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Institution Harvard Law School Printed on July 30, 2009 Course Tushnet - Comp Con Law Instructor NA Control Code TAKEHOME

Exam ID 16643

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instead emphasizing the influence of exogenous political or cultural factors on constitutional outcomes. Learned Hand's quotation about liberty lying in the hearts of men and women falls squarely within the sociological approach. Its stories of comparative constitutional law pay a great deal of attention to the details of constitutional structures. Hand suggests there may even be a risk of moral hazard in placing undue faith in courts to single-handedly protect fundamental rights from government violation. Like Robert Jackson in his dissent to KOREMATSU. It suggests that constitutional structures guaranteeing fundamental rights are. we have been exposed to two general families of thought regarding the origins and operations of constitutional law. or Thayer in his warning about the negative political side-effects of too often correcting legislative mistakes "from the outside" (p. for example. "But I would not lead people to rely on this Court for a review that seems to me wholly delusive.1 *16643-T.23. On the other hand is the sociological or political science approach. the sociological approach would be more likely to explain the instability as a likely result of the nation's history of military coups or the legacy of the political culture of caudillismo. and other factors that seem endogenous to the legal system.3. TWO APPROACHES TO COMPARATIVE CONSTITUTIONAL LAW Throughout the course. Page 2 of 12 __________________________________________________________________________________________ Answer-to-Question-_1_ I. at least in the long run.16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9. to some extent epiphenomena of a nation's political culture. such as judicial decisions and arguments.Comp Con Law Instructor NA Section . which downplays the explanatory power of fine-grained differences in constitutional structures. such as how much power a written constitution gives to a president.-12-2* 16643-T. superstructures that stand or fall based on a society's underlying commitment to upholding those rights. Rather than explaining the instability of a Latin American state's constitutional regime as the result of poor constitutional drafting. On the one hand is the legalist or formalist approach.-12-2 16643 Course / Session Tushnet .708)." .

to make no practical difference. whether or not the gun is frequently discharged. Both Hand and Jackson draw our attention to the ultimately political foundations of the law. as in Japan.16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9. I will argue that some formal constitutional structures.Comp Con Law Instructor NA Section . are unlikely to provide an effective check on the violation of fundamental rights by the will of a powerful majority. Though as a general matter I tend to share the skepticism of the sociological approach toward the possibility of explaining what takes place within a constitutional system purely based on internal. Similarly. but it continues to lie around like a loaded gun. ." Hand's argument can be seen as a generalization of Jackson's point. and especially section 33 of the Canadian Charter. Just as a court. acting alone. Page 3 of 12 __________________________________________________________________________________________ Jackson writes. when in fact their mere presence may have indirect but significant effects on strategic behavior. is unlikely to provide an effective check on the abuse of military powers in a national security emergency. I would like to draw attention to a subtle way that differences in formal legal structure can be (to paraphrase William James) differences that make a difference. these areas of law have equal or even greater effects on the strategic behavior of actors who never enter a courtroom.3. as Cooter and Mnookin show. Specifically. I will argue that even where. But in fact.23. must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history. say. legal factors. . acting alone.-12-3 16643 Course / Session Tushnet . The chief restraint upon those who command the physical forces of the country. we might attempt to analyze the effects of contract or criminal law by studying how that law is applied in courtrooms. The mere presence of a loaded gun in the room will change the behavior of those who enter it. so in the long run courts. the mere . the remainder of the paper will head in the opposite direction. may appear to be wholly inoperative. the power of strong-form judicial review is almost never invoked.1 *16643-T. at first glance." That is. . Adapting another of Jackson's phrases from the KOREMATSU dissent: section 33 may not have been invoked recently. because private bargaining (such as settlement negotiations) will take place "in the shadow of" the likely outcome of going to court.-12-3* 16643-T. ". in the future as in the past. My argument falls in the tradition of Cooter and Mnookin's "Bargaining in the Shadow of the Law.

