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Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach

Alec Stone Sweet and Jud Mathews

Print publication date: 2019

Print ISBN-13: 9780198841395

Published to Oxford Scholarship Online: July 2019

DOI: 10.1093/oso/9780198841395.001.0001

Title Pages

Alec Stone Sweet Jud Mathews

(p.i) Proportionality Balancing and Constitutional Governance (p.ii)

(p.iii) Proportionality Balancing and Constitutional Governance

(p.iv) Copyright Page

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Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach

Alec Stone Sweet and Jud Mathews

Print publication date: 2019

Print ISBN-13: 9780198841395

Published to Oxford Scholarship Online: July 2019

DOI: 10.1093/oso/9780198841395.001.0001

(p.v) Acknowledgments

Alec Stone Sweet Jud Mathews

The question of whether and how judges should balance conflicting values and interests has dominated my research on law and politics over the past twenty years. My approach to proportionality, in particular, has evolved through intensive discussions with Robert Alexy, Aharon Barak, Carlos Bernal Pulido, Damiano Canale, Moshe Cohen-Eliya, Dieter Grimm, Mattias Kumm, Jud Mathews, Iddo Porat, Giovanni Sartor, Wojciech Sadurski, Po Jen Yap, and Neil Walker. I am deeply grateful to each of them. I have also benefitted from teaching seminars on the topic at the Yale Law School, Bocconi University, and the National University of Singapore; I have, undoubtedly, learned more from my students than they have from me. Carlos Bernal, Laurence Helfer, Emilio Peluso Neder Meyer, and Po Jen Yap identified important rulings that would have otherwise escaped our attention. I am indebted to Dominic Byatt at Oxford University Press, who first suggested the book, and whose support of my research now spans over three decades. Julie Chenot and Cécile Descloux, at the Camargo Foundation in Cassis, France, again provided a place to write, under the best of all possible conditions. And once more, Martha Lewis, an artist who tracks the continuous, but virtuous, failures of human beings to bring a semblance of order to complex systems, made the painting that adorns the cover.

Alec Stone Sweet

I am fortunate to have been a part of the international community of scholars writing about proportionality for more than a decade now. Several of the figures named in Alec’s list have powerfully influenced my thinking as well; I would like to also thank Iris Canor, Paul Craig, Jamal Greene, Vicki Jackson, David Law,

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Russell Miller, Niels Petersen, Steve Ross, Eberhard Schmidt-Aßmann, and Alec Stone Sweet. A small army of terrific research assistants contributed to this project: thank you to Ylli Dautaj, Koah Doud, Salma Hassan, Neeraj Kumar, Nasim Mokhtari, Celia Karlin O’Sullivan, Martin Souto-Diaz, and Yan Zeng. I am grateful to the Max Planck Institute for Comparative Public Law and International Law, where I spent the summer of 2016, and to my home institution, Penn State Law, for providing congenial and collegial environments for research. Lastly, I want to thank Kim Mowery, for everything.

Jud Mathews (p.vi)

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Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach

Alec Stone Sweet and Jud Mathews

Print publication date: 2019

Print ISBN-13: 9780198841395

Published to Oxford Scholarship Online: July 2019

DOI: 10.1093/oso/9780198841395.001.0001

Constitutions, Rights, and Judicial Power

Alec Stone Sweet Jud Mathews

DOI:10.1093/oso/9780198841395.003.0001

Abstract and Keywords

This chapter provides an overview of contemporary, rights-based constitutionalism, and develops an approach to comparative research on systems of constitutional justice. The vast majority of modern constitutions establish such systems, which comprise an entrenched charter of rights, and a constitutional or supreme court whose mission is to defend the supremacy of the constitution more generally. Rights provisions comprise criteria of legal validity: any act of public authority that does not conform to the charter is unconstitutional. The central role of the court is to ensure that public officials do not violate the charter of rights, most importantly, through the enforcement of the proportionality principle. The judges are, in effect, “trustees” of the values placed in trust by those who have enacted the constitution: the sovereign People. Part I defines basic concepts—including that of “the constitution,” “constitutionalism,” and “governance”—and examines the process through which the rights-based constitution became the global standard. Part II addresses two crucial questions: why would the founders of new constitutions choose (i) to enshrine constitutional rights as “higher law,” and (ii) to delegate broad enforcement powers to a trustee court, whose important rulings on rights are difficult or virtually impossible to overturn? It then defines the concept of systemic effectiveness, and considers the conditions that are necessary for a charter of rights to become effective as an instrument of governance. Part III explores three pathways to transformative constitutional change—adjudication,

constitutional amendment, and legislation—and discusses the importance of trusteeship to each.

Keywords: system of justice,charter of rights,trustee court,constitution,constitutionalism, completeness,effectiveness,constitutional transformation

Prior to 1950, only a handful of high courts in the world had any meaningful experience with constitutional judicial review: the authority of a court to invalidate acts of public authority, including statutes, found to be in conflict with the constitution. The cataclysmic destruction of World War II led to a reconstruction of governance, particularly in Europe, which gradually emerged as the epicenter of a “new constitutionalism”1 featuring rights protection at its core. By the turn of the twenty-first century, the defining features of what Jacob Weinrib simply calls “modern constitutional law”2 had become a global standard: (i) an entrenched, written constitution; (ii) the establishment of democratically elected organs of government bound by a justiciable charter of rights; and (iii) an apex court whose primary duty is to defend the primacy of the charter, and of the constitution more generally. Meanwhile, the world’s most powerful high courts had converged on a common procedure—a doctrinal framework known as proportionality analysis (PA)—to adjudicate rights.3 Today, PA is basic to the rule of law in the modern constitutional state.4 Since the 1970s, the most powerful international courts, too, have embraced PA when they enforce human rights. As a result, scholars now identify the scaffolding of a global, multi-level “constitution,”5 which comprises overlapping international and domestic rights instruments, and a shared commitment to enforcing the principle of proportionality (Chapters3,6).

These developments have transformed the deep structure of law and politics, raising foundational questions. Why would political rulers, when negotiating a new constitution, empower judges to enforce rights—substantive constraints—on their own lawmaking powers? What would lead them to renounce the majoritarian principle that once held pride of place in liberal democratic theory? If the new constitutionalism requires the demise of (p.2) legislative supremacy, do constitutional judges necessarily become the supreme rulers? Why would states build international regimes that empower an international court to supervise how they govern domestically? Another set of issues concerns the variation one observes across legal systems. How are charters of rights enforced? Why do some systems protect rights more effectively than others? To what extent do the rulings of constitutional courts impact the making of public policy? The global scope and dynamics of these changes also pose intriguing questions. Can one observe the development of “global constitutionalism,” and, if so, what are its core elements? Has the transformation process just begun, or has it reached its limits?

We engage such questions from standpoints that deserve emphasis up front. First, the book develops an account of effective, rights-based constitutional governance. By governance, we mean the mechanisms through which legal norms are produced, adapted, and applied. The central task of modern constitutional law is to regulate legal and political change: how new legal norms are introduced, and existing norms altered or abrogated. The book focuses attention on the structural dynamics of legal change. To achieve their purposes, new constitutions—blueprints for governance—must be implemented. A charter of rights is at most an aspirational text; no charter is born with any degree of effectiveness. Instead, we argue, effectiveness is a construction of constitutional politics. Second, our basic unit of analysis is the “system of constitutional justice” (SCJ): that complex of constitutionally rooted rules, principles, procedures, and practices that govern the protection of rights. We will define the concept of effectiveness shortly. For now, it is enough to note that the “effectiveness” of systems of justice varies across time and place. Third, we direct empirical attention to the policy impact of charters of rights. Rights adjudication, in particular PA-based rights adjudication, helps to organize how legislatures, executives, and judiciaries make, enforce, and change law at a subconstitutional level. In embracing proportionality, we will argue, constitutional judges obtain a powerful managerial tool for supervising how all other officials govern, and for building systemic effectiveness over time.

