BOOK REVIEWS
177
The Character and Legitimacy of Constitutional Review: Eastern European
Perspectives. A review of: Wojciech Sadurski, ed., Constitutional Justice, East
and West: Democratic Legitimacy and Constitutional Courts in
Post-Communist Europe in a Comparative Perspective (Kluwer Law
International, The Hague–London–New York: 2003), 450 pp.
Radoslav Prochazka, Mission Accomplished: On Founding Constitutional
Adjudication in Central Europe (Central European Univ. Press, Budapest–
New York: 2002), 358 pp.
Reviewed by Daniel Smilov*
Constitutional courts have gained considerable prominence in Eastern Europe since the
beginning, in 1989, of the transition period from communism. The invalidation by
judges of acts by democratically elected bodies concerning politically sensitive matters
has, as a rule, been accepted and respected by political actors in the region, suggesting
the successful institutionalization of constitutional review.
Successful institutionalization itself may be seen as an achievement of the region’s
constitutional courts in the rough waters of transitional politics. Yet commentators1
mean something more when they praise the courts: namely, constitutional courts have
contributed in important ways to the consolidation of democracy in Eastern Europe,
and especially to the strengthening of the rule of law.
The two books reviewed in this essay are elaborate attempts to understand the contribution of constitutional courts in the political development of the countries of Eastern
Europe. The volume edited by Wojciech Sadurski, Constitutional Justice, East and West:
Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative
Perspective, will undoubtedly prove indispensable for students of constitutional review.
The volume contains contributions from distinguished scholars, and it covers developments in the major western jurisdictions (the U.S.,2 Germany,3 France,4 Canada,5 and
* Research Fellow at the Center for Policy Studies and Adjunct Professor in the Legal Studies Department of
the Central European University, Budapest
1
See, e.g., Herman Schwartz, The New Courts: An Overview, in EUROPEAN LEGAL CULTURES 445–51
(Volkman Gessner ed., Dartmouth 1996).
2
Martin Shapiro, Some Conditions for the Success of Constitutional Courts: Lessons from the U.S.
Experience, in CONSTITUTIONAL JUSTICE, EAST AND WEST: DEMOCRATIC LEGITIMACY AND CONSTITUTIONAL
COURTS IN POST-COMMUNIST EUROPE IN A COMPARATIVE PERSPECTIVE 37 (Wojciech Sadurski ed., Kluwer
Law International 2002) [hereinafter CONSTITUTIONAL JUSTICE, EAST AND WEST].
3
Klaus von Beyme, The German Constitutional Court in an Uneasy Triangle between Parliament,
Government, and the Federal Länder, in CONSTITUTIONAL JUSTICE, EAST AND WEST, supra note 2, at 101.
4
Marie-Claire Ponthoreau & Jacques Ziller, The Experience of the French Conseil Constitutionnel:
Political and Social Context and Current Legal-Theoretical Debates, in CONSTITUTIONAL JUSTICE, EAST AND
WEST, supra note 2, at 119.
5
Jeremy Webber, Institutional Dialogue between Courts and Legislatures in the Definition of
Fundamental Rights: Lessons from Canada (and Elsewhere), in CONSTITUTIONAL JUSTICE, EAST AND WEST,
supra note 2, at 61.
178
BOOK REVIEWS
Italy6), as well as in the majority of the countries of Central Eastern Europe, plus Russia
and Ukraine, by providing systematized information on the institutional history, structure, powers, and major decisions of the relevant constitutional courts.
The book is probably the first serious attempt to raise the issue of the legitimacy of
constitutional review against the experiential background of Eastern European constitutional courts. The book starts as an intellectual inquiry triggered by a paradox: although
there is a growing understanding of the substantial involvement of constitutional courts
in the policy-making process, including judicial lawmaking, there is no concern in the
region about the risks of this involvement for democracy. Sadurski, in the introduction
and in his own chapter “Legitimacy and Reasons of Constitutional Review after
Communism,” sets the tone for the volume by focusing on the theoretical tension between
constitutional review and democracy; in his view, there is “a persistent and chronic problem of [the] democratic legitimacy of the abstract constitutional review . . . ”(p. 186).
This is a question avoided in Radoslav Prochazka’s Mission Accomplished: On
Founding Constitutional Adjudication in Central Europe—a comparative study of the constitutional courts in Poland, Hungary, the Czech Republic, and Slovakia. The book is
well researched and provides an internally coherent analytical framework. In comparison to Sadurski’s volume, Prochazka is not at all skeptical about the contribution of
constitutional courts to the consolidation of democracy in Central Europe. In a classical consequentialist fashion, he seems to assume that, because the overall outcome is
positive, the interference with the political process should be acceptable from the point
of view of legitimacy.
Sadurski is also ready to consider consequentialist arguments for the justification of
constitutional courts as institutions. The test he offers is whether or not the judiciary
will provide a superior alternative to the legislature in terms of the protection of individual rights and the rule of law (p. 18). It is not clear if Prochazka’s case studies can
support such a strong claim about the contribution of constitutional courts. In the
case of Slovakia, especially during Vladimir Meciar’s rule, the Court did provide services to democratic consolidation when the legislature was failing to do so. In the other
three jurisdictions, it is very difficult to establish whether without a constitutional
court, all things considered, democratic consolidation would have gone better or worse.
Apart from the notorious difficulty with making such counterfactual judgments, a further problem for the implementation of Sadurski’s test is that all the consolidated
democracies in the region have developed constitutional review, making it impossible to
point out a transitional success story without a constitutional court. Yet, Sadurski’s
concerns should be taken seriously; to address these concerns fully, we need a better
picture of what constitutional courts do, and what they have actually done in Eastern
Europe.
1. Political myths of judicial activism
In his excellent contribution to Constitutional Justice, East and West, Martin Shapiro
observes that much of the scholarly debate on judicial review in the U.S. is “highly and
deeply partisan” (p. 40). One feature of this partisan character is the production of
6
Giancarlo Rolla & Tania Groppi, Between Politics and the Law: The Development of Constitutional
Review in Italy, in CONSTITUTIONAL JUSTICE, EAST AND WEST, supra note 2, at 143.
BOOK REVIEWS
179
dominant myths concerning the operation of the Supreme Court, such as the liberal
myth of “substantive economic due process,” according to which, in the period
1890–1937, the Court used the due process clause in order to block economic reforms
(p. 51). Shapiro argues that, in reality, during that period, massive amounts of economic regulation were not struck down by the Court.
