CLASSICAL constitutionalism envisaged an interlocking arrangement of governing institutions that could check and balance one another to create “a machine that would go of itself.”1 Good rhetoric perhaps, but even its most committed proponents recognized the need for some special institution that could, in Constant’s words, act as a preservative power “to defend government against division among the governing and to defend the governed against oppression by the government.”2 Within the practice of constitutionalism today, it is universally assumed that that role is fulfilled by the judiciary. This was not a preordained feature of constitutional government, and indeed the “preservative” dimension of the judiciary’s constitutional role is now given a rather different twist.
In the tradition of constitutional government, this preservative role was most commonly undertaken by Parliament. As the representative body of the “communities of the realm,” Parliament ensured that the Crown, the governing institution, had due regard for the liberties of the people. In the British system, Parliament—a composite institution incorporating Crown, Lords, and Commons—was supposed to represent the entire political nation and therefore possessed sovereign authority to legislate on any matter. But the Commons had a special responsibility “to express the mind of the English people on all matters which come before it” and to lay before the Crown “the grievances and complaints of particular interests.”3 Its role was to ensure that new burdens would not be imposed until the Crown provided redress of grievances. The problem today, however, is that with the transition to democracy, the Commons determines the government, which puts obvious strain on its traditional role of guardian.
A modern constitutional settlement required new contenders for the role that must be independent of both the government and the people. Discussion in nineteenth-century European circles focused on whether that status might be assigned to a constitutional monarch, but the contradictions were quickly exposed and, in any case, once modern republics were established, such considerations were overtaken by events.4 A similar debate had taken place in the United States, where it had initially been felt that the president might assume such a role. But after the formation of political parties that vied for the office, this became implausible, and the task had quickly fallen to the Supreme Court. In Europe, the legacy of courts as agents of the Crown made that transition more treacherous.
These issues were acutely felt in the turbulent regime of Weimar Germany. The vexed question of who guards the Constitution became the subject of a seminal debate between two of its leading constitutional lawyers, Hans Kelsen and Carl Schmitt. Borrowing from Constant, Schmitt argued that the neutral power to protect the Constitution belonged to the Reich president. Kelsen, however, maintained that the role of guardian was the preserve of a constitutional court authorized to ensure conformity with constitutional requirements. Their debate was actually at cross-purposes since Schmitt’s points were directed at the maintenance of the constitution of the state while Kelsen focused on preserving the normative scheme of the Constitution establishing the office of government. But their debate remains instructive.5
For Schmitt, the key issue was to identify some power that “is present and indispensable” as well as “discreet and unobtrusive,” and active as a neutral power “only in a state of emergency.” This neutral power was purely to preserve: “it is not to compete with the other powers with a view to expanding its own influence.” Schmitt argues that this is a role for the Reich president with extensive powers to declare a state of emergency. The president must hold powers independently of the legislature to act as its counterweight, be independent of party affiliation, and swear an oath to preserve the Constitution.6
Kelsen approached the question differently. Having helped draft the Austrian Republic’s Constitution of 1920, which gave a constitutional court power to strike down legislation, and having served as a judge on that court until 1929, his main concern was with the conundrum of “the legality of law” when a constitution is enacted and a system of constitutional review instituted. His answer to the puzzle was that law-making is a matter of degree: “Constitution, statute, decree, act of administration, judicial decision, and enforcement are simply steps in the formation of the will of the community that are typical, given the way in which positive law organizes the modern state.” In relation specifically to the decree, legislation is the creation of law, but since legislation is enacted according to the constitution, legislation also involves the mere application of law.7
On the assumption that the constitution is the highest principle of legal and political order, Kelsen argued there is no good reason why legislation should not be subject to constitutional review. Without this jurisdiction, the constitution would lack the quality of full legal bindingness, a point that becomes especially compelling in a federal state in which governmental functions could not be adequately decentralized without some institution charged with policing these boundaries.8