Proportionality evolved in Germany, passing first from eighteenth-century legal philosophy into nineteenth-century administrative law, before becoming an unwritten, judge-made principle of constitutional law in the twentieth century. Today, proportionality is increasingly enshrined in constitutional texts,6 and has been fully constitutionalized across Europe, in parts of Latin America and Asia, and in common law systems as diverse as Canada, South Africa, Israel, and the United Kingdom (Chapter3). The adoption of PA by the courts of regional, treaty-based rights regimes (including the European and Inter-American Conventions on Human Rights) has also been a key (p.3) factor in its global diffusion (Chapter6). Presently, PA has no rival as the central procedural component of rights adjudication. Its basic function is to organize a systematic assessment of the justifications that state officials must provide if they wish to limit the scope of a right in a constitutionally permissible way (Chapter2).

Why are rights adjudication and the proportionality principle at the heart of governance in the modern constitutional state? The simple answer is that the two are complementary: (i) the charter of rights is binding on all acts of public authority, including statutes; and (ii) PA furnishes a stable, comprehensive analytical framework for resolving legal challenges concerning the conformity of such acts with rights.

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The charter establishes positive requirements of legality.7 But to be effective, rights provisions must be enforceable: they must establish juridical entitlements, possessed by individuals, to challenge acts of public authority as inconsistent with rights. Yet most rights in modern charters—the right to human dignity and to be free from torture being the most important exceptions—are not expressed (or interpreted) in absolute terms. Instead, they are “qualified” by a limitation clause that authorizes officials to restrict the enjoyment of a right for some sufficiently important public purpose. A central mission of any system of constitutional justice, then, is to determine whether public officials have properly exercised their authority under a limitation clause. As Weinrib neatly puts it: “The doctrine of proportionality consists in a set of conditions that [state officials] must satisfy to justify a limitation of a constitutional right.”8. PA, with its distinctive series of tests, is tailor-made for this task, which partly accounts for why constitutional judges have been drawn to it (Chapter2). Moreover, it is trans-substantive: judges can apply the same basic standard—of proportionality —to all qualified rights.

When judges embrace PA, they incorporate into the constitution a presumptive right to justification. PA is triggered once a rights claimant has shown, prima facie, that her liberty under a right has been abridged by an official act. The proportionality principle is enforced through a series of subtests, which we analyze in detail in Chapter2. At this point, a stylized summary of how a statute is reviewed under PA will suffice. Under the first subtest, the government must show that the legislation under review was enacted in pursuance of a legitimate aim, that is, the law is covered by a proper purpose recognized by the constitution. In a second stage, the court verifies that the means chosen by officials are, in fact, rationally connected to the statute’s purpose: a subtest for “suitability.” If the law is judged to be suitable, the court moves to the “necessity” stage, which is operationalized by a “least restrictive means” test. The key question under this subtest is whether (p.4) the statute abridges a right more than is necessary to achieve the legislature’s declared purpose. If there exist (reasonably available) alternative means that would permit parliament to achieve its aim, while infringing less upon rights holders’ protected interests, then the challenged measure will fail. The fourth subtest— known as “proportionality in the strict sense,” “proportionality stricto sensu,” or simply “balancing”—assesses whether the marginal harm the statute under review imposes on rights holders is “outweighed” by the law’s contributions to the public good, which may include protecting the rights of others. Among other things, the balancing stage permits the court to ensure that a right will not be severely abridged in the service of achieving a relatively slight social benefit.

Apex courts that embrace PA do not simply add a doctrinal technique to their methodological toolkit. Once constitutionalized, proportionality is enshrined as a master principle of governance whose authority is no less than that of the constitution, or of the apex court charged with defending the higher law. When

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rights are in play, all public officials and all organs of governance must respect the proportionality principle in their policy deliberations. PA is a highly intrusive standard of review: once activated, no policy consideration or interest is screened from judicial scrutiny. Whatever deference the court may show state officials will occur within the framework, not imposed on it through an external, formalized abstention or deference doctrine (for instance, “political questions,” “Wednesbury unreasonableness,” “state security”). As empirical research has shown, apex courts that deploy PA consistently and in good faith generate highly structured constitutional “dialogues” that shape how policy is made and the system evolves (Chapter5).9 In relatively effective systems, the more an apex court uses PA, the more proportionality considerations will govern how officials govern.

What the book is not about is also worth noting. We do not argue that global constitutionalism and PA are progressing, through some teleological or functional process, toward a one-size-fits-all monotype. Evidence of institutional and doctrinal convergence is, in fact, of enormous significance. The fact that virtually all new national constitutions establish a system of constitutional justice raises important theoretical and empirical issues, while making broadgauged comparative analysis possible. We fully recognize that every constitutional order evolves against the backdrop of distinct historical, cultural, and politico-legal legacies that are likely to constrain the availability of viable paths of development moving forward. The book, therefore, pays a great deal of attention to the diversity of practice, including how constitutional judges deploy PA. We also dwell on countervailing tendencies, resistance, and “negative cases,” which global convergence makes all the more salient.

(p.5) PA is a doctrinal construct, and our focus on legal doctrine may also raise alarm bells. It is fashionable to be suspicious of scholarship that seeks to explain legal outcomes solely through the exegesis of constitutional texts and the formal pronouncements of high courts. Rightly so. Academic lawyers and social scientists have conclusively demonstrated that “extra-legal factors”—economic development, the organization of party and electoral systems, demographic shifts and cultural change, the rise and fall of social movements, and so on— heavily condition the evolution of constitutional law and politics.10 The close attention we pay to the structural features of rights protection is not a covert assertion that only things “legal” or “judicial” matter. Indeed, we will argue that the effectiveness of any system of constitutional justice is largely determined by two meta-variables, which depend heavily on the kinds of factors named above. These are the extent to which: (i) the important questions of the day (economic, social, political, scientific, and so on) are adjudicated by constitutional judges; and (ii) the latter’s rulings influence the decision making of all other public officials. In embracing PA, we will argue, constitutional courts enhance their capacity to build systemic effectiveness in specific ways.

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The fact that the constitutional world is diverse, complex, and not well understood poses daunting challenges. Our approach is to concentrate on structural elements that are common to all constitutions, while organizing inquiry into variance across systems. All modern constitutions, for example, share certain formal properties that the analyst must take into account in comparative research. All purport to comprise bodies of higher-order rules that determine how every other sub-constitutional legal norm is to be made and applied; yet the precise content of constitutional meta-rules displays wide crossnational variance. Diverse fields of scholarship can make important contributions, different but complementary, to the study of systems of constitutional justice. Our general strategy is to integrate materials from several fields and perspectives into our inquiry, as sources for key concepts, testable propositions, and real-world data. In particular, we draw on: (i) the legal philosophy related to constitutions; (ii) delegation theory, as adapted to systems of constitutional justice; and (iii) the findings of prior comparative research of an explanatory nature. In addition, the concept of the system of constitutional justice itself, as a distinctive way of understanding the functions a legal regime can perform, generates new insights and hypotheses of its own when employed in comparative analysis. Let us briefly consider each in turn.

First, legal philosophers have produced an important literature addressing fundamental questions that cover all constitutional orders. What is a constitution, and what are its major functions? To what extent does a constitution’s (p.6) claim to authority and legitimacy depend upon extraconstitutional factors and forces? In their responses to such questions, scholars routinely generate propositions (proto-explanations or hypotheses) that are directly relevant to comparative research. More broadly, legal scholars have generated the core conceptual vocabulary that we use to describe the institutions and practices of constitutional law, and the relevant differences we see across systems.

