Constitutional review in representative democracy

Oxford Journal of Legal Studies

Volumn 32, Issue 2, 2012, Pages 297-324

  Kyritsis, Dimitrios ^a  

^a UNIVERSITY OF SHEFFIELD   (United Kingdom)

Author keywords

Constitutional review; Democracy; Political representation

Indexed keywords

EID: 84862499681     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqs004     Document Type: Article

References (101)

1. John Rawls, Political Liberalism (Columbia University Press 1996) 427: '[B]eing legitimate says something about [laws' or governments'] pedigree'.
2. See also Thomas Christiano, Constitution of Equality: Democratic Authority and its Limits (OUP 2008) ch 6.
3. Jeremy Waldron, Law and Disagreement (OUP 1999) 88-118.
4. See Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Harvard University Press 1999) 1-38.
5. Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press 2000) ch 5.
6. Accordingly, Dworkin proposes a 'moral reading' of the abstract clauses included in bills of rights. Such clauses make best sense as entrenchments of the conditions of democracy, with which every democratic state must comply.
7. Dworkin, Freedom's Law (n 3) 31.
8. See also Dimitrios Kyritsis, 'Principles, Policies and the Power of Courts' (2008) 20 Canadian J L & Jurisprudence 379, 386-87.
9. Dworkin, Freedom's Law (n 3) 7 (emphasis added).
10. Dworkin, Sovereign Virtue (n 3) 200-203.
11. Dworkin, Freedom's Law (n 3) 32.
12. In a similar vein, Dworkin acknowledges that the 'moral reading [of the constitution]... is a theory about what the Constitution means, not a theory about whose view about what it means must be accepted by the rest of us', Freedom's Law (n 3) 12.
13. Even those political theorists who espouse an epistemic criterion of institutional legitimacy must make reference to what I have called procedural features, in order to explain why one institution is more likely to make the right decision than another.
14. François Guizot, Histoire des origines du gouvernement représentatif en France (Didier 1851).
15. quoted in Carl Schmitt, The Crisis of Parliamentary Democracy (Ellen Kennedy tr, MIT Press 1988) xiii.
16. For a similar methodological approach, see Jeremy Waldron, 'The Core of the Case against Judicial Review' (2006) 115 Yale LJ 1346.
17. John S Mill, Considerations on Representative Government (Ronald B MacCallum ed, Blackwell 1946) 168-74.
18. Mill argued that legislatures should not even have the power to amend legislative proposals, but only to reject or approve them after deliberation. Bernard Manin summarizes this point as follows: '[I]t is thus the concept of passing judgment that best describes the role assigned to the community, whether to the people itself or to its representatives. Representative democracy is not a system in which the community governs itself, but a system in which public policies and decisions are made subject to the verdict of the people'.
19. Bernard Manin, The Principles of Representative Government (CUP 1997) 192.
20. See JAG Griffith, The Politics of the Judiciary (4th ed, Fontana 1991).
21. Louis Jaffe, Judicial Control of Administrative Action (Little Brown 1965).
22. Again, we have to allow for variances between legal systems. For instance, the US Congress has much greater initiative than, say, the House of Commons.
23. In a thorough and thoughtful article, Matthew Adler has examined the relevance of the democratic argument for the legitimacy of judicial review of administrative action.
24. See Matthew Adler, 'Judicial Restraint in the Administrative State: Beyond the Counter-Majoritarian Difficulty' (1997) 145 U Pennsylvania L Rev 759.
25. For an account that highlights some similarities between executive and legislative power on the basis of the concept of representation, which is also central to the argument offered here, see Evan J Criddle, 'Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking' (2010) 88 Texas L Rev 441.
26. On legislatures, see generally Mill (n 12); Manin (n 12).
27. Hannah Pitkin, The Concept of Representation (University of California Press 1972).
28. Jeremy Waldron, The Dignity of Legislation (CUP 1999).
29. Nick W Barber 'Prelude to the Separation of Powers' (2001) 60 CLJ 59, 74-87.
30. More recently, Alexander Guerrero, 'The Paradox of Voting and the Ethics of Political Representation' (2010) 38 P&PA 272.
31. As well as the essays included in Philip Norton (ed), Legislatures (OUP 1990).