Schmitt responded by suggesting that Kelsen’s argument might apply to the US system, where the Supreme Court holds a position “unique in all of world history.” But that system stood in “the starkest of contrasts to the states of the European Continent.” He distrusted “unthinking transfers and mythologizations,” arguing that the American system was a special type of “jurisdictional state” that “subjects all public life to the control of the ordinary courts.” For Schmitt, this had resonance “only if we take the term ‘constitution’ to refer above all to the basic rights implicit in a liberal-bourgeois understanding of the rule of law, to personal freedom and private property, which are to be protected by the ordinary courts against the state.” In an explanation that prefigures what I have called Ordo-constitutionalism, Schmitt claimed that Kelsen’s scheme presupposes “a neutral state, a state that does not intervene, as a matter of principle, unless it is for the purpose of restoring the disturbed conditions of free competition.”9
The enormous changes of the twentieth century, Schmitt explained, were the product of a dialectical development of the state running in three modern phases: “from the absolute state of the seventeenth and eighteenth via the neutral state of the liberal nineteenth century to the total state characterized by an identity of state and society.” In the total state that has now evolved, society is subsumed into the state to become “an economic state, a cultural state, a caring state, a welfare state, a providing state,” transforming the state into a self-organized society. The state, no longer materially separate from society, “comes to encompass everything social, i.e., everything that concerns the collective life of human beings.” In this total state, all social and economic problems are political problems. If they were to become issues of constitutional adjudication, what results “would not be a juridification of politics but rather a politicization of adjudication.” Within such a state, “no amount of judicial procedure could veil the fact that such a … constitutional court would be a highly political authority” and, in so burdening it, we “endanger it.”10
This debate took place against the backdrop of extreme political tension that came to a head in 1932 when President Hindenburg’s emergency decree deposed the Social Democratic government of Prussia and appointed federal commissioners to take over their functions. Prussia challenged the legality of this decree in the Staatsgerichthof, the court established to adjudicate disputes between the federal government and the state. The court issued an equivocal ruling justifying the Reich’s assumption of control over Prussia’s governmental functions to protect public security, even though the Prussian government had not breached its duties to the Reich.11 This equivocation marked the beginning of the end. Schmitt’s account, it would appear, was more realistic: the Constitution could not be preserved by a court, although conceivably the regime might have been protected by a determined president. As it turned out, the president’s actual decisions facilitated the emergence of the Nazi regime. But Kelsen’s normative argument was that the problem stemmed from the failure to establish a proper constitutional court under the Weimar Constitution. The future, as we shall see, belonged to Kelsen, but Schmitt’s arguments about the role of constitutional courts in the era of “the total constitution” were to prove prescient.
At the end of the Second World War, many European countries began the long process of reconstruction by adopting a constitution intended to take effect as fundamental law and which equipped the judiciary with the powers of constitutional review. This was a major institutional innovation. Before the war, other than the exceptional case of the United States, there was only the limited experience of Austria and Czechoslovakia on which to draw. In 1920, Austria had been the first to establish a special constitutional court, an experiment that ceased in 1934 when the Dolfuss government acquired extensive emergency powers to rule by decree, making the court redundant.12 Only since 1945 has the role of constitutional guardian been routinely allocated to the judiciary.13
One notable feature of this innovation in postwar Europe is that constitutional review is commonly assigned to a specially constituted court, unlike in the United States, where it proceeds through ordinary adjudicative procedures in courts of general jurisdiction. The Austrian constitutional court was revived in 1945, followed by the establishment of similar institutions in Germany (1952), Italy (1955), France (1958), and, after their transitions from authoritarianism, in Spain (1978) and Portugal (1982). But the era of most rapid acceleration came after 1989 following the communist collapse in Central and Eastern Europe, the establishment of a post-apartheid constitution in South Africa, and the transition from dictatorship to democracy in several Latin American countries. Today, more than sixty states operate constitutional courts.
Not all are based on a single model. The French Constitutional Council is the product of a tradition that rejects judicial review.14 But even within the more orthodox format, there are differences. The Austrian court, for example, is established on formal and limited lines with jurisdictional responsibility over governmental action but only indirectly over the constitutionality of the underlying laws. Without the power to review the constitutionality of judicial decisions in conforming to basic rights, it is not obvious that the court is the guardian of the constitution.15 Contrast Germany, whose constitutional court has ultimate responsibility not only for interpreting the constitution but also for preserving the integrity of the constitutional order. The Austrian model conforms to the principle of checks and balances within classical constitutionalism, but it is the German model, based on the power to determine constitutional complaints, that has proved most influential. The Austrian model entrusts the court with a preservative power, whereas the German model extends the court’s remit to promote the collective values of society.
