A constitutional claim is justiciable when the appropriate court or courts will decide it on the merits. The term is more useful in its negative sense: cases or issues are nonjusticiable when courts will refrain from deciding them on the merits, asserting for various reasons that the cases or issues are not suitable for judicial resolution. The question of justiciability is bound up with the scope of constitutional review generally, and so with the sources and constitutional delimitations upon constitutional review.
Constitutional review can be acknowledged in the constitution’s text, as in nearly every modern constitution, or can be implied from the constitution’s structure, as in the United States. The language creating constitutional review can be more or less detailed, more or less ambiguous. What the constitution says about the scope of constitutional review will have implications for a system’s approach to justiciability: a broad definition of constitutional review will fit well with a narrow or non-existent definition of nonjusticiability; conversely, a narrow definition of constitutional review will fit well with a broad definition of nonjusticiability. Further, the constitution’s substance might have similar implications. The more detailed a constitution is in dealing with a particular subject, the less room there might be for constitutional review, and the greater the inclination to describe constitutional challenges to legislation dealing with that subject as nonjusticiable. Yet, a detailed constitutional provision limits the law-makers’ discretion, and courts might be willing to find disputes over ‘abuse of discretion’ justiciable because they believe that the details provide them with clear guidance for resolving the controversy.
Consider here Article 10 of the Constitution of Costa Rica, which provides, ‘[a] specialized Chamber of the Supreme Court of Justice shall declare, by the absolute majority vote of its members, the unconstitutionality of provisions of any nature and acts subject to Public Law.’ Similarly, Article 93 of the German Basic Law lists a large number of bases for constitutional review, and uses the terms ‘the formal or substantive compatibility of federal law or Land law with this Basic Law’, and ‘alleging that one of his basic rights … has been infringed.’ These terms suggest rather strongly that Costa Rica’s and Germany’s constitutional traditions will be unreceptive to claims of nonjusticiability, and so it has proven, with the German Constitutional Court ruling on the merits on such questions as whether the deployment of German armed forces in support of UN operations in Iraq required consent by the legislature.1 The more parsimonious language of the US Constitution, which gives the national courts jurisdiction over ‘cases and controversies’ involving ‘this Constitution,’ has been used to generate a robust doctrine of justiciability, with the courts regularly rejecting constitutional challenges to US military involvement abroad.
The idea of nonjusticiability has its roots in the notion of prerogative power, which is a power unconstrained by law. Courts used to dismiss challenges to exercises of prerogative power, and came to attach the label ‘nonjusticiable’ to such dismissals. One way to interpret this notion of unconstrained power is that courts could just as easily have said that the challenges failed on the merits, because the actions were not contrary to law, there being no law to apply.
In the most general sense, constitutionalism is the idea that all public power must be constrained by law. For constitutionalists, there is always law to apply when someone challenges an exercise of public power as unconstitutional. Many constitutional systems thus reject the very idea of nonjusticiable constitutional challenges.
Some systems, though, retain that idea, classifying some constitutional challenges— sometimes involving national security and foreign affairs—as nonjusticiable. For example, in some constitutional systems such as Japan, statutes implementing validly ratified treaties can rarely be challenged on constitutional grounds (Ejima).
These systems divide subject matters into two classes, the justiciable and the nonjusticiable. Two loose uses of the term ‘justiciability’ should be noted:
Three cases posing closely related substantive questions illustrate the point. In the 1967 Asahi case,2 the Supreme Court of Japan heard the claim of a tuberculosis patient who was seeking restoration of a monthly allowance he had been receiving from the administration and which had been interrupted after the patient’s brother started sending him money in excess of the allowance’s amount. The patient argued that the allowance amount, determined by the administration 11 years before litigation started, was insufficient to maintain the constitutional right to ‘healthy, cultural, and minimum standard of living’ (Art. 25). The Court held that this constitutional standard did not create any direct right but generated a duty on the state, and that the right only materialized through the provisions of the statute setting up the basis for the determination of allowances. It said that the concept of ‘healthy, cultural and minimum standard of living’ (reproduced in the statute) was both vague and relative, and could only be determined after taking into consideration systemic elements such as the development of the economy and the national culture. This is why the authority to do so was ‘first vested in the discretionary power of the Minister of Health and Welfare, and […] his decision [did] not directly produce an issue of illegality.’ While the Court did not deny that it had power to review the Minister’s decision, it created a very lenient standard. Only if the administration established extremely low standards or ignored the real standard of living would the state incur responsibility, something that, after a very brief analysis, the Court found did not happen in the case. Outside that extreme possibility, the issue was political (not legal), in the sense that ‘such decision might produce an issue of propriety which might lead to a political debate about governmental responsibility.’
