, N.Y. TIMES, Feb. 22, 2002, at A6;
70. Michael Wines, History Course Ignites a Volatile Tug of War in Moldova, N.Y. TIMES, Feb. 25, 2002, at A3.
71. See, e.g., Fredo Arias-King, Estonia: Little Country That Could, 11 DEMOKRATIZATSIYA 619, 620-21 (2003) (book review) (describing Western groups' condemnation of Estonia's lustration laws as a type of apartheid);
72. Mark S. Ellis, Purging the Past: The Current State of Lustration Laws in the Former Communist Bloc, L. & CONTEMP. PROBS., Autumn 1996, at 181, 190-92;
73. Tomas Skucas, Lithuania: A Problem of Disclosure, 12 DEMOKRATIZATSIYA 411, 421-23 (2004).
74. The account that follows is based on GINSBURG, supra note 22, at 158-205.
75. Tom Ginsburg & Gombosuren Ganzorig, When Courts and Politics Collide: Mongolia's Constitutional Crisis, 14 COLUM. J.ASIAN L. 309, 311-13 (2001).
76. Id. at 314.
77. Stewart Fenwick, The Rule of Law in Mongolia-Constitutional Court and Conspiratorial Parliament, 3 AUSTL. J.ASIAN L. 213, 219-20 (2001).
78. This is the core of the argument, in the American context, advanced by my colleague Barry Friedman. See BARRY FRIEDMAN, THEWILL OF THE PEOPLE (2009).
79. THE CONSTITUTION OF MONGOLIA, art. 29, § 1.
80. See GINSBURG, supra note 22, at 187-92 (describing the arguments and outcome of the case).
81. Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8 WASH. U. GLOBAL STUD. L. REV. 1, 66 (2009).
82. Gjykata Kushtetuese e Republikës së Shqipërisë [Constitutional Court] Apr. 20, 2002, No. 76 (Alb.), translated in Decision No. 76 of the Albanian Constitutional Court 4-5, ACCUEIL, http://www.accpuf.org/ images/pdf/cm/albanie/052-jc-autres-jurisp.pdf;
83. Gjykata Kushtetuese e Republikës së Shqipërisë [Constitutional Court] Apr. 19, 2002, No. 75 (Alb.), translated in Decision No. 75 of the Albanian Constitutional Court 8-9, ACCUEIL, http://www.accpuf.org/ images/pdf/cm/albanie/052-jcautres-jurisp.pdf [hereinafter Decision No. 75].
84. Decision No. 75, supra note 67, at 11.
85. See Agron Alibali, Two Landmark Decisions of the Albanian Constitutional Court: The Individual, the Employee, and the State, 29 REV. CENT. & E. EUR. L. 219, 244-45 (2004).
86. Id. at 245.
87. DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 187 (2d ed. 1997).
88. See id. at 188-89 (translating the 1990 National Unity Election Case).
89. Id. at 191.
90. See SADURSKI, supra note 10, at 154.
91. See id.
92. See Nález Ú stavniho soudu zed ne 02.04.1997 (Ú S) [Decision of the Constitutional Court of Apr. 2, 1997], sp. zn. Pl. Ú S 25/96, translated in 5 EAST EUROPEAN CASE REPORTER OF CONSTITUTIONAL LAW 166 (1998) (Czech).
93. See Curtea Constituionala? României [Constitutional Court of Romania] Jun. 30, 1992, No. 2/1992, translated in 2 EAST EUROPEAN CASE REPORTER OF CONSTITUTIONAL LAW 232 (1995).
94. See Juan J. Linz, Presidential or Parliamentary Democracy: Does It Make a Difference?, in THE FAILURE OF PRESIDENTIAL DEMOCRACY 3, 6 (Juan J. Linz & Arturo Valenzuela eds., 1994) (listing features of strongman rule).
95. Adam Przeworski & Carolina Curvale, Instituciones Politicas y Desarrollo Economico en las Americas: el Largo Plazo, in VISIONES DEL DESARROLLO EN AMERICA LATINA 157, 175, (José Luis Machinea & Narcís Serra eds., 2007) (Chile).
96. See generally GUY ARNOLD, AFRICA:AMODERN HISTORY 353-54 (2005) (describing the politics of postcolonial Africa in the 1960s).
97. Daniel N. Posner & Daniel J. Young, The Institutionalization of Political Power in Africa, 18 J. DEMOCRACY 126, 131 (2007). The only exception was Somalia in 1967, and the winner was quickly overthrown.
98. See id.
99. I am indebted to Adam Przeworski for these data, compiled from his large data set on electoral accountability. See E-mail from Adam Przeworski, Carroll & Milton Petrie Professor of European Studies, Professor of Politics, Econ., N.Y.U., to Samuel Issacharoff, Bonnie & Richard Reiss Professor of Constitutional Law, N.Y.U. Sch. of Law (Oct. 26, 2009) (on file with author). These data are limited to presidential systems and do not include either parliamentary regimes or semi-presidential systems, in which the president stands for general election but serves alongside a prime minister who, like the cabinet, is appointed by parliament.
100. See generally Maurice Duverger, A New Political System Model: Semi-Presidential Government, 8 EUR. J. POL. RES. 165 (1980).