My emphasis is different from that of Alec Stone in his discussion of the "juridicization" of politics in France (p. seems to have fallen into disuse.432). Legislating in the Japanese Diet will take place "in the shadow of" judicial review.414).-12-4 16643 Course / Session Tushnet . divisive circumstances (Tushnet. In particular.424). possibly in detrimental ways. such as the Quebec independence and Alberta anti-gay-marriage movements.23. the legislative process. This may be in part because of the unfortunate phrasing of section 33. p.1 *16643-T.767). which implies that the legislature will be violating the Charter by invoking its override. One response to doubts regarding how useful weak-form review has turned out to be in . p.3. rather than simply disagreeing with the court's interpretation of the Charter (Manfredi. Or it may be because of an inherent instability in weak-form review that leads it to collapse either into strong-form review or something approaching parliamentary supremacy (Tushnet. arguably leaving Canada with what is more or less a strong-form system of judicial review. STRATEGY IN THE SHADOW OF WEAK-FORM REVIEW Early proponents of weak-form review have sometimes expressed disappointment at the way it has been applied in practice. p. which can also be phrased in terms of "legislating in the shadow of the constitutional council" (the title of another article of his).16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9. II.-12-4* 16643-T.Comp Con Law Instructor NA Section . Stone's focus is on the ways a highly visible and clearly operative judicial review mechanism can distort. even if that review rarely takes place. Page 4 of 12 __________________________________________________________________________________________ possibility of such review being performed may alter the strategic behavior of constitutional actors in ways that are significant but difficult to perceive. p. Or it may simply be because of the contingent fact that section 33 was first employed in unpopular. section 33 of the Canadian Charter.1705). My focus is on the ways relatively unobtrusive and apparently inoperative constitutional mechanisms can in fact make a practical difference in the politics and law of a state by affecting the strategic calculations of political and legal actors. which in theory creates the conditions for a dialogue between the judicial and legislative branches by allowing the legislature to enact a statute notwithstanding the court's finding that it is inconsistent with Charter rights (Hogg.

The most important effect may be on the strategic behavior of the Canadian Supreme Court. But it could be argued that even in Canada.Comp Con Law Instructor NA Section . where section 33 appears to have fallen into disuse and there appears to be no actual dialogue taking place.3. Both GROOTBOOM and the more recent housing case described by Dennis Davis seem to represent meaningful realizations of the possibility of dialogue through weak-form review. the South African Constitutional Court entered a dialogue with the executive. demanding that the government revise its housing plan on the basis of a more careful consideration of constitutional requirements regarding access to adequate housing (p. if not easily perceptible or measurable. the structure of weak-form review established by section 33 may continue to play a meaningful. that one element in judges' utility functions is a desire to avoid reversal. the Court "strengthen[ed] the hand" (p. it does not seem implausible to assume that Canadian justices might also.24 classnote). The review in GROOTBOOM was "weak-form" in the sense that the Court was free to revise its incompletely specified interpretation of the constitutional requirements in the light of the results of the government's response (p. in South Africa.1704). it seems at least equally likely that section 33 would have the opposite effect.-12-5 16643 Course / Session Tushnet . Though the Court's justices have claimed that section 33 emboldens the Court to decide cases purely on principle. role in constitutional politics.1 *16643-T. Clearly. no doubt influencing the terms of the settlement that was eventually reached. weak-form review seems to be delivering on some of its dialogic promise. a way to build the political strength of civil society so that in the future less judicial intervention will be required. As Sunstein says.16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9. In both cases. If we assume. the Court also facilitated a dialogue between the government and relatively politically powerless members of the citizenry.1676). following Posner ("What Do Judges and Justices Maximize?").1697) of these individuals in their negotiations with the government. Page 5 of 12 __________________________________________________________________________________________ practice would simply be to point to the South African experience.-12-5* 16643-T. all other things being . trusting in a legislative override if a decision proves excessively unpopular (Feb. One might even view the Court's decisions as instances of "representation reinforcement" in the tradition of Carolene Products footnote 4. In GROOTBOOM.23.

