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ARTICLE
The logic of justification of
judicial review
Michel Troper*
This article does not attempt to provide a justification for judicial review of legislation,
but rather provides a critical analysis of existing justifications. All theories of justification must reconcile two propositions: that courts partake in the final formulation
of legislation and that they nonetheless implement the fundamental principles
embodied in the political will of the people. On the one hand, courts must safeguard
the supremacy of the constitution as positive law; on the other, they must not inhibit
democracy. None of the existing justifications is fully convincing, either because they
are too difficult to reconcile with democracy or, more surprising, because they divide
the sovereign into two and superimpose a hierarchy on the resulting halves.
One might think that there is no place for a theory of justification within a
positivist approach to constitutional law. Should such a theory be restricted to
description, that is, should it abstain from prescribing or producing value judgments or explanations? Should it focus on an object capable of being described,
that is, an object composed exclusively of positive legal norms?
There is, however, no scientific approach to constitutional law separable
from a general theory of the state, as is proved by the perusal of any good
hornbook, such as that of Pierre Pactet.1 The “state,” or government, that is
the object of this general theory is not an empirical reality but a set of principles and concepts that allow scholars to articulate and justify the content of
positive norms. A description of the state is thus a description of principles,
concepts, and justifications.
This sort of description is by no means a departure from the ideal of a science
of positive law. Like the science of constitutional law, a general theory of the
state with scientific pretensions does not aim at producing new principles or
new justifications but merely attempts to describe the state through an analysis of its constituent principles and justifications. The analysis of justifications
* Michel Troper teaches constitutional law and legal theory at the universities of Lyon, Rouen, and Paris X
and is presently a Member of the Institut Universitaire de France.
1
PIERRE PACTET, INSTITUTIONS POLITIQUES, DROIT CONSTITUTIONNEL [POLITICAL INSTITUTIONS, CONSTITUTIONAL
LAW] (Masson/Armand Colin 2001).
© Oxford University Press and New York University School of Law 2003,
I.CON, Volume 1, Number 1, 2003, pp. 99–121
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not only describes and classifies but also attempts to reveal why one set of
justifications was chosen over another and what specific connections the justifications bear to the kinds of norms or institutions they justify. The analysis
that follows examines the justifications for judicial review. The point is not to
determine whether judicial review is justified or unjustified. Instead, it examines the most common justifications with the aim of describing their forms,
evaluating their internal coherence, and understanding the content they must
necessarily adopt, given the configuration of the constitutional system in
which they were formulated.
Only justifications of the institution of judicial review as a whole are treated,
rather than attempts to justify particular techniques or modes of review, such
as a posteriori rather than a priori, abstract rather than concrete, centralized
rather than decentralized review. Nor are types of courts or rules of procedure
considered, much less judicial methodologies or the content of doctrine. One
author will doubtless claim that ex-ante review is superior to ex-post or vice
versa, while another will claim that centralized review is better than decentralized review; yet another may maintain that judicial review is justified only
when practiced by a specialized court. In all such cases, the arguments assume
that judicial review itself is justified. It might, of course, be deemed that review
is justified only when organized in a certain fashion, but this is merely a secondary justification and necessarily presupposes a more fundamental justification. If the institution itself is unjustifiable, this is so no matter how it is
structured. If, on the other hand, the institution is acceptable in principle, then
it is of no concern to the argument of this paper that some of its forms are justifiable and others not. This paper considers the institution of judicial review at
its most general level; it is the institution alone that concerns us here.
The arguments typically used to justify judicial review are many and varied,
and some of them must be set aside from the outset. If what we mean by justification is proof that an institution, rule, or action is valid because it conforms
to certain principles or values that imply the appropriation of the institution,
then some of these arguments cannot be regarded as true justifications.
Thus, the reference to a constitutional rule cannot even provide a sufficient
justification for those who assert it.2 For example, the existence of the Italian
Constitutional Court cannot be justified by mere reference to the specific provision of the constitution that created it, because what one must determine is
precisely the justification of the constituent power’s decision to institute such
2
“[L]egal discourse cannot operate self-sufficiently inside a hermetically sealed universe of existing
norms but must rather remain open to arguments from other sources.” JÜRGEN HABERMAS, BETWEEN
FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 230 (William Rehg
trans., MIT Press 1996) (1992). In American terminology, it has been argued that textual arguments,
extracted from provisions of the constitution, must be set aside in favor of nontextual arguments that
are grounded on the structure of power established by the constitution. See JOHN H. GARVEY &
T. ALEXANDER ALEINIKOFF, MODERN CONSTITUTIONAL THEORY: A READER 219–62 (West Group 4th
ed. 1999).
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a court. Nor is it sufficient to affirm that the constituent power’s sovereignty
can legitimately create such a court. A substantive justification is still required:
given that sovereign power is the power to make any decision whatsoever,
what is the justification for making one decision rather than another?
Explanation, moreover, does not in itself constitute justification. One might
understand that a certain decision was the result of a compromise, but it
cannot be considered a good decision unless it conforms to certain values. For
example, however clear it may be that Article 3 of the 1946 French constitution (“national sovereignty belongs to the people”) is the result of a compromise between proponents of national sovereignty and proponents of popular
sovereignty, it cannot be considered a good formulation before (a) its meaning
is determined and (b) this meaning is related to a more general principle. In the
same way, one might accept an explanation that the constitutional court was
created out of the constituents’ desire to limit majority power, but this in no
way signifies that the desire itself is justified.
One must also set aside the argument that an institution is legitimate if it or
its decisions are accepted and treated as legitimate. Belief in legitimacy is
inherently contingent. Any institution or policy can be held legitimate in a
given nation at a given moment and illegitimate in another place and time.
What must be determined is why it is held legitimate, that is to say, which
values require that such an institution be adopted or maintained.
There is therefore no point in examining internal justifications and claims
that review is organized or permitted by the law in force. We are interested only
in external justifications in relation to extra- or meta-juridical principles, that
is, to political, moral or juridico-political principles.3 If judicial review exists, it
is by definition permitted by positive law as interpreted by the reviewing body,
and the only remaining question is whether this institution is good with
respect to a particular moral or political theory.4
3
On the distinction between internal and external justification, see Jerzy Wroblewski, Legal
Decision and its Justification, 14 LOGIQUE ET ANALYSE 409 (1971). See also Justification, in DICTIONNAIRE
ENCYCLOPÉDIQUE DE THÉORIE ET DE SOCIOLOGIE DU DROIT [THE DICTIONARY OF THE THEORY AND SOCIOLOGY OF
LAW] 332–44 (André-Jean Arnaud ed., LGDJ 2nd ed. 1993).
4
Among external justifications, a special case is that of constitutions that divide the legislative
power among several authorities. This happens in federal systems, where laws are made both at
the federal level and at the state level, but also in nonfederal systems, such as the French, where
both the legislature and the executive have the power to make general rules. All these systems have
lists of subjects matters that define the jurisdiction of each power. Since conflicts are unavoidable,
it is a technical necessity to establish some mechanism to resolve them, and a constitutional court
immediately comes to mind. This was, in fact, the main reason for the French Constitution of 1958
to create the Constitutional Council. When the executive argues that by adopting a new statute the
legislature has exceeded its power, it may claim that the statute is unconstitutional and defer to the
Council. However, this is a very limited type of review, since the Council merely checks whether
the subject of the statute falls within the jurisdiction of the legislature as defined by the list. It is
not concerned with possible conflicts with other parts of the constitution. This paper is concerned
with justifications for a broad type of constitutional review.