101. JOŚE ANOTONIO CHEIBUB, PRESIDENTIALISM, PARLIAMENTARISM, AND DEMOCRACY 136 (2007).
102. See Fabrice E. Lehoucq, Can Parties Police Themselves? Electoral Governance and Democratization, 23 INT'L POL. SCI. REV. 29, 36 (2002). Per Lehoucq, a "stalemate between colorados and blancos [in the Uruguayan government] led to depoliticization of electoral governance" in 1924.
103. Id. at 37.
104. For additional discussion of the early political history of Uruguay, see LUIS E. GONŹ ALEZ, POLITICAL STRUCTURES AND DEMOCRACY IN URUGUAY (1991).
105. Phillip B. Taylor, The Electoral System in Uruguay, 17 J. POL. 19, 22-24 (1955).
106. H́ECTOR GROS ESPIELL, LA CORTE ELECTORAL DEL URUGUAY 10 (1990). For a more critical account, including laying some of the blame for the 1973 coup on the electoral court
107. see MARTIN WEINSTEIN, URUGUAY: THE POLITICS OF FAILURE 127 (1975).
108. See FEDERICO G. GIL, THE POLITICAL SYSTEM OF CHILE 225 (1966).
109. See FABRICE E. LEHOUCQ & IV́AN MOLINA, STUFFING THE BALLOT BOX: FRAUD, ELECTORAL REFORM, AND DEMOCRATIZATION IN COSTA RICA 209-10 (2002) (describing the creation of the National Electoral Tribunal (TNE) for the 1946 elections);
110. BRUCE M. WILSON, COSTA RICA: POLITICS, ECONOMICS AND DEMOCRACY 45 (1998) (relating the transformation of the TNE into the Supreme Tribunal of Elections (TSE) by constitutional amendment in 1975, and the subsequent role of the TSE as, effectively, the fourth branch of government).
111. Interview with Salvador Magdo, Magistrate, Electoral Tribunal of the Fed. Judiciary, in Madrid, Spain (Apr. 24, 2009).
112. In the same period, the Mexican Supreme Court also asserted its independence under the new Unconstitutional Laws provision for judicial review, part of the 1994 judicial reforms. Most notably, in 1998, the Supreme Court struck down an electoral law in the state of Quintana Roo that was passed to shore up the PRI against possible electoral challenge. See Jodi Finkel, Supreme Court Decisions on Electoral Rules After Mexico's 1994 Judicial Reform: An Empowered Court, 35 J. LATIN. AM. STUD. 777, 796 (2003).
113. The most significant and controversial decision by the Supreme Electoral Tribunal came in the hotly contested 2006 presidential election. In a close election turning on the outcome of a few contested voting areas, the Court had to in effect decide the election outcome-shades of Bush v. Gore, 531 U.S. 98 (2000), for the American audience. Strikingly, the Court's ruling in favor of Felipe Calderón not only settled the issue, but was presented by the media as the decisive ruling.
114. See, e.g., Carlos Avilés y Arturo Zárate, Proponen Magistrados Declarar Presidente Electo a Calderón, EL UNIVERSAL (Mexico City), Sept. 5, 2006, available at http://www.eluniversal.com.mx/notas/373197. html. The efforts of the defeated challenger Manuel López Obrador to rally supporters in the street quickly fizzled, in large part because of the legitimacy conferred to Calderón's victory by its confirmation by the independent tribunal.
115. See, e.g., James C. McKinley Jr., Mexican Leftist Suffers Setback in Local Race, N.Y. TIMES, Oct. 17, 2006, at A10.
116. I leave to the side here the propensity of new constitutional orders to include broad commitments to what are termed "social rights" and the accompanying question of the extent to which such rights commitments are legally enforceable. See generally MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIALWELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW (2008).
117. The range of unpacted considerations may include central questions about the basic structure of government. For a discussion of how the 1978 Spanish transition to democracy was made possible by "dumping the problem of provincial autonomy" on the future constitutional court, see generally ANDREA BONIME-BLANC, SPAIN'S TRANSITION TO DEMOCRACY: THE POLITICS OF CONSTITUTION-MAKING (1987).
118. JUSTICE ALBIE SACHS, THE STRANGE ALCHEMY OF LIFE AND LAW 50 (2009).
119. See MILADAANNA VACHUDOVA, EUROPE UNDIVIDED: DEMOCRACY, LEVERAGE AND INTEGRATION AFTER COMMUNISM 11-13 (2005) (studying the reform trajectories of six post-Communist Eastern European states, in particular the rent seeking which occurs during a period of reform).
120. This concern was already recognized in academic literature in the early 1990s, during the first experiments with democracy in the newly liberated Baltic states. See, e.g., Eric Rudenshiold, Ethnic Dimensions in Contemporary Latvian Politics: Focusing Forces for Change, 44 SOVIET STUD. 609 (1992) (recognizing the challenge posed to the nascent Latvian democracy from ethnic conflicts within the mixed Russian and Latvian electorate).
121. STEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY 135 (1995);
122. see also JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT 176-77 (2001) (focusing on intertemporal cooling off as central to constitutional order).
