Book reviews
Judicial review in review: A four-part defense of legal constitutionalism
A review essay on Political Constitutionalism, by Richard Bellamy. Cambridge
University Press, 2007, pp. 280.
Alec Walen*
Introduction
Richard Bellamy has written a powerful critique of judicial review. At the same
time, he has offered a serious, sustained defense of unicameral parliamentary
supremacy. While Bellamy’s arguments are ultimately unpersuasive, the array
he marshals is impressive, drawing on political science as well as moral, political, and legal theory. This review cannot hope to address all the points Bellamy
discusses in his well-researched book; however, it does respond to his central
theses, drawing significantly from the work of Mattias Kumm1 and, at the
same time, offering a novel defense of constitutionalism and judicial review.
This defense argues that certain of the costs of judicial review are worth bearing in order to keep alive the lessons of history embodied in constitutions, lest
future generations forget history and, thereby, prove doomed to repeat it.
What is particularly noteworthy about Bellamy’s book is that it is more radical than the works of others on which he builds.2 He not only takes aim at
* Institute for Philosophy and Public Policy, University of Maryland. I would like to thank Mattias Kumm, Mark
Graber, Richard Fallon, Peter Quint, Julian Owen, Ian Ward, and Peter Danchin for their helpful comments in
relation to this review. Email: [email protected]
1
See Mattias Kumm, Institutionalizing Socratic Contestation: The Rationalist Human Rights Paradigm,
Legitimate Authority and the Point of Judicial Review, 1 EUR. J. LEGAL STUD. 2 (2007).
2
Bellamy’s book builds most directly on arguments made just a year before by Jeremy Waldron. See
Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006) (hereinafter
Case Against Judicial Review). Waldron, in turn, sees himself as clarifying the normative core of earlier
criticisms of judicial review. See, e.g., JEREMY WALDRON, LAW AND DISAGREEMENT (Oxford Univ. Press 1999);
LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (Oxford Univ. Press
2004); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (Princeton Univ. Press 1999).
© The Author 2009. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected].
I•CON, Volume 7, Number 2, pp. 329–354 doi:10.1093/icon/mop007
329
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courts that strike down democratic laws on the ground that they violate constitutionally protected rights; he also has in his sights courts that do so on the
grounds of procedural or democratic defects. In this way, he is more radical
than such critics of judicial review as Jeremy Waldron, whose concern is only
with courts in the first category.3 Bellamy objects even to the most straightforward application of the text of a constitution in striking down laws. Indeed, he
objects to the very notion of legislatures checking themselves by appeal to a
written constitution, for such a system would limit the legislature’s ability to
carry out the agenda of a current majority. This is a view that no other prominent critic of judicial review has taken.
Bellamy objects, as well, to what Waldron calls weak judicial review—
which Waldron does not oppose—whereby “courts may scrutinize legislation for its conformity to individual rights but they may not decline to apply
it (or moderate its application) simply because rights would otherwise be
violated.”4 In Bellamy’s view, to accord even that limited authority to the
courts interferes unduly with the legislative process,5 since legislators
would be in an untenable position if they had to put themselves on record
as voting for a law a court has found to be in violation of some right or
rights found on a canonical list of rights. If they do so, “it appears they are
putting rights to one side” (p. 48).6 To avoid such an appearance, legislators will normally defer to the judgment of the court, rather than argue, as
they should feel free to do, for “an alternative view of how [the rights in
question] should be interpreted” (p. 48).7
Bellamy’s core objection to judicial review is that it strips the people of
their most basic “constitutional” right: the power to address afresh any
issue and to decide together, as equals, how to handle it. By denying people
this power and by empowering, instead, a group of judges who are not
accountable to the people, legal constitutions set up regimes of domination
in which almost everyone is subject to the arbitrary rule of others, namely,
the judges of the constitutional or supreme court. According to Bellamy,
this erosion of democracy, this establishment of what civic republicans
3
See Waldron, Case Against Judicial Review, supra note 2. See also Adrienne Stone, Judicial Review
Without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review, 28 OXFORD
J. LEGAL STUD. 1 (2008) (linking rights-based and structural judicial review, though without taking
a position on judicial review in general).
4
Waldron, Case Against Judicial Review, supra note 2, at 1355.
5
Bellamy does not directly address the fact that courts have to interpret laws before they can apply
them, and that this may call for them to articulate moral reasons for choosing one interpretation
over another. In this way it may be inevitable that courts will articulate standards that will hem in
legislative freedom to some degree.
6
7
Numbers in parentheses refer to the page in Bellamy’s Political Constitutionalism.
Despite professing not to object to weak judicial review, Waldron makes more or less the same
argument, if only in passing. Waldron, Case Against Judicial Review, supra note 2, at 1394.
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should consider an unjust domination by the courts, is the fundamental
failure of legal constitutionalism.8
In place of legal constitutionalism, Bellamy counsels faith in the capacity of
democracies to police themselves, to remedy their own shortcomings better
than any judicial supervision could hope to do. This is not to say that he thinks
democracies lack shortcomings. He acknowledges that there are “hard cases”
in which legislatures may be prone to violate the rights of certain individuals—
cases dealing with security concerns in states of emergency, with issues of “private morality that nonetheless have a public dimension,” or with “discrete and
insular minorities” (p. 249). His point, however, is that checks on the power of
parliamentary majorities, especially judicial checks, do not, on the whole,
enhance rights protection, but they do carry a cost: they undermine democracy and political equality.
Judicial review undermines political equality by treating citizens as subjects
who are dominated by the will and judgment of others. And it cannot offer the
compensatory benefit of helping to protect rights for two reasons. First, if the
majority is bent on disregarding the rights of certain minorities, “then the likelihood is that the prejudice will be shared by a significant majority of the elite
[i.e. the judiciary] as well” (p. 257).9 Second, if there is reasonable disagreement about how to handle a politically difficult issue, such as the balance
between security and civil liberties, then such a problem cannot be resolved by
a court. Some will feel vindicated by a court’s decision, but others will object
that the court got it wrong. Even if there is a truth to the matter—Bellamy is no
crude relativist—there is no politically neutral position from which to establish
the truth. Any claim that the court helps to protect rights or promote justice
will, as a matter of politics, be question begging. Resolution of ideological disputes about what justice calls for will come only through people trying to find
common ground, a process best achieved in the crucible of democratic discussion and compromise, a process undermined by the handing down of judgments from on high.
8
Bellamy targets especially PHILIP PETTIT, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT (Oxford
Univ. Press 2000), for suggesting that republicanism “can accommodate a liberal oriented legal
constitutionalism” (p. 154 n.16) with judicial review. Bellamy’s reading of republicanism as the
ground on which to make the case for unbridled parliamentary supremacy is, I believe, another
way in which his argument is unique.
9
This is not true of cases in which a court represents a national majority that wants to protect
the rights of local minorities who would otherwise be mistreated by a local majority. This is
arguably what goes on in most cases in which the Supreme Court strikes down state laws, as
Bellamy acknowledges (p. 41). But a federal legislature, by passing federal laws that would
provide the courts with guidance as to how to balance conflicting norms, could address such
problems just as well as a court striking down state laws as inconsistent with a federal constitution. This is presumably what section 5 of the Fourteenth Amendment to the U.S. Constitution was meant to achieve, empowering Congress appropriately. Going that route would also
have the advantage of allowing the federal legislature to correct a court decision with simple
legislation, as opposed to a constitutional amendment.