highly visible. to spend the political capital necessary to pass a bill that it assumed would be struck down. the mere existence of section 33 might have a chilling effect on the justices' willingness to depart radically from popular opinion in the name of principle.1 *16643-T.3. it should be emphasized. Such a reversal could be seen as a definitive. If we assume.Comp Con Law Instructor NA Section . (As Prof. All of these strategic calculations. Whereas a legislature in a strong-form system might not bother. because such a political miscalculation could be immediately exposed in a highly visible and potentially embarrassing section 33 override. and that in any case. The legislature might itself be emboldened to take more constitutional risks. in some set of cases. such as the United States and Germany. and it has only opposed 70% majorities very rarely. a message that the justices have fallen out of touch with the values of the broader society. it seems at least equally plausible that giving a reversal-like power to the legislature would shift power toward the legislature and away from the courts. FURMAN). the legislature in a weak-form system might pass a bill in some of those cases. calculating that it might be able to override the Court. ROE.16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9. seek to avoid being "reversed" through the use of section 33. despite the justices' presentation of section 33 as emboldening. courts rarely intentionally depart from the will of extremely large majorities. would be invisible from the perspective . popular rebuke of the judiciary. We should also consider matters from the legislature's point of view. and even more wary of misperceiving them. Page 6 of 12 __________________________________________________________________________________________ equal. not implausibly. But section 33 might make the Canadian justices even more sensitive to shifts in public opinion. It is true that even in strong-form review regimes. In general. if the possible chilling effect described above is real.23. it is difficult to think of a single case when the Supreme Court opposed an 80% majority of the American people. the Court would be unlikely to strike down the bill and risk a section 33 rebuke in the first place. that Canadian justices are both generally risk-averse and sensitive to highly publicized rebukes. Klarman mentioned once.-12-6* 16643-T.) Some of the most controversial decisions in the United States have resulted from the Supreme Court failing at the task Bickel set for it and simply miscalculating the likely future course of public opinion (cf.-12-6 16643 Course / Session Tushnet .

If Canada's legal culture is less adversarial.836). regarding the Japanese Supreme Court's extremely sparing use of its strong-form judicial review power. p. In theory at least. Even if it is true that in over sixty years. then judges might perceive striking down a statute as somehow inappropriate.-12-7* 16643-T. or less amenable to justices staking out controversial positions in highly visible political battles. or at least one in which the Court makes a strong presupposition of the constitutionality of the Diet's statutes. A fairly fine-grained sociological analysis would probably be necessary to determine . in conclusion. except in the most extreme cases. Cultural pressures could thus lead to a kind of de facto Thayerian system of review. it might be the case that the mere standing threat of judicial annulment could have substantial inhibiting effects on the Japanese Diet. the Japanese Court has only annulled eight parliamentary statutes. because both focused on the review of executive as opposed to legislative action). it would not necessarily follow that its power of review has not had significant effects on the course of legislation. and as a result might steer clear of constitutionallysensitive areas in order not to provoke the judiciary's objections. A similar strategic point might be made. it could be the case that legislators are conscious of the possibility of judicial reversal. If Japan's political culture is sufficiently more averse to open conflict than the political culture of the United States.23. It might also be worth considering that there could be differences in the legal cultures of the United States and Canada that would compound the effect of section 33 on the Court's and the legislature's strategic calculations. Conversely.1 *16643-T. then the chilling effect of section 33 might be even more severe than an American observer would assume it to be.Comp Con Law Instructor NA Section .-12-7 16643 Course / Session Tushnet . Page 7 of 12 __________________________________________________________________________________________ of an observer keeping track only of the quantity of judicially annulled bills and the frequency of the legislature's invocation of section 33. if the Diet is perceived as supreme and the judiciary as inferior (ASAHI and KAKUNAGA are not helpful here. especially given the Diet's apparent self-perception as the defender of the Constitution (cf. would view such reversal as an embarrassment.16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9.3. less comfortable with open conflict.

