#14942 - Judicial Review - Constitutional Theory

12. Judicial Review and Democracy

Preliminary points

• Whether JR of legislation is desirable — in a particular constitutional setting, or normatively (in the sense of preferring one constitutional setting over another)

  • If yes in normative sense — whether JR of legislation requires that

    • Broad constitutional terms be enacted and read in a moral way; or

    • General principles be extrapolated from specific provisions (as in France) or under the common law generally

• Scope of rights to be protected the subject of another substantial debate

  • Uncertainty in that argument sometimes treated as an answer to JR itself — will only serve to distort rights — therefore better to leave to flexible legislature

  • Some rights are in conflict — eg negative (liberty) v positive (socioeconomic) rights

  • Broad rights (property, free speech) v tempered rights (political communication, acquisition of property on just terms)

• “Watershed” social development moments <> insurance of minimum standards of liberty

  • Waldron often uses Roe v Wade on abortion, or legalisation of homosexuality as yardstick

    • Mabo & Native Title? Better created by legislature but Keating himself said better to come from Courts — is this too far?

    • South Korean court ruling criminalisation of adultery unconstitutional — 1953 Statute & 5^th challenge — citing social change & reduction in prosecutions

      • Courts not a multipurpose tool — eg Khmer Rouge trials as truth commission

  • <> Kable, or proceeds of crime, or incremental abrogation to jury trial

    • Perhaps JR more suited to the latter?

Assumptions for arguments on either side —

Functioning society & institutions—

• Deliberative democratic legislature with universal adult suffrage and safeguards such as bicameralism (arguments do not apply with equal force to monarchies)

  • Problems with this majoritarian premise

• Independent & unelected judiciary, specifically trained or qualified & immune from political influence — with judges who are conscious of legitimacy and of rights

• Community that is generally committed to rights & the common good, but who disagree about the appropriate scope of rights

  • Disagreement may only arise in particular case — judiciary has advantage of determining at that point

  • Disagreement, even if general & principled, may not arise on particular low-profile but insidious legislation — judiciary has advantage of determining on motion of any citizen — in that way more democratic

• IE — question is which of two institutions should have determinative say on debates about appropriate scope of rights

<> Is judicial review a constitutional mechanism required only in societies where ordinary democratic functions are bound to fail?

• akin to or perhaps better remedied by supermajority / representation rules in Switzerland etc

• dysfunctional legislatures, corrupt political cultures, legacies of racism or prejudice

Nature of judicial review

• JR of legislation <> of executive action

  • Executive necessarily circumscribed by higher power — but not necessarily so where derives authority directly from Constitution: Williams (No 1)

• Strong<>weak JR

  • Strong JR — refusal to apply, modification of meaning or striking down legislation

  • Weak JR — eg UK declarations of incompatibility triggering legislative reaction / NZ & Vic interpretive provisions (cf Momcilovic)

  • Canadian middle ground — Courts can strike down for inconsistency with Charter, unless legislation expressly overrides it (rarely does so)

    • Waldron says only slightly insulates from argument from democracy — but would seem to make a considerable difference

• JR for rights <> JR for distribution of power (eg within federation / art 34&37 disputes in France) — necessary to have some arbiter but Waldron opposes this too

  • Surely some level of institutional JR inevitable — eg do legislatures have the power to abolish courts?

• Ex post <> ex ante review

  • Ex post creates problems with certainty <> ex ante lacks individual application & more prone to error

• Ordinary courts <> specialised constitutional court (eg France)

Process<>Outcome/substance || Instrumental<>non-instrumental

• Raz prefers outcome-related reasons

• Methods of maximisation —

  • Best outcome without sacrificing minimum of process

  • Best process without sacrificing minimum of outcome

  • Maximisation of the two

• Commonly suggested that instrumental arguments favour JR <> non-instrumental (process) arguments against — but both arguments cut both ways

Procedure —

• Waldron — Democracy, independent of its outcome — gives every vote equal weight

• <> Dworkin — procedure is appropriate method of making judgments about substance — procedures are assessed by their outcomes

  • Dworkin acknowledges that legislatures are guardians of the constitution too

Substance — respect for fundamental rights

• Outcome/substance cannot be grounded in any particular political outlook — but rather prefer structure that is more likely to give “good” result, whatever that might be

• Necessarily requires degree of sacrifice of democratic self-government — democracy requires equal concern & respect for citizens and is something more than majority rule (majoritarian premise)

  • UK<> US — should majority via parliament determine the scope of those rights?