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Bellamy’s critique of judicial review is buttressed further by his observations
regarding the capacity of democracies to police themselves without the help of
judicial review. History shows that many have been able to address the exclusion and oppression of minority and disempowered groups in their midst, both
in terms of substantive rights and rights of democratic participation. There is
no denying, for example, that England has evolved to be a rights-respecting
country more or less on a par with the United States and other liberal democracies that have judicial review.10 And even in the United States, it was not judicial review that addressed the worst forms of exclusion of blacks or women; it
was legislative action ranging from the Nineteenth Amendment, giving women
the vote, to the Civil Rights Act of 1964 and the Voting Rights Act of 1965.11
Nevertheless, in rejecting judicial review, Bellamy makes four important
mistakes. First, he overlooks one way in which a court can practice judicial
review without substituting its own weighing of political values for that of a
legislature. Second, he is overly dismissive of the fact that judicial review serves
a crucial function otherwise missed by democracies: giving individuals the
standing to ask the government to give an account of itself. Third, Bellamy’s
conception of domination by judicial review is overblown. In some sense, domination is unavoidable with any government by others, whether one has an
equal say in the process or not. In another sense, if one accepts the possibility
of legitimate government, then judges having the power of judicial review is
not qualitatively any more dominating or arbitrary than other forms of governmental power. Fourth, he fails to take into account how the development of
substantive constitutional jurisprudence by courts helps to preserve certain
hard-won lessons of history, thereby guarding against any tendency of the
majority to forget these lessons, only to have to relearn them the hard way.
1. How not to argue for judicial review
It is important to be clear that one argument not being advanced here as a
basis for criticizing Bellamy is that a court like the U.S. Supreme Court can
generally be relied on to resolve questions of constitutional law in the right
way. A liberal citizen of the U.S. (in the left-of-center sense) may be tempted
to reject Bellamy’s position by citing cases in which the Supreme Court’s
10
As Frederick Schauer points out, however, judicial review as practiced in the United States does
seem to protect certain rights more robustly than they are protected in countries like the United
Kingdom, New Zealand, the Netherlands, Sweden, and France, where individuals cannot bring
suits to have laws declared unconstitutional. These are rights involving “criminal procedure, freedom of the press when it is irresponsible, freedom of speech for the truly evil (Nazis, Klansmen, and
child pornographers, for example), and a strong separation between church and state.” Frederick
Schauer, Judicial Supremacy and the Modest Constitution, 92 CAL. L. REV. 1045, 1066 n. 100 (2004).
11
Some argue, however, that the Court’s decisions in cases like Brown v. Board of Education, 347
U.S. 483 (1954), were crucial to establishing a political climate in which it was possible to pass
laws like the Civil Rights Act and the Voting Rights Act.
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rulings significantly advanced the rights such a citizen would wish to see
advanced: Brown v. Board of Education;12 Wesberry v. Sanders;13 Roe v. Wade;14
Romer v. Evans;15 Lawrence v. Texas;16 Roper v. Simmons;17 and, most recently,
Boumediene v. Bush.18 The list could go on, and, with such a hit parade, it is
hard for someone with left-of-center political convictions not to feel moved to
respect the Court. Nevertheless, there are two reasons why this is not the way
to refute Bellamy.
First, one may also draw up a list of cases that the liberal citizen might
think were decided the wrong way: Lochner v. NY;19 Buckley v. Valeo;20
U.S. v. Morrison;21 Parents Involved in Community Schools v. Seattle
School District No. 1;22 and, most recently, District of Columbia v. Heller.23
Notice, these cases are not simply instances of the Court’s failing to protect
rights—depending on one’s view of the rights at stake, one might judge
Gonzales v. Carhart24 or Kelo v. City of New London,25 as instances of
the Court’s failing to protect rights—rather, these are cases where the
Court has interfered with legislative attempts to protect rights. And the list
could go on.
12
347 U.S. 483 (1954) (effectively ending state-sponsored racial segregation).
13
376 U.S. 1 (1964) (invalidating Congressional districts that were not roughly equal in
population).
14
410 U.S. 113 (1973) (striking down laws that prohibited women from aborting pre-viable
fetuses).
15
517 U.S. 620 (1996) (striking down a law that blocked the protection of homosexuals from
discrimination).
16
539 U.S. 558 (2003) (extending the right of sexual privacy to strike down laws on homosexual
sodomy between consenting adults).
17
543 U.S. 551 (2005) (banning the execution of those who were under 18 years old when they
committed their crimes).
18
128 S.Ct. 2229 (2008) (recognizing constitutional protections for detainees in Guantanamo
and striking down a law stripping them of the right to habeas).
19
198 U.S. 45 (1905) (preventing legislatures from regulating employment in ways that aimed to
help protect vulnerable workers).
20
424 U.S. 1 (1976), (striking down limits on political campaign expenditures).
21
529 U.S. 598 (2000) (preventing Congress from creating a federal tort to protect abused
women).
22
127 S.Ct. 2738 (2007) (striking down a student assignment plan that took race into account in
order to construct racially balanced school districts).
23
128 S.Ct. 2783 (2008) (invalidating a gun control statute on the ground that an individual has
a right to own firearms for private use).
24
127 S.Ct. 1610 (2007) (permitting the restriction of so-called partial-birth abortions).
25
545 U.S. 469 (2005) (permitting the taking of private property for economic development).
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Second, given the reasonable nature of such disagreement, Bellamy’s challenge seems at least plausible: Why should the Court be accorded the power to
resolve such disagreements? Members of a high court, presumably, are smarter
than most of their compatriots; they are also presumably better at reasoning in
a principled fashion about practical affairs. But legal reasoning and skill should
not be confused with moral reasoning and insight.26 As Bellamy plausibly puts
it, “claims to moral expertise rest on dubious foundations…” (p. 40).
Additionally, judges tend to reason in legalistic ways that do not squarely
engage many of the relevant moral issues, whereas legislators address the
moral issues in their own terms (p. 37). Why not let the people and their elected
representatives—who may be about as skilled at practical reasoning as judges—
work out how best to resolve these contentious issues? The argument for judicial review, therefore, must be made on other grounds.
2. Another way not to argue for judicial review
To illustrate further the strength of Bellamy’s position, one may extend his
argument to address the work of a recent “uneasy” defender of judicial review,
Richard Fallon.27 Fallon argues that judicial review, under certain circumstances
and if well designed, can be a useful tool in protecting fundamental rights. It
provides an extra veto, which serves to safeguard those rights against unjust
infringement. As he puts it: “If errors of underprotection—that is, infringements of rights—are more morally serious than errors of overprotection, and
if a few other plausible conditions obtain, then there could be outcome-related
reasons to prefer a system with judicial review to one without it.”28
Fallon is a sophisticated thinker, and he is aware of all the assumptions he
needs to make to render his argument viable. He acknowledges, for example,
that it turns on the assumption that “[l]egislative action is more likely to violate fundamental rights than legislative inaction.”29 He acknowledges, moreover, that his argument does not support judicial review when “the legislature
has striven conscientiously to determine which of two competing fundamental
rights claims deserves to prevail.”30 What he fails to recognize, however, is that
the proper specification of rights can be determined by matters that are not
themselves questions of fundamental rights.
26
For more on the thought that judges are at least not better at moral reasoning than legislators,
see Jeremy Waldron, Judges as Moral Reasoners, 7 INT’L J. CONST. L. (I•CON) 2 (2009).
27
Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693
(2008) (responding to Waldron’s criticism of judicial review, but not to Bellamy). Bellamy could
not respond to Fallon, as Fallon’s article came out after Bellamy’s book.
28
Id. at 1699.
29
Id. at 1700.
30
Id. at 1730.
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Economic regulations are of central importance to Fallon’s picture of legislation that does not impact fundamental rights. He seems committed to the
idea that courts should not interfere with legislative decisions about economic regulation unless there is a fundamental right at stake, in which case
the fundamental right would presumably trump. This may seem like constitutional common sense in the post-Lochner era. During the Lochner era, the
Supreme Court saw itself as striking down economic regulations in order to
protect the fundamental freedom to contract.31 Most commentators have
concluded that they were wrong to do so,32 but it matters why they were
wrong. If they were wrong because the freedom of contract is not a fundamental right, then Fallon’s picture fits. However, if they were wrong because,
while freedom of contract is a fundamental right, other concerns, including
the promotion of general economic growth, play a role in shaping that right,
then Fallon’s picture does not fit.