Second, social scientists use delegation theory to guide research on any governance situation in which a power-holder—the Principal—confers authority on an individual or an organization—the Agent—to help the Principal attain her goals.11 Here, we extend the insights of delegation theory to help account for key features of modern constitutional law and politics. We use it to help explain the turn to constitutional judicial review, to organize discussion of the structural determinants of judicial power, and to derive propositions about effectiveness and systemic change.

Third, the existing literature in the field of comparative constitutional law and politics also pushes us to think more generally, in light of empirical findings. Scholars have recently begun to collect and analyze relatively comprehensive data on constitutions,12 modes of judicial review,13 and the content of charters of rights.14 Of particular significance to this book is empirical research on the

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emergence of new constitutional regimes;15 on the “judicialization” of policymaking in constitutional settings;16 and on the diffusion of constitutional norms and forms across borders,17 including proportionality. In this book, we present and engage with results from this body of work insofar as they are relevant to the questions that our project addresses (Chapters3and5).

What is more, the very concept of the system of constitutional justice offers a fresh perspective on the material of comparative constitutional law. Much of the book is devoted to how such systems operate. The book focuses in particular on two important, closely related properties of every SCJ: completeness and effectiveness. A system of justice is complete to the extent that: (i) the charter of rights covers all important aspects of individual dignity, liberty, and autonomy; (ii) stable procedures secure access to justice, permitting individuals to plead rights in the courts against any act of public authority, and enabling judges to provide an adequate remedy when rights are violated; (p.7) (iii) state officials are required to justify any rights-restricting measure under review, with reasons. In a fully complete system, all individuals possess a juridical entitlement, grounded in the constitution, to challenge any act of public authority that would infringe upon their freedoms as expressed in the charter. A system of constitutional justice is effective to the degree that: (i) important disputes concerning rights are actually adjudicated; (ii) an apex court authoritatively resolves these disputes by engaging in independent legal reasoning, and provides constitutional reasons for its rulings; and (iii) all other public officials recognize the interpretive, precedential authority of the court’s jurisprudence (case law), and adapt their decision making to it. No system, of course, is fully complete or effective. We can nonetheless identify key factors that together determine the extent of effectiveness and completeness, and do so below.

These streams of materials provide different ways of seeing the most significant features of the constitutional world as they have emerged since the 1950s. Our goal is to build on this scholarship, not to displace or debunk it. Taken together, they allow us to map the terrain, however imperfectly. In this chapter, our emphasis is less on proportionality, and more on the background conditions that have made it the world’s most successful constitutional transplant. Part I defines the components of rights-based constitutionalism. Part II focuses on the functional logics of contracting constitutional rights and delegating review powers to an apex court. Part III explores three pathways to transformative constitutional change within a system of justice: adjudication, constitutional amendment, and legislation.

IConcepts and Models

The development of proportionality as a global, best-practice standard of rights protection took place within a much wider process: the gradual consolidation, since 1950, of the basic model of modern constitutional law. In Chapters2and3, we explain why judges are attracted to, and adopted, PA. This part considers the

larger context in which these choices were made. We define concepts, examine the components of the modern system of constitutional justice, and discuss the template’s global diffusion.

Constitutions and Constitutionalism

Modern constitutions, of course, do more than establish rights-based systems of justice. Among other things, they also establish governmental organs and distribute powers among them, specify procedures for making and enforcing (p. 8) law, stipulate rules for their own amendment, and “constitute” a legal system, in perpetuity.18

H.L.A. Hart famously defined a legal system as “a complex union of primary and secondary rules.”19 Primary rules—which are announced in statutes, ordinances, decrees—impose duties on people, as subjects of the law, and regulate their behavior. Secondary rules both enable and constrain the production of primary rules and, hence, legal change. They “specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”20 In this book, our interest is in constitutionalized secondary rules—those meta norms that govern how all subconstitutional legal norms are to be produced, enforced, and adjudicated.21 Constitutional rights are conspicuously absent from Hart’s idealized legal system, but we can still describe the elements of a system of constitutional justice in terms of categories he devised. In their constitutional form, secondary rules are bundled into an overlapping set of meta-norms that include:

•the constitutional provisions that establish the organs of government and their competences, including restrictions on how they may exercise their authority, notably, in the form of rights. These are mostly Power-Conferring Rules.

• Rules of Change, which specify procedures for producing statutes and other primary rules, and for amending the constitution.

• Rules of Adjudication, which govern the jurisdiction of the courts, including the authority of a supreme or constitutional court to resolve disputes concerning the meaning of the constitution.

These meta-norms lay down a blueprint for constitutional governance.

Every viable constitution provides a means of authoritatively resolving disputes concerning (i) the legal validity of any sub-constitutional norms in the system, and (ii) conflicts between legal norms (including constitutional norms), or among organs of government. Another set of secondary rules—Criteria of Validity determine how courts are expected to resolve such disputes, insofar as they give judges guidance as to which legal norms are valid and, therefore, enforceable.

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These criteria are usually derivable from the other secondary rules: judges must enforce statutes that are made according to the proper procedures, while respecting the charter of rights, for example.22

(p.9) Insofar as these rules delineate the structural properties of any constitutional order, all such orders will be directly comparable. Every system of constitutional justice consists of three formal elements: (i) a written, higher-law constitution; (ii) a justiciable charter of rights; and (iii) a mode of constitutional judicial review. But the content of the charter, and the extent of its integration into the various secondary rules, vary widely. Secondary rules may overlap, and interlock with one another, in complex ways. In particular, when an apex court formally grants proportionality status as a constitutional principle, it alters the secondary rules. Henceforth, a primary purpose of adjudication will be to ensure that state officials do not violate the proportionality principle when they produce new, or apply existing, primary rules. Today, virtually all of the world’s most powerful constitutional courts have, in effect, constitutionalized proportionality, making it a corollary of the charter of rights, and thus a criterion of validity. When it comes to constitutional governance, the rule “all state officials must respect the proportionality principle” will overlap all other important secondary rules.

While the concept of a constitution is reasonably straightforward, “constitutionalism” is more contested. We use the term primarily to denote the commitment, on the part of any given political community, to work within the rules established by the constitution. The commitment to respect and to live under a constitution, and the degree to which public officials, political parties, interest groups, and other elites mobilize to undermine or destroy it, varies cross-nationally, and within any polity over time.

A second way to conceptualize constitutionalism is as a cultural or ideological construct, directing attention to macro-cultural understandings and social practices rooted in specific constitutional arrangements, such that one can speak of “Canadian” or “Taiwanese” constitutionalism, for example. “Constitutionalism is the set of beliefs associated with constitutional practice,” Neil Walker suggests, embodying the fundamental notions of how “we,” in “our” political system organize the state (federal or unitary), constitute our government (centralization or checks and balances), provide for representation and participation (elections and referenda), protect minorities and fundamental freedoms (rights and judicial review), promote equality (taxation and social welfare regimes), and so on.23 This type of “constitutionalism” will vary in different places, not only in its content, but in its strength and coherence. A robust constitutionalism expresses the self-understanding of a political community—its values, aspirations, and idealized essence24—and provides a wellspring of legitimizing resources for the body politic, helping it to evolve as circumstances change. In contrast, a weak constitutionalism fails (p.10) to

represent collective identity, and times of crisis will challenge the legitimacy of the constitutional order.

There is a third family of definitions worth noting. Carl Friedrich refers to constitutionalism as “limited government,” a state of affairs wherein the higher law “effectively restrains” those who control the coercive instruments of the state.25 Koen Lenaerts defines constitutionalism as “limited government operating under the rule of law.”26 Michel Rosenfeld notes that “there appears to be no accepted definition of constitutionalism,” but then states that, at a minimum, “modern constitutionalism requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights.”27 We critically engage this “limited government” formulation throughout the book. Here it is enough to note that constitutions—including charters of rights—do not just constrain the exercise of public authority; they constitute and authorize it.