123. See Jon Elster, Don't Burn Your Bridge Before You Come to It: Some Ambiguities and Complexities of Precommitment, 81 TEX. L. REV. 1751, 1768 & n. 51 (2003);
124. see also JON ELSTER, ULYSSES UNBOUND 159 (2000) (reciting historic examples of constitutions drafted against backdrops of social disruptions).
125. See generally KOSEKI SH̄OICHI, THE BIRTH OF JAPAN'S POSTWAR CONSTITUTION (Ray A. Moore trans., Westview Press 1997) (1989).
126. ARISTOTLE, THE POLITICS OF ARISTOTLE 181 (Ernest Barker trans., Oxford Univ. Press 1948).
127. RUTI G. TEITEL, TRANSITIONAL JUSTICE 196 (2000).
128. Cf. Noah Feldman, Commentary, Imposed Constitutionalism, 37 CONN. L. REV. 857, 870-72 (2005) (chronicling the risks associated with imposed constitutional provisions in the context of multilateral negotiations in Iraq and Afghanistan).
129. For a related argument on the necessity of a flexible amendment process for new constitutions, see Stephen Holmes & Cass R. Sunstein, The Politics of Constitutional Revision in Eastern Europe, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONALAMENDMENT 275 (Sanford Levinson ed., 1995).
130. See infra Part IV.
131. An older example is the inability of the Israeli founding generation to agree on formal terms on such questions as the extent of religious influence in the new state. See GARY JEFFREY JACOBSOHN, APPLE OF GOLD: CONSTITUTIONALISM IN ISRAEL AND THE UNITED STATES 102-03 (1993).
132. Jackson, supra note 48, at 1265-68.
133. Feisal Amin Rasoul al-Istrabadi, A Constitution Without Constitutionalism: Reflections on Iraq's Failed Constitutional Process, 87 TEX. L. REV. 1627, 1629 (2009).
134. PAUL COLLIER, WARS, GUNS, AND VOTES 75 (2009).
135. See id. at 81-82.
136. Id. at 78.
137. Martin Shapiro, The Globalization of Law, 1 IND. J. GLOBAL LEGAL STUD. 37, 49 (1993).
138. The problem of information asymmetries and the strategic withholding of information in constitutional negotiations is identified in ZACHARY ELKINS, TOM GINSBURG & JAMES MELTON, THE ENDURANCE OF NATIONAL CONSTITUTIONS 69-71 (2009).
139. For an examination of the encounter between the common law of European Union courts and the civil law practiced in member nations, see Vivian Grosswald Curran, Romantic Common Law, Enlightened Civil Law: Legal Uniformity and Homogenization of the European Union, 7 COLUM. J. EUR. L. 63, 72-75 (2001).
140. The Restatement (Second) of Contracts, for example, states: "The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance." RESTATEMENT (SECOND) OF CONTRACTS § 33(3) (1981).
141. See, e.g., Randy E. Barnett, The Sound of Silence: Default Rules and Contractual Consent, 78 VA. L. REV. 821, 821-22 (1992).
142. See, e.g., Omri Ben-Shahar, "Agreeing to Disagree": Filling Gaps in Deliberately Incomplete Contracts, 2004 WIS. L. REV. 389, 389 (2004). Although there has been a general shift toward a lax application of the indefiniteness doctrine, the common law rule has not completely fallen by the wayside.
143. See Robert E. Scott, A Theory of Self-Enforcing Indefinite Agreements, 103 COLUM. L. REV. 1641, 1643-44 (2003).
144. U.C.C. § 2-204(3) (2002) ("Even if one or more terms are left open, a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.").
145. RESTATEMENT (SECOND) OF CONTRACTS § 33 (1981).
146. See Ian Ayres, Default Rules for Incomplete Contracts, in 1 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 585, 586 (Peter Newman ed., 1998).
147. Id.
148. Ben-Shahar, supra note 114, at 397-98.
149. Ayres, supra note 117, at 586.
150. Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE L.J. 87, 91 (1989);
151. see also Lucian Ayre Bebchuk & Steven Shavell, Information and the Scope of Liability for Breach of Contract: The Rule of Hadley v. Baxendale, 7 J.L. ECON. & ORG. 284, 286 (1991).
152. These "penalty" default rules have been shown to produce more economically efficient outcomes than the alternatives. See Ayres & Gertner, supra note 120.
153. See Hadley v. Baxendale, (1854) 156 Eng. Rep. 145, 9 Ex. 341;
154. Ayres & Gertner, supra note 120, at 101;
155. Bebchuk & Shavell, supra note 120, at 284-85.
156. 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. ANDREW KULL, THE COLOR-BLIND CONSTITUTION 67-69 (1992).
157. For a more formal account of how deliberately vague language can be welfare enhancing by mitigating conflict, see Andreas Blume & Oliver Board, Intentional Vagueness (Univ. of Pittsburgh Dep't of Econ. Working Paper, 2010), available at http://www.pitt.edu/ojboard/papers/vagueness.pdf (providing numerous examples of commonplace uses of vagueness ranging from sexual innuendo to the famously inscrutable pronouncements of former Federal Reserve chairman Alan Greenspan).
