Abstract
The role of constitutional courts in protecting constitutional rights cannot be captured by any simple formula: it cannot be declared that a robust power of constitutional review is necessarily an important ingredient of protection of human rights or that it inevitably damages such protection. The starting point for an assessment of the role of judicial review must be a careful calculus of gains and losses resulting from a system of judicial review in a given country. The gains and losses resulting from a set of specific decisions, and also those resulting from the very existence of judicial review in that country, must be assessed. This chapter offers such a matrix for comparing costs and benefits of entrusting the protection of constitutional rights to constitutional courts. The outcome of this complex calculation depends upon our preferred articulations of abstract rights, and people who disagree with particular articulations will also disagree with the final verdict concerning the role of judicial review in rights protection. While we may doubt the general net benefit of judicial review, we may nevertheless have some prudential reasons to support it; that is, it might be rational to support judicial review if the institutional particularities of judicial institutions, compared with those of the political branches, render courts more sensitive to rights considerations in general.
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Notes
- 1.
- 2.
Freedom’s Law, supra note 1 at 12.
- 3.
See e.g. Dworkin’s critique of City of Richmond v. Croson, 488 U.S. 469 (1988) (striking down an affirmative action plan) id. at 158; Webster v. Missouri Reproduction Services, 992 U.S. 490 (1989) (upholding restrictions on the availability of abortion), id. at 60–71; Buckley v. Valeo, 424 U.S. 1 (1976) (striking down limits on expenditure in an election campaign) in Sovereign Virtue (Harvard University Press, 2000) at 351–385; Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding a state anti-sodomy statute), id. at 454–55, Washington v. Glucksberg, 521 U.S. 702 (1997) and Vacco v. Quill, 521 U.S. 793 (1987) (upholding state statutes prohibiting doctor-assisted suicide), id. at 453–73.
- 4.
Freedom’s Law, supra note 1 at 352.
- 5.
At times he admits to a negative record but he quickly announces that the positive decisions far outweigh the negative ones; see e.g. Law’s Empire, supra note 1 at 375–76.
- 6.
See Neal Devins, Shaping Constitutional Values (Baltimore: The Johns Hopkins University Press, 1996), pp. 16–17 and 32; Neal Devins, “The Democracy-Forcing Constitution”, Michigan Law Review 97 (1999): 1971–93 at 1987–88; Stephen M. Griffin, American Constitutionalism (Princeton University Press, 1996) at 116–17.
- 7.
Earl Warren was Chief Justice in 1953–1969, Warren Earl Burger in 1969–1986, and William H. Rehnquist since 1986. Roger B. Taney was the Court’s Chief Justice in 1836–1854, and he authored the Court’s opinion in Dred Scott v. Sanford, 60 U.S. (17 How.) 393 (1857). This decision affirmed the right to own a slave as a constitutional right, prohibited Congress from preventing the spread of slavery into the free states and territories, and denied Africans in America the status of citizenship.
- 8.
In Texas v. Hopwood, 78 F.3d 932 (5th Cir. 1996) a federal Court of Appeals held a Texas university affirmative-action policy to be unconstitutional. The Supreme Court subsequently refused to hear the university’s appeal, Texas v. Hopwood, 518 U.S. 1033 (1996). Note, however, that more recently the Supreme Court upheld, on very narrow grounds and by a 5–4 majority, race-conscious preferences in university admissions (in Grutter v. Bollinger, 539 U.S. 306 (2003)) while at the same time striking down a “quota-based” affirmative action admissions system (in Gratz v. Bollinger, 539 U.S. 244 (2003)).
- 9.
This seems to be Dworkin’s view: “we would have more to regret if the Court had accepted passivism wholeheartedly: southern schools might still be segregated, for example”, Law’s Empire, supra note 1 at 375.
- 10.
Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999) at 129–54.
- 11.
Freedom’s Law, supra note 1 at 34.
- 12.
Id. at 35.
- 13.
Dworkin, supra note 3 at 189, see also id. at 357.
- 14.
First put forward in Jeremy Waldron, “A Rights-Based Critique of Constitutional Rights”, Oxford Journal of Legal Studies 13 (993): 18–51; and then developed in Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), especially chapters 10–13.
- 15.
Waldron, “A Rights-Based Critique”, supra note 14 at 42.