The celebrated Weimar debate focused on identifying the institution that could prevent erosion of the Constitution by political forces. After the war, the debate took place on rather different premises. An era marked by what Schmitt had called “the total state” saw the emergence not only of “the total constitution” but also of constitutional courts. Their task was to maintain not only a balance of power among governmental institutions but also to protect the regime’s basic values, especially against a threatened collapse of democracies into dictatorship.
This is a dramatic extension of constitutional jurisdiction. But we should not overlook its impact on regimes operating under common law or on those—as in the United States—who still entrust constitutional responsibilities to courts of general jurisdiction. Operating on the principle of parliamentary supremacy, these regimes have nonetheless recently adopted charters of basic rights that have transformed the constitutional role of their courts. Starting with Canada in 1982 and New Zealand in 1990, the United Kingdom followed suit in 1998, as did Israel which, having inherited a British-style system of parliamentary government, adopted two new Basic Laws in 1992 that had a similar impact.16
In these regimes, the growth in constitutional litigation has meant the creation of special legal procedures, such as a streamlined application for judicial review. With the growing constitutional caseload, apex courts have had to take control of their dockets, resulting in the rapid increase in constitutional cases determined by supreme courts over the last thirty years.17 In regimes founded on general jurisdiction, supreme courts are being converted into de facto constitutional courts.18 In their method of working and their style of judgment, these supreme courts now operate in ways similar to specially established constitutional courts.
Postwar developments, touted in the name of strengthening constitutionalism, have resulted in scores of countries instituting constitutional reforms that have, in Ran Hirschl’s words, “transferred an unprecedented amount of power from representative institutions to judiciaries.”19 Kelsen’s case for the court as guardian of the constitution has evidently prevailed, but it succeeds alongside Schmitt’s claim that this must lead to a politicized judiciary exercising a politically contentious constitutional jurisdiction. The result is that the guardian of the constitution becomes in effect its master, and arguably undermines rather than safeguards the democratic foundation of constitutional democracy. Why has this happened?
The dramatic expansion of constitutional jurisdiction presented courts with public policy questions that a generation ago seemed well beyond judicial competence and more appropriately determined by legislative and executive bodies. The reasons for this global expansion of judicial power are multifaceted.20 But the development is undoubtedly linked to the emergence of “the total constitution,” that is, the sense that the adopted constitution now expresses the constitution of society. With the increasing juridification of social relations in the second phase of modernity, a greater range of political and social issues demand judicial resolution. The driving force is an ever-expanding conception of constitutional rights.21
The main task of the modern constitution as originally conceived was to protect a special set of individual interests from coercive governmental interference. These were the foundational values of civil and political rights—rights to life, liberty, and property—upon which were built the freedoms of speech, religious worship, expression, and association. Protecting Locke’s negative freedoms by creating a zone of individual autonomy insulated from public interference, they formed the central building blocks of a system of limited government.
This conception of basic rights has since been overhauled, and its method of protection radically reformed. It has come about in three stages. First, courts have fashioned a jurisprudence of rights that imposes positive obligations on public authorities to protect negative rights. These protective duties correlate to the idea of the constitution as an “objective order of values.”22 For freedom of expression to be made a reality, for instance, it is not enough for the government to allow the right of demonstration. It must also require public authorities to facilitate the assembly and provide the necessary protection for safety. Secondly, through what is called the “horizontal effect” of rights, courts ensure that private individuals do not violate the rights of others, in which respect charters of rights might not only bind public authorities but also indirectly apply to individuals.23 Thirdly, recent constitutions often include a range of social and economic rights, such as access to food, water, housing, health care, social security, and education. To be effective, such rights must directly impose duties on public authorities.24 Each of these strands contributes to the proliferation of rights claims. As institutionalized expressions of Rousseau’s concept of equal liberty, they promote an aspirational constitutionalism that imposes new burdens on constitutional courts.
These radical changes to the meaning of constitutional rights raise many interpretative challenges that will be examined in Chapter 10. But they have also had a major impact on the way constitutional courts operate. One effect is that almost any interest can now be reformulated as a right. Here, courts have followed the German Federal Constitutional Court in abandoning any test to distinguish a mere interest from a constitutional right. In sketching the global model of rights that has emerged, Kai Möller resists the conclusion that all interests are now converted to rights, arguing that the lengthening list of rights can be subsumed under “one comprehensive prima facie right to personal autonomy.” Yet there can be no doubt that this leads both to the blending of ethical and legal conceptions of rights and to an enormous extension of the court’s jurisdiction. A comprehensive right to autonomy, Möller concludes, “would avoid the possibility of unjustifiable and unanticipated gaps, in part by deliberately releasing judges from the interpretative constraints imposed by detailed and sometimes unfortunately framed constitutional provisions.”25 The possibility that the constitution under which we live is whatever the judges say it is acquires heightened significance.