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In addition, we must keep in mind the fact that conformity to principles and
values that ground any justification can be more or less strict. In certain cases,
one can assert that an institution is implied by certain values in such a way
that, if one adheres to these values, then one must necessarily adopt such a rule
or create such an institution. This will be referred to as “strong justification.”
It is this kind of justification that is invoked for the principle of the equality of
men and women, when it is understood to flow from the general principle of
equality. In other cases, a claim is limited to the argument that an institution
or a rule is not contrary to a value or principle. Thus, the claim that women are
exempt from military service does not violate the principle of equality. This will
be referred to as “weak justification.” Weak justification is exemplified also by
arguments that certain institutions are necessary means to an end that, in
itself, is not necessary but simply desirable. However, whether a justification is
strong or weak, it does not fulfill its role, which is to secure approval, unless
both its proponent and its addressee adhere to the relevant principles and
values and unless they both conclude that the institution or the decision is
good because it conforms to these values.
This said, it should be noted that only a limited range of external justifications
is invoked in support of judicial review of legislation. Take, for example, the
argument that review exercised by constitutional courts is good because it
allows such courts to exercise legislative power, and the impartiality or technical competence of the courts’ members enables them to understand the true
needs of society or the principles of natural law. Legislation produced in this
way, it is argued, would be of higher quality than legislation produced by a legislature. Likewise, it might be claimed that courts ought to have real legislative
power at their disposal in order to counterbalance democratically elected
majorities. Such ideas, however, are rarely put forward in Europe, because they
are irreconcilable with the essential presuppositions of these institutions and
Western legal culture, namely that courts do not invoke or apply natural law,
that they do not make decisions based on policy, and that they are not charged
with guaranteeing the organization or reform of society. Rather, courts are
limited to applying the constitution as positive law. Accordingly, judicial application of laws or the constitution is not the exercise of a separate power, and
the constitution remains democratic, the people are sovereign, and the creation of new laws is entrusted to elected authorities.5
Similarly, it could be argued, in reference to the traditional classification of
the forms of government, that courts are an aristocratic invention because
they are composed of the elite. Thus, a regime in which courts can block the
5
Thus, in 1959, the German constitutional court explicitly refused to exercise judicial review
on the basis of principles of natural law. See ERNST WOLFGANG BÖCKENFÖRDE, LE DROIT, L’ÉTAT ET LA
CONSTITUTION DÉMOCRATIQUE: ESSAIS DE THÉORIE JURIDIQUE, POLITIQUE ET CONSTITUTIONELLE [THE LAW, THE
STATE AND THE DEMOCRATIC CONSTITUTION: ESSAYS ON JUDICIAL, POLITICAL AND CONSTITUTIONAL THEORY]
220 (O. Jouanjean trans., LGDJ 2000).
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power of a democratic house ought to be considered a mixed regime.6 As plausible as this sort of thesis might be, it is itself incompatible with the professions
of democracy made by the constitutional framers when creating such courts.
All the above theories of justification must demonstrate that courts implement the fundamental principles of political law: on the one hand the separation of powers and consequently the supremacy of the constitution as positive
law, on the other hand democracy.
1. Justification through the supremacy of
the constitution
This argument appears in two forms: the supremacy of the constitution
necessitates review (strong justification) or the constitution is not always
supreme, but if such supremacy is desired, review is the only means to achieve
it (weak justification).
A. Strong justification: judicial review flows from the
supremacy of the constitution
This argument is simple and is expressed in similar terms by very different
authors. It is the argument penned by Chief Justice John Marshall in Marbury
v. Madison, but it pre-dates that decision.7 It was employed by the parlements of
the Ancien Régime to justify their refusal to record acts contrary to the basic
laws of the kingdom. Abbé Sieyès also invoked it, declaring in 1795 that either
the constitution is binding or it is a nullity.8 The same idea was later proposed
by Carré de Malberg, establishing a link between the possibility of review on
the one hand and the separation of constituent and constituted powers on the
other.9 According to Chief Justice Marshall,
The constitution is either a superior, paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and like
other acts, is alterable when the legislature shall please to alter it. If the
former part of the alternative is true, then a legislative act contrary to
the constitution is not law: if the latter part be true, then written constitutions are absurd attempts on the part of the people, to limit a power in
its own nature illimitable.10
6
See Pasquale Pasquino, Constitutional Adjudication and Democracy. Comparative Perspectives: USA,
France, Italy 11 (1) RATIO JURIS 38 (1998).
7
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
8
Convention Nationale, 18 Thermidor year III (August 5 1795), reprinted in 25 MONITEUR
442.
UNIVERSEL
9
RAYMOND CARRÉ DE MALBERG, LA LOI, EXPRESSION DE LA VOLONTÉ GÉNÉRALE [LAW, AN EXPRESSION OF THE
126 (Economica 1984) (1931).
GENERAL WILL]
10
5 U.S. at 177.
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The first point is the decisive one for Marshall, for “certainly all those who have
framed written Constitutions contemplate them as forming the fundamental
and paramount law of the nation, and consequently the theory of every such
government must be that an act of the legislature repugnant to the Constitution
is void.”11 Since not only the legislators but also the judges are bound by the
constitution, it is up to both of them to declare such a legislative act invalid.12
This argument is open to several critiques, although only the most important
will concern us. Suffice it to note that the idea that the authors of a constitution
conceive of it as establishing fundamental law has very little weight. The author
of a commandment may proclaim it to be fundamental, without being willing
or able to confer supremacy upon it. Imagine, for example, an ordinary law
ordering a future legislator to act according to a certain procedure or to give
a certain content to other laws. This law would obviously not be of a mandatory
character and could easily be set aside pursuant to lex posterior priori derogat
(a subsequent law governs). No norm becomes superior simply because its
author considers it superior. Norm A is not superior to norm B unless a third,
still higher norm, provides that, in the case of a conflict between A and B,
A should prevail (as is prescribed for treaties, for example, in Article 55 of the
French Constitution). But since there is no norm higher than the constitution,
a constitution can never have this kind of supremacy in relation to a law.
It is crucial to underline the fallacy within Marshall’s thesis. Independent of
the question of whether a norm is supreme, one must determine what such
supremacy means. The word “supremacy,” like the word “superiority,” can
have many meanings where norms are concerned. It can designate a relation
between two norms such that (1) one determines the conditions of application
of the other, or (2) the first cannot be modified by the second, or (3) the second
can be set aside by a judge if it contradicts the first. Obviously, these three
meanings do not coincide, because it is perfectly possible and, in fact, frequently the case that a constitution cannot be amended except by a special
procedure and that no judge has the power to annul laws contrary to the constitution. It is clear that Marshall employs the word “supremacy” in the third
sense, and this third sense is for him linked to the first: if a constitution cannot
be revised by an ordinary law, an ordinary law contrary to the constitution is
by definition null. But, in that case, the argument that, given the supremacy of
the constitution, the courts must be able to nullify contrary laws arrives at
a conclusion that merely repeats the major premise, and we are faced with a
simple tautology. In effect, Marshall affirms only that:
1. A constitution is supreme (or binding) if unconstitutional laws can be
invalidated.
