Tushnet ConComp 2008 Exam H

7/30/2019 Tushnet ConComp 2008 Exam H

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16643 *16643-T.-12-2* 16643Institution Harvard Law School Course / Session Tushnet - Comp Con LawControl Code TAKEHOME Instructor NAExtegrity Exam4 >9.3.23.1 16643-T.-12-2 Section . Page 2 of12

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Answer-to-Question-_1_

I. TWO APPROACHES TO COMPARATIVE CONSTITUTIONAL LAW

Throughout the course, we have been exposed to two general families of thought

regarding the origins and operations of constitutional law. On the one hand is the legalist or

formalist approach. Its stories of comparative constitutional law pay a great deal of attention to

the details of constitutional structures, such as how much power a written constitution gives to a

president, and other factors that seem endogenous to the legal system, such as judicial decisions

and arguments. On the other hand is the sociological or political science approach, which

downplays the explanatory power of fine-grained differences in constitutional structures, instead

emphasizing the influence of exogenous political or cultural factors on constitutional outcomes.

Rather than explaining the instability of a Latin American state's constitutional regime as the

result of poor constitutional drafting, for example, 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.

Learned Hand's quotation about liberty lying in the hearts of men and women falls

squarely within the sociological approach. It suggests that constitutional structures guaranteeing

fundamental rights are, at least in the long run, to some extent epiphenomena of a nation's

political culture, superstructures that stand or fall based on a society's underlying commitment to

upholding those rights. Like Robert Jackson in his dissent to KOREMATSU, or Thayer in his

warning about the negative political side-effects of too often correcting legislative mistakes "from

the outside" (p.708), 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. "But I

would not lead people to rely on this Court for a review that seems to me wholly delusive,"


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Jackson writes. ". . . . The chief restraint upon those who command the physical forces of the

country, in the future as in the past, must be their responsibility to the political judgments of their

contemporaries and to the moral judgments of history." Hand's argument can be seen as a

generalization of Jackson's point. Just as a court, acting alone, is unlikely to provide an effective

check on the abuse of military powers in a national security emergency, so in the long run courts,

acting alone, are unlikely to provide an effective check on the violation of fundamental rights by

the will of a powerful majority. Both Hand and Jackson draw our attention to the ultimately

political foundations of the law.

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, legal factors, the remainder of the paper will head in the opposite direction. 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. Specifically, I will argue that some

formal constitutional structures, and especially section 33 of the Canadian Charter, may appear to

be wholly inoperative, to make no practical difference, when in fact their mere presence may

have indirect but significant effects on strategic behavior. Adapting another of Jackson's phrases

from the KOREMATSU dissent: section 33 may not have been invoked recently, but it continues

to lie around like a loaded gun. The mere presence of a loaded gun in the room will change the

behavior of those who enter it, whether or not the gun is frequently discharged.

My argument falls in the tradition of Cooter and Mnookin's "Bargaining in the Shadow of

the Law." That is, at first glance, we might attempt to analyze the effects of contract or criminal

law by studying how that law is applied in courtrooms. But in fact, as Cooter and Mnookin show,

these areas of law have equal or even greater effects on the strategic behavior of actors who never

enter a courtroom, because private bargaining (such as settlement negotiations) will take place "in

the shadow of" the likely outcome of going to court. Similarly, I will argue that even where, say,

the power of strong-form judicial review is almost never invoked, as in Japan, the mere


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possibility of such review being performed may alter the strategic behavior of constitutional

actors in ways that are significant but difficult to perceive. Legislating in the Japanese Diet will

take place "in the shadow of" judicial review, even if that review rarely takes place.

My emphasis is different from that of Alec Stone in his discussion of the "juridicization"

of politics in France (p.767), which can also be phrased in terms of "legislating in the shadow of

the constitutional council" (the title of another article of his). Stone's focus is on the ways a highly

visible and clearly operative judicial review mechanism can distort, possibly in detrimental ways,

the legislative process. 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.

II. 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. In particular, section 33 of the Canadian Charter, 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, p.414), seems to have fallen into disuse, arguably leaving Canada with

what is more or less a strong-form system of judicial review. This may be in part because of the

unfortunate phrasing of section 33, which implies that the legislature will be violating the Charter

by invoking its override, rather than simply disagreeing with the court's interpretation of the

Charter (Manfredi, p.424). 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, p.1705). Or it may simply be because of the contingent fact that section 33

was first employed in unpopular, divisive circumstances (Tushnet, p.432), such as the Quebec

independence and Alberta anti-gay-marriage movements.

One response to doubts regarding how useful weak-form review has turned out to be in


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practice would simply be to point to the South African experience. 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. In GROOTBOOM, 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.1676). 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.1704). In

both cases, the Court also facilitated a dialogue between the government and relatively politically

powerless members of the citizenry. As Sunstein says, the Court "strengthen[ed] the hand"

(p.1697) of these individuals in their negotiations with the government, no doubt influencing the

terms of the settlement that was eventually reached. One might even view the Court's decisions as

instances of "representation reinforcement" in the tradition of Carolene Products footnote 4, a

way to build the political strength of civil society so that in the future less judicial intervention

will be required. Clearly, in South Africa, weak-form review seems to be delivering on some of

its dialogic promise.