23. Thus. The important point is that either phenomenon. Page 8 of 12 __________________________________________________________________________________________ whether either of these tendencies is actually at work in Japan's constitutional order. Perhaps it is because they reject this tragic assumption that some absolutist defenders of civil liberties also resist the idea of weak-form review. STATIC AND DYNAMIC DEFENSES OF WEAK-FORM REVIEW Before addressing the extent to which the remnants of weak-form review in Canada might address Bickel's concern. despite the provision's fall into disuse. we might still wonder whether the current state of affairs offers any of the advantages that a weak-form regime was supposed to provide. a "tragic" situation in Sidney Hook's sense of the word: in principle. III. because in these cases. by definition. was supposed to ameliorate the counter-majoritarian difficulty. would be invisible from a survey of the Court's infrequent uses of judicial review.-12-8 16643 Course / Session Tushnet . the other will suffer.1 *16643-T. and that there is thus a meaningful sense in which Canada's system of weak-form review has not collapsed into a strong-form review system. the majority will is illegitimate and without value.16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9. the difference would . At first glance.Comp Con Law Instructor NA Section . even if real. they may believe the right should always win. LATENT WEAK-FORM REVIEW AND THE COUNTER-MAJORITARIAN DIFFICULTY Even if we assume that the existence of section 33 continues to make some practical difference in Canada.-12-8* 16643-T. Given a conflict between the majority will and an individual right. even in its fully operational form. it might be useful to consider how weak-form review.3. There is no perfect outcome. whenever the outcome of weak-form review would differ from the outcome of strong-form review. A. to the extent that one prevails. In particular. both the majority will and individual rights are valuable. it might seem that the counter-majoritarian difficulty presents an inexorable conflict. weak-form review seemed to hold out the hope of overcoming or at least mitigating Bickel's counter-majoritarian difficulty. but there will be cases in which they simply cannot both be satisfied.

Comp Con Law Instructor NA Section .1 *16643-T. These considerations lead to what I will call the "static" defense of weak-form review. If we assume that in these cases. or would only make a difference for the worse.-12-9 16643 Course / Session Tushnet .23. Believing that a fundamental right should in principle prevail over the majority will is not the same as believing that a constitutional court will always arrive at the correct balance when rights and interests conflict.3. Because both courts and legislatures have something valuable to say. 70). in principle. a process like weak-form review. perhaps because they have access to a wider range of informational inputs (Vermeule. Weak-form review would either make no difference. In the end. and it is usually far from clear how they should best be balanced. "Common Law Constitutionalism and the Limits of Reason. in proportionality-analysis terms. the right should prevail--or. but we might think that legislatures have certain advantages over courts in making such determinations as well. The proponents of weak-form review might object that the problem is even more complicated than the preceding paragraph would suggest." 1509). It sees weak-form review as a superior way of aggregating the relevant information and fixed preferences that should be factored into a constitutional decision. Even if they agreed with the civil libertarian in principle that wherever a fundamental right conflicts with the majority will.16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9. the right should prevail--the proponents of weak-form review might suggest that in practice there are often rights and interests on both sides of a question. that wherever the achievement of a purpose willed by the majority using the least intrusive means would entail an unjustifiable impairment of a right. A MATTER OF PRINCIPLE. perhaps because people who go to American law schools are exceptionally sensitive to matters of principle (Dworkin. Page 9 of 12 __________________________________________________________________________________________ represent a failure of the weak-form approach.-12-9* 16643-T. from their perspective. the defense suggests. then weak-form review will do a better job of arriving at the correct answer than strong-form . there is a correct answer as to which side should prevail. We might think that courts have certain advantages over legislatures in making such determinations. the ideal process for arriving at a constitutional determination might be one in which both legislatures and courts played a role--in other words. there will be cases in which democratic self-governance and fundamental rights conflict.

It might also dissolve the counter-majoritarian difficulty altogether in some cases by changing the majority will so that it no longer seeks to violate the protected right. Page 10 of 12 __________________________________________________________________________________________ judicial review would have done. perhaps in a decision along the lines of the European ones praised by Glendon (p.137). the vast importance many Americans place on the lives of fetuses. It not only aggregates preferences. In a system of weak-form review. Either way.16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9.Comp Con Law Instructor NA Section . thereby alerting the Court to the vehemence of public opinion on the issue of abortion. It would be difficult to identify an example of weak-form review changing preferences . it could sometimes alter them as well. A proponent of weak-form review might even make a stronger claim.23. the executive everything from Japanese internment to warrantless wiretapping--the best test of constitutionality may be the power of a decision to get itself accepted in a competition between the branches. It might be called the "dynamic" defense. the legislature its Alien & Sedition Acts. Blackmun might still have written the Court's opinion in ROE. and suggest that in light of the chastening failure of any individual or institution of government to get things consistently constitutionally right. along the lines of Holmes' dissent in ABRAMS.-12-10* 16643-T. But there is another defense of weak-form review. According to this defense. for example. the final constitutional outcome would have been based on a wider range of information and a better appreciation of existing preferences than the strong-form outcome of ROE.1 *16643-T. Weak-form review can thus be seen as a tool of deliberative democracy.3. If the Court remained unpersuaded. in theory. the kind of competition embodied in weak-form review. but the legislature might have overridden the decision. less needlessly divisive decision decriminalizing abortion in practice but recognizing the legitimacy of valuing unborn life. from our current perspective--the Court having produced its share of DRED SCOTTs. weak-form review not only increases the chances of identifying the correct constitutional outcome when democratic selfgovernance and fundamental rights conflict. one that receives less attention.-12-10 16643 Course / Session Tushnet . it could then conceivably have delivered another. Or it could have left the issue to ferment in the states. and the existence of large antiabortion constituencies other than the hierarchy of the Catholic Church.