Ironically, Shapiro’s own version of Supreme Court history seems to perpetuate the
dominant myths. His interpretation could be summed up as a period of conservative
activism (until 1937), followed by a period of New Deal self-restraint, followed by a
period of liberal activism. The last two generations of constitutional lawyers in the U.S.,
the New Dealers and the generation of the civil rights movement, have been predominantly left-wing, liberal, and generally Democrat-leaning, while the pre–New Deal generation was a generation of conservative, generally Republican economic activism.
This ideological identification, in Shapiro’s view, explains much of the jurisprudence of
the Supreme Court, as well as the attitudes of constitutional lawyers and commentators. The major lesson from the American story, he suggests, is that courts should try to
lay the foundations of their legitimacy in the solid and less controversial grounds of federalism, separation of powers, and the “primitive” (formalistic) rule of law protecting
the status quo and the interests of the powerful.7 Only then will courts be ready to
venture into the controversial area of substantive rights protection, against the will of
economically and politically powerful elites.
Eastern European experience partly confirms this thesis. In countries with aggressive majorities, and where the authority of the court is not firmly established, constitutional judges tend to focus on conflicts between branches of power, stick to a “literal”
interpretation of legal norms, and intervene only to prevent clear abuses of constitutional rules, thus ensuring some “primitive” sense of the rule of law.8 Yet, Eastern
European experience also shows that courts hardly need 150 years (as in the U.S.) of
legitimacy building before they venture into the area of substantive human rights.
For the purposes of this book review, the important element of Shapiro’s analysis is
the recognition of the irreducibly partisan usage of the concept of “judicial activism”
in the United States. New Deal Democrats saw the pre-1937 jurisprudence of the
Supreme Court as Republican activist and, therefore, deplored activism in general. The
subsequent, Democrat-leaning “civil rights” generation of constitutional lawyers tend
to see the activism of the Warren Court and its successors in a positive light, as against
the opposition of a significantly smaller group of conservative, generally Republicanoriented lawyers, who criticize this type of activism and campaign for originalism or
self-restraint.
7
“The lesson instead is that the American Supreme Court eventually was successful at serving the
have nots because it had built up a very long record of successful, moderate service to the haves . . . .”
Shapiro, supra note 2, at 52.
8
For instance, in the case of Slovakia, as shown by Prochazka and by Malová’s chapter in
Constitutional Justice, East and West. See RADOSLAV PROCHAZKA, MISSION ACCOMPLISHED: ON FOUNDING
CONSTITUTIONAL ADJUDICATION IN CENTRAL EUROPE (Central European Univ. Press 2002); Darina
Malová, The Role and Experience of the Slovakian Constitutional Court, in CONSTITUTIONAL JUSTICE, EAST
AND WEST, supra note 2, at 349. In presidential regimes with dominating presidents, courts also
have tried to focus on separation of powers issues rather than rights. For an example from Ukraine,
see the contribution by Kataryna Wolczuk, The Constitutional Court of Ukraine: The Politics of
Survival, in CONSTITUTIONAL JUSTICE, EAST AND WEST, supra note 2, at 327.
180
BOOK REVIEWS
The concept of judicial activism is very important for the contemporary analysis
of constitutional review. Indeed, Prochazka’s case studies are an attempt to depict
the activism of four courts along two dimensions. First, whether or not the courts have
been “prohibitive towards the legislature”; second, whether they have adopted
more “constructivist” or more “preservationist” techniques of interpretation. Roughly,
the first dimension explores the extent of a given court’s antimajoritarianism, while the
second tries to capture the fidelity of judges to constitutional texts.
In describing what courts in Eastern Europe do, Sadurski and many of the contributors to the volume use the concept “activism.” Thus, it is said that the courts in the
most consolidated democracies (Hungary, the Czech Republic, and Poland) are also the
most “activist” (p. 164); that important aspects of the jurisprudence of the Hungarian
Constitutional Court have been called “activist” (p. 195); or that the Slovenian
Constitutional Court has been criticized for some “excessive activism” (p. 243).
What is “judicial activism,” however? My concern is that this is one of the common
constitutional myths, which European scholarship has borrowed from the U.S.
unreflectively.
2. The many faces of judicial activism
2.1. Activism as the enforcement of a political ideology
Judicial activism could be understood as the systematic endorsement by a constitutional court of a particular political ideology—a coherent theory of justice and the
good life. Yet, in this version the mythological character of judicial activism becomes
particularly visible. For instance, in the U.S. context, despite the dominance of liberal
(generally Democrat-leaning) lawyers and ideas in constitutional review since 1937,
there are whole areas of constitutional law that are governed by conservative, libertarian principles—such as the “money is speech” principle concerning campaign finance.
In some other areas, it is difficult to discern a single coherent theory, as Shapiro
observes: “[a]t the moment . . . the Supreme Court is giving little comfort to either those
who would restore judicial protection of the ‘old’ property or those who wish for the
judicial construction of constitutional welfare rights” (p. 45).9
A less ambitious version of the ideological reading of judicial activism is that the U.S.
Supreme Court (to stick to Shapiro’s example) has sided more often with the supporters
of liberal ideas than with their opponents, especially if a long-term point of view is
taken, such as the last fifty years or so. This reading may be weak, however, because
no matter how courts tend to resolve issues, they will side with one political actor or
another. It is difficult to imagine that a court could balance mathematically the occasions when it sides with specific parties or ideologies.
The foregoing discussion has direct relevance for the assessment of the findings in
Sadurski’s and Prochazka’s books concerning constitutional review in Eastern Europe.
It is tempting to conclude that constitutional courts in the region have been “activist”
in the strong sense of endorsing “proreform” ideologies, or siding with “proreform”
9
See also Daniel H. Lowenstein, The Supreme Court Has No Theory of Politics—and Be Thankful
for Small Favors, in THE U.S. SUPREME COURT AND THE ELECTORAL PROCESS 283 (David Ryden ed.,
Georgetown Univ. Press 2002).
BOOK REVIEWS
181
elites. Both of these readings of what has happened contain roughly half of the truth,
which makes them completely wrong. In the jurisprudence of the region’s courts it is
difficult to discern a single, coherent body of ideas that may be called a “proreform”
ideology. For instance, some courts in the region have approved the constitutionality of
lustration, whereas some have significantly limited its scope; some have ruled that certain entitlements and privileges gained during the communist period are legitimate,
while others have allowed the legislature to discontinue them. Further, divergence
exists concerning the scope and protection of different rights, especially welfare rights;
some courts have completely disregarded their existence, while others have enforced
certain rights against ruling majorities. Even within a single jurisdiction it is difficult to
find a constitutional court as an enforcer of a single, coherent “proreform” theory or
ideology.