How should we choose between these two interpretations? Consider the
more recent case of Kelo.33 Four justices on the Supreme Court thought that
the right to property should have prevented the city of New London from
taking private property for the sake of economic development; five, however, were willing to allow the local government to place greater weight on
economic development than on respect for property rights. It seems reasonable enough to say that property rights are fundamental: it really would be
a rights violation to take property from A and give it to B for something
other than a public purpose. However, if that is so, then Fallon’s scheme
seems to resolve the case too readily. It would imply that the minority
clearly should have won, as there is a fundamental right on one side (the
right to property), with nothing but economic interests on the other. Still,
it would be quite odd for a theory of judicial review to give rise to such an
unequivocal conclusion in a case like this. Thus Fallon’s picture seems to
have implausible implications.
Bellamy provides the philosophical framework for generalizing this point. He
argues that the specification of rights, including fundamental rights, should take
into account the effect on the common good of the various possible specifications: “Indeed, rights charters often refer to the legitimacy of limiting certain
31
Fallon says he is “uncertain whether Lochner should be regarded as a case in which the courts
stymied legislative efforts to protect fundamental individual rights, rather than simply thwarted
the legislature from implementing a humane policy.” Id. at 1711. But it seems far more plausible
to say that the Court was trying to protect fundamental rights—although misguidedly so, because
it was guided by paternalism and flawed theories of freedom of contract—than to suggest that the
Court was resolutely [ideologically?] opposed to humane policies.
32
For a general review of why the Lochner-era jurisprudence was both internally incoherent and
externally unsustainable, see LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW, third edition §§ 8-5–
8-6. (1999).
33
545 U.S. 469 (2005) (see n. 25).
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rights ‘for the purpose of securing due recognition of and respect for the rights of
others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’” (p. 30).34 The point is that a court cannot
decide how to specify and apply fundamental rights without balancing them
against considerations of the general welfare as well as competing rights.35 Such
balancing is subject to reasonable disagreement. If courts should abstain from
passing judgment on a legislature’s conscientious attempts “to determine which
of two competing fundamental rights claims deserves to prevail,” then they
should similarly abstain from passing judgment on a legislature’s conscientious
attempts to balance the general welfare with concern for fundamental rights, at
least as long as the issue is one over which reasonable people can disagree.
3. Judicial review need not involve second-guessing the
legislature’s value judgments
Despite the strengths of Bellamy’s position, there are four reasons why it fails.
The first is as follows: Contrary to Bellamy’s depiction of judicial review, it
need not involve the judiciary in making contested value judgments that second-guess the reasonable value judgments expressed by democratically enacted
legislation. There is a way to practice judicial review so that its role is simply to
ensure the legislature does not abuse its power by passing legislation that cannot be justified in terms of legitimate public reasons—reasons that respect all
people, first, as free to pursue their own conception of a good life insofar as they
do not violate the rights of others and, second, as equal in their standing before
the law.36 In other words, its role can be purely to ferret out illegitimate uses of
power that all reasonable people would agree are such. Not that this model of
judicial review involves no contestable value judgments at all. Certain value
judgments are inherent in the idea of legitimate public reason, and these can be
contested. Still, in an important sense, they cannot be “reasonably” contested.
As Mattias Kumm has argued, this is what courts do when they employ
what Europeans call “proportionality analysis.”37 This function can be
34
Quoting the European Convention for the Protection of Human Rights and Fundamental
Freedoms (emphasis added).
35
One might worry that Bellamy is being crudely utilitarian about the foundations of rights, but I
do not think so.
36
See JOHN RAWLS, The Idea of Public Reason Revisited, in THE LAW OF PEOPLES (Harvard Univ. Press
2001) [hereinafter Public Reason Revisited]. It is a more limited and yet possibly in some way more
demanding conception of public reason than Bellamy offers (p. 179). It could be argued, however,
that Bellamy’s fourth constraint—that public reason must “be focused on public rather than any
private good”—amounts to the freedom clause in Rawls’s conception, and that his seventh
constraint— that it must aim at “decisions all members of the public will find mutually acceptable”—
implies the equality clause in Rawls’s conception.
37
See Kumm, supra note 1. I follow Kumm’s description of proportionality except where noted
otherwise.
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exercised even if people reasonably disagree about what policy would be best
when it comes to a particular social or political problem. The point of such
analysis is not to make new constitutional law in the common law tradition,38
although, as we will see below, to some extent this cannot be helped. The point
is merely to vet individual legislative acts to ensure that, insofar as they infringe
on the rights of certain people, they do so on bases that could be thought sufficient by reasonable people. To some degree, the description that follows may be
an idealization more than a description of actual practice.39 However, it is an
idealization that describes a possible application of judicial review; moreover, it
is accepted as normative by many European jurists and scholars.40
There are four steps in proportionality review. First, does the law have a
legitimate aim? For example, if the law’s aim were simply to disadvantage a
politically disfavored group of people, or to promote a particular religious faith,
then the law would fail this test and should be struck down. Second, are the
means the law seeks to use to achieve its aim suitable? If they are clearly unrelated to the aim, then again, the law cannot stand. Third, is there an alternative means that is less restrictive of the rights of those negatively affected by a
law and that is, at the same time, equally effective and equally cost effective for
the state?41 This is at least arguably the same as the narrowly tailored prong of
strict scrutiny analysis in the U.S.,42 although it does not include the compellinggovernment-interest prong. The government does not have to show that the
legitimate end is compelling; it suffices if the government would have to use a
less effective or more costly means of achieving the same end in order to avoid
imposing the same or greater cost on those who are negatively affected.
Finally, if the law passes those three steps, the court goes to step four: proportionality in the narrow sense. On the surface, this is a balancing test that
holds that “the greater the degree of non-satisfaction of, or detriment to, one
principle (or value), the greater must be the importance of satisfying the
other.”43 In other words, the restrictions on the rights of those who are
38
At one point Bellamy acknowledges that “constitutional judicial review operates rather differently” in countries like Germany than in the common law countries on which he focuses his attention (p. 11). But he illustrates the differences he has in mind with the example of “being more
appreciative of social rights.” He shows no awareness of the distinctive methodology that is proportionality analysis.
39
I am grateful to Peter Quint for pressing this point on me.
40
It is also accepted as normative, if not actually followed, by jurists in some non-European countries, such as Israel. See, e.g., HCJ 3261/08 Anonymous v. State of Israel [2008].
41
I add the cost-effective element because failure to do so would allow courts to require states to
spend unacceptably large sums of money to achieve legitimate ends.
42
In this regard, I take issue with Kumm’s statement that this step “goes beyond” the narrowly
tailored prong of strict scrutiny. See Kumm, supra note 1, at 10.
43
Kumm, supra note 1, at 11, n.16, citing ROBERT ALEXY & JULIAN RIVERS, A THEORY OF CONSTITUTIONAL
RIGHTS 102 (Oxford Univ. Press 2002).
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negatively affected must not be disproportionate relative to the value of the
legitimate aim that would justify the law. Taken at face value, such balancing
is worrisome; it is exactly the sort of second-guessing in which one would not
want a court to engage. However, properly understood, such balancing is performed with a large margin of appreciation for the judgment of the legislature
whose law is under examination. A law will be found unconstitutional only if
the best attempt to provide a legitimate aim for the law yields an aim no reasonable person would think sufficient to justify the negative costs involved.
Such a finding indicates either that the legislature was inattentive to the costs
imposed by the law or that its purported legitimate goal was mere pretext and
that what must have been motivating the legislature, in fact, was an illegitimate aim, one that cannot justify any law at all.
Though the U.S. does not use this framework, its analysis sometimes—
particularly when using a “rational basis with bite” test—has the same
effect.44 Consider, for example, Romer v. Evans. The decision found that only
an illegitimate animus against homosexuals could have explained the
Colorado amendment that barred cities, towns, counties, and state judges
from protecting homosexuals from discrimination. Translated into the proportionality framework, the Court found the law problematic either at step
one or at step four: either the law did not have a legitimate purpose on its face
or, insofar as legitimate aims were offered for it, the Court found that the
goals were either pretexts or simply inadequate.