Systems of Constitutional Justice

Modern constitutions establish systems of justice in order to optimize rights protection, replacing constitutional forms that had spread widely in the nineteenth century, including the absolutist28 and parliamentary sovereignty models. Modern constitutions are promulgated in the name of the sovereign People. They establish the lawmaking authority of representative governmental organs, which are tied to the People through elections. They provide for a system of justice. And they are codified and entrenched: explicit rules of change regulate the amendment of the constitutional text, typically through procedures that are more onerous than those in place for changing statutes.

The rights-based model has no serious rival today. Data collected on constitutions that have entered into force since 1789 are conclusive in this regard.29 The first codified constitutions appeared only at the end of the eighteenth century, in the United States and France. Today, of the 194 states (p. 11) in the international system, only three do not possess a codified constitution: Israel,30 New Zealand, and the United Kingdom (UK).31 Of existing states, 183 (94 percent) have constitutions containing a charter of rights. In the 1985–2010 period, 114 new constitutions entered into force (not all of which have lasted), and we have reliable information on 106 of these. All 106 new constitutions contained a catalog of rights, and only five failed to establish a judicial mode of rights protection (North Korea, Vietnam, Saudi Arabia, Laos, and Iraq32).

For present purposes, the trend that matters most is the demise of the legislative (or parliamentary) sovereignty model. With a polite bow to Britain and France for historical contributions and a nod to an important holdout— Australia33—we can declare the model all but extinct. The legislative sovereignty model is defined by a series of interlocking features. The constitution (whether

codified, as in France, or a mix of texts and unwritten conventions, as in Great Britain) provides for regular elections to the parliament. At the heart of the model is a simple chain of legitimation: electorates legitimize legislative authority, and parliamentary majorities legitimize statutes. Once adopted by the legislature, statutes take primacy over any conflicting norm, until changed by a subsequent parliamentary majority.

The legislative sovereignty model is defined by secondary rules with three features. First, in contrast to the modern model, the constitution is not entrenched: that is, there are no special, non-legislative procedures for revising it. No parliamentary act can bind a future parliament, and parliament can revise the constitution through a majority vote (a rule of change). To take a dramatic example, by way of an ordinary statute, the British House of Commons abolished the power of the House of Lords to veto legislative proposals in 1911, removing the last important constraint on the Commons’ primacy. The second consequence is that any legal norm that conflicts with parliamentary legislation is itself invalid (a criterion of validity). Judicial rulings are subject to this rule, hence the prohibition of judicial review of statute (a rule of adjudication). In the case of a conflict between two statutory provisions, the one adopted later in time trumps, under the doctrine of implied repeal (a rule of change that determines validity). The third is that the constitution contains no body of substantive constraints on legislative powers. Public liberties, whether granted by the legislature (p.12) through statutes, or the courts through case law, can be rescinded by a legislative act. The French Third (1875–1940) and Fourth (1946–1958) Republics, and the UK, until recently, are relatively pure examples of legislative sovereignty regimes.

Virtually all existing systems of parliamentary sovereignty have been deeply infected by the rise of rights-based constitutionalism. In the so-called “Commonwealth model of judicial review,”34 the legislature can ignore or legislatively set aside supreme court decisions on rights.35 While rejecting proposals to establish a charter of rights with constitutional rank, New Zealand (1990) and the UK (1998) nonetheless adopted human rights statutes, which are recognized as “quasi-constitutional” law in that they are not subject to the doctrine of implied repeal, and they permit judicial review of statutes. Under the 1998 Human Rights Act, UK courts are empowered (i) to interpret statutes (and all other public acts), as far as possible, in conformity with rights found in the European Convention on Human Rights, and (ii) to declare statutory provisions incompatible with rights, when such an interpretation is impossible. Parliament, however, is not required to rescind a statute declared to be rights-incompatible. New Zealand courts, too, are under a duty to interpret statutes in rightsconforming ways, though its Parliament also possesses the authoritative “final word” in the face of a declaration of incompatibility issued by the Supreme Court. In 1982, Canada adopted a Charter of Rights and Freedoms, and gave it full constitutional rank. But the Canadian Charter also permits Parliament to

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reenact a law found by the Supreme Court to be unconstitutional, for a period of five years, by majority vote. Politicians virtually never use this procedure, due to the perceived political costs of reenacting a law judged to have violated the Charter.36 Australia is now actively debating whether to adopt a statutory bill of rights, as the federated Australian state of Victoria did in 2006.

In contrast with the Commonwealth model, modern systems of justice typically establish “structural judicial supremacy,” wherein the apex court holds the authority to invalidate any state act that violates the charter, through rulings that are virtually impossible (whether in law or in fact) to be overturned through constitutional revision.37 (p.13)

Rights and Review

In adjudicating charters of rights, constitutional judges routinely develop jurisprudential theories that explain the structure of rights—their content, nature, and scope. Different structural theories produce different approaches to rights adjudication. The structural properties of rights provisions vary along a number of dimensions. The first concerns the distinction between (i) “absolute” and (ii) qualified rights. When rights are expressed (or interpreted) in absolute terms, any act of public authority that infringes upon the right is unconstitutional. A court that would enforce the right to free expression in absolute terms, for example, must determine what types of speech are covered by the right, and which are not. If the case involves speech that is covered, the rights-claimant will prevail, and if the speech is not covered, the claimant will lose. This “categorical” approach to rights38 has at times been used by the U.S. Supreme Court to enforce the First Amendment (which declares in categorical terms that “Congress shall make no law … abridging the freedom of speech”). But a right may also be conceived in relative terms, as a principle (or value) to be balanced against other values of the same constitutional rank, including against the state’s duties to protect the rights of others, and to make and enforce law in the public interest. In modern constitutional law, only a tiny handful of rights—such as a right to one’s human dignity and the prohibition of official torture—are typically expressed in absolute terms. The others are “qualified” by limitation clauses that expressly authorize lawmakers to curtail enjoyment of the right for some sufficiently important public reason. As we stress in Chapter2, PA is tailor-made for adjudicating qualified rights.

A second dimension of variation concerns the nature of the obligation imposed on public authority. A right may establish what the state may not do, either under any circumstances (an absolute, or categorical, version of rights), or unless the state meets a special burden of justification (a qualified conception of rights). Most modern charters also address what the state must do, in order to facilitate the enjoyment of rights; and many also entitle citizens to certain benefits, such as adequate public health care and education, employment, and housing.39 One classic typology thus categorizes rights as negative or positive:

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the former stop government from doing certain things, and the latter requires government to act to accomplish certain goals, especially when failure to act will lead to a denial of rights protection. Older constitutions rarely contain positive rights; newer constitutions almost always do.

Constitutional judicial review also varies, with two models dominating.40 The archetype of the “decentralized” model is American-style “judicial review,” (p. 14) which is performed by the judiciary in the context of litigation. The second —the “centralized” or “European” model—grants review powers to a special organ—a constitutional court—while the ordinary (that is, non-constitutional) courts are denied the authority to invalidate statutes.

The underlying rationales for each model reflect opposed separation of powers doctrines. Separation of powers doctrines express idealized notions of how the organs of government should function and interact with one another, given a particular constitutional text, history, and culture. Simplifying, under the precepts of the first model, the judiciary is understood to be a separate but coequal branch of government, within a system of “checks and balances.” The duty of American courts, their circumscribed function, is to resolve legal “cases or controversies” in a small set of defined categories, one of which is those that arise under “the laws of the United States.”41 The Constitution is one of “the laws.” If litigants can plead the constitutional law before the courts, then judges will need the power of judicial review in order to resolve the constitutional controversies that come before them. Such is the logic of Marbury v. Madison (1803), the U.S. Supreme Court decision that asserted the Court’s own constitutional review authority.42 Review powers are held by the judiciary as a whole.