The implications of this juridical revolution are directly addressed by Mattias Kumm. Just as Schmitt claimed that the twentieth-century state had become a total state, Kumm argues that in the twenty-first century we enter the era of the total constitution. Whereas in a total state, every aspect of social life can be politicized, in the total constitution, every aspect of social life can be constitutionalized. In the total constitution, rights still accord protection against government, but they also provide a way “to constitutionalize all political and legal conflicts” by establishing the general normative standards for the resolution of all legal and political conflicts. The court now acquires the authority to pronounce on “what constitutional justice requires.”26
The total constitution signals the transformation of the legislative state into a juristocracy. This is a regime in which judges perform the critical role of ensuring that all powers are exercised with due respect for constitutional values. Since the legitimate purposes of public action are now inscribed in the principles of the adopted constitution, legislative activity is converted into a type of executive action: “Democratic politics, executive decision-making, and ordinary judicial decision-making becomes constitutional implementation, subject to the supervision of a constitutional court.” Kumm further argues that there is no reason why private law should not be constitutionalized: conceptually, it qualifies “as a branch of applied constitutional law.”27 For Kumm, Schmitt’s concept of the total state resulted from the decline of classical liberalism and led, through regulation, to the politicization of private law. Such legislative interferences must now be constrained by constitutional rights: the total state must be complemented by the total constitution.
Under the total constitution, legislatures draft the laws, but courts have an “editorial function as veto players.” They provide a forum for review of legislative action by affected individuals, with the language of rights being employed to protect their interests. This, argues Kumm, simply fulfills the revolutionary promise of the Enlightenment tradition. Consequently, “those who lament the demise of democracy and the emergence of juristocracy may be guided by mistaken ideas both about the point of rights and the appropriate understanding of democracy.”28 Like Rubenfeld, Kumm equates constitutionalism with democracy.
Kumm explains that, far from being neutral, the total constitution exists to protect specific values. It can therefore prevent “radical political change by entrenching its basic structural features—constitutional rights, democracy, and the rule of law among them—precluding their abolition by way of constitutional amendment.”29 One illustration is Germany’s “eternity clause,” which prohibits amendments to certain clauses of its Basic Law. Far more significant, however, are prohibitions on the power to amend that have been devised by constitutional courts. Foremost amongst these is the “basic structure doctrine” formulated by the Supreme Court of India, which holds that no amendment can abrogate or alter the Constitution’s core features, including constitutional supremacy, the rule of law, the separation of powers, judicial review, judicial independence, federalism, and secularism.30 This mighty doctrine has influenced the formation of analogous concepts in Asia, Africa, and Latin America.31
This global trend of judicial empowerment through the constitutionalization of rights is one of the most important governmental developments of the contemporary era. As states have either adopted new constitutions or revised them to provide a charter of rights, they have strengthened the volume, scope, and intensity of judicial review. This has been accompanied by removing self-imposed limits on jurisdictional controls, relaxing standing rules, considering moot questions, and effectively abandoning the political question doctrine. Armed with newly acquired powers, courts are resolving a range of political and public policy questions that not long ago would have been strictly off-limits.
Wielding these tools, they have overturned contentious political decisions on such matters as speech and religion, criminal justice, immigration, health policy, national security, electoral process, fiscal policy, treatment of prisoners, and the legality of same-sex marriage. An ever-expanding constitutional jurisdiction now embraces “matters of outright and utmost political significance that often define and divide whole polities.” These range from banning political parties from national elections to determining the legality of national welfare reform, from determining the constitutionality of a presidential impeachment to establishing the legitimacy of a military coup d’état, from pronouncing on the validity of amnesty laws that protect perpetrators of human rights violations to determining which parts of the state may legitimately secede.32
What is driving this rights movement? Hirschl offers an answer, arguing that political, economic, and legal elites either initiate or acquiesce in these reforms because they “estimate that it serves their interests to abide by the limits imposed by judicial intervention in the political sphere.” Constitutionalization, he maintains, depends on the interplay between three key groups: political elites seeking to preserve their hegemony by insulating certain policies from political change, economic elites who see it as a way of protecting the market-based economic order, and judicial elites, for whom enhanced constitutionalization increases their political influence.33
Presenting four case studies—Canada, New Zealand, Israel, and South Africa—Hirschl argues that although the rights revolution has had a “transformative effect on political discourse,” its impact on “progressive notions of distributive justice is often overrated if not outright negligible.” Far from being “a reflection of a genuinely progressive revolution,” it is a form of “self-interested hegemonic preservation.”34 White elites in South Africa discovered the virtues of judicial review when apartheid was collapsing. After having opposed judicial review for decades, Israel’s Ashkenazi bourgeois elite embraced constitutional rights when the electoral balance was shifting. That is, even when wrapped in the rhetoric of aspirational constitutionalism, the rights revolution works primarily to bolster liberal elites against political change that threatens their status.