Bellamy might want to object that Romer was not unanimous—it was six to
three—which shows that, in fact, reasonable people could disagree about
whether the law was justified by a legitimate end. Where the majority saw an
illegitimate animus, the dissent saw a legitimate moral aim—the protection of
traditional morality—and one consistent with many prior court rulings. Thus
either this case does not illustrate proportionality analysis well, which leaves
one wondering: If not this case, then which one?45 Or it does illustrate proportionality analysis well, and it shows it to be just as presumptuous with regard
to matters of reasonable disagreement as any other sort of judicial review.
The right response to this objection relies on distinguishing two senses of
“reasonable,” the technical sense introduced above, and the more common
usage implicit in the objection. With the latter usage, “reasonable” means supportable by reasons that make sense, that a well-informed, intelligent person
44
Justice Breyer got four votes for using a version of proportionality analysis closely related to the
European version—a relationship he does not discuss—in his dissent in District of Columbia v. Heller,
128 S.Ct. 2783, 2852 (2008) (striking down Washington D.C.’s gun control laws under the Second Amendment).
45
Kumm, supra note 1, at 9–12, illustrates proportionality analysis with a similar case, Lustig-Prean
and Beckett v. United Kingdom, App. Nos. 31417/96 and 32377/96, Eur. Ct. H.R. (1999) (striking
down the British exclusion of gays in the military), available at http://cmiskp.echr.coe.int/tkp197/
(follow “HUDOC database” hyperlink; then enter application numbers in provided search fields).
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might take to be sufficient. In the more technical sense, to be “reasonable” also
involves treating people as free and equal. A reasonable person in the technical
sense would accept that personal conceptions of the good life are not matters
for public interference except when, and only insofar as, their promulgation or
pursuit would plausibly violate the rights of others. The dissent in Romer was
not, in this technical sense, reasonable.
Of course, using this technical notion of reasonable to license judicial review
is itself controversial, and Bellamy might want to reject it. Nevertheless, it is a
defining commitment of a liberal society. Moreover, even Bellamy must accept
certain basic normative commitments to support parliamentary supremacy as
strongly as he does. He is committed to each person’s vote having the same
weight as any other’s in electing the government; to nondomination as a basic
political norm; and to certain forms of public reasoning, which he sees as essential for the government’s legitimacy. None of these is self-evidently true or
beyond political objection. Many smart people, now and over the course of history, have rejected all of these commitments. Still, it is reasonable for Bellamy
to use each of these normative premises—even though one may disagree with
him over how some of them are to be used. It is likewise reasonable to use the
technical notion of reasonableness as a test for the constitutionality of legislation. Any rejection of the basic liberal commitment to the freedom to pursue
one’s own conception of the good as long as one does not violate the rights of
others should be treated as unreasonable.46
It is noteworthy that the U.S. Supreme Court has been working its way toward
this position, namely, that “morals legislation”—legislation aimed at restricting
behavior that is viewed as immoral even though no one is harmed and no one
treated unjustly—is illegitimate.47 In doing so, it is developing its constitutional
jurisprudence in a way that better reflects the political liberal commitment to
treat all as free and equal. Indeed, its evolving jurisprudence on morals legislation
tracks its development, many decades earlier, of a liberal jurisprudence of equal
protection under the law—a jurisprudence that is inconsistent with the kind of
racial segregation upheld in Plessy v. Ferguson48 and other cases prior to Brown.
46
This is Rawls’s view in Public Reason Revisited, supra note 36. Bellamy uncharitably reads Rawls
through most of his book, unreasonably taking him to hold that people will form an overlapping
consensus on the requirements of political justice. This is a plausible reading of JOHN RAWLS, POLITICAL
LIBERALISM (Columbia Univ. Press 1996), but it is not a plausible reading of Rawls’s last statement
on the matter, in Public Reason Revisited. There, Rawls makes it clear that there will be reasonable
disagreement on the requirements of political justice, which have to be resolved by the law. The
overlapping consensus is on the use of reasonable legal means to resolve reasonable disputes. But
reasonable disputes are only those that can be justified using public reason, accepting that one
should not seek to use the coercive power of the state to force one’s conception of the good on
others. Bellamy knows of this piece (p. 185 n.14) but fails to take in its meaning.
47
It took its most significant step in that direction only five years ago, in Lawrence v. Texas, though
that case built on earlier statements in Planned Parenthood v. Casey, 505 U.S. 833 (1992).
48
163 U.S. 537 (1896).
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Because proportionality analysis relies on the existence of a line between
legitimate and illegitimate reasons for legislation, proportionality analysis cannot
avoid developing a substantive jurisprudence. It is important, however, not to
overstate this observation. Proportionality analysis aims to be narrow and casefocused. Even though it is grounded in specific constitutional texts,49 it does not
seek to develop substantive constitutional norms the way the U.S. Supreme Court
does when it interprets the U.S. Constitution. My point is only that—to some
extent—insofar as proportionality analysis distinguishes between legitimate and
illegitimate reasons, it cannot help but develop some substantive constitutional
jurisprudence. We will come back to the appropriateness of a court’s developing
a set of substantive positions when we arrive at the last argument.
To sum up: proportionality analysis provides a model of judicial review in
which the court does not second-guess the reasonable value judgments expressed
by democratically enacted legislation. Rather, the court looks only to ensure
that the laws in question can be justified in terms of legitimate public reasons.
Still, one could wonder: Why give courts this veto power? Why not rely
on legislatures to police themselves? The answer is threefold. First, it is reasonable to think that courts, when using proportionality analysis, can add
something of value to the vetting of legislation. As judges on constitutional
courts normally do not stand for reelection and, thus, are less subject to
political pressure than legislators, and as they focus on individual cases
that a legislature may have overlooked and are trained by their profession
to take structured justifications seriously, they bring a different and useful
perspective to bear on the question of whether a law can plausibly be supported with public reasons.50 Second, adding an extra veto is unlikely to
result in legitimate laws being struck down but is likely to prevent at least
some illegitimate laws from being enforced. This is not to say that judicial
review in general is unlikely to result in the striking down of legitimate laws;
49
The text at issue in Lustig-Prean, supra note 45, for example, was article 8 of the European Convention of Human Rights, which holds, in relevant part:
Everyone has the right to respect for his private … life ….
There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or … for the protection of health or morals, or for the protection of
the rights and freedoms of others.
Interestingly, the British government did not appeal to the protection of morals as a basis for
excluding homosexuals from the military; it appealed only to the interests of national security,
as those would be affected by the impact of homosexuals serving in the military on the morale of
others serving in the military.
50
The second of these judicial traits is one that Fallon mentions, and the third is a variation on a
trait that he mentions, namely, that judges are trained to take rights seriously. See Fallon, supra
note 27, at 1709. This point and the next reflect the core of Fallon’s argument for judicial review,
which shows that I think that, in the end, Fallon’s case for judicial review works better in the context of proportionality analysis than the protection of fundamental rights.
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the claim is only that judges acting within the framework of proportionality analysis are unlikely to cause legitimate laws to be struck down. Taking
these points together, judicial review is justified by the prospect of improved
outcomes, using a scale that all reasonable people should accept.
The third justification is addressed in the section that follows.
4. Judicial review serves an important function otherwise
missed in a democracy: Giving individuals the standing
to call the government to account
The second problem with Bellamy’s argument is that he is overly dismissive of a crucial function that judicial review serves in democracies, one
that otherwise might be missed, namely, giving individuals the standing
to require the government to give an account of itself. He observes that
some think “that a court offers an important source of contestation for
those individuals whose concerns have been overlooked by a legislature”
(p. 39).51 However, he thinks that legislatures only rarely overlook or pay
inadequate attention to individuals or groups. And “even if a [brake] on
majority oppression was necessary, it is not clear that courts do or should
offer an alternative, counter-majoritarian force” (p. 39). Bellamy offers
three reasons why courts should not offer such a force: (1) they “tend to be
less independent than is often supposed”; (2) “access to them is more limited and prone to reflect inequalities of power than majoritarian voting”;
and (3) “their influence on the legislative process may be malign as well as
benign” (p. 39). These reasons do not adequately support his position.