Giving review powers to all courts is no longer as popular as concentrating review authority in a specialized constitutional court.43 The centralized model first developed in Europe, where the judicial review of statutes was traditionally prohibited, and where separation of powers doctrines strongly distinguished the “political function” (to legislate) from the “judicial function” (to resolve legal disputes by applying statutes). From the perspective of the centralized model, American-style judicial review appears to create a “confusion of powers,” since it permits the judiciary to participate in the work of the legislature. The centralized model avoids the problem by vesting the constitutional review power in a unique institution, one that would never be confused with an ordinary court.

Considered as an ideal type,44 we can break down the centralized model into four constituent components, which we contrast with its decentralized alternative. First, constitutional courts enjoy exclusive constitutional jurisdiction. Constitutional judges alone may invalidate a statute as unconstitutional, while all other courts remain formally prohibited from doing so. In the United States, review authority inheres in judicial power, and thus all

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judges possess it. Second, constitutional courts settle constitutional disputes. In contrast, the (p.15) jurisdiction of the U.S. Supreme Court reaches both constitutional and non-constitutional disputes. Constitutional courts do not preside over ordinary litigation, which remains the function of the ordinary courts. Instead, their central task is to give authoritative answers to the constitutional questions that are referred to them. Third, constitutional courts are connected to, but detached from, the judiciary and legislature. They typically occupy their own “constitutional” space, which is neither clearly “judicial” nor “political” in traditional separation of powers terms. Fourth, some constitutional courts are empowered to review legislation before it has been enforced, that is, before it has actually affected any person negatively, as a means of eliminating unconstitutional norms before they can do harm. Thus, in the centralized model of review, the judges that staff the ordinary courts directly enforce statutes (and other sub-constitutional legal norms), while constitutional judges directly enforce the constitution.45

The two models of review also differ with respect to the pathways through which cases come to the judges. In the United States, litigants activate rights review when they plead a right before a judge—any judge. In countries with constitutional courts, there are three main procedures for initiating review. The first is abstract review: the review of statutes prior to their enforcement. Abstract review is also called “preventive review,” since its serves to filter out unconstitutional laws before they can harm anyone. It is typically politically initiated: executives, parliamentary minorities, and regions or federated entities in federal states may refer laws to the court. The second mode is concrete review, which arises in the course of litigation in the courts. Ordinary judges initiate it by sending a constitutional question to the constitutional court: is a given legal norm (statute, judicial decision, administrative act, and so on) constitutional? The general rule is that a presiding judge will refer such questions if two conditions are met: (i) that the answer to the question will determine who wins or loses in the dispute at hand; and (ii) there is reasonable doubt in the judge’s mind about the constitutionality of the applicable act or rule. Referrals suspend proceedings pending a review by the constitutional court. Once rendered, the constitutional court’s judgment is sent back to the referring judge, who then decides the case on the basis of the ruling. Ordinary judges are not permitted to determine the constitutionality of statutes on their own; rather, they help to identify potentially unconstitutional laws, and then send them to the constitutional court for review. The third procedure—the constitutional complaint—goes by a variety of designations, including the amparo in Spain and throughout Latin America.46 It brings individuals into the mix. Individuals are authorized to appeal directly to the constitutional (p.16) court when they believe that their rights have been violated.47 Some systems also create a rights ombudsman with independent powers to bring cases to the court. A system that provides for abstract review, concrete review, the individual

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complaint, and an ombudsman is more “complete” than a system that provides only for case-or-controversy review.

Diffusion

Since the 1980s, virtually every act of constitution-making following the demise of authoritarian regimes, or the end of civil war, has resulted in the construction of a system of constitutional justice. Authoritarian regimes exist and persist, but when they fall, the founders of new constitutions almost always embrace the dominant model. Why virtually all new constitutions written since 1985 establish rights and review is something of a mystery, though three factors are of particular importance.

First, new constitutions hail new beginnings. In the context of democratization, the turn toward rights-based constitutionalism signals a decisive break with the past. The collapse of what Kim Lane Scheppele has called “regimes of horror,”48 in which state officials had routinely committed the most heinous crimes against citizens, is the paradigmatic situation. Such regimes generate a massive social demand for rights and review, while their demise provides the founders of new constitutions with a discredited legacy to demonize. In such contexts, few see a contradiction between democracy and rights protection, at least at the beginning. On the contrary, founders and citizens typically view robust rights protection as essential to any successful transition to constitutional democracy.

Second, the framers of new constitutions copy forms perceived to be successful. Institutional sociologists and others have documented the process through which best-practice standards emerge, congeal as templates, and diffuse globally.49 Constitutional forms diffuse in similar ways, through “band-wagon effects” that are easily tracked.50 The German experience, for example, not only directly influenced those who designed new constitutions across Europe, but also in Colombia, South Korea, South Africa, and Taiwan. The last constitution to leave out a charter of rights was the racist 1983 South African constitution, hardly a model to emulate. Similar dynamics supported the spread of proportionality (Chapters3and6).

A third factor concerns the coercive effects of the international environment. Over the past thirty years, the international organizations that (p.17) govern the global economy have heavily promoted constitutional reform, emphasizing rule of law as key to peace and development, and rights protection as key to rule of law. The International Monetary Fund, the World Bank, and other development organizations partly conditioned development aid and other resources on congruence with international standards. In the 1990s, following the collapse of communism in Europe, the EU and the Council of Europe (the centerpiece of which is the European Convention on Human Rights) required that framers of new constitutions provide for constitutional justice as a prerequisite for membership and support programs. Authoritarian states, too,

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sometimes embraced rights and review on their own, as a means of signaling to the international community their commitment to reform (whether sincere or not).

The factors favoring structural convergence are embedded in a larger ideological project. Modern constitutional law is a construction of liberal ideology, the domain of which has steadily expanded since 1789. Today, one finds relatively effective systems of constitutional justice on every continent.

IIContracting and Delegation

Understanding the rise of modern constitutionalism also requires attention to the strategic logics that underlie decisions by political elites to build new systems of justice. Here, we focus on functional needs of those who negotiate new charters of rights, and delegate to constitutional judges. In a nutshell, a commitment to judicial review follows from a commitment to rights, since rights generate fierce commitment problems that constitutional courts can resolve, at least on paper. Moreover, the more any polity seeks to achieve an effective system of justice, the more authority it will need to delegate to an apex court. The key institutional design question is, what types of arrangements will maximize the chances of building systemic effectiveness over time? In response, we develop a simple theory of trusteeship, focusing on the authority of constitutional judges to manage the system as it evolves.

Contracting and Delegation

A first order puzzle concerns why elites would find it in their interest to establish rights and review. Scholars largely agree on the basics of a solution to this puzzle; at the same time, they recognize that explaining any (p.18) particular case will require close attention to facts (historical, socio-economic, politicolegal, and so on) that are specific to that national system. The general account stresses the importance of a competitive party system, and the common interest of each party to constrain its opponents when out of power. Put simply: when two or more major parties (i) know that they will compete with one another in elections for power, and (ii) believe that they could lose to one of their opponents, then (iii) each will have an interest in investing in constitutional arrangements that will constrain the victors after their opponents lose an election.

Although virtually all modern constitutions proclaim that sovereignty rests with the People, constitutions are typically drafted by different groups of elites in the course of complex negotiations. In such contexts, two overlapping logics broadly explain why these groups choose to delegate control powers to constitutional judges. The first, the so-called “insurance model of judicial review,” directs analytical attention to the degree to which political authority is centralized or fragmented.52 In systems dominated by one person or one political party, rulers will have little incentive to share their power with courts. In contrast, where a

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competitive party system exists or can be foreseen by the founders, each party will see the benefits of protecting its interests when out of power, and constraining officials through judicial review is a means of doing so.