In the United States, Dandridge v Williams3 held that a state program establishing a ‘standard of need’ for the protection of dependent children, and imposing a maximum monthly allowance per family without regard to family size or need, did not violate the Equal Protection Clause of the Fourteenth Amendment. It claimed that in the area of economics and social welfare, the state only had to demonstrate that the classification in the program has some ‘reasonable basis,’ and that it was not enough for the plaintiff to show that the classification was not ‘made with mathematical nicety or [that] in practice it result[ed] in some inequality.’ Writing for the Court, Justice Stewart said that the Equal Protection Clause does not give federal courts any power to dictate ‘their views of what constitutes wise economic or social policy’ to the states.
While the level of review chosen by both Courts in Asahi and Dandridge was similarly lenient, only the Japanese Constitution recognizes a social right, making the type of intervention ‘in the area of economics and social welfare’ that the US Court deemed as purely political a more directly constitutional one in the case of Japan. Unlike both Asahi and Dandridge, the German Constitutional Court devised a more stringent test in the recent Hartz IV case.4 The Court was called upon to review a new social program enacted by parliament merging different forms of social assistance ‘in the shape of a uniform, means-tested basic provision for employable persons and the persons living with them in a joint household’. It decided to strike down provisions of the program concerning the standard benefit for adults and children for failing to comply with the constitutional requirement to protect human dignity following from Article 1.1 of the Basic Law (Grundgesetz), in connection with Article 20.1, establishing that the country is a democratic and social state. The Court said that these principles could not be ignored, although, similarly to Asahi, it was incumbent upon the legislature to both give it concrete shape and update it. The Court argued that the exact quantification of the subsistence minimum did not follow from the Basic Law, and that substantive review could only extend to ascertaining whether the benefits were manifestly insufficient.
Unlike Asahi, though, the Court said its mission was to review the procedural grounds on which the assessment of the benefits was made, to determine ‘whether they do justice to the objective of the fundamental right.’ For this, the Court devised a four-pronged method, by which it would determine whether the legislature had: (a) ‘taken up and described the objective of ensuring an existence that is in line with human dignity’; (b) ‘chosen a fundamentally suitable method of calculation for assessing the subsistence minimum’; (c) ‘completely and correctly ascertained the necessary facts’; and (d) kept ‘within the boundaries of what is justifiable within the chosen method and its structural principles in all stages of calculation, and with plausible figures.’
It is on these procedural grounds that portions of the statute were found in contradiction with the principle of human dignity, since, without providing any justification, parliament had employed a valid statistical method to ascertain some of the benefits but had abandoned it to establish others. The Court claimed, in particular, that the determination of the social allowance for children under the age of 14 was not based ‘on any justifiable method’, and added that parliament ‘had not ascertained the specific need of a child in any way.’
These cases illustrate the connection between justiciability as a shorthand reference for a lenient standard of review and the extent to which a constitutional court is willing (or unwilling) to engage in interpretation to fill out constitutional provisions that are not defined in precise textual terms, and therefore between the idea of justiciability and judicial willingness to interpret the constitution ‘creatively’.