The first of Bellamy’s reasons is relatively inconsequential. A court does
not have to thwart the majority’s will in a profound way to hold a legislature to certain basic standards, which its members may profess to accept
even though they may have been tempted to overlook them in a particular
instance. There is even less reason to worry about a court’s acting against
the majority will of a nation in a federal system.52 The U.S. Supreme Court
can rein in rogue states without violating the will of a national majority,
and most often this is what the Court does (p. 41); it rarely strikes down
state laws that are in force in a majority of the states.53
The second reason is just mistaken. Bellamy writes that the same inequalities in political power that cause some to be harmed by legislation “apply to the
51
This is another point central to Kumm’s justification of judicial review, supra note 1.
52
Bellamy notes as much (p. 41), supra note 9.
53
Indeed, looking to see if it is enforcing a growing national consensus between the states is part of
the Court’s official jurisprudence. See Atkins v. Virginia, 536 U.S. 304 (2002) (banning the execution of the mentally retarded in part because of a growing consensus among states that the retarded should not be executed).
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mounting of court cases. These too favour those with deep pockets and
the skills, time, money, influence and capacity to muster concerted support”
(p. 42). This claim misses the reality of public interest litigation. At least in the
U.S., there are a great many groups doing public interest litigation that will
take up the case of poor plaintiffs for free since doing so allows them to challenge laws they think are unjust. In addition, there are plenty of talented lawyers who take pro bono cases while working at big law firms. These lawyers are
on the lookout for poor clients on whose behalf they can raise an interesting
legal challenge, or they scour the courts to find an interesting case to bring up
on appeal. Of course, not all poor plaintiffs will have an easy time getting their
day in court. Unsympathetic plaintiffs may not have their cases picked up by
public interest lawyers. In addition, companies that are repeatedly called on to
defend themselves may strategize about which plaintiffs to settle with, choosing to go to court only against a likely loser, against whom they hope not only
to win but to establish favorable precedents.54 Nevertheless, on average, the
money and networking skills required to bring a lawsuit challenging a piece of
legislation are normally far less than the money and skills necessary to organize politically well enough to enact legislation. As Kumm notes, “The most
likely way that a citizen is ever going to change the outcomes of a national
political process, is by going to court and claiming that his rights have been
violated by public authorities.”55
Finally, Bellamy’s third argument against the worth of constitutional litigation for marginalized individuals and groups is that the influence of courts “on
the legislative process may be malign as well as benign.” What he has in mind
is that constitutional litigation distorts the democratic process. Losers in
Supreme Court cases in the U.S. have to seek supermajority support to amend
the Constitution, rather than winning mere majority support to overturn a disliked law. Moreover, taking matters issue by issue removes them from the normal politics of trade-offs, which allows even losers to gain something. Finally,
constitutional litigation politicizes the judicial nominating process, and thus
politicizes the courts themselves (pp. 43–44).
These are all reasonable concerns, but they do not carry the day. Bellamy
assumes that the Court is simply second-guessing normal political values. That
is what makes it plausible to compare losers in constitutional litigation with
losers in a legislative battle. But if the Court is engaging in proportionality
review, that is not a fair characterization. And even if the Court is engaging in
substantive constitutional jurisprudence, there is value in upholding basic
constitutional principles, even if people will disagree about how those principles should be upheld (this point will be developed further in the fourth argument). Finally, even if constitutional litigation politicizes courts, they remain
54
I am grateful to Mark Graber for pressing both of the last two points on me.
55
Kumm, supra note 1, at 26–27.
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less political than the political branches and can still serve a useful function
vetting legislation.
In the end, Bellamy is overly sanguine about the prospects of all perspectives, sooner or later, being taken into account in a democracy. He may be
right in claiming that no substantial group of people will be treated as politically irrelevant in the long run—that is, over the span of generations.56 Even
so, this provides little solace to those whose interests are not properly taken
into account in the here and now. Nor would it give them much reason to treat
laws, which, on any reasonable reading, show them little respect, as legitimate.
If it suits a majority, at a certain point in time, to treat a minority as though its
interests do not count, there is no democratic check against its doing so.
Of course, individuals can have standing to challenge a law’s application in a
court even without the court’s having the power of judicial review.57 This is
worth something. But if a law would not pass the proportionality test or would
violate an individual’s rights, then challenging its application will not suffice.
It is only a court with the power of judicial review that can give individuals
who are not—now, if ever—politically well connected the opportunity to challenge legislation that may violate basic liberal or constitutional norms.58
5. The irrelevance of nondomination in assessing judicial
review
The third problem with Bellamy’s argument is that he overplays the relevance
of nondomination. He argues that one achieves nondomination in a political
system when one has an equal say with all of one’s fellow citizens regarding the
policies the government will adopt (p. 165). This is dubious, however, as one
could have an equal say and yet have one’s views rejected by the majority, who
would then go on to treat one as a slave in every regard but one—namely, one
would retain the residual right to vote. Bellamy should recognize this problem,
given that he earlier defines domination as “the acceptance by the dominated
of the dominator’s entitlement to impose duties on them” (p. 160). A democrat who accepts unlimited majority rule accepts that the majority has the
56
This is implicit in his response to John Hart Ely’s worry about consistent minorities: “There is no
settled ‘we’ oppressing a given ‘they’—the ‘we’ prevailing today may well be the ‘they’ that gets
outvoted tomorrow” (p. 116).
57
I am grateful to Peter Quint for reminding me of this.
58
Bellamy also objects, as noted above, to the idea that individual rights should trump group interests (pp. 30–33). This may be another reason he fails to see how important constitutional litigation
is for individuals. He is right to argue that rights often properly reflect consequentialist considerations, and that courts are not best equipped to engage in consequentialist balancing. But again,
this is only a critique of courts insofar as they are second-guessing political decisions about how to
weigh values. My first argument was meant to show that judicial review need not involve such
weighing. My fourth argument will aim to show that even when, in some sense, they do engage in
such weighing, in constructing a constitutional jurisprudence, the value gained is worth the cost.
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power to impose duties on him; indeed, he accepts that they can impose any
duties, no matter how oppressive. If one is not part of the democratic majority,
then one can be as dominated by the others who constitute a majority as by
any who claim the right to rule as a birthright under a hierarchical model of
government.
Anarchists accept this argument as a reason to reject all government. If one
accepts that government can be legitimate, however—presumably, because it
can protect substantive rights and can provide for possibilities of coordination
that are in the interest of all or almost all—then one has to accept that there
will be groups or individuals who can, by taking certain actions, impose duties
on one. And once one accepts this, then not much can be gained for Bellamy’s
position by focusing on nondomination. This is not to dismiss the potential significance of nondomination as a political norm; it is only to insist that the norm
cannot be deployed as Bellamy deploys it to delegitimize judicial review.
It is particularly odd for Bellamy to insist that “citizens will need to feel that
no difference of status exists between them and the decision-makers” (p. 164).
One cannot avoid the existence of such a difference of status as soon as one
accepts the need for representative democracy.59 Elected representatives have
a status that normal citizens do not have. Outside of referenda, only elected
representatives are in a position to cast votes that matter for the making of
laws. To be sure, citizens have some influence over how elected representatives
act through their collective power to vote them out of office. Nonetheless, if a
legislator chooses to vote contrary to the judgment of the majority of his constituents, those in that majority typically have no legal recourse.
Importantly, this kind of rule by representatives who need not do what the
majority want on a given matter is inevitable in a representative democracy.
Citizens do not have a choice between hundreds of different representatives
with subtly different views, so that they can pick the representatives whose
views completely align with their own. They have a choice between two or at
most a few representatives. This means that representatives can leverage doing
what the majority wants on some issues into the power to go against the majority of their constituents on other issues.