Hirschl’s account is not definitive. His causal claims have been doubted, and his account of the impact of global developments is limited. Other comparative studies have argued that the rights revolution originates in civil society pressures from below rather than leadership initiatives from above.35 But in shifting the focus toward social, political, and economic factors, he points in the right direction.
Can the establishment of a superior constitutional jurisdiction in a democracy ever be justified? If the role of such a court is just to protect the primacy of the constitution as an expression of the constituent power of the people, the case would be unanswerable. As Hamilton recognized, constitutional review is essential because if legislation contrary to the constitution were valid, the deputy would be placed above the principal, the servant above the master, and the people’s representatives made superior to the people themselves. But recent developments indicate that the matter is not so straightforward.
The constitution, Laurence Tribe asserts, now “floats in a vast and deep—and, crucially, invisible—ocean of ideas, propositions, recovered memories, and imagined experiences that the Constitution as a whole puts us in a position to glimpse.”36 But—also crucially—it is the judiciary and not “us” who “glimpse.” To Bertolt Brecht’s question: “All power comes from the people, but where does it go to?,”37 we are discovering a disconcerting answer. The constitutional role of the judiciary can no longer be comfortably placed within the classic scheme of the separation of powers. We have traveled a long way from Montesquieu’s assumption that, among the three powers, that of judging is null. Judges have become the arbiters of constitutional meaning. It is true that such power is subject to institutional constraints: courts have no independent power of initiative, they must restrict their decisions to the issue at hand, and they must conform to the conventions of rational argumentation. But judges now have the power to determine the conditions of “political right,” and in so doing they have arrogated the critical role of overseeing the political process.
Their role in regulating democratic will-formation is particularly contentious. Issues that go to the core meaning of a constitutional democracy now occupy the attention of constitutional courts. The US Supreme Court has been in the vanguard of reshaping the law on such matters as campaign financing, political corruption, gerrymandering, and the redrawing of electoral districts.38 Where they lead, others are following. Constitutional courts are now ruling on a range of political disputes concerning restrictions on the activities of political parties, the tenure of presidents, corruption indictments against heads of state, and the determination of election results.39 The German Federal Constitutional Court, for example, has asserted its authority to determine when and under what conditions Germany’s European Union membership is compatible with its constitutional commitments as a democracy.40 The South African Constitutional Court refused to certify the draft Constitution adopted by the Constitutional Assembly and required revisions to bolster the protection of rights, the first case of a constitution being declared unconstitutional.41 The influence of constitutional courts in shaping the transition to democracy in Central Europe, Latin America, and South Africa has been of pivotal significance.42
Review agencies are clearly necessary to ensure the smooth working of democratic will-formation.43 But whereas this was once the task of independent review commissions, it is increasingly performed by courts. The problem is that democracy is a contested political concept, and lawyers, conditioned to think through the prism of rights, invariably privilege a particular conception. The reprocessing of democratic will-formation through the language of rights—the rights of speech and association, the right to vote, and the right to political equality—leads to individualization and thus significantly undermines the ability of collective organizations like political parties and interest groups to build coalitions of interests. “Emasculating these organizations in the name of empowering individuals or isolated groups,” argues Richard Pildes, “is confused at best and political suicide at worst.”44 It leads down a dangerous road in which the abstract idea of a rights-respecting democracy is realized only when political parties have been abolished. This is, of course, not the whole story.45 But the general trajectory taken by the constitutionalization of electoral politics now threatens to advance constitutionalism at the expense of constitutional democracy.