2. Therefore unconstitutional laws are subject to invalidation.
11
Id.
12
See id. at 177–78.
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In order to escape this tautology, one must show that the existence of a
special procedure of revision necessarily entails that unconstitutional laws are
subject to invalidation, such that the constitution is indeed supreme in the third
sense. But this demonstration is impossible. One cannot logically derive the
norm “unconstitutional laws are subject to invalidation” from the norm “the
constitution can only be amended following the amendment procedure,”
because the former is not a particular case of the latter. It is also impossible to
show that the authors of a constitution with a special amendment procedure
really had in mind the norm “unconstitutional laws are subject to invalidation”
and such an assumption would be counterfactual. Moreover, if it were possible,
it would hold true for not only the U.S. Constitution but also for every other
constitution, including those that do not have judicial review of legislation.
B. Weak justification: constitutional review is the sole means of
realizing the supremacy of the constitution
A second thesis, significantly different from the former, has been expounded in
various versions by Hans Kelsen. Kelsen’s argument, like Marshall’s, is rooted
in the supremacy of the constitution, but, in contrast to Marshall, Kelsen does
not claim that this supremacy always implies the review of constitutionality,
even if such review was not explicitly desired and created by the constituent
power.
Kelsen limits himself to affirming that, without judicial review, the constitution would not be supreme. Rather than considering the constitution after it
has come into effect and interpreting it as implicitly authorizing constitutional
review, he situates himself at the moment of its elaboration: if the power of
judicial review is not included—and this can occur only by an express decision—then the constitution cannot be truly supreme. In other words, judicial
review is presented as a means to a particular end: namely the supremacy of
the constitution.13
Although this argument differs from Marshall’s, it does not escape criticism.
Kelsen’s argument is not totally coherent. In addition to this thesis, he
maintains another that is incompatible with the first and analogous to John
Marshall’s, namely, that supremacy is an essential property of the constitution. According to Kelsen’s The Pure Theory of Law,14 the validity of every norm
is grounded in a higher norm, rules being grounded in law and laws in the
constitution. Therefore, even without judicial review, the constitution would
13
See notably Hans Kelsen, Preface to CHARLES EISENMANN, LA JUSTICE CONSTITUTIONELLE ET LA HAUTE
[CONSTITUTIONAL JUSTICE AND THE HIGH CONSTITUTIONAL COURT OF
AUSTRIA] (Economica 1986) (1928).
COUR CONSTITUTIONELLE D’AUTRICHE
14
HANS KELSEN, THÉORIE PURE DU DROIT [PURE THEORY OF LAW] (Charles Eisenman trans., Dalloz 1962).
[Editor’s note: There is an English translation of this work, but there is considerable difference in
the language. The French translation is closer to the original German text, has been approved by
Kelsen himself, and therefore will be used in this article.]
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be superior to law. The validity of a law results from its conformity to the
constitution, both dynamically, insofar as it was adopted in conformity to
prescribed procedure, and statically, insofar as its content conforms to the prescribed content. Static supremacy leads Kelsen to produce his famous theory of
alternative dispositions: if a law contrary to the constitution is in effect and
produces effects in law, it must nonetheless be considered valid, because an
invalid norm cannot be conceived—this would be, he says, a contradictio in
adjecto (contradiction in terms)—and if a norm is valid, it must be the case that
it conforms to the constitution. In response to the question of whether a law
contrary to the constitution can nonetheless conform to it, Kelsen answers
that the constitution doubtless stipulates that the legislature adopt—or not
adopt—a law with a certain content but that, if the constitution does not provide for sanctions, it means that the legislature is nevertheless authorized to
adopt a law with different content. This is not the place to discuss this strange
theory;15 suffice it to note that it depends on the idea that even without
judicial review, the constitution is always supreme.
This said, Kelsen’s principal idea is that supremacy is not real unless there
is review. According to Kelsen, without review the constitution is not truly
binding. This idea runs up against several significant difficulties.
In the first place, it concerns only static hierarchy and does not take into
account the dynamic hierarchy between the constitution and legislation. Now,
the latter is absolutely independent from review of constitutionality, and the
constitution is indeed binding with or without review. Thus, a bill that receives
only the votes of a parliamentary minority when the constitution demands a
majority of votes would not be a valid law from the dynamic point of view. With
or without review, it cannot be considered as having been adopted. Conversely,
it is possible that judicial review could exist but that no sanctions would be taken
by the reviewing body when a procedural rule was violated. Thus, in France, the
Constitution states that “The right to vote of Members of Parliament shall be
personal” (Article 27). This means that members must exercise their right personally and are not permitted to delegate it. Nevertheless, delegation takes place
frequently. Yet the Constitutional Council does not invalidate a statute that has
been adopted in that manner—it does not enforce the requirement of the individual vote. On the other hand, the French constitutional court invalidates
statutory provisions that have been introduced in the bill in the course of the discussion and yet have no relation to the main text, while other constitutional
courts do not. Review, therefore, is not the only means of forcing respect for the
constitutional hierarchy, nor does it guarantee this respect.
In the second place, there is a contradiction between the idea that an
unenforced constitution is not a norm and the Kelsenian theory of validity as
15
For such a discussion, see Michel Troper, Kelsen et la contrôle de constitutionnalité, in LE DROIT, LE
AUTOUR DE MAX WEBER, HANS KELSEN, CARL SCHMIDT [LAW, POLITICS: ON MAX WEBER, HANS
KELSEN, CARL SCHMIDT] (Carlos-Miguel Herrera ed., L’Harmattan 1995).
POLITIQUE:
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elaborated in The Pure Theory of Law. According to this theory, legal systems
exhibit a primarily dynamic character, in the sense that a norm can be considered valid once it has come into effect in accordance with the procedure
stipulated by a superior norm. Its validity is said to be grounded in this superior norm. Validity is therefore no more than the fact of belonging to a legal
system. The result is that the constitution is rendered valid, with or without
review, by the mere fact that it belongs to the legal system; and it belongs to the
system because it provides the system’s laws with the basis of their validity.
No doubt one could object that validity is not merely a fact of belonging to
a system, but that validity also implies—for Kelsen, notably—its binding
nature.16 This claim is nuanced. It is accurate if it means that a norm is binding relative to a superior norm, because when the latter prescribes an inferior
norm it prescribes at the same time that it be obeyed. The constitution, which
empowers a legislature to vote laws, defines in the same gesture the acts that
should be considered and applied as laws. A law must be obeyed because the
constitution must be obeyed. But this by no means signifies that a law or the
constitution is absolutely binding. Such an absolute obligation to obey cannot
be established except by a moral norm.17 It follows that, while laws can be
considered binding relative to the constitution, the constitution can never be
binding in itself, neither absolutely nor relatively, insofar as no juridical norm
is its superior.
Under these conditions, judicial review is in no way necessary to the
supremacy of the constitution or to the relatively binding nature of law. A law
is valid—or binding—relative to the constitution as soon as it can be identified
as a law, insofar as it was adopted in conformity with the procedure provided
for by the body empowered by the constitution. The validity of any law in force
is thus grounded in the constitution, even if its contents appear to run contrary to the constitution. The constitution, without being binding, is supreme.