32. As already noted, this is not to say that legislatures do not have other very important features that contribute to the prominent institutional role they are assigned in many legal systems. Among them, one cannot fail to note their centralized structure that arguably makes possible a stable framework of interaction and expectations.
33. A useful overview of the functions representative legislatures serve is provided in Anthony H Birch, Representation (Pall Mall 1971) 106-23.
34. I do not intend to take sides in the debate about what it is exactly that legislators ought to take into account, whether it is the interests of their constituents or the interests of the whole political community and not just their constituents or the interests of some class within the community. It suffices, for present purposes, to say that there is some connection between the role of the representative and the interests of the citizenry or segments thereof. As to the connection between views and interests, I think one can safely assume, along with Hanna Pitkin, that the constituents' views are at least useful indicators of their interests. But, there are other reasons that direct legislators to heed the constituents' views, some of which are reviewed below.
35. For an overview of the relevant debate, see Samantha Besson, 'The Paradox of Democratic Representation: On Whether and How Disagreement should be Represented' in Luc Wintgens (ed), The Theory and Practice of Legislation (Ashgate 2005) 125.
36. Waldron, The Dignity of Legislation (n 15) 1-2.
37. The theoretical problems facing this tendency, which echoes one of the main tenets of social choice theory, have been brilliantly discussed by Jon Elster in a number of publications.
38. See, among others, Jon Elster, 'The Market and the Forum: Three Varieties of Political Theory' in James Bohman and William Rehg (eds), Deliberative Democracy (MIT Press 1997) 3.
39. Jeremy Waldron, 'Judges as Moral Reasoners' (2009) 7 I_CON 1, 20.
40. Waldron, Law and Disagreement (n 2) 232-54.
41. Notice that, insofar as legislators decide according to their own independent view, the argument of the constitutional review sceptics just rehearsed fails. Legislators, no less than judges, have superior political power to ordinary citizens.
42. See Dworkin, Sovereign Virtue (n 3) 190-200.
43. See also Dimitrios Kyritsis, 'Representation and Waldron's Objection to Judicial Review' (2006) 26 OJLS 733.
44. Manin (n 12) 163-67.
45. This indeterminacy is reinforced by the common phenomenon of single-issue voting. More often than not, voters will pick a candidate on the basis of a single issue or of a small sub-set of issues that they consider most crucial. Hence, it may well be that a number of citizens who voted for candidate A because she champions strict anti-drug regulations are indifferent about her views on fiscal discipline. But, they voted for her nonetheless because of the importance they attach to the war against drugs. Still others favour her precisely for her stance on the economy. Suppose now that the second group of people is less than a majority of her constituency. In such a situation, it is indeterminate what would count as deciding according to the constituents' views on the new budget.
46. The degree of independence will vary from one institutional arrangement to the other. Thus, the fewer the issues on the legislative agenda, the shorter the tenure and the smaller the constituency, the more legislators will understand their duty as one of merely giving voice to the views and interests of their voters, other things being equal. The longer the tenure and the larger the constituency, the more free they will tend to regard themselves to tackle the issues on the agenda according to their own best judgment.
47. On the connection between legislators' independence and large constituencies, see The Federalist no 10 (James Madison) in The Federalist (Max Beloff ed, Blackwell 1948) 46-48.
48. Bernard Manin offers a detailed account of the independence of representatives from the electorate in Manin (n 12) 167-75.
49. Carl Schmitt has famously pressed this point. See Schmitt (n 11).
50. The two effects are inextricably intertwined. Few of us would care for the status that equal voting rights confer, if the exercise of those rights made no difference whatsoever.
51. Chris Eisgruber 'Constitutional Self-Government and Judicial Review: A Reply to Five Critics' (2002) 37 U San Francisco L Rev 115, 166.