What, then, does Bellamy think renders constitutional judges uniquely
dominating, in contrast with legislators? He seems to have two points in mind:
(1) they cannot be voted out of office, and (2) “Judges … seem to be claiming a
different status to ordinary citizens” (p. 165). With regard to being voted out of
office, that is at most a difference of degree, not of kind. In most jurisdictions,
elected representatives serve for a number of years, regardless of how unhappy
their constituents are with them. While there are some government officials in
some places who are subject to a recall vote at any time—the recall of California
Governor Gray Davis opened the door for the early election of Governor Arnold
Schwarzenegger—Bellamy offers no hint that this would have to be an option
59
Kumm makes a similar point, supra note 1, at 25.
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for representative democracy to be legitimate. Granted, federal judges in the
U.S. and constitutional judges in other countries like Germany do not stand for
reelection, while most legislators do. There is, however, nothing about being a
judge that requires a judge not to stand for reelection; indeed, most state judges
in the U.S. do. And even if it is a bad idea to have judges stand for election and
reelection—as argued above, their freedom from immediate political pressure
may help make them a better check on legislative abuse of power—the difference here is still only a matter of degree: How many years can someone hold an
office before the voters have the opportunity to replace him with someone else
whose views they hope they will, on the whole, prefer?60
More fundamentally, the crucial question for republicans concerned
with nondomination is whether governmental officials, judges included,
can exercise their authority in arbitrary ways.61 Voting an official out of
office is only one way to constrain official behavior in order to ensure that
it is not arbitrary. Judges, even justices on a constitutional court, can be
constrained in a number of ways, which, collectively, should be about as
effective as any constraints on a democratic legislature. Externally, judges
can be checked by the threat of jurisdiction stripping, court packing, or
impeachment, not to mention the threat of simply being ignored. And
internally, judges, at least those with integrity, are restrained by their
awareness that their job is to interpret the law.
With regard to the second point, Bellamy thinks that judges claim either
moral or legal superiority (p. 166), and that such a claim conflicts with the basic
equality that is demanded by nondomination. However, while some defenders of
judicial review may claim that judges have superior moral judgment,62 the
judges themselves generally do not. They strive to make their constitutional
decisions on the basis of law, and in that regard their appointment gives them the
authority to do so, just as election to Congress gives members of that body the
authority to vote there. Sometimes judges cannot help but interpret moral norms
in the process of interpreting the law, but when they do, they do not claim to be
qualified for the job in virtue of having special moral insights. They claim only
the privilege of their office. In this way, they are absolutely no different from legislators who vote on the basis of their moral convictions.
In sum, the worry about domination by judges seems to turn on a set of
misconceptions regarding both the nature of domination and the nature of
60
While U.S. judges serve for life, European constitutional court judges serve for fixed terms, making them no different from elected officials with long, nonrenewable terms. If life tenure is the
problem, the solution is not to do away with judicial review but, rather, to institute term limits for
judges.
61
I am grateful to Ian Ward for raising this point with me.
62
Ronald Dworkin seems to defend judicial review, in part, by reference to the way judges engage
in principled reasoning, which Dworkin thinks is more likely to be morally engaged than legislative reasoning. See, e.g., RONALD DWORKIN, A MATTER OF PRINCIPLE 70 (Harvard Univ. Press 1985).
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government. As a result, it is essentially without substance. A sound concern
with nondomination would seek to ensure that the basic rights with regard to
freedom and equality are respected. There is no reason to think that courts
cannot play an important complementary role in that endeavor.
6. The value of constitutions and constitutional
jurisprudence
Turning, then to the fourth and final problem with Bellamy’s work, he appears
to believe—wrongly—that constitutions that restrict parliamentary bodies
have no positive value. This is mistaken on a number of levels. On an economic level, constitutions can stabilize a legal order, and stability encourages
economic activity.63 On a moral level, constitutional law texts embody certain
hard-won lessons of history, and their development into substantive constitutional jurisprudence by courts helps to preserve those lessons. The focus here
will be on this moral level.
According to Bellamy, the problem with constitutions is that they are
thought of as embodying some great wisdom that is missing in legislatures as
they go about their normal business. This is, according to Bellamy, a mistake.
Constitutions reflect nothing other than the view of a majority, perhaps a
supermajority, at some point in time. If that view seems to a majority, at some
later point in time, to be misguided the people should be free to drop it. The
dead hand of the past should not bind the present. Legislatures should always
be free to do as they see fit.
Bellamy’s main target in making this argument is Bruce Ackerman.64 As
Bellamy describes Ackerman’s position, it starts with a distinction between
periods of “normal” politics, during which people are divided into various interest groups that struggle to obtain the support of the government, and periods
of “constitutional” politics, during which, as Bellamy puts it, “some national
crisis manages to unite the people and leads them to transcend their own particular interests and consider the common good” (p. 130). Were this accurate
it would help to explain why constitutions should limit the activities of government during periods of normal politics. The periods of constitutional politics
would reflect the will of “We the People” and this would legitimately provide a
framework for limiting the activities of government during the normal periods,
when it reflects nothing much more than a struggle for power and resources.
Bellamy’s objection is that this model is an unrealistic caricature of both
types of politics. Periods of constitutional politics are not times uniquely
characterized by people coming together to speak with one voice on matters
63
See, e.g., HOWARD GILLMAN, MARK A. GRABER & KEITH E. WHITTINGTON, AMERICAN CONSTITUTIONALISM: AN
INTRODUCTION (forthcoming) (manuscript ch. 3, at 7–8, on file with author). (Oxford Univ. Press,
forthcoming)
64
See BRUCE ACKERMAN, 1 WE THE PEOPLE: FOUNDATIONS (Harvard Univ. Press 1991).
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of principle. Rather, political divisions remain even during periods of constitutional politics, and compromises have to be hammered out to reach agreement. And, from the other side of the ledger, normal politics is not as
unprincipled as Ackerman contends. Voters and legislators are moved, even
in so-called normal times, by considerations of principle and right.
It must be said that Bellamy’s portrait of and critique of Ackerman is somewhat unfair. Ackerman knows that even in periods of normal politics, many
voters are moved by more than “the pursuit of private interest.”65 Moreover, he
knows that during periods of constitutional politics reformers are confronted
by constitutional conservatives who do not agree with them.66 Indeed,
Ackerman sounds a lot like Bellamy when he rejects what he calls a “dark picture,” according to which “normal politics … yield[s] statutes that were nothing more than deals by selfish interest groups, each looking out for itself without
a thought for the general welfare”; and he likewise rejects the view that “higher
lawmaking” “is the only kind of lawmaking in which anybody is taking the
public interest at all seriously.”67 According to Ackerman, the difference
between normal and constitutional politics is that in normal politics “the people” have not come together behind a particular reform or set of reforms they
want to impose on the higher law. Constitutional politics occurs only when
support for a reform initiative is extraordinary not only in terms its depth and
breadth in the voting public but also when it has what Ackerman calls decisiveness: “It should be in a position to decisively defeat all the plausible alternatives in a series of pairwise comparisons.”68
Nevertheless, even with a more nuanced depiction of Ackerman’s view,
Bellamy can still object that the mere fact that a supermajority, at one time,
supported some initiative deeply, broadly, and decisively does not establish
that future generations should be bound by what it did. A later majority may
come to think the earlier constitutional lawmaking was misguided or no longer
relevant, and, at that point, it is not obvious why the earlier decision should
still be binding. Some extra premise is needed.
The extra premise is that constitutional moments normally follow substantial crises, when some moral principle usually has been learned. The deference
owed constitutional enactments, then, is a deference owed something that has
a strong claim of authentic moral authority. As Bellamy himself, following
Ackerman, acknowledges, constitutions, or significant amendments thereto,
65
Id. at 270. Ackerman observes that “otherwise they wouldn’t have gone to the polls in the first
place.” This is exactly the kind of evidence Bellamy cites for the same point (p. 225).
66
See id. at 285–286.
67
Id. at 269.
68
Id. at 277. Ackerman’s concern with decisiveness is a response to worries about Condorcet’s
“paradox”—that the winning position in a group of more than two alternatives may depend on
how balloting is structured.