An additional consideration is sometimes classed with justiciability. In some constitutional systems there are no or few limits on the subject matters that courts will review on the merits, but the courts will sometimes insist that the litigant presenting the claim be the ‘right’ litigant or the ‘best’ litigant available, or that the claim not be presented too early or too late. In the United States these doctrines are labeled ‘standing,’ ‘ripeness,’ and ‘mootness,’ and have been applied with varying rigor in different historical eras. Other systems such as India’s grant broad ‘public interest standing,’ allowing non-governmental organizations to present constitutional claims, usually on the implicit theory that the beneficiaries of the asserted constitutional rights lack sufficient resources on their own to pursue constitutional litigation. Related, some constitutional systems authorize broad jus tertii standing, allowing a litigant who is adversely affected by some policy but does not suffer the kind of harm associated with a constitutional violation to challenge the policy on the ground that the policy is unconstitutional as applied to some other party not before the court. Systems of constitutional review that adhere strictly to the idea that every subordinate norm must be consistent with hierarchically superior norms tend to insist that the norms themselves be assessed to determine their consistency with the constitution, without concern about the factual circumstances in which the subordinate norms are applied. Such systems tend to minimize the scope of ripeness concerns, and treat standing as, at most, an instrumental doctrine aimed at providing the constitutional court with the best possible range of legal arguments. Constitutional systems that give their courts an advisory jurisdiction or allow constitutional review prior to a statute’s effective date have no or extremely weak ideas of ripeness, but they may invoke concepts similar to mootness when they require that constitutional challenges be brought only before a statute takes effect. As in France before constitutional revisions in 2008, such a requirement can flow from express jurisdictional limitations on the constitutional court’s power, yet such limitations are not conceptually strongly distinguishable from justiciability limitations inferred in other constitutional systems from the general structure of constitutional review.
In careful use, the term ‘justiciability’ should probably be reserved for cases in which the constitution does supply a legal rule constraining the exercise of government power, and yet the courts nonetheless refrain from disposing of claims that an exercise of such power violates the legal constraint on power.
Courts that find challenges nonjusticiable in this sense typically offer one of two types of argument for their position. In general terms the ideas are, first, that sometimes judicially manageable rules concretely implementing general constitutional norms are unavailable (or that the rules that the courts could implement impose too heavy a price on other constitutionally relevant values), and second, that sometimes legislatures and executive ministries require discretionary power to deal with important policy matters.
The first argument may be illustrated by the AWACS II case, where the German Constitutional Court said that legislative consent was needed for military deployments since ‘the individual legal and factual circumstances indicate[d] that there [was] a concrete expectation that German soldiers [would] be involved in armed conflicts.’5 This is hardly a standard that courts can reliably invoke, for military conditions change rapidly, sometimes making armed conflict more likely, sometimes less. Yet, another way to approach the decision is that nonjusticiability in this case would have meant authorizing the federal government to engage in military conflict in the absence of the legislative involvement that the Constitutional Court believed was required by the Basic Law.
As to the second argument, broad discretion is not necessarily incompatible with justiciability, as long as the courts use appropriately generous standards in reviewing constitutional challenges to policies of this sort. Consider again the claim that treaties and statutes implementing them should be immune from judicial oversight. Courts could address constitutional challenges to treaties by distinguishing between justiciable challenges to procedure and nonjusticiable ones to substance, or could use a generous standard of review that would invalidate treaties on substantive grounds only if they seriously compromise a core of truly fundamental rights.
A third area where the government often requires a broad scope of discretion, immune from relatively immediate judicial oversight, is that meant to address internal crises or emergencies. Cases in this area abound where courts defer to the government, because they think the government needs special powers to deal with crises and there are no manageable standards to decide, or fear its retaliation against them if they dared restrict those powers. Sometimes, though, courts will intervene even on substantive grounds. An example is the Colombian Constitutional Court’s refusal to defer to the government’s rationale for declaring a state of emergency in the country (estado de conmoción interior). In a 1995 case,6 the Court had to review an executive order meant to strengthen the criminal justice system to deal with what the government argued was a rise in crime and violence in the country. The order gave the executive a blanket authorization to create new crimes, increase penalties, and reform the jail system. The Court struck down the executive order, finding the government’s rationale inadequate. It recognized that violence was a ‘rooted pathology’ in the political system. Yet, it argued that ‘the government itself had not produced evidence supporting the facts it allege[d] as the basis of the [measure]: the government’s figures [did] not show the alleged increase in crime.’ The Court added that ‘the government itself admit[ted] that the facts alleged [were] permanent’, so the declaration of emergency, meant to target exceptional short-term situations, was not the proper means for addressing the crisis. While the Colombian Constitution itself regulates these emergencies and subjects them to a judicial review process, courts are often more deferential to the government when dealing with the handling of crises.