Even in the absence of a review of constitutionality, the constitution does
ground the validity of laws.
In the third place, the argument for the technical necessity of review is
irreconcilable with the Kelsenian theory of annulment. For Kelsen, there are
no void norms, only voidable norms. This thesis is perfectly correct. Validity is
16
Alf Ross, Validity and the Conflict between Legal Positivism and Natural Law, 4 REVISTA JURIDICA DE
BUENOS-AIRES (1961); ALF ROSS, INTRODUCTION A L’EMPIRISME JURIDIQUE [INTRODUCTION TO JUDICIAL
EMPIRICISM] (Eric Millard & E. Matzner trans., LGDJ 2002); Michel Troper, Ross, Kelsen et la notion de
validité [Ross, Kelsen and the notion of validity], DROIT ET SOCIETÉ (forthcoming 2002), also in MICHEL
TROPER, LA THÉORIE DU DROIT, LE DROIT, L’ÉTAT [THE THEORY OF LAW, LAW, THE STATE] 19 (PUF, 2001)
[hereinafter THE THEORY OF LAW].
17
“The mystification [that involves presenting the will of certain men that others conduct themselves in a certain fashion as a binding norm] . . . does exist in the claim that the juridical Sollen
establishes an absolute moral value. On the contrary, it cannot be a question of ideological mystification when the Sollen that appears in propositions of law that describe law is merely given the
signification of a specific functional connection.” KELSEN, supra note 14, at 143–44.
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not a quality of norms but its very mode of existence. Therefore, if a norm
exists, it is valid, that is, not void, and the only thing one may say about a norm
that contradicts a superior norm is that it may be nullified by a court. However,
this in no way requires review in order to ensure the supremacy of the constitution; on the contrary, it is impossible to affirm that the content of a law is
unconstitutional unless a court invalidates the law. If the claim that a law in
force is unconstitutional does not come from a competent court, it expresses
but a simple subjective opinion and nothing more. All laws must be considered
constitutional, whatever their content. As long as any noninvalidated law
is recognized as being necessarily valid by virtue of the constitution,
judicial review no longer appears to be necessary to ensure the hierarchy of
norms.
Finally, and most important, Kelsen’s thesis, like strong justifications in
general, presupposes that the reviewing authority simply applies the constitution, which is an objective prescription, and that neutral and impartial judges
limit themselves to declaring its content. However, the constitution is not a
norm but simply a group of statements that must be interpreted, and constitutional norms are products of such interpretation. Interpretation is a function of
the will, a creative act, such that a judge who compares laws to constitutional
norms is simply confronting them with norms that he himself has produced.18
Consequently, it is false to say that judicial review is a means of realizing the
supremacy of the constitution. It is indeed a “means,” but what it achieves is
the supremacy of constitutional norms produced by the authority of review.
Even supposing this to be true, the justification is not complete unless it
explains why the end supposedly sought—the supremacy of the constitution—is good. There are only two conceivable responses to this question. The
first is that the constitution lays out fundamental laws and essential values
and that the supremacy of the constitution signifies the supremacy of these
values. The second response is that the constitution represents the will of a
sovereign people and that review guarantees democracy. We are thus brought
to the second principle employed to justify judicial review.
These two responses can be presented in support of each other or independently, but they are in no way definitive. In effect, if the constitution is precious only because it guarantees fundamental values, which are absolute in
themselves, these values should be protected even in the absence of a constitution. This justifies, therefore, the review of laws but not of constitutionality. On
the other hand, if the values in themselves should be protected, they must be
protected against the will of the people, a claim that is necessarily confronted
with the problem of democracy.
18
See MICHEL TROPER, Le problème de l’interprétation et la théorie de la supralégalité constitutionelle [The
problem of interpretation and the theory of constitutional supralegality], in POUR UNE THÉORIE JURIDIQUE
DE L’ÉTAT 315 (PUF 1994). See also Michel Troper, Une théorie réaliste de l’interprétation [A realistic
theory of interpretation], in THE THEORY OF LAW, supra note 16, at 69.
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2. Democracy
In contrast to the supremacy of the constitution, democracy cannot provide a
strong justification for judicial review, because the democratic principle does
not imply judicial review. Thus, only weak justifications exist, of two sorts. The
first presents the same structure as justification by the supremacy of the
constitution: review is a tool in the service of democracy. The second is that
constitutional review is not necessary to democracy but is necessary to attain
other ends compatible with democracy.
A. Democracy reinforced by judicial review
This argument is simple. According to one of the best theories of democracy,
proposed by Kelsen, democracy is the realization of liberty understood as
autonomy, that is, a situation in which each person is subject only to norms
that he himself has established or to which he has at least consented. Perfect
autonomy, however, is unattainable, since all general norms would have to be
adopted unanimously, and the system that comes closest to it, the majority
system, must therefore be adopted. The majority system is justified by a utilitarian argument: it places a greater number of individuals in the position of
autonomy than in the position of heteronomy. A system in which a minority
could be substituted for a majority or a majority managed to impede a minority from becoming the majority would depart from a system of autonomy.
There must therefore be procedures to ensure the proper determination of a
majority. Judicial review is needed to ground these procedures.
This justification would be sufficient if it did not run up against three important difficulties. First of all, it is only a partial justification. It justifies constitutional review only of procedural rules, by including in this category electoral
laws or the status of political minorities, but does not justify such review with
reference to fundamental values or rights. Kelsen, as we know, thought that a
court with the ability to review the conformity of laws to a declaration of rights,
necessarily set down in vague terms, would wield absolute power, because it
could interpret these vague terms at will. Therefore, if review justified in this
way were to be implemented, there would be no protection against a permanent
majority, who could easily oppress a minority by, for example, adopting discriminatory laws so long as the rules of procedure were respected. On the other
hand, this justification must demonstrate that review is not simply a possible
means of ensuring respect for the rules of the game but that it is the only means
and is efficacious. Clearly, it cannot do this, as is obvious from an observation of
democratic systems, such as that of Great Britain, which do not have judicial
review but do, nonetheless, respect the rules of the democratic game, while, at
the same time, the rules are not always respected in systems that provide for
constitutional review. Finally, existing forms of judicial review cannot be justified in this fashion, since most existing courts themselves refer to substantive
rules, notably provisions relating to fundamental rights.
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Kelsen’s theory of democracy does not rely on the sovereignty of the people.
But other theories define democracy as the power of the sovereign people.
According to these theories, given that direct democracy is impossible, the
people designate representatives to exercise power in their name. The constitution determines how such representatives are designated, the powers granted
to them, and the limits placed on such powers. If representatives step over
these limits, they can no longer be seen as exercising power in the name of the
people; they cease to be representatives. Judicial review thus has the function
of guaranteeing the sovereignty of the people. This thesis appears in several
variants, one focusing on the author of the law, another on the law itself. If
one focuses on the function of the representative, one can claim that judicial
review guarantees that laws were in fact adopted by authorities who remained
within the limits of their power and, therefore, that the laws do indeed issue
from valid representatives. Such review thus reinforces the representative
nature of these authorities. On the other hand, one could focus on the law
itself and maintain that a law adopted by representatives acting outside the
limits of their power could not have been adopted in the name of the people.