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“commonly come into being after a period of general political collapse, frequently following military defeat and often involving civil war” (p. 50). He also
remarks that, in such situations, “a bill of rights can provide a statement of
intent not to commit the errors of the past …” (p. 50). In other words, errors
have been identified and framing them in a bill of rights is a way of trying to
commit, as a people, to avoiding them in the future.
Bellamy thinks that the benefits of bills of rights are limited to the drafting
stage; thereafter, “the effects of such a bill can be unfortunate” (p. 50). This is
so, he thinks, because there will be “disagreements over the substance, scope,
sphere and subject of rights,” and it “is not always particularly profitable to
discuss all these issues in terms of which formulation best interprets the wording of the right in a given document” (p. 50). Note that Bellamy is giving short
shrift, here, to the idea that there might be compensating benefits. He sees the
positive effect as no different from the positive effects of drafting any legislation:
“forc[ing] the contending parties to come together and find common ground
through compromise” (p. 50). This overlooks the value of nations learning
from their history and trying to preserve those insights so that future generations will not make the same mistakes.
Consider the U.S. Constitution. In its founding moments, there were two
sorts of generally accepted lessons that had been learned. First, structurally, it
was important to have a stronger central government than had existed under
the Articles of Confederation. Second, the British past, with its history of colonialism, had provided lessons regarding the abuse of power that the drafters of
the new Constitution could agree were to be avoided: ex post facto laws, the
relatively easy lifting of habeas corpus, titles of nobility, and religious tests for
office. In addition, the Bill of Rights included various protections that were
similarly modeled on the desire to avoid repeating the abuses of the British,
such as freedom of speech, the right to assemble peaceably, and protections of
criminal process, such as the right to a trial by jury and the right not to be a
witness against oneself. Bellamy emphasizes that there were still points of
major disagreement, ranging from the continued role of slavery to the mechanism for electing the president (p. 133). True, of course, but that does not mean
the founders could not agree on some of the important lessons learned from the
abuses of British history.
A similar point can be made about the Civil War amendments. Naturally,
the defeated Southern states did not take the same view of the lessons of history
as the victorious Northern states; they adopted these amendments under pressure. Nevertheless, the lessons of history were alive for those who worked to
ensure that those amendments would become part of the Constitution. Slavery
had to be abolished, and blacks had to have the right to vote. Of more systemic
importance, the states could no longer be free to ignore the rights the Bill of
Rights protected.
Arguably, the same point may be made regarding Ackerman’s third constitutional moment, the New Deal. Though the Constitution was not formally
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amended, its interpretation was dramatically changed. The trauma of the
Great Depression had taught most leaders in the country the lesson that modern economies could not be sufficiently regulated if confronted by an absolutist
conception of the right of freedom of contract, and if the federal government
was restricted to playing a minimal role.
Certainly, the same may be said of the various European constitutions
adopted in the wake of World War Two. To take the German Constitution
as an example, it was written, in part, to ensure that certain horrors from
the Nazi era could not be repeated. To some extent, the protections were the
same as those of the much older U.S. Constitution. For example, the German
Constitution protects freedom of expression and of the press (article V). But
it also mentions certain ideals that are particularly salient given the lessons
of the Nazi era. The first article protects the dignity of all humans, a value
obviously rejected by the Nazis. In addition, the equal protection clause in
article III provides certain specifics, again directed toward learning from
past mistakes: no one can be “prejudiced or favored because of his sex, his
parentage, his race, his language, his homeland and origin, his faith or his
religious or political opinions.”
In my view, only the most obvious of these lessons should be understood as
set in stone; the function of a constitution, generally, should not be understood
to entrench certain principles for all times.69 Rather, the function is to provide
a prominent place in politics for certain ideals, thereby helping to ensure that
they will play a role for future generations which may not remember the lessons of history on their own. The concern is that the people, as a whole, are
likely to be caught up in the issues of the day, and that relatively few will be
students of history. The hope is that if the political life of a community is framed
by a constitution that embodies at least certain lessons of history, then those
lessons are more likely to have ongoing effect. Moreover, a constitutional court,
enforcing a jurisprudence that articulates these lessons, will be able to call a
community back from possible historical forgetfulness. Again, this is not meant
to put a straightjacket on the legislature and the people as a whole. It is meant
to create a strong presumption in favor of certain principles, which were
embraced as lessons learned, so that they will be neglected only if they have
69
Very little of the U.S. Constitution is “entrenched” against normal amendment; at this point in
time, only that each state should be represented by two senators. U.S. CONST. art. V. The German
Constitution tries to entrench itself to a greater extent, by prohibiting amendment to the basic
principles that make up the core of articles 1 and 20, and the federal structure. Grundgesetz
[Basic Law] art. 79. Arguably, article 79 can be amended, and that would indirectly allow the
amendment of even the core principles of articles 1, 20, and the federal structure. But it might
also be fairer to say that, short of scrapping the Basic Law altogether, the cores of articles 1, 20,
and the federal structure cannot be amended. And with certain truly core values, such as the
protection of human dignity, such entrenchment seems justifiable. After all, what could make us
think that such a principle could ever rightfully be judged wrong? I am grateful to Peter Quint
for urging consideration of this point.
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been consciously and conscientiously, deeply, broadly, and decisively rejected
by the people on the ground that they were wrong or have been superseded.70
Bellamy would object that even if certain general principles have been
learned—and he admits “there is often broad agreement at the level of abstract
principle” (p. 16)—“the interpretation and application of rights to particular
circumstances are frequently the source of profound debate and conflict”
(p. 16). Moreover, “ambitious schemes of judicial review that ignore, unduly
minimize or somehow seek to trump such disagreements over the meaning and
bearing of rights prove hubristic. They risk making judicial decisions appear
arbitrary, thereby threatening the legitimacy of the constitution” (p. 16).
What he says is true, but, again, the argument is too weak. Yes, judicial
review risks appearing arbitrary and that, indeed, may threaten the legitimacy
of a constitution. Nonetheless, not all threats are so serious that they should be
avoided. The U.S. Supreme Court has addressed deep and profound cultural
and political conflicts as part of its regular diet for a century or more, and yet
the U.S. Constitution still occupies a position that allows for what Jürgen
Habermas calls “constitutional patriotism,”71 and the Supreme Court is still the
most respected branch of government.72 Granted, the Court has endured crises
of confidence in that time, from President Franklin D. Roosevelt’s threat to
“pack” it the 1930s, to McCarthyite threats to strip it of jurisdiction during the
1950s, to the politicization of appointments to the Court since the 1980s
(reflecting primarily the struggle over the right to abortion), to the bald usurpation of power reflected in Bush v. Gore,73 in 2000. Nonetheless, the Court and
the Constitution it interprets retain very high levels of political legitimacy.
Individual decisions are contested at the time they are handed down but almost
all are accepted as legitimate law by almost all members of all branches of government and most of the population.
One may regret the way the Court has developed its constitutional jurisprudence, whether in particular cases or quite generally. One may reasonably
70
Article V of the U.S. Constitution, with its various supermajority requirements for amending the
Constitution, was clearly framed to establish a strong but rebuttable presumption that what was
in the Constitution was not to be changed easily. It is noteworthy that Jefferson objected to the idea
that his generation should be the only one privileged to write a constitution from scratch. He
would have had each generation call a constitutional convention every nineteen or twenty years.
See THOMAS JEFFERSON: WRITINGS 1401 (Merrill Peterson ed., Viking 1984) (cited in RAWLS, POLITICAL
LIBERALISM, supra note 46, at 408 n. 45). This is noteworthy mostly as a policy suggestion that was
not adopted.
71
See JÜRGEN HABERMAS, Citizenship and National Identity, in BETWEEN FACTS AND NORMS 500 (The MIT
Press, 1996). See also Jan-Werner Müller, A General Theory of Constitutional Patriotism, 6 INT’L J.
CONST. L. (I•CON) 72 (2008); and Karol Edward Soltan, Constitutional Patriotism and Militant Moderation, 6 INT’L J. CONST. L. (I•CON) 96 (2008).