A second, related logic—one of “incomplete contracting”—focuses on rights as a specific form of insurance.53 Constitutions are conceived as contracts between political elites who jointly negotiate the legal framework under which they will govern. In the most common situation, these elites—members of political parties and groups claiming to represent the broader citizenry—negotiate the terms of the new constitution as a “constituent assembly,” whose task is to produce a draft text to be submitted to the People for ratification in a referendum. In establishing a democracy, each contracting party knows that it will compete with the others for office, through elections. At the same time, each wants to constrain opponents when they are in power, in part, through rights and review. The resulting constitution thus creates two public goods: (i) a set of enabling governmental institutions, tied to elections, and (ii) a set of constraints, tied to rights.

We conceptualize modern constitutions as incomplete contracts.54 All contracts are “incomplete” to the extent that meaningful uncertainty exists as to the precise nature of their terms. Given the impossibility of negotiating specific rules for all possible contingencies, and given that, as time passes, conditions will change and interests will evolve, most agreements of any complexity are produced through what organizational economists call (p.19) “relational contracting.” In this mode, the parties to an agreement seek to broadly “frame” their relationship, by agreeing on a set of common goals, stipulating outer limits on acceptable behavior, and establishing procedures for “completing” the contract as future circumstances warrant.55 Modern charters of rights are paradigmatic examples of relational contracting.56

Relational contracting, of course, generates a commitment problem, which is typically resolved through third-party dispute resolution and enforcement. Contracting rights57 goes hand-in-hand with establishing judicial authority. Take the following scenario, which is a simplified version of what has occurred in many places since 1945. Once the constituent assembly decides to include a charter of rights,58 it faces two tough problems. First, rights disagreements threaten to paralyze the drafting process. Left-wing parties push for positive rights and limits on the rights to property, while rejecting a narrow conception of the classic negative rights. The right-wing parties want stronger protection for property rights, and see rights primarily as a means of limiting, not enabling, government. The two sides compromise, drafting a charter that (i) lists most of the rights that each side wants, (ii) qualifies most rights with a limitation clause, and (iii) is vague about how any future conflict between two rights, or a right and an important governmental purpose, will be resolved. The second problem is making the commitment to protecting rights credible. The solution is delegating

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enforcement powers to a constitutional court. Delegating allows the assembly to avoid bargaining stalemates, while creating a mechanism for enforcing and “completing” rights incrementally, on a case-by-case basis, when the constitution enters into force.

Agents and Trustees

The more acute are problems of imperfect commitment, delegation theorists assume, the more discretionary authority the framers must delegate to the (p. 20) reviewing court, if governance arrangements are to achieve their purposes. Relational contracting may help a divided constituent assembly reach agreement on rights ex ante, qualified rights being incomplete norms by design. But if rights are to be enforced as positive requirements of legality—that is, as criteria of validity for all other official acts—then the court must have the discretion to determine the content and scope of rights, ex post. The commitment problem will persist, however, if state officials can easily nullify the effects of the court’s rulings through constitutional amendment. In modern systems, entrenchment is therefore crucial, serving to insulate the court’s rulings from override by officials whose acts the court controls.

Contrast a constitutional court’s role in the modern system of justice with that of the judiciary in the classic legislative sovereignty regime. One can conceptualize the latter as a simple “Principal-Agent” model, where the courts act as agents of the sovereign parliament, which is itself an agent of the electorate. Notably, even on this framing, judicial rulings will enjoy a measure of insulation from political override. A major task of the judiciary is to enforce parliament’s statutes, while review of their lawfulness is prohibited. To the extent that statutes are incomplete, judges will need interpretive powers. But since interpretation and application are themselves forms of lawmaking, the question of “agency costs” inevitably arises. As an empirical matter, we know that the more any statute is litigated, the more likely the courts will determine what the law means, in practice. Yet even in the face of extensive judicial lawmaking, the principal remains in charge. Members of parliament are always free to overturn judicial rulings through legislating a new statute. Thus, insofar as the legislator can identify judicial “errors,” it can correct them, since the decision rule governing override—a majority vote of parliament—enables its control. The rules governing judicial override are a crucial factor in this type of analysis, but they are not the whole story. A parliament that is unable to muster a majority vote to overturn any particular judicial decision remains sovereign, as a formal matter, but its actual capacity to control the courts is, on that point of law at that point in time, nil.59

In modern systems of justice, the apex court is not a simple agent of any permanently sitting organ, such as a parliament.60 Instead, it exercises authority in the name of a fictitious, but symbolically important, entity: the sovereign People. The more appropriate concept for this context is trusteeship.61 Through

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legislating a rights-based constitution, the People have: (i) placed their freedom —in the form of a charter of rights—in trust; and (ii) conferred (p.21) review powers—the relevant “political property rights”—on the court to manage this trust. The court can only perform this mission effectively if it possesses the authority to invalidate public acts that violate rights, and if its decisions are insulated from easy override on the part of officials whose decisions it controls.62 In such a situation—one of structural judicial supremacy—members of parliament, executives, and all other state officials are agents of the People, subject to the decisions of the trustee court.63 The trustee court, a kind of “super-agent” of the People, acts as the regime’s caretaker, and is itself subject to duties of appropriate stewardship.

Trust law’s emphasis on the fiduciary obligations of trustees also informs our approach. Because both citizens and officials are vulnerable to the trustee court’s judgments, its supremacy is tempered by a set of robust fiduciary duties. As applied to courts, the most important of these duties are (i) loyalty, (ii) accountability, and (iii) deliberative engagement. As Ethan Leib, David Ponet, and Michael Serota argue,64 loyalty refers to the judge’s duty to act in ways that will maximize the purposes of the trust: to protect rights in the present instance. The duty of accountability requires the trustee court to justify its rulings with reasons. And the obligation of deliberative engagement requires the court “to engage in dialogue” with those who are vulnerable: rights claimants and officials. This obligation requires “an authentic effort to uncover preferences rather than a mere hypothetical projection of what beneficiaries might want.”65 As we will argue throughout the book, a court that deploys proportionality analysis in good faith will perform its fiduciary duties while maximizing its capacity to enhance the system’s overall effectiveness.

It is worth highlighting something implicit in the discussion above, namely, that the move to trustee courts is sustained by both strategic and normative logics, both for the elites who construct constitutions and the judges who interpret them. From the strategic perspective of the elites negotiating the terms of a democratic transition, rights can serve an insurance function only if the court interpreting them owes its allegiance to the system as a whole. This conception of the apex court as “guardian of the constitution” (to borrow the term used in Germany) is equally consonant with the normative constitutional theory that underwrites the modern system of constitutional justice. Similarly, from the perspective of constitutional judges, the applicable strategic and normative logics also point in the same direction. If the court does not act as a guardian in good faith, it will neither be able to “complete” the founders’ incomplete contract nor to render the system of justice more effective. (p.22) Looking forward, insofar as trusteeship in fact imposes fiduciary duties on constitutional courts, those courts will have strategic incentives to take those duties seriously, and proportionality can help them to do so (Chapter2).

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Trusteeship and Effectiveness

Three factors condition the development of the effectiveness (as defined above) of any system of constitutional justice. First, the apex court must have a caseload,66 without which it could acquire no influence over the system’s evolution. Second, once activated, the judges must resolve rights disputes while giving defensible reasons for their decisions. If they do, they will produce a jurisprudence: a case law that records how they have interpreted and applied the charter of rights. Third, a stable conception of precedent must develop within the system. All other state officials, and all potential litigants (the citizenry), must generally accept the court’s jurisprudence as authoritative, and refer to it in future episodes of adjudication and application. The second and third conditions will not be met if the court produces arbitrary, unprincipled, and inconsistent rulings. Downstream, what will matter is the degree to which all other government officials adapt their decision making to the court’s jurisprudence, as it evolves. If a system of justice is to gain in effectiveness, officials must consider such intrusions to be, often enough, a reasonable tax to pay for rights protection, and they must be willing to reinvest in the system as it evolves. These are the necessary and sufficient conditions for the development of effectiveness.