52. George Kateb, 'The Moral Distinctiveness of Representative Democracy' (1981) 91 Ethics 357, 358.
53. Compare Rawls (n 1) IV §2. Rawls distinguishes two kinds of stability, one where compliance with certain terms of social cooperation is 'if need be prompted by penalties enforced by state power', and another based on 'a sense of justice and a reasoned allegiance' developed through growing up in a just political regime. The claim I am making here is that the sense of independence imbued by representative government reinforces the second kind of stability because it forms part of an attractive conception of ourselves as citizens. Thanks to Matthew Clayton and Victor Tadros for pressing me to clarify this point.
54. Thomas Nagel, Equality and Partiality (OUP 1991) ch 10.
55. The Federalist no 10 (James Madison) (n 24) 45. The emergence of this view and its hold on the Founding Fathers are recounted in Manin (n 12) 102-31.
56. Dworkin uses the criterion of choice-sensitivity in Sovereign Virtue (n 3) 203-208.
57. He had employed the principle-policy distinction in Ronald Dworkin, Taking Rights Seriously (Duckworth 1978) 91.
58. Compare Larry Sager 'The Domain of Constitutional Justice' in Larry Alexander (ed), Constitutionalism: Philosophical Foundations (CUP 1998) 235, 240: 'Some principles of political justice are wrapped in complex choices of strategy and responsibility that are properly the responsibility of popular institutions'.
59. See also Kyritsis, 'Principles, Policies and the Power of Courts' (n 5) 383-84.
60. James B Thayer, 'The Origin and Scope of the American Doctrine of Constitutional Law' (1893) 7 Harvard L Rev 129, 135-36.
61. I am not considering here the very serious risk that some legislators have evil and corrupt agendas which they plan to further during their term in office. All grants of power carry this risk. As far as legislators are concerned, the task of weeding out the bad seeds among candidates is primarily entrusted to voters. This, of course, is an imperfect mechanism. Some states have complemented it with special mechanisms at the pre- or post-election stage, which are administered by electoral commissions or the legislature.
62. Dworkin, Freedom's Law (n 3) 1-38.
63. On courts, see, generally, Lon Fuller's classic article, 'The Forms and Limits of Adjudication' (1978) 92 Harvard L Rev 353.
64. See also Owen M Fiss, 'Foreword: Forms of Justice' (1979) 93 Harvard L Rev 1.
65. Neil Komesar, Imperfect Alternatives (University of Chicago Press 1994) ch 5.
66. Waldron, 'Judges as Moral Reasoners' (n 19) 11-15.
67. Kyritsis, 'Principles, Policies and the Power of Courts' (n 5) 388-90.
68. Joseph Raz, Ethics in the Public Domain (Clarendon Press 1994) 376.
69. Of course, they are not the only state organs charged with this task. Legislatures and administrative agencies each have their own resources to adapt the law to current needs.
70. Ronald Dworkin, 'Do We Have a Right to Pornography?' in A Matter of Principle (Harvard University Press 1985) 351-72.
71. For a comprehensive overview of the types of judicial test that focus on the quality of legislative deliberation, with reference to the jurisprudence of US courts, see Richard Fallon, 'Foreword: Implementing the Constitution' (1997) 111 Harv L Rev 56, 70-73, 90-102.
72. Such tests are especially common in the law of judicial review of administrative action. A recent example is the debate about whether public bodies ought to incorporate the proportionality test in their deliberative process, whenever their decision impacts on fundamental rights. See R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, and [2005] EWCA Civ 199, [2005] 2 All ER 396.
73. For discussion, see Thomas Poole, 'The Reformation of English Administrative Law' (2009) 68 CLJ 142-68.
74. As we have seen, some of its aspects could also be incorporated in the second type of test.
75. Thomas M Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Harvard University Press 2008) 27-28.
76. Larry Sager, 'Constitutional Justice' (2002) 6 J Legislation & Public Policy 11, 15.
77. Sometimes, of course, courts do not even have that power. For example, under section 4 of the Human Rights Act 1998, UK courts may only make a declaration of incompatibility, when they find that a piece of primary legislation contravenes a right enshrined in the European Convention on Human Rights. The purpose of such declarations is to exert pressure on the political branches to effect a change in the law so as to bring it in line with fundamental rights norms. In other jurisdictions, courts have a variety of techniques at their disposal. Thus, according to the Constitution of South Africa, courts may either invalidate a piece of legislation or 'make... an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect' (s 172(1) c ii).