158. For an account of how vague judicial opinions might ease tensions over judicial intrusion on the political branches, see Jeffrey K. Staton & Georg Vanberg, The Value of Vagueness: Delegation, Defiance, and Judicial Opinions, 58 AM. J. POL. SCI. 504 (2008).
159. 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.").
160. GINSBURG, supra note 22, at 30-31. A similar argument can be made in the context of more gradual democratization of autocratic regimes.
161. 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 Jodi Finkel, Judicial Reform as Insurance Policy: Mexico in the 1990s, 47 LATIN AM. POL. & SOC'Y 87, 88 (2005).
162. See Richard H. Pildes, Ethnic Identity and Democratic Institutions: A Dynamic Perspective, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES 173, 173-75 (Sujit Choudhry ed., 2008).
163. Tom Ginsburg & Zachary Elkins, Ancillary Powers of Constitutional Courts, 87 TEX. L. REV. 1431, 1440-41 (2009).
164. Id. at 1443 tbl.1.
165. See al-Istrabadi, supra note 105, at 1629-30.
166. See U.S. CONST. art. 1, § 9, cl. 1.
167. See generally Earl M. Maltz, Slavery, Federalism, and the Structure of the Constitution, 36 AM. J. LEGAL HIST. 466 (1992).
168. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), superseded by constitutional amendment, U.S. CONST. amend. XIV.
169. See Alan Schwartz & Robert E. Scott, Contract Theory and the Limits of Contract Law, 113 YALE L.J. 541, 543 (2003) (arguing that modern contract law has neither a descriptive nor normative theory that is sufficiently complete to apply across the spectrum of private contracts).
170. Elizabeth Garrett, Preferences, Laws, and Default Rules, 122 HARV. L. REV. 2104, 2137 (2009)
171. (reviewing EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION (2008)).
172. See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 132 (2006).
173. In this section, I expand beyond the claim that I have previously made that a strong form of constitutionalism may increase the stability of democracies in fractured societies. See Samuel Issacharoff, Constitutionalizing Democracy in Fractured Societies, 82 TEX. L. REV. 1861, 1861 (2004) (addressing the role of "constitutionalism in stabilizing democratic governance in ⋯ fractured societies ⋯ because of the limitations it imposes on democratic choice").
174. This point is made in the political science literature dealing with emerging democracies. See, e.g., Lucan A. Way, Authoritarian State Building and the Sources of Regime Competitiveness in the Fourth Wave: The Cases of Belarus, Moldova, Russia, and Ukraine, 57 WORLD POL. 231, 232 (2005).
175. For an example of this type of inquiry, see generally William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & ECON. 875 (1975).
176. For a simple example, during the negotiations leading up to Hungary's transition to democracy in 1989, the Communists sought a strong constitutional court that would strike down anti-Communist legislation. JOHN W. SCHIEMANN, THE POLITICS OF PACT-MAKING: HUNGARY'S NEGOTIATED TRANSITION TO DEMOCRACY IN COMPARATIVE PERSPECTIVE 162 (2005).
177. The foundational article using this approach is Landes & Posner, supra note 139.
178. For a counter argument focusing on the specific case of Japan and the effect of one party having a long-term hold on political office, see J. Mark Ramseyer, The Puzzling (In)dependence of Courts: A Comparative Approach, 23 J. LEGAL STUD. 721, 722, 727-28 (1994).
179. Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 HARV. L. REV. 1791, 1835 (2009).
180. The classic paper on this is Avner Shaked & John Sutton, Involuntary Unemployment as a Perfect Equilibrium in a Bargaining Model, 52 ECONOMETRICA 1351, 1363 (1984);
181. see also Ken Binmore, Avner Shaked & John Sutton, An Outside Option Experiment, 104 Q. J. ECON., 753, 757 (1989) (testing the impact of an outside option on bargaining outcomes in a laboratory setting).
182. See, e.g., Marc J. Knez & Colin F. Camerer, Outside Options and Social Comparison in Three-Player Ultimatum Game Experiments, 10 GAMES AND ECON. BEHAV. 65 (1995).
183. For an interesting analogy to the ability of laws governing marriage and divorce to alter the availability of divorce and, consequently, the divorce rate, see Abraham L. Wickelgren, Why Divorce Laws Matter: Incentives for Noncontractible Marital Investments Under Unilateral and Consent Divorce, 25 J.L. ECON. & ORG. 80 (2009).
184. See Mercedes Adamuz Peña, Essays on Bargaining with Outside Options 38-50 (Dec. 12, 2002) (unpublished Ph.D. dissertation, Universitat Autònoma de Barcelona), available at http://www.tesisenxarxa.net/TDX- 1108105-164319/ (arguing that the authority of the arbitrator influences the outcome between parties).
185. See id. at 8-12.
186. See, e.g., MARTIN J. OSBORNE & ARIEL RUBINSTEIN, BARGAINING AND MARKETS 50-55 (1990) (identifying outside options as one of the factors that may contribute to delay in reaching bargaining resolution).
187. The theoretical literature on this point is not well developed. I was, however, impressed with the presentation of this point in a recent dissertation. See Peña, supra note 144, at 2-14.