Trustee courts that manage relatively complete systems of justice, as completeness is defined above, possess the formal powers necessary to manage the system. Other things equal, trustee courts that faithfully execute their fiduciary obligations will maximize capacity to build systemic effectiveness. But calling a court a trustee, and listing its powers and duties, will not tell us how any given apex court will actually govern, what kind of case law it will construct, or how political elites will react to important rulings. Answering these questions for specific systems would require a detailed empirical analysis of each.

It is a brute fact that most systems of rights protection throughout world history have been largely ineffective, as irrelevant to politics as the constitutions that created them. Ruling elites may seek to settle their disputes by force, rather than through the courts, with fatal consequences for the regime. They may privilege remaining in power, enriching themselves, rewarding their friends and punishing their foes, achieving ethnic dominance, and so on, rather than working to strengthen constitutional justice. High court judges, (p.23) too, may show no little or no interest in building effectiveness if doing so means confrontation with illiberal rulers. Negative cases, therefore, command our attention.67

Why only some countries are able to achieve a meaningful degree of effectiveness is a controversial question. We know that constitutional democracy is difficult to create and sustain. A competitive party system, regular elections, a commitment to rule of law and judicial independence, and a system of advanced legal education and advocacy training are all factors that can help to determine

the fate of a new constitutional regime. At the same time, each of these variables is typically associated with others, including economic development, ethnic diversity, attributes of political culture (which may be illiberal and fragmented), and colonial legacies. In new rights-based orders, it is the primary mission of the trustee court to help construct rights-based constitutionalism. But there are limits to what even doggedly determined judges can accomplish if continuously opposed by political elites.

In situations where elected officials seek to weaken or destroy a system of justice, degrees of constitutional entrenchment matter a great deal. A case in point is the recent experience of Hungary. Beginning in the mid-1990s, the Hungarian court made itself one of the most powerful and effective constitutional courts in Central and Eastern Europe, indeed, in the world. In 2011, however, a coalition government led by Prime Minister Viktor Orban obtained more than the two-thirds of the seats necessary to amend the constitution. In direct response to a series of Constitutional Court rulings, the coalition moved to override the Court through amending the constitution, as well as to strip it—and the judiciary more generally—of some of its most important powers.68 In 2015, a new political majority in Poland initiated a similar process of curbing the Court, albeit without formally revising the constitution.69 Thus, in constitutional regimes that locate the amending authority in the parliament, a court’s capacity to build systemic effectiveness—or the extent of constitutional “backsliding”70—may critically depend upon election results.

Despite these real and potential obstacles, rights and review have been crucial to virtually all successful transitions from authoritarian regimes to constitutional democracy since World War II.71 Indeed, it appears that the more successful any transition has been, the more likely one is to find a trustee court working to build systemic effectiveness. In such situations, (p.24) constitutional adjudication can smooth transitions to constitutional democracy,72 providing: (i) for peaceful dispute resolution between parties and groups who may mistrust one another, especially after episodes of intense civil conflict; (ii) a mechanism for purging the laws of authoritarian elements, while a new legislature may be overloaded; and (iii) an arena in which citizens directly participate in constitutional governance, through bringing rights claims. As important, the court’s rulings can furnish focal points for the consolidation of a new model of state legitimacy, one based on respect for democratic values and rights, and on the rejection of fascism, military or one-party rule, the cult of personality, and so on. Where trustee courts succeed in building the effectiveness of systems of justice, they enhance the legitimacy of the constitutional order more generally.

IIIConstitutional Change

A constitution is a formal instrument of delegated governance, a major function of which is to organize legal change. If and how the secondary rules themselves should be adapted, however, is a deep and controversial question. This section

focuses on change in its most radical, indeed quasi-revolutionary, form: that of constitutional transformation. We define the concept narrowly, as the process through which the “deep structure” of existing secondary rules are authoritatively altered. Our focus is on the inherent capacity of trustee courts to induce transformation in the service of building systemic effectiveness. Least surprising, probably, is trustee courts’ capacity to transform constitutions through adjudication. But a number of trustee courts have also effected constitutional transformations by authoritatively setting the terms for the other two modes of constitutional change: formal amendment, and legislation.

Adjudication

How rights adjudication generates constitutional change, with what effects on law and politics, is a central topic of this book. A basic task of a trustee court is to render rights protections more complete. The more effective the system, the more the court’s lawmaking will be recorded in an evolutionary case law that will be difficult to dislodge. There are multiple ways of conceptualizing adjudication’s role in “normal” incremental change. From a game-theoretic (p. 25) standpoint, a trustee court occupies a crucial strategic position in a twolevel, or “nested,” game. In any important case involving the charter, both parties seek (i) to prevail in the discrete policy conflict at bar (the first level), and (ii) to persuade the court to construct the charter in ways that will favor them in future disputes (the second level). A “dispute resolution” game is thus nested within a “constitutional lawmaking” game, insofar as the outcome of the policy dispute depends on how the judges interpret and apply the charter.73 In resolving disputes, powerful trustee courts routinely make policy and extend the constitution’s reach simultaneously (Chapter5). Obvious examples are the constitutional politics of abortion, hate speech, and non-discrimination, but the strategic context just described is generic to rights adjudication.

Courts may also self-consciously use their powers of constitutional lawmaking to enhance systemic effectiveness. They can: progressively develop the scope of rights provisions; relax standing requirements; close gaps in protection as they emerge; adopt intrusive standards of review to replace deferential rationality or “unreasonableness” tests; and evolve new remedies. When it comes to deep transformation of the secondary rules, trustee courts possess the capacity to expand their own authority in a formal way, by conferring on themselves new powers. The capacity is inherent insofar as trustees possess the competence to determine the terms of their own jurisdiction. When they embrace the proportionality framework, for example, they require all other state officials to respect the proportionality principle as a criterion of constitutional validity. One finds such rulings in virtually every system that has gained effectiveness over time.

A clear illustration of a deep transformation through adjudication is provided by France. In the 1970s, the Constitutional Council incorporated into the Fifth Republic’s Constitution (1958) an enforceable charter of rights, where no charter previously existed—by design.74 These rulings unleashed a process that would destroy legislative sovereignty and the prohibition of judicial review, dogmas firmly in place since the revolution of 1789. The Council conferred on itself the authority to enforce a charter against parliamentary acts, thereby placing Parliament under a duty to respect the charter when it made law. The resulting transformation of the secondary rules is routinely called a “revolution” in France.75 There is a common sequence to such cases.76 A court asserts authority that is not derivable from existing constitutional law and practice, but rather radically reconstructs the foundations of both. The success of the revolution will then depend on whether legal and political elites accede to the new secondary rules, and their doing so both legitimizes and consolidates the move. In France, we have a detailed (p.26) empirical record of how the consolidation process unfolded, with what transformative effects.77

Amendment

Modern constitutional law is entrenched: explicit rules of change govern the revision of the constitutional text. The more onerous the procedures for amendment, of course, the more one can expect adjudication, rather than amendment, to be the usual mechanism of “normal” constitutional change.