Merely holding in reserve the potential for forcing a dialogue is insufficient to create the informational benefits in the static defense of weak-form review. played some role in changing the public's preferences from what they were before the decision? B.-12-11* 16643-T. much less the preferenceshaping benefits in the dynamic defense. Page 11 of 12 __________________________________________________________________________________________ without relying on detailed survey data.1 *16643-T. no.3.23. for the most part. both in the substance of its opinion and through the constitutionally-infused legislative debate that it provoked. then the Canadian Supreme Court will not receive the benefits of the Parliament's institutional competencies. could still serve some of the functions of weak-form review. THE STATIC OR DYNAMIC DEFENSE AND LATENT WEAK-FORM REVIEW Having introduced the static and dynamic defenses of weak-form review. as . The answer seems to be. Of course. or at least will not receive any more of such benefits than would have arrived under a system of strong-form review. If it is too politically unpalatable for the Canadian Parliament to invoke section 33. we can now ask whether section 33. latent state. opposition to abortion in Canada before MORGENTALER seems to have been strong enough that the movement for the decriminalization of abortion was unable to change the law through legislative means. abortion opponents have never succeeded in passing another bill criminalizing abortion.Comp Con Law Instructor NA Section . in the sense that it laid out an imperfectly-specified constitutional principle and invited a legislative response)? Yet even though the court in MORGENTALER left the door open to a legislative response. For example. even in its current. without even the need to invoke section 33. Is this only because the Senate (which defeated the most likely bill) is appointed. if the continued existence of section 33 alters the Court's strategic behavior.16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9. Could it be that anti-abortion forces had a slim majority before MORGENTALER (which might be viewed as an instance of weak-form review analogous to GROOTBOOM. But several of the episodes we have studied offer suggestive hints. The benefits of weak-form review described in the previous section seem to depend on the existence of actual dialogue.-12-11 16643 Course / Session Tushnet . and does not reflect the will of the majority? Or could it be that MORGENTALER itself.

16643 Institution Harvard Law School Control Code TAKEHOME Extegrity Exam4 > 9.-12-12* 16643-T. the conflict in some cases between democratic self-governance and fundamental rights.-12-12 16643 Course / Session Tushnet . latent presence of weak-form structures does not seem adequate to deliver on the informational (static) or deliberative (dynamic) promises of weak-form review.23. But the mere. Page 12 of 12 __________________________________________________________________________________________ described in Part II. even when they appear to be inoperative.3. or in systems of largely latent strong-form review. The mere presence of such formal structures may still influence the strategic behavior of legal and political actors. In sum. The Court's strategic behavior would not truly address the roots of the countermajoritarian difficulty. as the legalist approach to comparative constitutional law characteristically suggests. by making the Court marginally less likely to oppose Parliament than it would have been under a system without section 33. above. But it would only mean the Court was siding somewhat more with the popular will and somewhat less with unpopular principles than it would have done otherwise. formal constitutional structures may make a difference. as in section 33 in Canada. This sometimes neglected dimension of comparative constitutional analysis can play a role in systems of latent weak-form review. overt dialogue would appear to be necessary. . In order to address the countermajoritarian difficulty through these means. an actual. as in Japan.Comp Con Law Instructor NA Section . It would only bias the Court toward the former. this would reduce the counter-majoritarian difficulty in a superficial sense.1 *16643-T.

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