The Hungarian Constitutional Court has been discussed as the court most oriented
toward theory construction, but even there we can speak of considerable doctrinal differences between the so-called first, or Sólyom, court and its successors; furthermore,
even within the jurisprudence of the first court one could hardly find any comprehensive and coherent proreform ideology. The general lesson from the East European experience, in my view, is that constitutional courts are poor enforcers of comprehensive,
coherent ideologies; they do not attempt to do so, and their jurisprudence usually does
not result in the endorsement of such ideologies.
When it comes to siding with elites favoring reform, the record of the constitutional
courts is again mixed. For instance, Chief Justice Valery Zorkin’s leadership of the
Russian Constitutional Court in the turbulent events of 1993 cannot be described as
siding with the elites in favor of reform.10 Most importantly, constitutional courts in
Eastern Europe have been adjudicators between different ideas regarding the nature of
reform and their respective supporters, rather than between elites in favor and against
reform.11
This leads to the conclusion that Eastern European courts can hardly be seen as
“activist” in the ideological sense of “activism,” described above. There are, of course,
various other ways of resuscitating the notion of “ideological activism.” For instance,
in his concluding chapter to Constitutional Justice, East and West,12 Sergio Bartole
advances the important idea that Eastern European courts have enforced “the principles of the European constitutional heritage, acting as intermediaries between the new
constitutional democracies of Central-Eastern Europe and the principles and values of
the Western legal tradition . . . ”(p. 425).
From these observations, one might conclude that Central Eastern European courts
have been “activist” in the sense of enforcing a common European constitutional
ideology. But this statement would also be incorrect because, whatever else it is, the
“European heritage” does not have sufficient coherence to be called an ideology or
10
Von Beyme, supra note 3, at 316–17.
11
Courts have established themselves as adjudicators and mediators between rival political parties
in most of the countries in the region. See, e.g., Nida Gelazis, Defending Order and Freedom: The
Lithuanian Constitutional Court in its First Decade, in CONSTITUTIONAL JUSTICE, EAST AND WEST, supra
note 2, at 395, 407.
12
Sergio Bartole, Conclusions: Legitimacy of Constitutional Courts: Between Policy Making and Legal
Science, in CONSTITUTIONAL JUSTICE, EAST AND WEST, supra note 2, at 409.
182
BOOK REVIEWS
theory of justice, much less of the good or of democracy. The European heritage
comprises, broadly, the whole range of principles of modern pluralistic democracy,
some of which may even be incommensurate with one another. Insofar as East
European courts are European courts, and to the extent that they work in democracies,
they are, of course, promoting such principles, but this can hardly be the basis of any
meaningful concept of judicial activism.
2.2. Value-neutral interpretations of judicial activism
Of course, judicial decisions always carry some political and ideological meaning. But
when the jurisprudence of constitutional courts is considered as a whole, the picture
becomes much more complex, and it is virtually impossible to outline a coherent ideology or doctrine endorsed by the judges. Therefore, constitutional scholars fond of the
concept of “activism” have attempted to construct “value-neutral” versions of it, essentially in two ways.
First, judicial decisions that go against the will of the majority in a democratically
elected body may be seen as “activist.” As mentioned above, Prochazka has used such
an interpretation of activism in his case studies by attempting to “measure” the degree
to which constitutional courts have been “prohibitive” toward the legislature.
A second way to define activism is through the lack of judicial fidelity to textual legal
sources. Prochazka uses this version of activism as well. According to him, moreactivist courts engage in what he calls “constructive interpretation,” which, to him,
conveys a departure from the textual sources of the constitution (p. 9).
Prochazka introduces a third meaning of judicial activism: the degree to which constitutional courts have been “assertive towards ordinary courts.” Indeed, in countries
such as Poland, the Czech Republic, Hungary, and Romania there have been and still
are unresolved conflicts between constitutional courts and ordinary courts, up to and
including a supreme court.13 Possibly, constitutional courts have sometimes tilted
power more toward themselves rather than ordinary courts. But as long as the balance
of power between the judiciary as a whole and the democratically elected branches is
not changed, it is difficult to speak of judicial activism. For this reason, the discussion
below disregards this version of judicial activism.
2.2.1. Judicial activism as antimajoritarianism
Most scholars hold that constitutional courts have served antimajoritarian functions in
Eastern Europe. At this abstract level of expression the statement is true, to the extent
that it means that constitutional courts have invalidated a considerable number of the
acts of democratically elected bodies. Focusing on abstract review, according to the
data presented by Prochazka, in Hungary, 102 statutes have been ruled unconstitutional (in whole or in part) out of 638 applications for the period 1990–2002; in
Slovakia, out of 52 judgments, 31 found the challenged legislation wholly or partially
unconstitutional (pp. 347–48). In Bulgaria, a country not covered by Prochazka, in the
period 1990–2000, out of 184 decisions, the Court found 66 cases in which the challenged legislation was wholly or partially unconstitutional. Having in mind that 47
judgments out of the total number have been abstract interpretations of the
13
Renate Weber, The Romanian Constitutional Court: In Search of Its Own Identity, in CONSTITUTIONAL
JUSTICE, EAST AND WEST, supra note 2, at 283. See also PROCHAZKA, supra note 8, at 298–303.
BOOK REVIEWS
183
Constitution, it follows that the Court has found that in almost every other case constitutional challenges to legislation were well founded. Even in Romania, a country whose
Constitutional Court no one has seriously called “activist,” there have been almost 30
invalidated pieces of legislation (p. 291).
Furthermore, the invalidated legislation has concerned areas of significant political
importance, such as retributive justice and lustration, restitution and privatization of
state-owned property, and fundamental rights.
If these facts are taken as sufficient to substantiate a claim about the “activism” of
Eastern European courts (or at least of some of them), then the concept of “activism”
would be relatively uncontroversial. But neither would it be especially interesting; as
long as constitutional review is operational in a given jurisdiction, the court automatically will qualify as being activist, since it is bound to invalidate some legislation,
including some that concerns important societal problems.
This reveals a major weakness of the current research on constitutional review:
empirical data are being presented (usually to prove the activism of courts) without
clear standards as to what these data must demonstrate. For instance, should a court
invalidate legislation in more than 30 percent of abstract-review applications in order
to qualify as “activist”?14 Or, should there be some absolute numbers, say sixty invalidations over ten years?