188. See Ariel Rubinstein, Perfect Equilibrium in a Bargaining Model, 50 ECONOMETRICA 97, 98-101 (1982).
189. The basic insight is that, with perfect information, parties bargaining across a potentially infinite series of offers and counteroffers will quickly and efficiently converge upon the midpoint to resolve their dispute. In worlds of imperfect information, the results are more complicated and agreement may be reached only after some delay, and there remains some first-mover advantage. When there is a need to match offer and acceptance for either party to gain anything, the Rubenstein model becomes more of a coordination game, as well summarized in Richard H. McAdams, Beyond The Prisoners' Dilemma: Coordination, Game Theory, and Law, 82 S. CAL. L. REV. 209, 236-37 (2009).
190. For applications of coordination strategies to explain similar structures in international accords, see Jack L. Goldsmith & Eric A. Posner, A Theory of Customary International Law, 66 U. CHI. L. REV. 1113, 1127-28 (1999).
191. See Peña, supra note 144, at 51-52.
192. I am indebted to Oliver Board for the analogy to an ultimatum game with a strong first-mover advantage.
193. See Peña, supra note 144, at 53.
194. Amy Pate, Trends in Democratization: A Focus on Minority Rights, in PEACE AND CONFLICT 2010: EXECUTIVE SUMMARY 20 (J. Joseph Hewitt et al. eds., 2010). The formatting of this figure has been slightly modified from the original.
195. Way, supra note 138, at 232.
196. This is the term I used to describe the core democratic commitment in Fragile Democracies. See Issacharoff, supra note 13, at 1456-66. The formulation owes to Bernard Menin.
197. Matthew C. Stephenson, "When the Devil Turns ⋯": The Political Foundations of Independent Judicial Review, 32 J. LEGAL STUD. 59, 84 (2003).
198. SAMUEL ISSACHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES, THE LAW OF DEMOCRACY: LEGAL REGULATION OF THE POLITICAL PROCESS 2 (3d ed. 2007).
199. ETHAN B. KAPSTEIN & NATHAN CONVERSE, THE FATE OF YOUNG DEMOCRACIES xvi (2008).
200. The thirty-four Principles contained a number of antimajoritarian protections. See S. AFR. (INTERIM) CONST., 1993.
201. As a general matter, these take three forms: 1) an elaborate set of rights guarantees that extends to the confiscation of property, 2) limitations on the exercise of government power through a balancing of powers within the national government and principles of federalism, and 3) protections provided by the supermajority processes needed to amend the Constitution that require not only a two-thirds vote in the upper house of the national Parliament but also approval by a majority of provincial legislatures. Issacharoff, supra note 137, at 1875-76.
202. SIRI GLOPPEN, SOUTH AFRICA: THE BATTLE OVER THE CONSTITUTION 199 (1997).
203. Issacharoff, supra note 137, at 1877.
204. In re Certification of the Constitution of the Republic of S. Afr. (Certification Decision) 1996 (4) SA 744 (CC).
205. Id. at 776 para. 6, 788 para. 45. The Court pointed specifically to the creation of an upper house (the National Council of Provinces) that would not be based on equipopulational voting, but on the election of ten representatives from each of the nine provinces.
206. Id. at 865-66 paras. 318-20. This has great practical significance because one of the provinces is majority Zulu (hence outside the political orbit of the ANC) and two others have large concentrations of white and black voters.
207. See GLOPPEN, supra note 159, at 204, 222-23.
208. S. AFR. (INTERIM) CONST., 1993, sched. 4, princ. XXII. The Court found unconstitutional those provisions that failed to provide the required "framework for LG [local government] structures" as well as the failure to ensure the fiscal integrity of political subdivisions.
209. Certification Decision, 1996 (4) SA at 861 para. 301, 911 para. 482. For the Court, the South African Constitution should provide only those powers to the national government "where national uniformity is required," and only economic matters and issues of foreign policy met this restrictive definition.
210. See id. at 845-46 para. 240, 849 para. 254.
211. S. AFR. (INTERIM) CONST., 1993, sched. 4, princ. XV.
212. Certification Decision, 1996 (4) SA 744 (CC) at 821 para. 153.
213. Id. at 822 para. 156 (striking down a provision that required approval of a two-thirds majority of the lower House for any constitutional amendment for failing to dictate "special procedures" for ratification in addition to supermajoritarian assent).
214. S. AFR. (INTERIM) CONST., 1993, sched. 4, princ. II.
215. Certification Decision, 1996 (4) SA 744 (CC) at 822-23 para. 159.
216. Id. at 820 paras. 149-50.
217. See Constitution Signed, WINNIPEG FREE PRESS, Dec. 11, 1996, at B1, available at 1996 WL 17258872.
218. See Certification Decision, 1996 (4) SA 744 (CC) at 829 paras. 180-81 & n.136 (considering whether the antidefection principle was unconstitutional).
219. 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
220. Mathew S. R. Palmer, Using Constitutional Realism to Identify the Complete Constitution: Lessons from an Unwritten Constitution, 54 AM. J. COMP. L. 587, 610 & n.64 (2006).
221. Certification Decision, 4 (SA) 744 (CC) at 830 para. 184.
222. The minority party protections of the antidefection mechanism were subsequently repealed by constitutional amendment. The repeal is troubling for three reasons. First, the antidefection principle was a significant subject of debate and compromise in the creation of the overall constitutional framework.