But it could be argued that even in Canada, where section 33 appears to have fallen into

disuse and there appears to be no actual dialogue taking place, the structure of weak-form review

established by section 33 may continue to play a meaningful, if not easily perceptible or

measurable, role in constitutional politics. The most important effect may be on the strategic

behavior of the Canadian Supreme Court. Though the Court's justices have claimed that section

33 emboldens the Court to decide cases purely on principle, trusting in a legislative override if a

decision proves excessively unpopular (Feb.24 classnote), it seems at least equally likely that

section 33 would have the opposite effect. If we assume, following Posner ("What Do Judges and

Justices Maximize?"), that one element in judges' utility functions is a desire to avoid reversal, it

does not seem implausible to assume that Canadian justices might also, all other things being


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equal, seek to avoid being "reversed" through the use of section 33. Such a reversal could be seen

as a definitive, highly visible, popular rebuke of the judiciary, a message that the justices have

fallen out of touch with the values of the broader society.

If we assume, not implausibly, that Canadian justices are both generally risk-averse and

sensitive to highly publicized rebukes, 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. It is true that even in strong-form review regimes, such as the United States and

Germany, courts rarely intentionally depart from the will of extremely large majorities. (As Prof.

Klarman mentioned once, it is difficult to think of a single case when the Supreme Court opposed

an 80% majority of the American people, and it has only opposed 70% majorities very rarely.)

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. ROE, FURMAN). But section 33 might make the Canadian justices even more

sensitive to shifts in public opinion, and even more wary of misperceiving them, because such a

political miscalculation could be immediately exposed in a highly visible and potentially

embarrassing section 33 override.

We should also consider matters from the legislature's point of view. In general, despite

the justices' presentation of section 33 as emboldening, 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. The legislature might itself be emboldened to take more constitutional risks.

Whereas a legislature in a strong-form system might not bother, in some set of cases, to spend the

political capital necessary to pass a bill that it assumed would be struck down, 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, and that in any case, if the possible chilling effect described above is real, the

Court would be unlikely to strike down the bill and risk a section 33 rebuke in the first place. All

of these strategic calculations, it should be emphasized, would be invisible from the perspective


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of an observer keeping track only of the quantity of judicially annulled bills and the frequency of

the legislature's invocation of section 33.

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. If Canada's legal culture is less adversarial, less comfortable

with open conflict, or less amenable to justices staking out controversial positions in highly

visible political battles, then the chilling effect of section 33 might be even more severe than an

American observer would assume it to be.

A similar strategic point might be made, in conclusion, regarding the Japanese Supreme

Court's extremely sparing use of its strong-form judicial review power. Even if it is true that in

over sixty years, the Japanese Court has only annulled eight parliamentary statutes, it would not

necessarily follow that its power of review has not had significant effects on the course of

legislation. If Japan's political culture is sufficiently more averse to open conflict than the

political culture of the United States, it might be the case that the mere standing threat of judicial

annulment could have substantial inhibiting effects on the Japanese Diet. In theory at least, it

could be the case that legislators are conscious of the possibility of judicial reversal, would view

such reversal as an embarrassment, especially given the Diet's apparent self-perception as the

defender of the Constitution (cf. p.836), and as a result might steer clear of constitutionally-

sensitive areas in order not to provoke the judiciary's objections. Conversely, if the Diet is

perceived as supreme and the judiciary as inferior (ASAHI and KAKUNAGA are not helpful

here, because both focused on the review of executive as opposed to legislative action), then

judges might perceive striking down a statute as somehow inappropriate, except in the most

extreme cases. Cultural pressures could thus lead to a kind of de facto Thayerian system of

review, 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


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whether either of these tendencies is actually at work in Japan's constitutional order. The

important point is that either phenomenon, even if real, would be invisible from a survey of the

Court's infrequent uses of judicial review.

III. 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, despite the provision's fall into disuse, 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, we might still wonder whether the current state of affairs offers any of the advantages

that a weak-form regime was supposed to provide. In particular, weak-form review seemed to

hold out the hope of overcoming or at least mitigating Bickel's counter-majoritarian difficulty.

A. 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, it might be useful to consider how weak-form review, even in its

fully operational form, was supposed to ameliorate the counter-majoritarian difficulty. At first

glance, it might seem that the counter-majoritarian difficulty presents an inexorable conflict, a

"tragic" situation in Sidney Hook's sense of the word: in principle, both the majority will and

individual rights are valuable, but there will be cases in which they simply cannot both be

satisfied; to the extent that one prevails, the other will suffer. There is no perfect outcome.

Perhaps it is because they reject this tragic assumption that some absolutist defenders of civil

liberties also resist the idea of weak-form review. Given a conflict between the majority will and

an individual right, they may believe the right should always win, because in these cases, by

definition, the majority will is illegitimate and without value. Thus, whenever the outcome of

weak-form review would differ from the outcome of strong-form review, the difference would


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represent a failure of the weak-form approach, from their perspective. Weak-form review would

either make no difference, or would only make a difference for the worse.