• Therefore decisions that deny fundamental rights are undemocratic as denying minimum level of concern & respect for minority, even if endorsed by majority: Dworkin

• Remains to consider which institution is most likely to meet those substantive and procedural ideals

Chicken & Egg situation

• Procedure comes first — one man one vote is an absolute moral good, whereas fundamental rights require evaluative judgments — Utopian benevolent dictator would nonetheless be bad outcome

  • No empirical premise to suggest that democracy produces objectively “best” outcome in every case — some citizens hopelessly uninformed etc — but no means of agreeing on the appropriate procedure so adopt formal equality at the head of the stream

  • But procedure may not be an absolute good— premise is equal franchise, but no unanimity on that either — doesn’t extend to children, prisoners, mentally ill, etc; compulsory voting; in the past to property owners, in UK to immigrants, members of Commonwealth, etc

• Substance must come first —

  • Procedure argument is that—

    • People are free when they do not submit to the will of another, but consider that they are part of the governing body

    • Or more modestly — can be convinced to obey a law because of the process by which it was adopted rather than its substance

  • BUT — the reason we accept decisions based on process is because we accept we may be wrong — precisely because the majority disagrees with us

    • Same characteristics of legislature give confidence in process and in outcome — artificial to divide up

    • If no doubt is left (eg in genocide situation), then process no longer makes legitimate — eg if group of terrorists use majority vote to determine what torture to use, not legitimised by allowing victim to vote

    • Therefore arguments from substance must prevail

  • But if democratic legitimacy depends on substance —

    • Dworkin — if majority votes for law infringing a right & that right is essential to legitimacy of system, then minority can ask for adjudication (by court or by legislature)

    • But there is a disagreement about the scope & dispensability of the right — so depends on whether court gets the decision correct — can’t judge outcomes but can judge process

    • IE back to substance prevailing

Process-related / non-instrumental arguments

Liberté — Conception of freedom

• People are free when they can participate in ruling body & are not ruled by external monarch or aristocracy

  • Judges can be equated to aristocracy

    • Although legislatures also impose will of others on us

    • And judges are appointed & given power by the Constitution which we enact and are free to amend

  • Therefore if majoritarian premise is overridden in a particular case or constitutional setting, it is a cost in freedom/liberty as compromises self-government

• Alternatively — self-government is recognising authority as a people to act on certain terms — includes giving role to a judiciary

  • Any conception of the State gives some role

• ME: not a meaningful definition of freedom — better reflected in secondary stage by scope of actual legislation — people who shackle themselves are nonetheless not free

  • If freedom is to be abstracted to the constitutional level, why not abstract it to the pre-constitutional level — people are always free to petition an amendment or stage a revolution

    • Freedom under legislation, to conduct our affairs

    • Freedom under the constitution, to govern as we please

    • At large, to amend the constitution as we please

      • This last point is the difference between tyranny or colonial rule and judicial supremacy — arguably a people cannot be free unless they have power at all levels

    • We place limits on our own freedom at each level — by laws restricting conduct, by procedural & substantive limits on parliament, and in the manner of amendment (not by violence or revolution)

  • Freedom & liberty are relative and not absolute goods

• Fraternité?

  • JR of legislation can spark as much public debate about morality as legislative action — but different scope for individuals to engage & influence

Egalité — Democracy is more than majoritarianism

• Ekins — Representation & Judicial Supremacy — JR is not the people ruling...