72
See Paul W. Kahn, Freedom, Autonomy, and the Cultural Study of Law, 13 YALE J.L. & HUMAN. 141,
153 (2001).
73
531 U.S. 98.
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think the Court, more or less often, has misinterpreted and misapplied the lessons of history embodied in the Constitution. Moreover, one may regret that
certain avenues of moral thought are excluded from the political sphere
because they have been declared out of bounds by the Court, which inevitably
casts a narrowing, legalistic framework around what were originally purely
moral concepts (p. 37). But such limitations and mistakes are the price a country must pay to have a constitution that can embody the lessons of history at
the more general level.
Even if some of what one thinks of as mistakes are perceived to be relatively
serious, they have rarely involved flouting the principles the Constitution
embodies.74 These errors occur almost exclusively in the space of reasonable
disagreements about how to interpret and apply the rights protected in the
Constitution. And even if some of the mistakes were serious, there is little reason to think that a legislature that sought to give due attention to a constitution’s text would have done, overall, a significantly better job of protecting
rights. Further, there is value in the development of a constitutional jurisprudence that likely would be missing from legislative activity. The Court’s development of constitutional jurisprudence gives constitutional law the kind of
coherence that is a necessary condition for its having what Ronald Dworkin
calls integrity,75 and integrity is relevant to its moral, political, and legal
legitimacy.76
In addition, a court’s examination of laws for their constitutionality, even if
it is unlikely to result in a decision far from the political mainstream, serves the
important function of upholding the Constitution as a check on the political
branches, ensuring that they keep the Constitution in view and heed its lessons. As Ackerman says, “[it] is only as the new abstractions are worked up
into ‘middle-level’ doctrines defining operational principles and rules that [the
high level abstractions inscribed in formal constitutional amendments] can
serve as reliable constraints upon normal politics.”77 Legislatures, by contrast,
do not amass decisions that are meant to bind them in the future in the way
that courts, using stare decisis, build up a jurisprudence. The very raison d’être
of legislatures is to change the law. So they cannot provide, as courts can, the
sense that there is a body of constitutional law that legislatures must respect.
74
The Slaughter-House Cases, 83 U.S. 36 (1873), in which the Court disingenuously read the Privileges and Immunities Clause of the Fourteenth Amendment to mean essentially nothing, and
Plessy v. Ferguson, in which the Court, again disingenuously, accepted that racial segregation was
consistent with equality under the law, were arguably exceptions to prove the rule. By contrast,
Lochner and its sibling cases, while just as clearly repudiated now, were not so clearly disingenuous
interpretations of the relevant principles.
75
See Ronald Dworkin, LAW’S EMPIRE, ch. 6 (Harvard Univ. Press 1986).
76
For a useful distinction between all three categories of legitimacy, see Richard H. Fallon, Legitimacy and the Constitution, 118 HARV. L. REV. 1787 (2005).
77
Ackerman, supra note 64, at 289.
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Accordingly, it is only courts, through their development of constitutional
jurisprudence and their adherence to stare decisis, that can keep constitutional
ideals present and relevant long after the generation that learned the lessons
the hard way has passed from the scene.
Last, with regard to the loss of direct appeal to moral concepts, it is important to be clear about how and where this occurs. The political branches are
sometimes told that certain kinds of reasons cannot suffice to justify their
actions—reasons, for example, that aim at promoting particular religious
views over others or establishing the primacy of certain racial or ethnic groups
over others. The illegitimacy of laws based on such reasons, however, is exactly
the kind of lesson history teaches and around which there is wide consensus.
In addition, at least in a society in which free speech has been protected, the
Court stands ready not to police public discourse—people can cite religious or
racist or any other kind of reason for or against legislation—but to ensure that
laws can be justified by appeal to legitimate reasons and that they conform to
certain substantive norms.
Of course, members of the Court will reason primarily in legalistic, not
moral, ways. That is, they will appeal to precedent, text, analogy, and the practice of proportionality rather than engaging in the full range of moral considerations. However, their reasoning in this way does not interfere with legislative
discussions appealing directly to the relevant moral reasons. Rather, it ensures
that the Court is not simply second-guessing those reasons when it judges the
constitutionality of the laws. Judgment framed by the norms of legal reasoning
is what legitimates the Court as the enforcer of constitutional law.
Again, one may regret, morally speaking, the way that law has developed,
but such is the cost of having constitutional law in the first place. Given the
potential shortsightedness of the political branches, and the importance of
having some structure that will keep the important lessons of history in view,
this cost seems worth it. It has its risks, but its benefits seem greater.
Some might find these statements too strong. Why seek to justify a common
law–style development of constitutional jurisprudence, when all that a court
need do is engage in proportionality analysis? Anything more, one might say,
unnecessarily restricts the power of legislatures to address social problems
using policies that can reasonably be defended using public reasons.
To respond to this objection, it is helpful to start by recognizing that there
is a spectrum of judicial review—from the thinnest possible use of proportionality analysis, using a maximally large margin of appreciation while also trying to avoid articulating any general principles of law, to the most ambitious
common law model, trying to develop a rich and coherent constitutional
jurisprudence. While it is not clear exactly where on that spectrum a court
should come down, it is, arguably, somewhere in the middle. The role of the
court should reflect a balance between, on the one hand, allowing the legislature room to make any value judgments that can reasonably be defended with
public reasons and, on the other, keeping alive and relevant the lessons of
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history embedded in a constitution by developing a jurisprudence articulating
the substantive constitutional values embodied in a constitution’s particular
provisions.
As a matter of fact, both the European courts that officially reject the common-law model of judicial development of the law and the common law courts
that embrace it each occupy some variation of this middle position. The German
Constitutional Court, for example, recently struck down a federal law allowing
the defense minister to order passenger planes shot down if he believed they
had been taken over by hijackers and turned into weapons.78 It did so, in part,
because it found that the law violated the protection, in article 1, of human
dignity. It did not use proportionality analysis; rather, it developed, in a common law way, a specific conception of dignity that it found this law violated.79
Meanwhile, on the other side of the Atlantic, Chief Justice John Roberts has
made it his business to try to direct the U.S. Supreme Court to issue narrow
decisions that avoid articulating sweeping principle of constitutional law.80
Finally, lest one be plagued by the worry that constitutions and constitutional jurisprudence can sometimes be intolerably debilitating—as was true
during the Lochner era—one must recall that only the most uncontroversial
constitutional provisions should be regarded as set in stone. If a consensus
forms that new lessons have been learned and that aspects of a constitution
need to change, those lessons can be incorporated into constitutional law and
held up as a guide to future generations in their efforts to address the problems
of days to come.
7. Conclusion
Many societies have achieved a reasonable consensus on ideals of freedom
and equality within a democratic society. These are normally hard-won ideals. Embedding them into written constitutions serves to frame these ideals
in such a way that the political branches cannot easily forget or overlook
them. Moreover, courts that develop a constitutional jurisprudence also
help preserve the political relevance of these ideals. The judicial process
may not be more reliable than the legislative process at getting the correct
answers to important questions about rights. But the judiciary can still play
78
Air-Transport Security Act Case, BVerfGE, 1 BvR 357/05 (2006), available in English at http://
www.bundesverfassungsgericht.de/en/decisions.html (select “file no.” from the drop-down box
and then enter “1 BvR 357/05” in the search field). See Oliver Lepsius, Human Dignity and the
Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-terrorism
Provision in the New Air-Transport Security Act, 7 GERMAN L. J. 761 (2006), available at http://www.
germanlawjournal.com/article.php?id=756.
79
I think the Court’s conception of dignity is philosophically implausible; however, the result is not
unreasonable nor is the reasoning any worse than that often found in U.S. cases.
80
See Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353, 362 (2006).
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a fundamentally important role by giving those who lack political clout a
place where they can force their government to show that its law is constitutionally legitimate. And even if a court’s constitutional jurisprudence
sometimes strips the political branches of what ought to be legitimate legal
options, the value of articulating a body of constitutional law to keep constitutional principles and the lessons they embody alive seems to outweigh
that cost.