The proponents of weak-form review might object that the problem is even more

complicated than the preceding paragraph would suggest. Even if they agreed with the civil

libertarian in principle that wherever a fundamental right conflicts with the majority will, the right

should prevail--or, in proportionality-analysis terms, that wherever the achievement of a purpose

willed by the majority using the least intrusive means would entail an unjustifiable impairment of

a right, 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, and it is usually far from

clear how they should best be balanced. 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. We might think that courts have

certain advantages over legislatures in making such determinations, perhaps because people who

go to American law schools are exceptionally sensitive to matters of principle (Dworkin, A

MATTER OF PRINCIPLE, 70); but we might think that legislatures have certain advantages over

courts in making such determinations as well, perhaps because they have access to a wider range

of informational inputs (Vermeule, "Common Law Constitutionalism and the Limits of Reason,"

1509). Because both courts and legislatures have something valuable to say, the ideal process for

arriving at a constitutional determination might be one in which both legislatures and courts

played a role--in other words, a process like weak-form review.

These considerations lead to what I will call the "static" defense of weak-form review. 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. In the end, the defense suggests,

there will be cases in which democratic self-governance and fundamental rights conflict. If we

assume that in these cases, in principle, there is a correct answer as to which side should prevail,

then weak-form review will do a better job of arriving at the correct answer than strong-form


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judicial review would have done. In a system of weak-form review, for example, Blackmun

might still have written the Court's opinion in ROE, but the legislature might have overridden the

decision, thereby alerting the Court to the vehemence of public opinion on the issue of abortion,

the vast importance many Americans place on the lives of fetuses, and the existence of large anti-

abortion constituencies other than the hierarchy of the Catholic Church. If the Court remained

unpersuaded, it could then conceivably have delivered another, less needlessly divisive decision

decriminalizing abortion in practice but recognizing the legitimacy of valuing unborn life,

perhaps in a decision along the lines of the European ones praised by Glendon (p.137). Or it

could have left the issue to ferment in the states. Either way, 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.

A proponent of weak-form review might even make a stronger claim, along the lines of

Holmes' dissent in ABRAMS, and suggest that in light of the chastening failure of any individual

or institution of government to get things consistently constitutionally right, from our current

perspective--the Court having produced its share of DRED SCOTTs, the legislature its Alien &

Sedition Acts, 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, the kind of competition embodied in weak-form review.

But there is another defense of weak-form review, one that receives less attention. It

might be called the "dynamic" defense. According to this defense, weak-form review not only

increases the chances of identifying the correct constitutional outcome when 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. Weak-form review can thus be seen as a tool of deliberative

democracy. It not only aggregates preferences; in theory, it could sometimes alter them as well.

It would be difficult to identify an example of weak-form review changing preferences


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without relying on detailed survey data. But several of the episodes we have studied offer

suggestive hints. For example, 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. 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, 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, without even the need to invoke section 33, abortion

opponents have never succeeded in passing another bill criminalizing abortion. Is this only

because the Senate (which defeated the most likely bill) is appointed, and does not reflect the will

of the majority? Or could it be that MORGENTALER itself, both in the substance of its opinion

and through the constitutionally-infused legislative debate that it provoked, played some role in

changing the public's preferences from what they were before the decision?

B. THE STATIC OR DYNAMIC DEFENSE AND LATENT WEAK-FORM REVIEW

Having introduced the static and dynamic defenses of weak-form review, we can now ask

whether section 33, even in its current, latent state, could still serve some of the functions of

weak-form review. The answer seems to be, for the most part, no. The benefits of weak-form

review described in the previous section seem to depend on the existence of actual dialogue.

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, much less the preference-

shaping benefits in the dynamic defense. If it is too politically unpalatable for the Canadian

Parliament to invoke section 33, then the Canadian Supreme Court will not receive the benefits of

the Parliament's institutional competencies, or at least will not receive any more of such benefits

than would have arrived under a system of strong-form review.

Of course, if the continued existence of section 33 alters the Court's strategic behavior, as


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described in Part II, above, by making the Court marginally less likely to oppose Parliament than

it would have been under a system without section 33, this would reduce the counter-majoritarian

difficulty in a superficial sense. 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. The Court's strategic behavior would not truly address the roots of the counter-

majoritarian difficulty, the conflict in some cases between democratic self-governance and

fundamental rights. It would only bias the Court toward the former.

In sum, formal constitutional structures may make a difference, as the legalist approach

to comparative constitutional law characteristically suggests, even when they appear to be

inoperative. The mere presence of such formal structures may still influence the strategic

behavior of legal and political actors. This sometimes neglected dimension of comparative

constitutional analysis can play a role in systems of latent weak-form review, as in section 33 in

Canada, or in systems of largely latent strong-form review, as in Japan. But the mere, latent

presence of weak-form structures does not seem adequate to deliver on the informational (static)

or deliberative (dynamic) promises of weak-form review. In order to address the counter-

majoritarian difficulty through these means, an actual, overt dialogue would appear to be

necessary.

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