Assignment Submission Form - Individual Assignment

Student Name: Student ID Number: Programme Title: Module Title: Assessment Title: Lecturer(s): Date Submitted: Pearce ODwyer 10317179 PPES PO2650 Comparative Politics HT Essay (Judicial Politics) Dr. Robert Thompson 09/04/2012

I have read and I understand the plagiarism provisions contained in the General Regulations of the University Calendar found at: http://www.tcd.ie/calendar/assets/pdf/tcd-calendar-h-regulations.pdf I declare that the assignment being submitted represents my own work and has not been taken from the work of others save where appropriately referenced in the body of the assignment.

Signed Pearce ODwyer

Date: 09/04/2012

Can constitutional courts be characterised as policymakers? Discuss with reference to international experience. Your answer should consider the merits and drawbacks of judicial review and the place of the courts in representative democracy.

The second half of the 20th century has marked the dramatic rise of constitutional democracy to become the dominant form of governance in Europe. This departure from legislative sovereignty is a significant change in the rules of the game in these polities. Statutes passed by a majority in the legislature must now conform to a higher law. In a remarkable diffusion of state powers, judges have been empowered to strike down legislation which they deem to be incompatible with the principles expressed in the constitution. Not only does the judiciary exercise a power of legislative veto, it also frequently advises the legislature on how to redraft statutes in order to make them constitutional. To the extent that constitutional courts exercise control over the substantive content of legislation, we must logically consider them to be policymakers. However, this raises important questions about democratic legitimacy. Certainly, legal scholars and defenders of the new constitutionalism are keen to distinguish the roles of the court and the legislature as legal and political, respectively. In this essay I will attempt to discern exactly what role the constitutional court plays in modern representative democracy and examine some of the arguments for and against judicial review. In order to maintain that constitutional courts are solely legal institutions, we would have to show that their decisions are made, like those of the ordinary judiciary, by the application of clearly defined legal criteria which advocate specific outcomes in individual cases. It is this perception of the courts role which lends a sense of legitimacy and impartiality to its decisions. However, there is an important difference between the legal criteria available to the ordinary court and those available to the constitutional court. Constitutions are much vaguer documents than legal statutes. To use the language of contract theory, we can think of them as incomplete contracts (Caramani, 2011). Contract theory explains the vagueness inherent in constitutions as being the result of disagreement between the contracting parties at the time of the framing of the constitution as to how exactly it should be framed (ibid). The negotiators, political elites from different parties, can be thought of as deriving two important common goods from the contract. Firstly, it creates a set of rules, procedures and institutions which enables democratic governance and allows them to rule with an air of legitimacy. Secondly, it sets limits to what their opponents can do while in power. However, it is difficult for parties with differing ideologies to agree on a specific set of provisions, constraints and values to be enshrined in the constitution. For example, when enshrining a charter of rights, leftwing parties will generally favour positive, social rights and limits on the rights to property, while right-wing parties generally privilege negative rights and seek to uphold strong property rights (ibid). The parties to the agreement will be aware that the set of rules of the game which they establish at this crucial juncture will have a significant effect on future political outcomes, conceivably for the lifespan of the polity. This creates significant commitment-problems. In order to avoid an impasse, parties resort to relational contracting, whereby they broadly frame their relationship, by agreeing on a set of basic goals and objectives, fixing outer limits on acceptable behaviour, and establish procedures for completing the contract over time (Caramani, 2011: P.169). The language is kept quite general and uncontroversial. Specific points of disagreement, on which the parties are unable to reach a compromise, are simply circumvented by ambiguity. 2

It is the job of the constitutional court to act as an enforcer of the constitutional contract. However, due to the ambiguity of the contract, this is largely an act of interpretation. Where the constitution does not explicitly rule out a certain kind of law or government action, it is the job of the constitutional judge to decide, on the basis of their own understanding of the spirit of the constitution, whether or not it is constitutional. Once a decision has been made, it effectively establishes the substantive content of the constitution in that particular area. It will be referred to as precedent in future constitutional cases. Over time, given a steady case-load, the court produces a detailed jurisprudence. This process is referred to as constitution-building because it is this jurisprudence that establishes a clear and specific meaning to the constitution and which acts as an effective contract binding all state actors. We can think of it as the means by which the court breathes life, feeble or strong, into the inert pages of the Constitution (Dahl, 1957: P.564). This means that the power to carry out judicial review of statutes amounts to the power to shape the higher law of the polity. All acts of the legislature are subordinate to this higher law and can be declared void if they are incompatible with it. This is arguably quite an undemocratic state of affairs. The legislature comprises the elected representatives of the people and yet their decisions can be overturned by a handful of unelected judges. Indeed, this has been seen to occur in important areas of public policymaking. During the presidency of Franklin D. Roosevelt, the Supreme Court blocked several aspects of his New Deal legislation for several years (ibid). In 1975, the German FFC struck down a bill making abortion legal within the first three months of pregnancy (Gallaher, 2011). In France in 1986, the French Constitutional Council ordered that significant changes be made to government nationalisation plans, the result of which was an increase in government expenditure on the plan of about 25 per cent (ibid). These examples demonstrate the very real and substantial public policy consequences which can flow from how the judiciary decides to interpret the constitution. Also, the cases on which it decides are often far from clear cut. As Dahl points out, oftentimes the cases before the court involve alternatives about which there is much disagreement in society Moreover, they are usually cases where competent students of constitutional law, including the learned justices of the Supreme Court themselves, disagree; where precedent may be found on both sides (Dahl, 1957: P.565). It is difficult to characterise the judicial veto as simply a mechanism for checking government action when its behaviour threatens to become a tyranny of the majority. It also seems to be the case, unavoidably, that judicial review involves a certain value judgement. This is perhaps the main argument against judicial review; that it creates a system in which the judgement of a small number of individuals affects policy outcomes in a way which is inherently undemocratic. This is not to say that there are no constraints on the power of the judiciary. It is important to note that there is no enforcement mechanism in place to ensure the compliance of the legislature with judicial decisions. Where legislatures do comply, it is because they calculate that defiance of the court will be damaging to their legitimacy. Thus the power of the court to constrain the legislature is largely derived from the normative esteem in which it is held in the polity. This varies significantly across countries. In the Scandinavian countries, legitimacy is largely held to emanate from the people and as such the political culture favours legislative sovereignty (Gallaher, 2011). Denmarks Supreme Court struck down its first law in 1999 (ibid). At the other end of the spectrum, in the United States there is such reverence for their founding document that constitutional questions are imbued with a sense of the greatest legitimacy.