It may be impossible to derive quantitative threshold standards for empirical data. This
seems to be Prochazka’s position. When commenting on the “prohibitive/permissiveto-the-legislature” dichotomy of judicial activism, he argues:
[t]his particular dichotomy does not concern indicators such as the overall number of statutes held to be unconstitutional. These numbers do not capture the
essence of the different adjudicative agendas . . . Indeed, while the Polish
Constitutional Court is a more active constitutional court than the Slovak one, it
identified to a greater extent with the transformation enterprise of the
Parliament than did the latter court . . . (p. 7)
Even if Prochazka’s skepticism concerning quantitative indicators is justified, the
theoretical framework of his book suffers considerably from its ambiguity concerning
other factors that would qualify a court as activist. If quantitative indicators are unsuitable, does it mean that a court could be considered activist if it has rendered very few
invalidations of laws, but those few involved very important, symbolical issues? Is a
court actively countermajoritarian if it has validated the great majority of challenged
legislation, and has found unconstitutionality in only a small portion of all cases? (For
instance, the Slovak and the Romanian constitutional courts seem to have invalidated
a similar number of laws for the last ten years or so—around thirty. Yet, Prochazka
speaks of the Slovak Court as activist in the countermajoritarian sense, while the
Romanian Constitutional Court is commonly described as a court still searching for its
own identity.)
A related problem is that Prochazka does not elaborate on how the “prohibitive/
permissive-towards-the-legislature” dichotomy combines with the preservationist/
14
According to the extremely rich empirical data contribution by Klaus von Beyme on the German
Constitutional Court, the rate of invalidation of this body stands at around 34 percent of all challenged laws: 14.8 percent of laws declared null and void, and 19.4 percent declared incompatible
with the Basic Law. Von Beyme, supra note 3, at 109.
184
BOOK REVIEWS
constructivist” approaches to the interpretation of constitutions. Consider one of his
own examples: the Slovak Court made a controversial decision on the appointments of
the joint chief of staff of the army and the head of the intelligence agency. According
to the Slovak Constitution, the president can appoint “the principal officers of national
bodies and high officials as defined by law.”15 The Court invalidated a law by which the
Meciar majority attempted to deprive the president of the right to appoint the joint chief
of staff, but it approved a similar law designed to prevent the president from appointing
the head of the national intelligence office. Prochazka counts the latter decision as
“self-restraint,” obviously because it does not go against the will of the majority
(p. 177). He does not explicitly characterize the decision concerning the joint chief of
staff, but he discusses it in a section called “judicial activism” and it is used to demonstrate the “antimajoritarian” stance of the Slovak Court.
In my understanding, the decision concerning the joint chief of staff has nothing to
do with any meaningful concept of “activism”; it seems a pretty straightforward application of a legal rule. Concerning the other decision (head of intelligence), if we assume
that the constitutional rule covers this office as well, the decision would not appear to
be “self-restraint” but a failure on the part of the Court to live up to its mandate. Indeed,
this is the reading that Darina Malová gives to the decision regarding the head of intelligence in Constitutional Justice, East and West (p. 359).
We, therefore, cannot have a separate concept of judicial activism by relying only on
the position a court takes vis-à-vis the legislature. Another dimension should also be
taken into account, namely the character of judicial reasoning. If a given judgment is
an application of a constitutional rule, then it is difficult to speak of activism. If, on the
contrary, the decision concerns a controversial issue not covered by legal rules, and the
court employs a complex interpretative strategy to justify its judgment, we may want to
call this decision “activist.”
Prochazka’s analysis would have been sharper if he had managed to combine the
“prohibitive/permissive” and the “preservationist/constructivist” dichotomies in an
explicit way. Instead, he has chosen to consider these two dichotomies—as tests of judicial
activism—more or less independently of each other, which leads to occasional confusion.
Antimajoritarian readings of “activism” different from those discussed above can be
found in both books under review. Particularly interesting is the observation, in Venelin
Ganev’s brilliant contribution,16 that in regimes with dual executives, especially in
those in which there is a directly elected president (Bulgaria, for instance), the issue of
antimajoritarianism is further complicated because directly elected presidents are often
empowered to challenge the acts of the legislature (p. 258). In the resolution of such
conflicts, “deference to democratically elected bodies” is very difficult to interpret.
Finally, one particular reading of antimajoritarian activism finds textual support in
Prochazka’s book and, occasionally, in some of the contributions17 in Constitutional
Justice, East and West. Prochazka argues that the Hungarian Constitutional Court has
become a “transitional leader” in terms of policy making and agenda setting in its
country, dominating even the legislature in this regard (pp. 273, 129).
15
SLOVK. CONST. art. 102(1)(g).
16
Venelin Ganev, The Rise of Constitutional Review in Bulgaria, in CONSTITUTIONAL JUSTICE, EAST AND
WEST, supra note 2, at 247.
17
See Miroslav Cerar, Slovenia’s Constitutional Court within the Separation of Powers, in
CONSTITUTIONAL JUSTICE, EAST AND WEST, supra note 2, at 213.
BOOK REVIEWS
185
It seems to me that Prochazka has exaggerated the leadership and agenda-setting
role of the Hungarian Constitutional Court in its country’s politics. It is true that the
Hungarian Constitutional Court has been a significant constraint on legislative activity, but there is no doubt who is the agenda setter in Hungarian politics: it is the government and the parliamentary majority. In this sense, even this “most activist” court
could be seen more as an adjudicator between the agendas of competing political forces
than as agenda setter or policy leader; these metaphors tend to misrepresent the reality.
2.2.2. Judicial activism as a pattern of judicial reasoning
Many of the contributors18 in Constitutional Justice, East and West, and Prochazka as
well, use the concept “judicial activism” to denote judicial reasoning not fully grounded
in constitutional texts. It is a common notion that judicial reasoning based on vague
and abstract rules and principles breeds judicial activism. Miroslav Cerar argues that
“[s]ince the formulations of these principles . . . are very open in meaning (open texture), their interpretation in the majority of cases requires an explicitly value-oriented
assessment . . . ” (pp. 241–42). Darina Malová claims that the Slovak Constitutional
Court has fallen into a “trap” because of the significant indeterminacy of the Slovak
Constitution and Prochazka demonstrates the interpretative “activism” of the
Hungarian and the Polish constitutional courts by their extensive references to abstract
principles, such as the right to human dignity and the law-governed state.
The problem with this analysis is that modern legal theory has become so complex
that it would take a book of its own just to go through the various possibilities of interpretative fidelity to constitutional texts that the different authors may have in mind.
Therefore, I will merely point out some main alternative readings and will focus on one
of them for purposes of simplicity.
First, interpretative theories of law, such as Dworkin’s law as integrity, require fidelity
to the past legal practices of a given community in their entirety.19 When there is no
right answer to a legal question according to the textual sources, in Dworkin’s theory,
judges must make an evaluative choice as to which possible solution will fit best with the
moral principles of the community.20 Thus, the duty of the judge is to ensure fidelity not
only to the “words” of the constitutional text but also to the basic normative structure of
her community, as reflected in its legal practices. If such a theory of law and adjudication is adopted, however, “activism” will be a judicial duty, insofar as judges must go
beyond the “text” of the law to interpret abstract legal and moral principles.