This is the approach of the French Constitutional Council when it declares that
a law does not express the general will unless it respects the constitution. In
both cases, it is presupposed that representative democracy is not an empirical
political form but a juridical category defined by the constitution. A representative is not a person designated as such by the constitution but someone who
acts within the limits of constitutional powers. Nothing is law that is not
adopted in conformity with the constitution.
But this point is a source of considerable difficulty. The act by which a constitutional court determines that representatives have exceeded the limits of
their power is not one of empirical evaluation but one of interpretation. It is
thus an act of will, and the court is employing its discretion to decide if a law
does or does not express the general will and if those who voted it in are or are
not representatives. The court thus participates in the formation of laws. It is
therefore not in the least surprising that some have gone so far as to claim that
a constitutional judge contributes to the expression of the general will and
that, although not elected, he or she is nevertheless a representative figure.19
19
I have occasionally been wrongly represented as supporting the idea that the Constitutional
Council should actually be considered to be a representative. See e.g. Patrick Waschman, Volonté du
juge contre volonté du constituant? Sur un débat Américain [The will of the judge against the will of the
constituent? On an American debate], in LE RÔLE DE LA VOLONTÉ DANS LES ACTES JURIDIQUES: ETUDES À LA
MÉMOIRE DU PROFESSEUR ALFRED RIEG [THE ROLE OF WILL IN JUDICIAL ACTS: STUDIES IN THE MEMORY OF
PROFESSOR ALFRED RIEG] 855 (Bruylant 2000). In reality I intended not to provide a justification of
judicial review in France but simply to analyze the significance of the expression contained in the
first article of the French Constitution, “France is a democratic republic,” in order to reconcile it
with review. The conclusion of this analysis is that if one wants to justify review, while attributing
meaning to this formula, then one must claim that the constitutional judge, who participates
in the formation of a law and thus in the expression of the general will, is a representative.
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It is clear, then, that this mode of justification consists in a simple change in
the definition of democracy, which is no longer a system of autonomy. Nor is it
the power of the people exercised through their elected officials but simply
power exercised in the name of the people by representatives, only some of
whom are elected.
This type of justification is rarely used, and a different type of justification
is invoked: review is not an essentially democratic institution but is compatible
with democracy. In France, this justification appears in the form of the switchman theory.
This theory was incisively formulated by Hans Kelsen and Charles
Eisenmann but is often called “the switchman” because of a metaphor devised
by Louis Favoreu and taken up by Georges Vedel.20 According to this theory,
the court does not actually express an opinion on the content of the law but
rules only on the process by which it was passed. Thus, when the court strikes
down a law, it is really telling parliament that its ordinary legislative process is
insufficient to adopt the law and that the required procedure is constitutional
amendment. The constitutional judge is thus comparable to a railroad switchman who merely directs trains to one track or another, according to their
nature or destination.
Under this theory, far from being an antidemocratic institution, the court
appears as an essential element of the democratic system. Under it, constitutional laws can be adopted only after a long and complex process that most
often requires a greater majority than ordinary laws. The political majority of
any given moment cannot assemble such a majority without the support of
the minority. In this way, not only does the court appear as the protector of the
minority, but one could go so far as to claim that, if democracy is defined as
“autonomy,” then a system in which laws are adopted according to this procedure is more democratic than another, because a larger proportion of citizens
will have consented to laws to which they will be subject.
See, e.g., DOMINIQUE ROUSSEAU, DROIT DU CONTENTIEUX CONSTITUTIONEL [THE LAW OF CONSTITUTIONAL
LITIGATION] (Montchrestien 5th ed. 1999); Dominique Rousseau, La Jurisprudence constitutionelle;
quelle “nécessité démocratique” [Constitutional Jurisprudence; the question of “democratic necessity”] in
LA LÉGITIMITÉ DE LA JURISPRUDENCE DU CONSEIL CONSTITUTIONNEL [THE LEGITIMACY OF THE JURISPRUDENCE OF
THE CONSTITUTIONAL COUNCIL] 363–76 (G. Drago, B. Francsois, N. Molfessis eds., Economica 1999)
(with my commentary and Dominique Rousseau’s reply, at 377–82). The same idea is defended by
Pierre Rosanvallon, who writes: “The representatives of the people are first and foremost those
whom they elected. But not exclusively. Others who speak, act, and decide ‘in the name of the
people’ could be considered representatives. This is the case, notably, of judges, whether judiciary
or constitutional, but it is also, by extension, the nature of numerous regulative authorities.”
PIERRE ROSANVALLON, LA DÉMOCRATIE INACHEVÉE: HISTOIRE DE LA SOUVERAINETÉ DU PEUPLE EN FRANCE
[UNFINISHED DEMOCRACY: A HISTORY OF THE SOVERIGNTY OF THE PEOPLE OF FRANCE] 407 (Gallimard 2000).
20
Louis Favoreu, Les décisions du Conseil Constitutionnel dans l’affaire des nationalisations [The
decisions of the Constitutional Council in matters of nationalization], 98 REVUE DU DROIT PUBLIC [RDP]
419 (1982).
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However, this argument has three major weaknesses.
In the first place, it presupposes that a decision adopted by a large majority
is more democratic than a decision adopted by a weaker majority. An ideal
democratic system would therefore be a system in which decisions are always
adopted unanimously. The majority principle would be only a last resort: since
it is impossible to obtain the unanimous consent of the citizens, one must
be satisfied with a simple majority for the less important decisions, but for
more important decisions, failing unanimity, a larger majority is required.
This conception of the majority principle is questionable. Kelsen himself
presented a convincing argument against it, claiming that a system of unanimity is not democracy. Indeed, unanimity is the opposite of autonomy, insofar as it allows a single person to oppose a law desired by all others. Likewise, a
rule demanding a supermajority allows a minority to impede a decision desired
by the majority. The only democratic system, that which ensures the autonomy of the greatest number, is that of the simple majority.
A second weakness of the switchman theory lies in another assumption:
that the track indicated by the court can actually be taken. Certain constitutional amendments are simply impossible. This may be due to reasons of fact.
The constitution may, for example, require that an amendment affecting a certain group or a certain public authority obtain the consent of this group or
authority. Moreover, it may impose certain conditions before adoption of a
new constitutional provision. For example, the French Constitution of 1958
cannot be revised without the consent of the Senate, so no reform limiting the
powers of the Senate could succeed. Likewise, it is unlikely that a revision of
constitutional provisions relative to fundamental rights would dare be proposed in case a law were invalidated because it infringed on these rights. But
such limits can also be legal in nature, as when the constitution prohibits
amendment of certain core principles. For example, in many countries it is forbidden to interfere with the republican form of government. But it is also possible, as has occurred in Italy, Germany, and India, that the court declares itself
competent to examine the constitutionality of certain supraconstitutional
principles that are deemed intangible, such as, for example, principles relating
to the powers of the constitutional judge.21
Finally, the switchman theory presupposes that the court restricts itself to
ascertaining the constitutionality or unconstitutionality of laws. Constitutionality or unconstitutionality appear as objective characteristics: consequently,
21
The Supreme Court of India annulled amendments to the constitution twice: in 1975, an
amendment that validated an election (Smt. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC
2299, review denied AIR 1977 SC 69) and, in 1980, an amendment that obliterated all limitations
of power to revise the constitution so that it would have been possible to modify the fundamental
structure of the constitution (Minerva Mills v. Union of India AIR 1980 SC 1789). See
CONSTITUTIONAL LAW OF INDIA, VOLUMES 1, 2, AND 3 (M. Hidayatullah ed., The Bar Council of India
Trust 1984–1989).