Some constitutions lay down a single set of amendment rules, applying to virtually all provisions (e.g., the United States). Others confer special status on the “most fundamental” of constitutional norms by entrenching them more than other provisions. Thus, many modern constitutions make it more difficult to revise rights provisions than the rest of the constitution (Spain), and some make it impossible to revise core elements (Germany). In contrast, the Hungarian constitution, as noted above, is only weakly entrenched, in that a two-thirds vote of Parliament suffices to change the constitution and, therefore, to override the court. As a formal matter, an amendment that implements or overrides the trustee’s constitutional lawmaking is an instance of “normal” change, in so far as it takes place according to existing secondary rules. A trustee court can expand its own competences, by making amendment procedures more onerous. Here again, we encounter the interdependence of secondary rules. Consider a situation in which the constitution’s text lays down no substantive restrictions on constitutional amendment. As representatives of the sovereign People, those authorized to revise the constitution—the so-called “constituent power”—may do so as they see fit. A transformation occurs when a court writes into the constitution substantive constraints on the exercise of constituent power, and confers upon itself the authority to enforce these constraints. The court declares, in effect, that constitutional amendments may not violate the

fundamental constitutional values that the People have placed in trust, to be protected by the court.

India provides a well-known example. Article 368 of the Constitution (1950) grants Parliament unconstrained authority to amend the text upon a two-thirds vote and, for certain provisions including those concerning federal arrangements, at least one-half of the federated states. The Indian Supreme Court’s initial position was that Parliament exercises legislative power when it adopts statutes, but constituent power when it amends the Constitution. In Golak Nath (1967), the Court reversed itself, holding that Article 13—which states that parliamentary laws must conform to fundamental rights—covered not just statutes but constitutional amendments. The Court also announced (p.27) that rights occupied a “transcendental” position within the Constitution itself. In 1971, Parliament moved to override the Court, adding this clause to Article 368: “nothing in Article 13 shall apply to any amendment made under this Article.” In response, in Kesavananda Bharati (1973), the Court announced the “basic structure” doctrine, which prohibits altering other features including separation of powers, parliamentary democracy, secularism, and federalism. Again, legislators reacted (1976), this time rescinding the Court’s authority to review amendments.78 But the Court held its ground, invalidating amendments in subsequent rulings on the basis of the basic structure doctrine. After a proposal to grant Parliament the authority to challenge elements of the doctrine lapsed, judges, elected officials, and legal scholars gradually consolidated the transformation. Over the past two decades, the Indian debate has focused not on the existence of the basic structure, but its content.79

Around the globe, an increasing number of apex courts have adopted a version of the “basic structure doctrine,” thereby enhancing their own status as trustees of the constitutional order.80

Legislation

Modern constitutions establish separate procedures for legislating and amending the constitution, respectively. Yet given the interdependence of processes of constitutional construction and policymaking, the trustee court may well “constitutionalize” legislative acts as a means of enhancing effectiveness.

Let’s return again to the French transformation of the 1970s. In the leading decision, Freedom of Association (1971),81 the Constitutional Council asserted that the Constitution included a justiciable charter, comprising two historic texts,82 and a body of un-enumerated rights, which it christened the “Fundamental Principles Recognized by the Laws of the Republic.” In its ruling, the Council annulled a parliamentary statute that would have given officials the power to withhold recognition of civic associations formed for “immoral or illicit purposes.” The Council based its decision on the same law that Parliament had failed to revise, a 1901 statute adopted under the Third Republic. In doing so, it

forcefully repudiated legislative sovereignty, elevating a principle (p.28) found in a prior legislative act to constitutional rank: freedom of association. Since 1971, the Council has expanded the corpus of the Fundamental Principles numerous times, but only after referencing the statute in which a given principle is grounded. These moves constitutionalize the statute in question; and Parliament loses the power to reduce the scope of protection, while retaining the authority to enhance it.

The construction of a system of justice in Israel furnishes another dramatic example (Chapter3). In the beginning, the new state of Israel (1948) adopted a relatively pure legislative sovereignty regime, pending the ratification of a fully codified constitution that, in fact, was never drafted. Nonetheless, beginning in the 1960s, the Supreme Court began to protect rights, relying heavily on general principles that it found in international law and the jurisprudence of foreign courts. In 1992, the Knesset (the legislature) adopted two rights-oriented statutes, the more important of which was the Basic Law: Human Dignity and Liberty. These statutes neither established their own hierarchical superiority relative to other parliamentary legislation, nor provided for their judicial enforcement. In 1995, the Supreme Court announced that it possessed the power to set aside statutes that violated the rights found in the Basic Laws; and, over the next decade, it began to treat these laws as a justiciable charter of rights binding on the Knesset. As in France, the result of these moves is commonly referred to as a “constitutional revolution.”83 At the same time, the process of consolidation was not pre-ordained, not least, since the Knesset possesses the authority to rescind or replace these laws.

In the United States, the notion that a legislative act may, on its own, express the content of constitutional law has intrigued scholars. William Eskridge and John Ferejohn have argued that certain laws—“super-statutes”—deserve to be analyzed as part of the constitutional law, in that they perform “constitutional” functions.84 Bruce Ackerman agrees,85 arguing that the “civil rights revolution” ultimately produced two super-statutes—the Civil Rights Act (1964) and the Voting Rights Act (1965)—that comprise part of U.S. constitutional law, properly understood. American scholars will no doubt debate the complexities of these claims for years to come. For present purposes, it is important to note a formal weakness in Ackerman’s argument: namely, that these acts remain legislative. In France, a statute expresses a right only once the Council states as much, that is, once it formally integrates the main terms of the statute into the charter of rights. In Israel, the Supreme Court made it clear that it, too, was constructing a system of justice by constitutionalizing rights-oriented statutes. In 1963, Ackerman reports, the U.S. Supreme Court was on the verge of overruling the state action doctrine, rooted in the notorious Civil Rights Cases (1883), which limited the reach of (p.29) constitutional rights under the Fourteenth Amendment.86 But the Court balked once it appeared that Congress was prepared to move on the legislative front to broaden equality protections.87 The

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key question, for those who agree with Ackerman, is the following: do the Fourteenth and Fifteenth Amendments bar Congress from reducing the protections provided by these super-statutes, through a legislative act? Could these protections, in other words, only be reduced through a constitutional revision, or upon approval (in constitutional terms) by the Court?88

We explore the relationship between rights adjudication and legislation further in Chapter5.

Overview of the Book

In this chapter, we have argued that justiciable charters of rights and trustee courts are the central components of modern systems of constitutional law and governance. The rest of the book focuses on the questions of why, how, and to what effect, high courts use proportionality to protect rights and to organize legal change. We proceed as follows. Chapter2provides a detailed presentation of PA, with its distinctive series of subtests. We describe the major functions of the framework, explain why constitutional judges find it attractive, and survey alternative approaches, including those critical of our own. Chapter3traces proportionality’s global diffusion, and maps variation in how apex courts have enforced it. In Chapter4, we analyze the evolution of rights doctrine in the United States, and assess critically an alleged “American exceptionalism” with respect to balancing. Chapter5explores the various ways in which proportionality, once consolidated as a general principle of governance, can serve as a discursive interface between organs and branches of government. This interface, we argue, grounds the constitutional and policy dialogues through which systems of constitutional justice are rendered more effective. In Chapter6, we explore the use of PA by the most important international human rights courts, and consider its place in an emergent, multi-level, and pluralist constitutional order.

Notes:

(1) Shapiro and Stone, eds. (1994); Roesler (2007).

(2) Weinrib (2016).

(3) Barak (2012a: ch. 7); Stone Sweet and Mathews (2008); Mathews and Stone Sweet (2011).

(4) Barak (2012a); Klatt and Meister (2012); Kumm (2010); Weinrib (2014).

(5) Gardbaum (2007); Kumm (2009); Petersmann (2008); Stone Sweet (2009; 2013). For broader arguments, see De Wet (2012) and Klabbers, Peters, Ulfstein (2009).

(6) Stone Sweet and Mathews (2008).