Some contributors to Constitutional Justice, East and West do adopt the interpretative
concept of law, which in practice makes the usage of the concept “activism” very heterogeneous. Consider, for instance, Jiri Přibaň’s contention that “in the judgments of a
number of continental European constitutional courts, the interpretative concept of law
represented by the theories of Gustav Radbruch or Ronald Dworkin prevailed over the
18
Gábor Halmai’s chapter is most representative from this point of view. Gábor Halmai, The
Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian
Constitutional Court, in CONSTITUTIONAL JUSTICE, EAST AND WEST, supra note 2, at 189.
19
See Ronald Dworkin, The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe and Nerve, 65
FORDHAM L. REV. 1249 (1997).
20
Id.
186
BOOK REVIEWS
concept of legislative legalism represented by the legal philosophies of H. L. A. Hart or
Joseph Raz” (p. 386). Simultaneously, the same author argues that courts should exercise “self-restraint” (p. 382), which makes it difficult to assess his concept of “activism.”
In the analysis of the jurisprudence of the Czech Constitutional Court, Prochazka
acknowledges its value-laden character, as a sort of a judicial endorsement of “the
ethos of the respective revolutionary achievements” (p. 235). Yet he qualifies the
jurisprudence of this Constitutional Court as “preservationist” rather than “constructivist.” Further, he admits that the Czech Court would “step outside the available text
mostly to support the different tenets of the new regime’s substantive agenda . . . ”21
(p. 235). All this leaves one puzzled: In what sense has the Court been “preservationist”
if it steps beyond the available text? Obviously, Prochazka departs here from his own
definition of preservationism as “not reaching outside” the constitutional text (p. 6).
The difficulties to which the “interpretative” concept of law leads could be partly
eliminated if a more “positivist” conception of the legal text is used. Let us say, following Joseph Raz, that valid law is only that which can be established on the bases of
sources.22 Whenever the sources do not point to a single right answer, judges will exercise discretion if they are obliged to make a decision. A further tenet of the positivist
position is that the law can be established without using evaluative judgments concerning the “merit” of legal norms.
If such a conception of law was adopted, then indeed many of the judgments of the
region’s constitutional courts would appear discretionary because they cannot be fully
grounded in sources. Due to the abstract character of constitutional documents,
requiring judgment and evaluation in their interpretation, constitutional review would
appear in principle “activist,” if fidelity to the “text” understood as “source” is what
defines “judicial activism.”
It is not surprising that major exponents of positivism, such as H. L. A. Hart and
Joseph Raz, claim that judges quite commonly exercise discretion and “make law.”23
This holds both for constitutional and ordinary judges, and one should by no means
exaggerate the differences between the “lawmaking” functions of ordinary and constitutional courts. (The conflicts between constitutional courts and ordinary courts in
Eastern Europe may reflect just this “lawmaking” competition of the different judicial
branches.) Finally, judicial discretion, as shown by Denis Galligan, is not different
in kind from “administrative discretion”:24 both result in the production of legal
standards and the modification of the law.
21
The account of the jurisprudence of the Czech Constitutional Court offered by Jiri Přibaň in his
contribution. See Jiri Přibaň, Judicial Power vs. Democratic Representation: The Culture of
Constitutionalism and Human Rights in the Czech Legal System, in CONSTITUTIONAL JUSTICE, EAST AND
WEST, supra note 2, at 373, 385 (stressing a number of conflicts between the Constitutional Court
and the Czech legislature). Probably Prochazka has exaggerated the harmony between the substantive agenda of parliament and the jurisprudence of the Constitutional Court in this case.
22
JOSEPH RAZ, THE AUTHORITY OF LAW 37–52 (Clarendon Press 1979).
23
For an illuminating discussion of the concept of discretion, see MARISA IGLESIAS VILA, FACING
JUDICIAL DISCRETION: LEGAL KNOWLEDGE AND RIGHT ANSWERS REVISITED (Kluwer Academic Publishers
2001). For the lawmaking activity of courts, see RAZ, supra note 22, at 180–209.
24
DENIS J. GALLIGAN, DISCRETIONARY POWERS: A LEGAL STUDY OF OFFICIAL DISCRETION 37–44 (Clarendon
Press 1986).
187
BOOK REVIEWS
Therefore, because it is overinclusive, the positivist concept of “discretion” alone cannot give us a meaningful concept of “judicial activism.” As a quick-fix solution to the definition of “judicial activism,” I suggest a combination of the positivist concept of
discretion with the “countermajoritarian” reading discussed above. In such a synthetic
sense, judicial activism is the lack of deference to democratically elected bodies in discretionary judicial judgments. I believe that some such meaning of “activism” is embedded
in the work of Prochazka and in that of most of the contributors to Constitutional Justice,
East and West, albeit not used consistently and not clearly spelled out. If this meaning of
activism is adopted, then one could share the conclusion of the authors that, to varying
degrees, constitutional courts in Eastern Europe have been activist.
2.2.3. Unbundling the myth: Judicial activism in Eastern Europe
I conclude the analysis of activism by offering a table that sums up the possible readings
of the concept and their relevance for the analysis of judicial review in Eastern Europe.