223. See RICHARD SPITZ & MATTHEW CHASKALSON, THE POLITICS OF TRANSITION: A HIDDEN HISTORY OF SOUTH AFRICA'S NEGOTIATED SETTLEMENT 110-12 (2000) (discussing the origins of the antidefection clause). Second, the proponent of the repeal was the ANC, clearly the majority party least at risk to suffer defection.
224. See United Democratic Movement v. President of the Republic of S. Afr. 2003 (1) SA 495 (CC) at 517-18 paras 53, 59.
225. Third, on my reading of the Certification Decision, the structural minority protections provided the central analytic framework for compliance with the interim Principles. Although troubled, the Constitutional Court held the repeal to apply only to the procedural requirements of constitutional amendment. The Court did not attempt to impose a doctrine of structural integrity of minority protections to prevent theamendment, which perhaps signifies a retreat from the role the Court assumed in the Certification Decision. See id. at 532 para. 119.
226. 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.
227. Charles M. Fombad, Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from South Africa, 55 AM. J. COMP. L. 1, 32 (2007).
228. United Democratic Movement, 2003 (1) SA 495 (CC) at 510 paras. 26-27, 530-31 paras. 115-17.
229. The extent of the threat posed by the ANC's electoral dominance is still uncertain
230. See Roger Southall, The "Dominant Party Debate" in South Africa, 39 AFR. SPECTRUM 61, 61 (2005) (arguing that although "the ANC's electoral and political hegemony does carry threats to democracy, . . . the ability of the ANC to extend its dominance is subject to considerable limitations").
231. The best account of this process in South Africa is found in Sujit Choudhry, 'He Had a Mandate': The South African Constitutional Court and the African National Congress in a Dominant Party Democracy, 2 CONST. CT. REV. (forthcoming 2011), available at http://papers.ssrn.com/sol3/papers. cfm?abstract-id=1651332.
232. I am indebted to Pablo de Grieff for the analogy to the PRI.
233. United Democratic Movement, 2003 (1) SA 495 (CC) at 516 para. 49.
234. S. AFR. CONST., 1996 $ 57(2)(b).
235. Id. $ 70(2)(c) (stating that the rules and orders of the National Council of Provinces (NCOP) must provide for "the participation in the proceedings of the Council and its committees of minority parties represented in the Council, in a manner consistent with democracy"). In addition, the allocationof delegates to the NCOP "must ensure the participation of minority parties in both the permanentand special delegates' components of the delegation in a manner consistent with democracy
236. Id.$ 61(3).
237. Id. $ 116(2)(b) (stating that the rules and orders of a provincial legislature must provide for "the participation in the proceedings of the legislature and its committees of minority parties represented in the legislature, in a manner consistent with democracy").
238. For a fuller account of the efforts of the ANC to secure the right to woo opposing legislators and the role that floor crossing played in ANC maneuvers at the provincial level
239. see Choudhry, supra note 178. In December 2007, the ANC concluded at its Polokwane National Conference that floor crossing should be abolished. The Democratic Alliance characterized the ANC's decision as one of political expediency, claiming the ANC relented only because it no longer needed the tactic
240. See Days Numbered For Floor-Crossing, MAIL&GUARDIAN ONLINE (Aug. 20, 2010), http://www.mg.co.za/article/ 2008-08-20-days-numbered-for-floorcrossing.
241. The result was the constitutional abolition of floor crossing in the S. AFR. CONST., Fourteenth Amendment Act of 2008.
242. Paradoxically, the Independent Democrats and Democratic Alliance have recently discussed allowing party members to claim dual membership, which would functionally bring back floor crossing.
243. See ANC Riled by ID, DA Tango, INDEPENDENT ONLINE (May 5, 2010), http://www.iol.co.za/business/business-news/anc-riled-by-id-da-tango- 1.815561.
244. INDIA CONST. art. 368.
245. See I.C. Golak Nath v. State of Punjab, (1967) 2 S.C.R. 762, 815 (India). For a discussion of the limitations on amendment trenching on structural protections in the Indian Constitution
246. See S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J.L. & POL'Y 29, 43-49 (2001).
247. See S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J.L. & POL'Y 29, 43-49 (2001).
248. See S.P. SATHE, JUDICIAL ACTIVISM IN INDIA: TRANSGRESSING BORDERS AND ENFORCING LIMITS 68 (2002).
249. See Lloyd I. Rudolph & Susanne Hoeber Rudolph, To The Brink and Back: Representation and the State in India, 18 ASIAN SURV. 379, 397-99 (1978).
250. As well formulated by Upendra Baxi, "[j]udicial populism was partly an aspect of postemergency catharsis. Partly, it was an attempt to refurbish the image of the court tarnished by a few emergency decisions and also an attempt to seek new, historical bases of legitimation of judicial power
251. Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, in JUDGES AND THE JUDICIAL POWER 289, 294 (Rajeev Dhavan et al. eds., 1985).
252. The emergence of the Indian Supreme Court, though no doubt a direct response to the emergency period, also correspondsto the increasing delegation of governmental authority outside the traditional division between courts,legislatures and the executive.
253. See generally Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 688-90 (2000) (putting forth the need for "functional specialization" as part of the constitutionally constrained exercise of parliamentary authority).