While formally constitutional democracy may appear to elevate the judiciary above the legislature, in reality outcomes will be determined largely by strategic interactions between constitutional courts and parliaments (Vanberg, 2005: P8). The key factor determining the strategic position of each actor, it seems, is public opinion. If the constitutional court acts in a way which invokes widespread public disapproval, it is likely that it may fail to secure compliance from government. The Crucifix Decision in Germany in 1995 is illustrative of this. In response to a constitutional complaint, the FFC ruled that: The display of a cross or crucifix in classrooms of a public school, which has no denominational affiliation, constitutes a violation of Article 4, Section 1 of the Basic Law. (ibid: P.2). The ruling provoked widespread public outrage, particularly in Bavaria which had been the origin of the complaint. Such was the weight of public opinion against the decision that the legislature in Bavaria felt little need to comply. The result was a revision of the Bavarian school ordinance which largely maintained the status quo (ibid). This outcome demonstrates how quickly the normative authority of the constitutional court can evaporate if its decisions fly in the face of public opinion. In no country does the legislature have free reign to dictate to the legislature what it can and cannot do. Even in the US, where support for review is strongest, Dahl finds that Congress and the President do generally succeed in overcoming a hostile Court on major policy issues (Dahl, 1957: P.575). However, it would not be accurate to characterise the activity of constitutional courts simply as a thorn in the side of legislators. Courts also fulfil several functions which are invaluable to the establishment and maintenance of healthy democracy and effective government. The transition to democracy, for example, is an area in which they provide an invaluable service to the state. Strong constitutions and judicial review have been found to have been crucial to nearly all successful transitions to democracy since 1950 (Caramani, 2011). By acting as a neutral arbiter, the court can help to ensure that disputes are settled through peaceful means and in accordance with the law. It also has an important role to play in delineating the jurisdictions of the various branches of state, particularly in federal systems (ibid). It also provides a mechanism for purging the legal system of its authoritarian elements and a focal point for a new rhetoric of state legitimacy based on respect for rights and democratic values (embodied in the constitution) (ibid). Once democracy has been established, constitutional courts show themselves to be instrumental to its preservation (and the preservation of rights). They have been particularly effective at holding political elites to account where legislative majorities have become complacent. In the mid-90s, investigations by the judiciary in Italy into political corruption lead to the collapse of most of the mainstream parties (ibid). In the following decade it struck down controversial legislation designed to confer immunity from prosecution on the prime minister and other senior political figures. In 2001, the Czech constitutional court prevented the two main parties in the legislature from colluding in the adoption of a new electoral system that would have adversely affected all smaller parties (Gallaher, 2011). In the UK, the courts have struck down several pieces of immigration policy on the ground that they were a violation of the rights of asylum seekers under the ECHR. In 2006, they also struck down a central component of anti-terror legislation which threatened rights outlined in the same convention (ibid). On that occasion it could be argued that the court provided vital protection for civil liberties in the face of reactionary legislation. In conclusion, I think it is difficult to deny that constitutional courts are political actors. The emergence of constitutional review has radically altered the rules of the game in representative democracies. Constitutional principles play an ever more important role in determining political 2

outcomes; democratic politics has become judicialised (ibid). As the constitution becomes increasingly important, so too does the role of those charged with interpreting and enforcing it. The question must be asked, Who judges the judges?. However, having briefly examined the central role which constitutional courts have played in supporting stable democracy and good governance in the past half-century, I feel they have thoroughly earned their place in the modern democratic state.

Bibliography

Caramani D. et al (2011). Comparative Politics. Oxford: Oxford University Press Dahl, Robert A. (1957). Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker. Journal of Public Law Gallagher M. et al (2011). Representative Government in Modern Europe.Berkshire: McGraw-Hill Vanberg, G. (2005). The Politics of Constitutional Review in Germany. Cambridge: Cambridge University Press