78. For a thorough overview of the differences between 'weak' and 'strong' constitutional review, see Stephen Gardbaum, 'The New Commonwealth Model of Constitutionalism' (2001) 49 Am J Comp L 707-60.
79. The difference is nicely illustrated by the debate about the appropriateness of using statutory interpretation to remedy rights incompatibility under section 3 of the HRA. See Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.
80. For discussion, see Aileen Kavanagh, 'Choosing Between Section 3 and 4 Human Rights Act: Judicial Reasoning after Ghaidan v Mendoza' in Helen Fenwick, Gavin Phillipson and Roger Masterman (eds), Judicial Reasoning Under the Human Rights Act 1998 (CUP 2007) 114.
81. In fact, Mark Tushnet has used this kind of moral hazard as a basis for his argument against constitutional review even in fundamental rights cases.
82. See Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press 1999) 57-70.
83. For instance, Jeremy Waldron contemplates the possibility that the tasks routinely assigned to a constitutional court be granted to an Upper House of Representatives in Jeremy Waldron, 'Eisgruber's House of Lords' (2002) 37 U San Francisco L Rev 89.
84. Wil Waluchow, The Living Tree: A Common Law Theory of Judicial Review (CUP 2007) 30-41.
85. The Federalist no 51 (James Madison) (n 24) 264-65.
86. See, generally, The Federalist No 78 (Alexander Hamilton) (n 24) 397.
87. History is not only rife with examples where the political branches moved decisively to curb judicial independence. Most importantly, it teaches us that the judicial system is dependent on political officials for its set-up and efficient running.
88. See Robert Stevens, 'Independence of the Judiciary: The Case of England' (1999) 72 Southern California L Rev 597.
89. For the United States, see John Ferejohn, 'Independent Judges, Dependent Judiciary: Explaining Judicial Independence' (1999) 72 Southern California L Rev 353.
90. Importantly, judges are also supposed to be impartial vis-a' -vis the parties in a dispute before them and a number of procedural rules aim to safeguard this impartiality. Not surprisingly, then, the court is also considered as the proper forum for private dispute-settlement.
91. I have deliberately downplayed the case where the judge is elected, first, because of the countervailing effect of life-tenure and second, because of the judges' own self-perception, which is very different from that of legislators and does not seem to vary significantly depending on whether the judge is elected or not.
92. See Waldron, Law and Disagreement (n 2) 120 n 6.
93. This view is to be contrasted with Chris Eisgruber's claim that the appointment procedure of the Supreme Court Justices guarantees that their decisions will reflect the political convictions broadly shared in the American society or by important segments thereof.
94. Chris Eisgruber, Constitutional Self-Government (Harvard University Press 2001) 64-66.
95. See, among others, Fuller (n 36) 365-72.
96. Michael Perry, 'Noninterpretive Review in Human Rights Cases: A Functional Justification' (1981) 56 NYU L Rev 278.
97. Harry Wellington, 'The Nature of Judicial Review' (1982) 91 Yale LJ 486.
98. Indeed, it is because the judge's role is much more self-reflective than that of any other state official that theorists tend to think that it is only the former role that is constrained, whereas, for example, the role of legislators is unconstrained. But, the absence of a duty to give reasons or to articulate them as a judge would is not the same as the absence of a duty to have reasons.
99. See, for instance, Tushnet's 'moral hazard' argument (n 48) and also Thomas Scanlon's claim that apart from 'the delay of decisions and the costs of mounting the procedures themselves' that it involves, judicial review may seriously affect 'valued aspects' of the institution under supervision. These side effects ought to be balanced against the need to check the exercise of power by that institution.
100. See Thomas M Scanlon, The Difficulty of Tolerance (Harvard University Press 2003) 42.
101. I am indebted to Arudra Burra for an invaluable discussion of this point.