- 16.
See id. at pp. 44–5; James Allan, “Bills of Rights and Judicial Power – A Liberal’s Quandary”, Oxford Journal of Legal Studies 16 (1996): 337–52 at 349–50.
- 17.
Griffin, supra note 6 at 123.
- 18.
Waldron, “A Rights-Based Critique”, supra note 14 at 50, emphasis added.
- 19.
See Neil K. Komesar, Imperfect Alternatives (The University of Chicago Press, 1994), pp. 56, 79–81; Bruce A. Ackerman, “Beyond Carolene Products”, Harvard Law Review 98 (1985): 713–46 at 718–19.
- 20.
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1980).
- 21.
Waldron, Law and Disagreement, supra note 14 at 295–96.
- 22.
See Laurence Tribe, “The Puzzling Persistence of Process-Based Constitutional Theories”, Yale Law Journal 89 (1980): 1063–1080, pp. 164–65.
- 23.
See, e.g., Articles 18.2 and 21.2.6 of the Broadcast Law in Poland of December 29, 1992, upheld as constitutional by the Constitutional Tribunal on 7 June 1994; see Chap. 6 below.
- 24.
Waldron, Law and Disagreement, supra note 14 at 222.
- 25.
See also Cécile Fabre, “The Dignity of Rights”, Oxford Journal of Legal Studies 20 (2000): 271–282 at pp. 275–6.
- 26.
Tushnet, supra note 10 at 57–70.
- 27.
Id. at 137.
- 28.
“Legislators may define their jobs as excluding considerations of the Constitution precisely because the courts are there. The judicial overhang might make the Constitution outside the courts worse than it might be”, id. at 58.
- 29.
For the United States, see Devins, “The Democracy Forcing Constitution”, supra note 6 at 1985.
- 30.
This basically applies only to those few cases of constitutional courts that can act on their own initiative, and that have the power of identifying unconstitutional legislative omissions (such as the Hungarian Constitutional Court).
- 31.
Dworkin, Freedom’s Law, supra note 1 at 31.
- 32.
See John Rawls, Political Liberalism (New York: Columbia University Press, 1993) at 144–68.
- 33.
Dworkin, Taking Rights Seriously, supra note 1 at 85. See also Dworkin, A Matter of Principle, supra note 1 at 24 and 70; Sovereign Virtue, supra note 3 at 208.
- 34.
Owen Fiss, “The Forms of Justice”, Harvard Law Review 93 (1979): 1–58 at 10.
- 35.
Michael S. Moore, “Law as a Functional Kind”, in Robert P. George, ed., Natural Law Theory: Contemporary Essays (Oxford: Oxford University Press, 1992): 188–242 at 231.
- 36.
Freedom’s Law, supra note 1 at 31, emphasis added. For a powerful critique, see Waldron, Law and Disagreement, supra note 14 at 289–91; see also Cass R. Sunstein, The Partial Constitution (Harvard University Press: Cambridge Mass. 1993) at 145–46.
- 37.
Christopher L. Eisgruber, “Is the Supreme Court an Educative Institution?”, NYU Law Review 67 (1992), 961–1032 at 1003, footnote omitted. Note that this observation by Eisgruber is not made in the context of a discussion on rights-related reasoning by courts.
- 38.
Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford University Press, 1996).
- 39.
For a similar argument formulated as a criticism of Christopher Eisgruber’s theory of judicial review (developed in Christopher L. Eisgruber, Constitutional Self-Government (Harvard University Press: Cambridge Mass., 2001)) see Jeremy Waldron, “Eisgruber’s House of Lords”, University of San Francisco Law Review 37 (2002) 89–114 at 90–99.
- 40.
Eisgruber, supra note 39 at 58. In the text accompanying the quoted words, Eisgruber focuses on life tenure and guaranteed salary as factors guaranteeing the disinterestedness of US Supreme Court justices.
- 41.
Abner J. Mikva, “Why Judges Should Not Be Advicegivers: A Response to Professor Neal Katyal”, Stanford Law Review 50 (1998): 1825–32 at 1829.
- 42.
Waldron, Law and Disagreement, supra note 14 at 307.
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Sadurski, W. (2014). Judicial Review and Protection of Constitutional Rights. In: Rights Before Courts. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-8935-6_5
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