Types of
Definition
judicial activism
Affected
countries
Deviant countries
1. Systematic,
ideological
Judicial enforcement
of a specific, coherent
(political) ideology
Not typical
No deviations; speculations
about Hungary and the
Czech Republic largely
unproven
2. Occasional,
ideological
Siding more often with Typical of all courts,
the proponents of
and thus
one political ideology
overinclusive
rather than another
in a given period of
time, or on specific issues
Judicial decisions
Typical of all
against
countries in the
democratically
region with
elected bodies
institutionalized
constitutional
review
3. Countermajoritarian
(simple)
4. CounterJudicial decisions
majoritarian
voiding acts of
(sophisticated) democratically
elected bodies of
special importance;
significant number
of invalidations
in comparative
perspective
This type of
activism is
underresearched
and faces problems
with the elaboration
of “thresholds” and
“standards” of
significance for
judicial invalidation of
acts. Yet, on the basis
impressionistic evidence:
Hungary, Czech Republic,
Bulgaria, Poland, Slovenia
Problems with the
institutionalization
have been encountered
in Russia, Ukraine,
Romania, Slovakia,
which have resulted in
relatively fewer
invalidations of acts of
democratically elected
bodies
Russia, Ukraine,
Romania, Slovakia
188
BOOK REVIEWS
Types of
Definition
judicial activism
Affected
countries
5. Countermajoritarian
(dominating)
Not typical
for the region
Allegations concerning
Hungary and Slovenia,
relying possibly on
underestimation of the
power of legislatures,
especially in Hungary
Typical of all courts
and thus overinclusive
Allegations that it is
atypical of courts in
Slovakia and the Czech
Republic; these
allegations rely on
conceptual ambiguities
The constitutional
court dominates
the policy-making
agenda in a particular
polity and acts as a
competitor of
parliament
6. Interpretative Judicial reasoning
activism
relies on extratextual
sources, such as
legal principles
reflecting the
communal
morality
7. Activism in
Judicial reasoning
terms of
not based on legal
judicial
sources, identifiable
discretion
as social facts,
i.e., without resorting
to evaluative judgments
8. Synthetic
Lack of deference to
activism
the judgment of a
democratically elected
body in discretionary
decisions
Deviant countries
Typical of all
constitutional,
ordinary courts, and
administration; grossly
overinclusive
Hungary an
uncontested
leader, Bulgaria,
and, to a lesser
extent, Poland, the
Czech Republic,
Slovenia, and
Lithuania; Slovakia
a borderline case
Russia (especially in
deference to the
president), Ukraine,
Romania
3. Legitimacy of constitutional review in
Eastern Europe
The analysis of activism helps us to simplify, to some extent, the debate on the legitimacy
of constitutional review in Eastern Europe because some arguments can now be safely
brushed aside. Thus, it is not the case that courts have become the enforcers of particular political ideologies, or that they have been competing with democratically elected
bodies for control over the national policy agenda. On the other hand, courts have
substituted their judgment for the decisions of democratically elected bodies, most
commonly in cases of unsettled law (what was called “synthetic activism”). Sadurski’s
worry is exactly about the legitimacy of such substitutions. For him, the central controversy lying at the heart of abstract constitutional review is similar to “the disagreement
between a majority and the opposition about what law or policy is best for the society,
under general and indeterminate constitutional provisions” (p. 167, emphasis added).
Reasonable disagreement on the interpretation of abstract constitutional principles
makes it impossible to ground the legitimacy of courts in the legitimacy of
BOOK REVIEWS
189
constitutions. After all, in the exercise of discretion, judges change or depart from the
constitution, rather than follow it. Still, Sergio Bartole argues in Constitutional Justice,
East and West that the legitimacy of constitutional courts stands or falls with the legitimacy of the constitution. His argument is that in order for a constitution to be effective,
a constitutional court must develop and enforce it in order to keep up with developments in what he calls “social conscience” (p. 420).
This argument is not completely satisfactory. First, polities without constitutional
courts have been able to maintain the effectiveness of their constitutions. Further, even
if we assume that the constitution and the law should be in tune with “social
conscience,” it is not clear why constitutional courts, rather than democratically
elected bodies, should be authorized to carry out such fine-tuning. This brings us back
to Sadurski’s question: Should courts be allowed to make decisions that de facto change
the constitution and go against the will of democratically elected bodies?
Sadurski offers two strategies for the legitimation of judicial review. The first, which
he sees as potentially more promising, is to treat constitutional courts as “second or
third legislative chamber[s]”25 by stressing their democratic pedigree, no matter how
weak it is (p. 169). This strategy faces a number of difficulties. First, it clashes dramatically with the self-consciousness of judges as to what they, in fact, do. Second, the composition of constitutional courts should be dramatically changed if they are to be
democratically legitimized; for instance, as Sadurski recognizes, there will be no justification for staffing these bodies with lawyers, which is common for the region and elsewhere (p. 171). More importantly, in my view, the question of numbers would arise; as
Jeremy Waldron has reminded us, legislatures are assemblies of many people, which is
important for the quality of their decisions.26
The second strategy to legitimate judicial review discussed by Sadurski presents
courts as adjudicators, whose legitimacy depends on their “triadic” character, as
famously pointed out by Martin Shapiro.27 In the “triadic” model, two persons decide to
call upon a third, neutral umpire in order to resolve a disagreement. Sadurski admits
that there are remnants of the triadic model in constitutional review. For instance, the
outvoted parliamentary minority or the president, on the one hand, and the parliamentary majority on the other, could be seen as two parties going to a neutral umpire,
the court. What is missing, in his opinion, is adjudication on the basis of established
rules: “[t]he conflict which is the stuff of a triadic judicial resolution revolves not
around abstract ideas concerning rights but around the claim that one party’s interests
have been violated by another, under the existing valid rules” (p. 167, emphasis added).
As shown in the previous section, constitutional courts in the region have been activist
in the sense of exercising discretionary powers—it seems that Sadurski sees this fact,
rather than something else, as undermining the possibility of their legitimation.
In my opinion, the author dismisses the “triadic model” of legitimation prematurely,
and in the next two sections I will offer two arguments in its support. Here, it should be
pointed out that his claim about the failure of the “triadic model” seems overinclusive
25
On the view of constitutional courts as legislative chambers, see ALEC STONE SWEET, GOVERNING
CONSTITUTIONAL POLITICS IN EUROPE 61–90 (Oxford Univ. Press 2000).
WITH JUDGES:
26
See JEREMY WALDRON, LAW AND DISAGREEMENT 49–68 (Oxford Univ. Press 1999).
27
MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (Univ. of Chicago Press 1981).
190
BOOK REVIEWS
in an important sense; after all, both ordinary and constitutional courts exercise
discretion in the interpretation of laws and constitutional norms.28 Therefore, if the
application of established rules is what makes the “triadic model” work, Sadurski’s
argument will undermine the legitimacy of ordinary courts as well. Even if it is
assumed that constitutional courts exercise discretion more often, the difference in
terms of legitimacy will be a matter of degree. Thus, Sadurski seems to contradict himself when he allows for the justification of ordinary courts through the “triadic” model
but closes this avenue to constitutional courts. In order for his position to be sound, it
must be the case that almost everything constitutional courts do is discretionary, while
the discretionary element in the work of ordinary courts is considerably smaller. But
one can doubt whether in terms of discretion, there is a significant difference between
constitutional courts and (supreme) ordinary courts. The very fact that these have
entered into serious competition over the interpretation of constitutional norms and
laws in Eastern Europe suggests the contrary.
3.1. Judges as adjudicators: The example of Ulysses
In this section, I suggest a reinterpretation of the “triadic” model of legitimation of constitutional courts as adjudicators, which assumes, as Sadurski does, that constitutional
law is considerably indeterminate. In doing so, I use a metaphor, the metaphor of
Ulysses as judge. Ulysses has been used extensively by philosophers and constitutional
theorists, but mainly as an example of the rationality of self-binding.29 Here, I will use
the ancient hero to illustrate a different idea that seems no less important for the understanding of constitutional adjudication.