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the court would not have an interpretive discretion. This, however, is clearly
wrong, as we have seen, because the court necessarily must interpret the
provisions of the constitution, and this task involves an act of will.
Above all, it is difficult to reconcile this theory with the conception of
representation that pervades certain systems, such as the French. Kelsen’s
notion that constituent power is more democratic because it can be exercised
only by means of a compromise between a greater number of deputies
presupposes that these deputies represent a greater number of electors.
According to the French conception, however, deputies represent not electors
but the people or the nation, such that the people are equally represented no
matter what majority has emerged in an elected assembly and that they are
equally represented by the legislative power, which expresses the general will,
and by the constituent power. There are no degrees of sovereignty; from this
point of view, there is no difference between ordinary law and constitutional
law.22 Both are expressions of sovereign will.
A variant of this theory is owed to Georges Vedel, who also attempts to show
that judicial review reinforces democracy. But his demonstration inadvertently
leads to the opposite conclusion: that judicial review limits democracy.
According to Vedel, constitutional amendment is comparable to the institution of the lit de justice. In that institution in the Ancien Régime, the sovereign
himself acted in order to overturn the will of parlements who opposed him.
The obstacle the law encounters in the constitution can be removed by
the sovereign people or their representatives if they take recourse to the
supreme mode of expression: constitutional revision. If judges do not
govern, it is because, at any moment, the sovereign, on the condition of
appearing in full majesty as Constituent, can, in a sort of lit de justice, overturn their rulings.23
Thus the Constitutional Council would by no means be an antidemocratic
institution, for the sovereign people always have the last word. If the judge is
opposed to the legislator, his decisions can always be overturned through constitution-making.
The metaphor of the lit de justice is clearly superior to that of the switchman, since it can be reconciled with the idea that law is the expression of the
sovereign will, an idea presented as a relative presumption. If a law is in
conformity with the constitution, it expresses the general will. When the constitutional judge declares it contrary to the constitution, his decision is grounded
on the presumption that it is not truly the expression of this will. However, this
22
Frank Michelman, Can Constitutional Democrats be Legal Positivists? or Why Constitutionalism, in
CONSTELLATIONS, VOLUME 2, 293 (1996).
23
Georges Vedel, Schengen et Maastricht (A propos de la décision no. 91-294 DC du Conseil constitutionnel du 25 juillet 1991) [Schengen and Maastricht (On decision no. 91-294 of the Constitutional
Council, July 25, 1991)], 8 REVUE FRANÇAISE DE DROIT ADMINISTRATIF [RFDA] 173 (1992).
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presumption is reversed if the sovereign appears in person to pronounce his
true will—in this case the sovereign being not the king but the people acting
through the constituent power to reverse the constitutional court’s decision
with a constitutional amendment.
The metaphor is nevertheless not without problems and produces a double
involuntary admission.
First, it is an involuntary admission of the fact that the constitutional court
exercises not a judicial but a legislative function. Although Kelsen would admit
this, French doctrine, to the contrary, affirms the strictly judicial nature of the
constitutional judge and takes pains to deny that he dabbles in legislation.
Now, old parlements that refused to register a royal act exercised an incontestably legislative function. Moreover, when the king intervened to overturn
the opposition of the parlement bearing not on a law but on a juridical problem,
rather than holding a lit de justice, he would hold a royal session, a procedure
that made him appear to act not as a lawmaker but as a supreme judge.24
Second, and more important, it is an involuntary admission of the fact that
the Constitutional Council stands in the way of the sovereign. In contrast to
the switchman who, according to this justification, has an evaluative function,
determining whether a measure is of a legislative or constitutional nature, the
parlement of the old regime expressed its will by refusing to record a law, despite
the deliberate command from the king. When the parlement opposed the king’s
will, only the superior will of the king, appearing in full majesty in the ceremony of the lit de justice, could overturn this opposition. Now, all efforts of the
Constitutional Council consist, as we have seen, in denying the fact that opposing a law issued by the legislature amounts to opposing the sovereign will. But
if the justification of the lit de justice is accepted, it has to be admitted that
opposing the legislature amounts in fact to opposing the sovereign and that the
sovereign must appear in full majesty, that is, appear as the constituent power,
in order to overturn this opposition. Here, one hesitates between two interpretations of the lit de justice. Either the legislator and the constituent power are
both representatives of the sovereign, in which case it is no longer clear how
the one could be superior to the other given that both speak in its name, or else
the legislator and the constituent power represent two degrees of sovereignty,
in which case it must be explained how sovereignty can be seen as absolute
power and, simultaneously, as admitting different degrees.
Far from demonstrating that judicial review is an instrument of democracy,
this theory shows that such review operates as a limit on democracy.
24
FRANÇOIS OLIVIER-MARTIN, HISTOIRE DU DROIT FRANÇAIS DES ORIGINES À LA RÉVOLUTION [A HISTORY OF
FRENCH LAW FROM THE ORIGINS TO THE REVOLUTION] 543 (Domat Montchrestien 1948); DENNIS RICHET,
LA FRANCE MODERNE: L’ESPRIT DES INSTITUTIONS [MODERN FRANCE: THE SPIRIT OF INSTITUTIONS] 32 and
157 (Flammarion 1973); F. Di Donato Un costituzionalismo di antico regime? Prospettivo socioistitutzionali di storia giuridica comparata [Constitutionalism of the Ancien Regime: A Socio-Institutional
Perspective on Comparative Legal History], Introduction to DENNIS RICHET, LA FRANCE MODERNE: L’ESPRIT
DES INSTITUTIONS (Roma-Bari-Laterza 1998); SARAH HANLEY, THE LIT DE JUSTICE OF THE KINGS OF FRANCE:
CONSTITUTIONAL IDEOLOGY IN LEGEND, RITUAL, AND DISCOURSE (Princeton Univ. Press 1983).
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B. Democracy limited by judicial review
The idea here is that the constitution was intended to limit legislative power
because it is always in the hands of a majority that can potentially become
oppressive. Notably, a majority could define itself solely in relation to its own
interests and, in so doing, infringe upon the interests and, in particular, the
rights of the minority. The constitution therefore states fundamental rights
that the majority must not impair and institutes judicial review to guarantee
these rights.
This theory has the tremendous advantage of clarity, since it claims neither
that judicial review is the supreme form of democracy nor that it is compatible
with democracy, and it frankly states that democracy must give way to other,
more important values. However, the theory only imperfectly achieves its
objective.