A more detailed discussion of the previous arguments follows.
Judicial enforcement of the constraints the constitution places on government power might be thought to pose significant risks, of a sort that the constitution itself treats as relevant. These risks take three forms.
Yet again, even though it is true that courts can err in their interpretations of the constitution, namely, in their decisions of whether there is a constitutional violation, the relevant question is what the greater risk is. As Fallon has argued, it may be better to allow the possibility of judicial error that judicial review entails if the goal is to minimize rights violations (Fallon). The bigger risk, Fallon argues, may be the under-enforcement of rights, not their over-enforcement. This is so because rarely do courts violate rights when they wrongly strike down constitutionally valid dispositions (at least when these dispositions are not implemented especially to solve a rights violation). Against this it might be said that over-enforcement of rights limits the government’s ability to pursue desirable social policies that, were the constitution interpreted ‘correctly,’ are constitutionally permissible. As Tushnet has argued, Fallon’s position rests on the proposition that less government is generally to be preferred over more government, a proposition to which only some constitutional systems are committed (Tushnet). But as González-Bertomeu has argued, Fallon’s argument might apply where the constitution imposes duties on the legislature (a situation Fallon does not consider). In such cases, the courts might review and invalidate as inadequate statutes purporting to fulfill a constitutional requirement. Whether and how often judicial errors will violate rights or obstruct the implementation of constitutionally permissible policies that do not themselves violate rights is ultimately an empirical one. In some situations judicial intervention, while in some sense mistaken, would not be introducing an original violation because some rights violation or constitutional omission existed before the court’s action. Perhaps taking all possible types of court intervention into account and comparing such interventions with refusals to intervene, on nonjusticiability grounds for example, may suggest that the overall level of rights violations can still be lower when courts do intervene (González-Bertomeu).
On the other hand, whether compliance with courts weakens politicians’ responsibility for interpreting the constitution ultimately presents an empirical question. It is certainly conceivable that politicians within a political system operating with judicial review will have few incentives to think hard about the constitution, since courts would see to it that violations get solved. But it is at least equally conceivable that without judicial review they would have the same incentives (or even fewer incentives) to pay attention to the constitution. The fact that courts would not be there as a final check to politicians on the constitutionality of their actions may simply mean that politicians will not devote much attention to the constitution in the first place. As noted below, much here will depend on the extent to which a culture of constitutionalism is embedded in the politicians’ constituents.
The second type of argument for nonjusticiability rests on the idea of ‘political constitutionalism,’ as distinguished from ‘legal constitutionalism.’ Legal constitutionalism, the predominant view among constitutionalists, is that all constitutional provisions must be enforceable by the courts: Ubi jus ibi remedium (where there is [constitutional] law, there is a [judicial] remedy). This idea has its greatest purchase when constitutions specify the existence and scope of constitutional review, and it is probably no accident that the United States, which applies doctrines of justiciability to limit constitutional review with some regularity, has a constitution from which the power of constitutional review must be inferred.
In contrast to legal constitutionalists, political constitutionalists argue that legislatures and executives can do as good a job as courts in enforcing constitutional limits on their own power, at least with respect to some problems and under some circumstances. The core idea of political constitutionalism is that legislatures and executives often have political incentives to respect constitutional limits on their own power. Even if they care only about election and re-election, in the end they might have to worry that their constituents will punish them politically for adopting policies that violate the constitution as the constituents understand it. Opposition parties can use constitutional arguments to mobilize their supporters and weaken the majority, and even a majority coalition’s leaders might have to be concerned about defections premised on constitutional disagreements.