According to the Iliad, Ulysses’s ships were the place where the Achaeans held their
“legal meetings.” It appears that Ulysses played the role of supreme adjudicator within
the anti-Trojan coalition, which is evident from his conflict resolution interventions at
key moments in the campaign. Furthermore, the legal rules that Ulysses had to work
with, being the product of the whimsical Greek gods, were by no means less abstract,
vague, and “open textured” than modern constitutional law.
Despite the lack of firm and established rules, the legitimacy of Judge Ulysses was
not undermined because, first, and most superficially, Ulysses was clever (had a “nimble mind”) as, indeed, are contemporary constitutional judges; the conditions for
becoming a justice are normally much stricter than the conditions for becoming a parliamentarian, especially in proportional closed-list electoral systems. Second, Ulysses
was a hero in his own right, so he was sufficiently authoritative, although he did not
compete for leadership with the Agamemnons and Achilleses in his own camp. Such is
the position of constitutional courts in Eastern Europe as well; they cannot seriously
28
First, constitutions are, as a rule, directly applicable in Eastern Europe, i.e., enforceable in ordinary courts. See Bartole, supra note 12, at 410. Second, even if an act of parliament embodying
an interpretation of the constitution is necessary in order to make its rules enforceable, if an ordinary court exercises discretion in the application of this act, it will, in practice, change and develop
constitutional law as well.
29
The metaphor is used most famously by JON ELSTER, ULYSSES AND THE SIRENS: STUDIES IN RATIONALITY
(Cambridge Univ. Press 1979). See also Jeremy Waldron, Precommitment and
Disagreement, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 271–99 (Larry Alexander ed.,
Cambridge Univ. Press 1998).
AND IRRATIONALITY
BOOK REVIEWS
191
compete with legislatures and presidents in the political arena but are still fourth or
fifth in terms of importance in contemporary constitutional models. Third, and most
importantly, Ulysses was not trying to impose his agenda on the Danaan coalition; he
joined the war reluctantly and did not have much to prove in it. The lack of a consistently pursued agenda of his own made Ulysses acceptable as a relatively “neutral” and
“impartial” adjudicator among competing interpretations of the overall goal of the
common effort.
The position of constitutional courts in the political process is similar. Courts do not
stand to gain from the success of a particular governmental agenda in terms of reelection, for instance. Further, they can hardly develop a complete and coherent agenda
of their own, due to various well-known institutional and doctrinal constraints. To begin
with, courts react to petitions30 and are generally constrained to ruling specifically on
the issues involved in such petitions. Also, courts are normally prevented through a variety of instruments from endorsing coherent, comprehensive ideologies in their jurisprudence; no matter how the constitutional “text” is treated, judges can use only a limited
set of doctrinal arguments, which are not sufficient for the creation of a truly comprehensive and coherent agenda. They are also not free in using generalizations and analogies but are governed by the rules of judicial reasoning. Finally, courts are prohibited
from issuing “programmatic” documents, and even if judges cannot resist the temptation of expressing their views from time to time, these expressions are not systematic,
coherent, or comprehensive, as political programs claim to be. To sum up, courts seem
to be intentionally handicapped as endorsers of comprehensive programs and doctrines,
which sets them apart, quite radically, from political bodies and legislatures.31 All they
can effect is the “occasional,” ad hoc enforcement of ideology, which seems to be
unavoidable in a pluralistic society with widespread disagreement.
The analogy between the position of constitutional courts and Ulysses in the
Achaean camp should be explored in more detail, because it may vindicate the application to the courts of the “triadic model” of legitimation. They seem to be a “natural
choice” of adjudicator for high-profile controversies in a pluralistic society with competing agendas, even if we admit that the rules they have to use in the adjudicative
process are far from fully determinate. If this way of legitimizing constitutional review
deserves to be explored further, Sadurski’s dismissal of the “triadic” model may be
premature.
3.2. Constitutional courts as guardians of foundational dilemmas
Constitutional courts are poor enforcers of comprehensive, coherent ideologies; in
terms of substantive solutions to interpretative questions, courts in Eastern Europe
30
A curious exception to this rule in the context of Eastern Europe is the Macedonian
Constitutional Court, which has granted itself the power to initiate its own cases. The Court has
obtained this power through a controversial interpretation of the constitutional text. Even there,
however, this power has been used very sparingly and has hardly turned the Court into a political
agenda setter.
31
This argument admittedly relies on a controversial view skeptical of the overriding importance
of coherence for law and adjudication, which I cannot defend in this text. Some legal theorists,
192
BOOK REVIEWS
have not come up with a single set of answers. Even within one jurisdiction, there has
been no full “integrity of principle” but, rather, a patchwork of evolving areas of local
coherence. Still, constitutional courts have managed to achieve something important:
the constitutionalization of some dilemmas foundational for a modern pluralistic
society. These range from the death penalty and abortion issues, through the legality of
the communist/authoritarian past, to common puzzles about the best institutional distribution of power among the political branches. In terms of answers, the variety is
obvious, but all these dilemmas constitute a set of common questions that, in one way
or another, are definitive for the normative basic structure in all established pluralistic
democracies.
I argue that these foundational dilemmas deserve a special status, and that constitutional courts are well suited to giving them such a status. This suitability, in my
view, may also breathe new life into the “triadic” model of legitimation of courts.
Constitutional courts in action ensure that foundational dilemmas cannot be
resolved by the simple gathering of a majority in a legislature, no matter how enlightened the legislature. Ultimately, it may not be of crucial importance what specific
answer to a dilemma the court gives (these answers change over time even within a single jurisdiction, and they often are a product of contingent factors). Rather, the important fact is that certain issues are singled out for more profound deliberation and that
they can be resolved, ultimately, by convincing not only the fellow members of a majority but at least part of the opposition as well.
In this sense, constitutional courts have an important deliberative role. Even if we
accept that there is widespread disagreement in society and cases of incommensurability of values, we should avoid, as Dworkin argues, the assumption that incommensurability and the lack of single right answer is the default position in any disagreement.32
This granted, constitutional courts force a democratic polity to make an additional
effort at finding a “right” answer to some foundational dilemmas by precluding the possibility of “easy” answers in terms of a simple show of hands.