First, it fails to demonstrate the weakness of the majority principle. If one
believes that the majority is not in fact capable of respecting the rights of the
minority, how can one believe that the constitution, itself adopted by a majority, is founded on a respect for fundamental values and rights and strives to
protect the minority? It could doubtless be claimed that the majority of a constituent assembly is a wiser majority because it is living a historical moment
and wants to tie its own hands for the future,25 or that it does not know
whether it will remain the majority and means to protect its own rights for the
day when it becomes a minority. But once it is recognized that such a majority
is capable of this wisdom, it is no longer clear why one would then distrust
majorities in general. If the majority principle came to be contested, the fundamental legitimacy of the constituent process would have to be called into
question.26
Second, this theory does not demonstrate why a constitutional court would
be more likely than a legislature to take such values into account. According
to the traditional schema, the legislative majority establishes itself exclusively
around considerations based on policy, while courts alone take rights into
account. But, fundamental rights and principles are also invoked in legislative
debates. It would be difficult to claim that this is but a façade destined to mask
other interests, for this argument could also be applied to constitutional
courts. The debate between the majority and the minority is the expression
not only of opposing interests but also of different conceptions of the
common good.27
25
JON ELSTER, Imperfect Rationality, Ulysses and the Sirens in ULYSSES
RATIONALITY AND IRRATIONALITY (Cambridge Univ. Press 1979).
AND THE
SIRENS: STUDIES
IN
26
W. Sadurski, Judicial Review, Separation of Powers and Democracy: The Problem of Activist Tribunals
in Postcommunist Central Europe, 3 STUDI POLITICI 93 (1999).
27
JEREMY WALDRON, THE DIGNITY OF LEGISLATION (Cambridge Univ. Press 1999). See also VICTOR
FERRERES, JUSTICIA CONSTITUCIONAL Y DEMOCRACIA [CONSTITUTIONAL JUSTICE AND DEMOCRACY] (Centro de
estudios políticos y constitucionales 1997).
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Third, it is by no means certain that what constitutional courts preserve are
indeed the values of the constitution. Supposing that the legislative majority is
moved solely by considerations of policy, it does not follow that such considerations are absent from the mind of judges and that a constitutional court
limits itself to applying objective principles and imposing respect for fundamental values. Even those who do not accept the Realist theory that every text
must be interpreted still admit that at least vague texts must be interpreted.
Texts proclaiming fundamental rights are necessarily vague by reason of their
generality, and also because they are the result of compromises realized within
a constituent assembly, such that they reflect power relations as much as values. The process of interpretation itself translates the axiological preferences
of judges, none of which necessarily coincide with the preferences of the
majority of the constituent assembly. It also reflects power relations within the
constitutional court, since there, too, a majority and a minority are formed,
and the majority itself is the product of a compromise.
On the other hand, beyond interpretation as such, the examination of a law
ordinarily implicates several principles that must be reconciled, and this reconciliation is no different from one carried out by a legislative assembly—that is,
it is political. Thus, in the task of reconciling contradictory principles, nothing
guarantees that judges are less vulnerable to passions and prejudices than the
members of a legislative assembly. As Victor Ferreres correctly writes, the reasons and counterreasons that the Court must consider in order to answer the
interpretive question the Constitution poses are very close to those that
citizens and their representatives take into account when they engage in
discussion about rights.28
In short, nothing supports the affirmation that judicial review is necessary
and sufficient to assure the protection of minorities. In democratic systems,
there are certainly minorities, such as billionaires, red-haired people, stamp
collectors, or Nobel prize winners, who do not need the protection of a constitutional court against a parliamentary majority. According to this theory, moreover, the minorities that ought to be protected are the weakest and the most
vulnerable. But they can be protected only insofar as their rights have been
recognized by the constitution, and it is unlikely that the constituent power
would establish a court with the purpose of protecting billionaires against the
will of the majority of the people or of guaranteeing the rights of the smallest
minorities.
The idea that judicial review is necessary to limit democracy and to protect
fundamental values from the majority is only a variant of the more general
idea that law should replace politics. In reality, this idea is utterly illusory. Law
is but a set of norms that have been formulated and thus willed by people.
When these people are judges, the laws are no less formulations and their
content no less political.
28
FERRERES, supra note 27, at 99.
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In most countries, this notion encounters another considerable difficulty.
A large number of constitutions characterize the political regime that is being
organized as a democracy. If constitutional courts claim to be applying the
constitution, they cannot reduce the democracy established by the constitution to one limited by respect for fundamental values without the constitution
so stipulating. The only way out of this difficulty is to claim that the political
system guaranteeing these values is not a limited democracy but, to the
contrary, a fully realized democracy. In other words, one is led to modify the
definition of democracy.
C. Democracy modified by judicial review
This justification was developed to respond to the argument that judicial
review is an antidemocratic institution because, in a democracy, decisions are
made by a majority of the people or the people’s representatives, while courts
are composed of unelected judges and have the power to oppose decisions
adopted by elected officials. This argument can be answered by modifying the
definition of democracy to include as one of its essential elements the guarantee of fundamental values or the process of deliberation or by claiming that the
people do not truly exercise their sovereignty except through the constituent
power.
Democracy can be redefined and reduced to “l’État de droit,” which is conceived either as a state limited by law, that is to say by natural law, or as a state
that exercises its power through law. In the first case, democracy is assimilated
to this legally constituted state and is defined not as the power of the majority
but as a system that guarantees fundamental rights, ensured by virtue of judicial review. This conception, however, may come into conflict with justification
by the supremacy of the constitution if it is deemed that fundamental rights
ought to be guaranteed because of their intrinsic value and not because they
have been explicitly mentioned in the constitutional text. According to this
notion, although certain rights may not be mentioned in the constitution,
there is no less of an obligation to protect them.
This approach raises a considerable difficulty, for it does not allow judicial
review of constitutionality to take the form of a review of conformity to the
constitution. Either the constitutional court guarantees democracy in this
extended definition—that is, as all rights considered to be fundamental—and
then it does not necessarily ensure the supremacy of the constitution, or else it
ensures this supremacy without guaranteeing democracy, or in any case without guaranteeing all the fundamental rights that democracy is supposed to
entail. This weakness explains why this rationale is so rarely employed. It is
useful only in certain extreme cases to claim that a constitutional amendment
adopted in a correct procedural fashion is nonetheless contrary to fundamental democratic values.
One might then imagine the legally constituted state as a state that exercises
its power in a juridical form, that is, a state in which every decision is made in
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conformity with a superior rule. This legally constituted state would be defined
as democratic insofar as the constitution guarantees fundamental rights, and
it could then be argued that review of the conformity of laws to the constitution is necessary to democracy so understood. It is nevertheless impossible to
sustain this definition, for it would require that enlightened despotism be considered democratic as long as it respected the rights inscribed in a fundamental charter. Therefore, proponents of this idea cannot entirely exclude the
majoritarian principle from their definition. But then either democracy is
a system in which the majority is obliged to respect fundamental values
(in which case we return to a conception of democracy being limited by judicial
review) or else, rather than presenting the majoritarian principle and fundamental rights as opposites, the former will be described as a means for allowing the latter to be guaranteed. Rebecca Brown writes to this effect, that
“a better understanding of the system we have is that majoritarian government
exists to support the Bill of Rights.”29 Those who hold to the first conception
must explain how the system differs from limited democracy, and partisans of
the second must show in what sense a system in which the power of the majority of the people is merely a means to a higher end can still be called a democracy. Certain authors, including Rebecca Brown herself, are fully conscious
of this problem and contend that the system the American constitution was
seeking to establish was not democracy but liberty.
In any case, this justification is not effective unless judicial review does
indeed guarantee fundamental values and does not leave the constitutional
judge with a wide margin of discretionary powers. But, if such a margin exists,
then democracy defined in this way would merely be an elegant term masking
a form of government by judges.