254. Minerva Mills Ltd. v. India, (1981) 1 S.C.R. 206, paras. 22, 59-61 (India).
255. See Gary Jeffrey Jacobsohn, An Unconstitutional Constitution?: A Comparative Perspective, 4 INT'L J. CONST. L. 460, 483 (2006).
256. In re Certification of the Constitution of the Republic of S. Afr. (Certification Decision) 1996 (4) SA 744 (CC) at 744, 820 paras. 149-50.
257. I take the imagery from Joel S. Hellman, Winners Take All: The Politics of Partial Reform in Postcommunist Transitions, 50 WORLD POL. 203 (1998).
258. There are those who claim the opposite and try to find justification for judicial review in some form of democratic expression either of the true will of the majority or as integral to the legislative bargain
259. See, e.g., Scheppele, supra note 49 (arguing the former).
260. ALEC STONE SWEET, GOVERNING WITH JUDGES (2z000) (making the second argument). Alternatively, some argue directly that constitutional courts are legitimated through the quasi-parliamentary nature of their review
261. See SADURSKI, supra note 10, at 58 (arguing that court legitimacy comes from quasi-legislative function). Needless to say, I find these arguments unpersuasive as providing a core justification for creating constitutional courts. As a general rule, the capacity of nonelected judicial bodies to claim democratic authority as against the politically accountable branches must be suspect.
262. See Smithey & Ishiyama, supra note 50, at 724.
263. As colorfully expressed by Justice Khanna of the Indian Supreme Court, "Provision regarding the amendment of the Constitution does not furnish a pretence [sic] for subverting the structure of the Constitution nor can [it] be so construed to embody the death wish of the Constitution or provides sanction for what may perhaps be called its lawful harakiri." Kesavananda Bharati v. Kerala, A.I.R. 1973 S.C. 1461 (India) (Khanna, J.).
264. See Issacharoff, supra note 13, at 1428-30.
265. SOMDET PHRA PARAMINTHARAMAHA BHUMIBOL ADULYADEJ SAYAMMINTHARATHIRAT BOROMMANATTHABOPHIT [CONSTITUTION], Aug. 24, 2007, ch. XV, art. 291 (Thai.).
266. The wariness over structural arguments about stabilizing democracy and the reliance on claims of protecting civil liberties or individual rights is well noted by Professor Sadurski. SADURSKI, supra note 10, at xiii.
267. See, e.g., Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16, 160-62 (2002).
268. This point is forcefully made in the many writings of Professor Scheppele on the role of processes of state formation in nascent democracies
269. See, e.g., Kim Lane Scheppele, Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe, 154 U. PA. L. REV. 1757, 1757-61 (2006) (describing "the separation of powers as a contact sport" in which the constitutional courts play a central role)
270. See, e.g., Herbert A. Johnson, Judicial Institutions in Emerging Federal Systems: The Marshall Court and the European Court of Justice, 33 J. MARSHALL L. REV. 1063, 1068 (2000) (comparing the similar roles both courts played in providing "shape and substance" to the emerging democratic institutions to which they belonged).
271. I am indebted to Dieter Grimm for reminding me that no matter what structural role is assigned to constitutional courts, the discourse of fundamental rights remains the lingua franca of judicial review.
272. Stressing the direct tie between the role of these courts in easing the initial constitutional bargain and the role of judicial review after the democratic transition was helpfully suggested by Owen Fiss.
273. See, e.g., Moldova: Setback for Russian Language, supra note 57;Wines, supra note 57.
274. See Christian Democratic People's Party v. Moldova, 2006-II Eur. Ct. H.R. 98, 104 (2006).
275. Constitution Watch, 11 E. EUR. CONST. REV. 2, 32 (2002).
276. Constitution Watch, supra note 207, at 33.
277. See id. at 32 ("The ban prompted Walter Schwimmer, secretary-general of the Council of Europe to request Chisinau [the government capital] to explain the ban (utilizing Art. 52 of the European Convention on Human Rights)."). Eventually, in 2006, the European Court of Human Rights declared the ban in contravention of the Convention's Article 11.
278. See Christian Democratic People's Party, 2006-II Eur. Ct. H.R. at 118.
279. Constitution Watch, supra note 207, at 32-33.
280. See id.
281. Id. at 33.
282. See Country Reports on Human Rights Practices-Moldova, U.S. DEP'T OF STATE (Mar. 31, 2003), http://www.state.gov/g/drl/rls/hrrpt/2002/18381.htm.
283. See László Sólyom, The Role of Constitutional Courts in the Transition to Democracy, 18 INT'L SOC. 133, 148-49 (2003).
284. See International Legal Developments in Review: 2007-Regional and Comparative Law, 42 INT'L LAW. 975, 1005-06 (2008) [hereinafter International Legal Developments] (describing the 2006 lustration law and Judgment K 2/07). In Hungary, the question of legal accountability for the old regime was posed in acute fashion by a government act that would have allowed punishment for all crimes committed under Communist rule, even if the statute of limitations had passed.