In short, the courts as guardians of foundational dilemmas have the potential to
inspire deeper political discussion, oriented toward rational consensus. In my opinion,
not only are courts good at deliberation but their decisions trigger broader political and
academic reflection, which usually precludes the availability of “easy” answers. The
most prominently Ronald Dworkin, have suggested that coherence (integrity) is the central feature
of law. See RONALD DWORKIN, LAW’S EMPIRE (Belknap Press 1986). Others have argued that coherence is neither normatively necessary for law, nor is it practically achievable. The most important
criticisms of the coherentist view have probably come from Joseph Raz. See Joseph Raz, The
Relevance of Coherence, in ETHICS IN THE PUBLIC DOMAIN 261–309 (Clarendon Press 1994); CASS
SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT chs. 2, 5 (Oxford Univ. Press 1996). For a recent
discussion of the enormous difficulties facing the pursuit of global coherence in adjudication, see
Cass R. Sunstein et al., Predictably Incoherent Judgments, 54 STAN. L. REV. 1153 (2002). My own
concern about the pursuit of comprehensive legal coherence stems mainly from the fact that in a
pluralistic society it may lead to majoritarian oppression and marginalization of minority views.
Paradoxically, in order to remain “neutral” among competing comprehensive doctrines, ideologies, and programs, adjudicators in pluralistic societies may be forced to abandon the search for
comprehensive legal coherence.
BOOK REVIEWS
193
illuminating contribution by John Ferejohn and Pasquale Pasquino in Sadurski’s
volume stresses this deliberative function of court.33
As Jeremy Webber argues in his essay on constitutional dialogues, some strong
rights-oriented cultures may not need constitutional review since their parliaments are
enlightened enough to take seriously what I have called the “foundational” dilemmas
of modern pluralistic society (p. 98). This, indeed, may be the case. The author himself
advocates models with statutory bills of rights, which could easily be amended by the
legislature. It is important to note that parliamentary majorities in these societies have
“internalized” constitutional review and the respect for foundational dilemmas, and
this internalization arguably makes such cultures superior to cultures requiring external constraints and institutions.
In defense of constitutional bills of rights enforced by courts, one could respond that
a culture with institutionalized constitutional review may also develop practices in
which judges exercise self-restraint by respecting the legislature, and in which legislators express proper respect for the foundational dilemmas of democracy. In fact,
perhaps Eastern European countries are striving to develop exactly such a type of legal
culture, emulating the best practices of exemplary democracies such as Germany,
France, and others in this regard.34
4. Conclusions
Constitutional Justice, East and West is an inspirational book for the student of constitutional review in Eastern Europe. It covers a great variety of topics and ideas, many
of which could not be given their due in this essay. The book contains a wealth of sociolegal data for the operation of courts and offers interesting discussions of theoretical
problems, such as the choice of a European style of constitutional review, “constitutional dialogue,” and constitutional deliberation. A defect of the book is the poor proofreading of some of the chapters, which has not eliminated an embarrassing number of
typographical errors.
Prochazka’s book is well-written and well-produced. His extensive employment of
American baseball metaphors to illustrate the “activism” of Visegrad courts is refreshing, although it adds little in terms of clarity to his somewhat confused usage of the
concept of activism. The book succeeds in demonstrating the enormous progress the
32
See Ronald Dworkin, Objectivity and Truth: You’d Better Believe It, 25 PHIL. & PUB. AFF. 87 (1996).
33
John Ferejohn & Pasquale Pasquino, Constitutional Courts as Deliberative Institutions: Towards
an Institutional Theory of Constitutional Justice, in CONSTITUTIONAL JUSTICE, EAST AND WEST, supra
note 2, at 21.
34
The contributions by Marie-Claire Ponthoreau and Jacques Ziller, supra note 4, Klaus von
Beyme, supra note 3, and Giancarlo Rolla and Tania Groppi, supra note 6, are especially revealing
of the sophistication and subtlety of the theoretical debates on the role of judicial review in
Germany, France, and Italy. Statements such as “the [German] Constitutional Court has hardly
ever prevented a key decision [of the legislature]” bespeak a sufficient degree of respect to the dignity of legislatures in established democracies with constitutional review. Von Beyme, supra note
3, at 109.
194
BOOK REVIEWS
four democracies have made from the backwaters of the communist camp to the
frontline of contemporary constitutionalism. It would have been even more successful
if, at least occasionally, it referred to the experience of other transitional countries. The
lack of such references creates an air of Visegrad exclusivity, which reading Sadurski’s
volume would promptly dispel.
All in all, even if the evidence is mixed on the activism of constitutional courts in the
region, there is an undeniable local revival of constitutionalism and constitutional
scholarship, as these books show. This progress suggests that Eastern Europe has taken
seriously one of the foundational dilemmas of modern pluralistic democracy—
constitutional review.
Chastened Ambitions. A review of Mark Tushnet, The New Constitutional
Order (Princeton Univ. Press 2003), 265 pp.
Reviewed by Alec Walen*
1. Introduction
In recent years, it has been reasonable enough to think that the United States Supreme
Court’s progressive liberal agenda was nearly dead. This agenda took off during the era of
Chief Justice Earl Warren with such landmark cases as Brown v. Board of Education (ending racial segregation in the public schools)1 and Griswold v. Connecticut (holding that the
U.S. Constitution implies a right of privacy that covers the right of married people to use
contraception).2 The agenda slowed during the era of Chief Justice Warren Burger,
although this era includes what is probably the most notable of the progressive cases, Roe
v. Wade (holding that the constitutional right to privacy implies that women have a right
to abort fetuses in the first two trimesters).3 And the standard view is that the agenda has,
since 1986 when Chief Justice William Rehnquist took over, basically ground to a halt.4
Likewise, since Ronald Reagan was elected president of the United States in 1980,
the liberal welfare state has seemed in danger of being seriously cut back. Perhaps most
significantly, aid to the poor was sharply curtailed by the Welfare Reform Act of 1996.5
* Assistant Professor, University of Baltimore
1
347 U.S. 483 (1954). Chief Justice Warren’s tenure lasted from 1953 until 1969.
2
381 U.S. 479 (1965).
3
410 U.S. 113 (1973). Chief Justice Burger’s tenure lasted from 1969 until 1986.
4
I think the standard view is overly bleak. In the past two terms the Court has held, for example,
that the mentally retarded could not be executed (Atkins v. Virginia, 536 U.S. 304 (2002)), that
affirmative action is constitutional (Grutter v. Bollinger, 123 S. Ct. 2325 (2003), and Gratz v.
Bollinger, 123 S. Ct. 2411 (2003)), and that laws prohibiting homosexual sex are unconstitutional (Lawrence v. Texas, 123 S. Ct. 2472 (2003)).
5
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104–193, 110 Stat. 2105 (1996).