Whether this system of incentives is sufficient to minimize constitutional violations (and in particular rights violations) is contingent on many matters of social, cultural, historical, and institutional detail. It may or may not be the case in particular political systems and at particular periods of time. However, a decision whether or not to implement judicial review usually has effects over the future (these decisions are often made at constitutional conventions, and conventions are purposely not frequent). Then it may be natural that the contingent character of the question about political incentives to respect the constitution affects that institutional decision. Moreover, the incentives described may obviously not be enough to protect marginalized voices or rights and interests that are not particularly popular. Further, the limited resources of the legislative agenda may make it hard at times to repeal policies that even a non-negligible portion of the population considers in violation to the constitution. Political constitutionalism might not be a comprehensive alternative to legal constitutionalism, but it might provide an account of why discrete issues might be nonjusticiable—where political incentives exist to keep legislative or executive action within constitutional bounds. For example, the US Supreme Court faced the question of whether a process for removing judges from office conformed to the constitutional requirement that judges receive a ‘trial’ in the Senate when Senate rules allowed testimony to be taken by a committee, which then reported to the Senate as a whole. The Court held that this was a nonjusticiable ‘political question.’ Justice David Souter observed, accurately, that this holding would immunize from constitutional review a decision to remove a federal judge by tossing a coin in the Senate. Against that argument, one might respond that within the US political tradition neither major political party has incentives to act arbitrarily in defining what constitutes a ‘trial’ by the Senate.7 But, an answer to this is that the claim is contingent upon the political system, the period of time, and the issue involved. For instance, even within the US, situations of electoral malapportionment (apart from those stipulated in the Constitution itself) managed to survive for long periods without political parties being interested in or immediately successful in their attempts to change them.
Of the ideas of nonjusticiability described above, only the idea that some exercises of public power are entirely unconstrained by law is in tension with ideas of constitutionalism. Yet, no democratic constitutionalist really believes that law constrains absolutely everything the government does. Something must be left to democratic decision-making; the complete judicialization of policy-making in the name of constitutionalism is unacceptable where central values are not at stake. The tension is resolved by restricting the domain over which the constitution applies; matters outside that domain can be called nonjusticiable. This does not necessarily mean that this domain will be able to be defined substantively, according to a set of subject matters. A view restricting the reach of judicial review can still accept that the constitution potentially cuts across every rule in the legal system, arguing instead that what defines this restricted domain is not the area or subject matter of the rule but the type of issue involved or the intensity of judges’ scrutiny. Highly deferential review is consistent with the idea of legal constitutionalism. More interestingly, political constitutionalism, confined to appropriate domains, can also be an acceptable form of constitutionalism. Relevant matters to consider here are the politically rooted incentives that legislatures and executives have to conform their actions to the constitution. This raises important empirical questions, which will receive different answers in different constitutional systems. Although abstractly there may be an acceptable concept of nonjusticiability, both its precise scope and its instantiation will be different in different political systems.
1 Bundesverfassungsgericht [German Constitutional Court], 2 BvE 1/03, 7 May 2008 reported in (2008) 121 BVerfGE 135 (AWACS II case).
2 Asahi v Japan (1967) 21 MINSHŪ 5, 1043 (Supreme Court of Japan, 24 May 1967). See also Itoh & 2 Asahi v Japan (1967) 21 MINSHU Beer.
3 397 US 471 (1970).
4 Bundesverfassungsgericht [German Constitutional Court], 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09, 9 February 2010 reported in (2010) 125 BVerfGE 175 (Hartz IV case).
5 Bundesverfassungsgericht [German Constitutional Court], 2 BvE 1/03, 7 May 2008 reported in (2008) 121 BVerfGE 135 (AWACS II case).
6 Corte Constitucional de Colombia [Constitutional Court of Columbia], Sentencia C-466/95 (18 October 1995).
7 Nixon v United States, 506 US 224 (1993).
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