285. Alkotmánybíróság (AB) [Constitutional Court] Mar. 5, 1992, MK.11/1992 (Hung.), http://www.mkab.hu/admin/data/file/ 736-11-1992.pdf. In Decision No. 11/1992, the Hungarian Constitutional Court not only struck down the law, but took the occasion to reassert the supremacy of constitutional limitations over the demands of the political branches: "[P]olitical endeavours of any kind must be realized within the constitutional framework and . . . everyday political considerations are precluded from the adjudication of the constitutionality of the laws.
286. Id.
287. For an insightful discussion of the difficult legal and moral issues in the lustration debates in virtually all the Soviet bloc countries of Eastern Europe
288. see SADURSKI, supra note 10, at 223-58.
289. The need to remove antidemocratic forces from electoral contestation and the justifications for it are discussed at length in Issacharoff, supra note 13.
290. See Ellis, supra note 58, at 181-82.
291. See SADURSKI, supra note 10, at 258.
292. See, e.g., VLADIMÍRA DVǑŔAKOV́A ET AL., LUSTRATION AND CONSOLIDATION OF DEMOCRACY AND THE RULE OF LAW IN CENTRAL AND EASTERN EUROPE 54-56 (2007) (examining challenges to lustration laws on the grounds of insufficient procedural protections in Poland, Slovakia, and Latvia).
293. See SADURSKI, supra note 10, at 216.
294. International Legal Developments, supra note 215, at 1003-05.
295. Id. at 1003.
296. See id. at 1004;
297. see also SADURSKI, supra note 10, at 245-46.
298. See Matyjek v. Poland, 2006-VII Eur. Ct. H.R. 391, 392, 402 (2007). The ECHR held that the law was penal in nature and failed to provide for a fair trial.
299. Id. at 402, 407-08.
300. In July of 2010, Jaroslaw faced a narrow defeat in a special presidential election held following the death of his brother Lech in a plane crash
301. Nicholas Kulish, Acting President in Poland Wins a Narrow Victory, N.Y. TIMES, July 5, 2010, at A4.
302. International Legal Developments, supra note 215, at 1005.
303. Id.
304. See Wiktor Osiatynski, Op-Ed., Poland Makes Witch-Hunting Easier, N.Y. TIMES, Jan. 22, 2007, at A19.
305. See Joanna Rohozińska, Struggling with the Past, CENT. EUR. REV. (Sept. 11, 2000), http://www. ce-review.org/00/30/rohozinska30.html.
306. See, e.g., Former Polish PM Refuses to Sign Lustration Document, RADIO FREE EUROPE/RADIO LIBERTY (Apr. 26, 2007), http://www.rferl.org/content/article/ 1076122.html (noting that European Parliament President Hans-Gert Poettering expressed support for a Polish member of the European Parliament who refused to comply with the Polish lustration law).
307. See Osiatynski, supra note 229.
308. Id.
309. Adam Michnik, The Polish Witch-Hunt, N.Y. REV. BOOKS (June 28, 2007), http://nybooks.com/ articles/archives/2007/jun/28/the-polish-witch-hunt.
310. Trybunal Konstytucyjny [Constitutional Court], May 11, 2007, No. K. 2/07 (Pol.), translated in Judgment of 11th May 2007, file Ref. No. K 2/07, at 6, TRYBUNAL KONSTYTUCYJNY, http://www.trybunal. gov.pl/eng/summaries/documents/K-2- 07-GB.pdf.
311. See id. at 4.
312. Id. at 5.
313. The lustration of journalists was described by the Court as consistent with "the former goals of the communist State, particularly interested in the control-at every stage-of publications as well as persons involved in the production thereof," but "unproductive in the new democratic order of the State.
314. Id. at 21.
315. Id. at 18.
316. Id. at 19.
317. See supra notes 67-69 and accompanying text.
318. Trybunal Konstytucyjny [Constitutional Court], May 11, 2007, No. K. 2/07 (Pol.), translated in Judgment of 11th May 2007, file Ref. No. K 2/07, at 20, TRYBUNAL KONSTYTUCYJNY, http:// www.trybunal.gov.pl/eng/summaries/documents/K-2- 07-GB.pdf.
319. Id.
320. Id. at 26.
321. See id. at 6.
322. Michnik, supra note 234.
323. NálezÚ stavního soudu ze dne 02.04.1997 (Ú S) [Decision of the Constitutional Court of Apr. 2, 1997], sp. zn. Pl.Ú S 25/96, translated in 5 E. EUR. CASE REP. CONST. L. 159, 166 (1998). I focus on the Czech opinion because of its extensive discussion of the underlying reasons for its ruling. The Romanian Court reached a similar result. Curtea Constitutionala? a Roma?niei [Constitutional Court of Romania], No. 2/1992 of Jun. 30, 1992, translated in 2 E. EUR. CASE REP. CONST. L. 229, 232 (1995).
324. See Nález Ú stavního soudu ze dne 02.04.1997 (Ú S) [Decision of the Constitutional Court of Apr. 2, 1996], sp. zn. Pl.Ú S 25/96.
325. translated in 5 E. EUR. CASE REP. CONST. L. 159, 162 (1998).
326. Id. at 163.
327. Id. at 161-62.
328. Id. at 166-67.
329. Id. at 166.
330. Id.
331. Id.
332. Id. at 169-70.
333. Id. at 170.