This is why other authors, in the United States and France, have sought a
new definition of democracy that would rely on the old criterion of the power
of the people. But it is the latter notion that must then be modified. There have
been several attempts in this direction, but they are all forced to admit that sovereignty is exercised not exclusively through the legislative function but also by
the constituent power—in other words, that there are degrees of sovereignty.
For Bruce Ackerman, democracy is dualist.30 It consists of a two-track
process, the first being the normal legislative track, usually employed by representatives of the people, the second “the steep road of constitutional law.” The
constitutional court no longer appears to thwart the will of the people but
guarantees the people’s sovereign will as expressed in the text of the constitution against encroachments by governing authorities. Only in exceptional
29
30
See GARVEY & ALEINIKOFF, supra note 2, at 246 (italics in original).
BRUCE ACKERMAN, WE THE PEOPLE, VOLUMES 1 AND 2 (Harvard University Press 1991 and 1998).
The principal thesis is summarized in Bruce Ackerman, La démocratie dualiste [Dualist Democracy],
in 1789 ET L’INVENTION DE LA CONSTITUTION [1789 AND THE INVENTION OF THE CONSTITUTION] (Michel
Troper & Lucien Jaume eds., LGDJ 1994).
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moments can the people take back the power and formally modify the constitution, by constitutional amendment or, informally, by legitimizing a new constitutional balance, as occurred in the New Deal. Democracy is in fact dualist because
the will of the people imposes itself on the everyday exercise of power by virtue
of the court and, in exceptional moments, by constitutional amendment.
This argument doubtless provides a convincing justification for Americanstyle judicial review, but only at a high price. In the first place, the will
expressed in ordinary legislation is subordinate to the will of the people,
inscribed in the constitution, and is not itself the will of the people. Dualist
democracy is a democracy in which law may be in conformity with the will of
the people but is not the expression of this will. This conception is therefore an
entirely inadequate justification of judicial review in countries where law is
supposed to be the expression of the general will. Moreover, to admit that the
court guarantees respect for the will of the people as inscribed in the constitution, one must presuppose that the court is limited to applying the constitution
without exercising discretionary power, because interpretation is only an evaluative function or because the people can correct the interpretations of its will.
The third problem relates to the status of those who are governing: if they are
seen as representatives in the French sense of the term—those who express the
will of the sovereign people—it is hard to understand how this will could be
subordinate to the will inscribed in the constitution, because the latter is also
the will of the sovereign people and the people cannot have two different wills.
If, to the contrary, they are seen as elected officials who have no share in the
function of representatives who are subjected by the court to the constitutional will of the people, it follows that the people are not seen as participating
in normal legislation. The people exercise no constituent power, meaning that
this democracy is by no means dualist and that it differs significantly from the
usual meaning of democracy. Habermas compares this political system to that
of a regent who exercises power so long as the sovereign cannot or will not
occupy the throne.31 This democracy is a government where the people are the
titularies of the essence of power, which they can clearly reclaim, but they do
not exercise it, even through their representatives.
This difficulty can be circumvented only at the price of an even more
complex construction. Dualism here affects not democracy but the people
themselves. It would have to be maintained that the people who exercise
legislative power through their representatives are different from those who
exercise constituent power. This is the view proposed by Marcel Gauchet and,
subsequently, Dominique Rousseau.32 These authors claim that the constitutional judge ensures that the will of a “transcendent” or “eternal” people, the
31
32
HABERMAS, supra note 2, at 278.
MARCEL GAUCHET, LA RÉVOLUTION DES POUVOIRS: LA SOUVERAINETÉ, LE PEUPLE ET LA REPRÉSENTATION
1789–1799 [THE REVOLUTION OF POWERS: SOVEREIGNTY, THE PEOPLE AND REPRESENTATION 1789–1799]
(Gallimard 1995); ROUSSEAU, supra note 19, at 469–70.
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sole true sovereign, prevails over the will of the present people. The present
people, writes Marcel Gauchet, “those who choose and vote, are in themselves
only the momentary representatives of the power of the eternal people who
endure in self-identity through successive generations and are the veritable
titularies of sovereignty.”33
This understanding is significantly different from Ackerman’s, because the
will of the eternal people can obviously never be directly expressed. It is not
even represented by the constitutional judge, who is limited to calling upon the
will of the present people.34 Beyond the problems spawned by the mysterious
idea of the people split in this fashion, with only one of its components being
sovereign yet unable to exercise its sovereignty or even be represented, this
argument harbors an internal contradiction. Sovereignty is not a quality that
can be detected in the nature of the people. It is only a power that the constitution attributes to the people, without making any distinction between the present people and the eternal people. It cannot therefore be simultaneously
claimed that the constitutional judge applies the constitution and that his
power is justified only because the present people are not the veritable titularies of sovereignty. It would doubtless be objected that if the constitution attributes sovereignty to the people and determines the modalities of the exercise of
this power, it must itself emanate from another being, which would be the
indisputable sign of the presence of a hierarchy. One might add that the acts of
the sovereign people are recognized only by the fact that they were performed
in conformity with the constitution, expressed by the Constitutional Council in
the formula “the law expresses the general will only insofar as it respects the
constitution.” Nonetheless, these provisions of the constitution are only definitions and in no way authorizations conferred on the people by a superior
being. Moreover, this argument leads to an infinite regress, for, if the present
people are sovereign only by virtue of powers conferred upon them by the eternal people, the question then arises about the source of the latter’s sovereignty.
As ingenious as they may be, these justifications are not convincing insofar as
they claim to take into account all possible arguments, affirming that the institution of judicial review is legitimate in respect to the hierarchy of norms, the
text of the constitution, the discretionary power of the judge, or theories of
representation and democracy.
33
34
GAUCHET, supra, note 32, at 45.
Gauchet writes that “the constitutional judge is not charged with representing the soverignty of
the people . . . he is charged with putting into representation the fact that they ought to have the last
word.” GAUCHET, supra note 32, at 44. Along the same lines, Rousseau writes that “the constitutional judge allows the people to see themselves as sovereign by virtue of a mirror, the jurisprudential constitution-charter of fundamental eights—that reflects the people’s sovereignty back to
them and, for the delegates, reflects their subordination to the sovereign. In this way constitutional
justice makes visible what the representative model often forgets by putting representation into
representation.” ROUSSEAU, supra note 19, at 470.
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But this failure is a failure of doctrine, not of the institution itself. If one
accepts the distinction between doctrine, which provides justifications, and the
theory of law, which refuses to justify, the latter must take on the task of analyzing positive law and explaining the justifications that doctrine is obliged to
present. In the end, the analysis of positive law leads to a simple conclusion:
constitutional courts wield important discretionary power and participate, in
conjunction with elected authorities, in the exercise of legislative power.
A government in which legislative power is shared by elected or democratic
authorities and nonelected or aristocratic officials is a mixed government.35
This observation stands on its own, without the need to seek out justifications
for the choice of a mixed government, just as in asserting that judicial review
is a democratic institution, one need not seek justifications for democracy
itself. Nonetheless, doctrine refrains from making this observation, for constitutional courts are supposed to apply constitutions, and constitutions proclaim
themselves to be democratic. Doctrine is thus obliged to attempt to reconcile
the institution with democratic principles and is unable to escape from the
ensuing labyrinth.
35
See Pasquino, supra note 6.