Reviewed by Adam Shajnfeld (J.D., Columbia). Email adamshajnfeld [at] gmail.com.
In EXPOUNDING THE CONSTITUTION, editor Grant Huscroft introduces and presents the essays of eleven scholars on constitutional issues such as morality, judicial review, and written vs. unwritten constitutionalism. An eclectic array of writing with transnational panache, the book could be titled “Expounding a Constitution,” as the essays do no share a single constitution as object of analysis. What follows are brief summaries and some criticism of these essays. I conclude with general comments about the book as a whole.
Steven D. Smith wonders what precisely people are interpreting when they claim to be interpreting the “constitution.” After all, few think they are simply interpreting the document alone, and in many countries there is no written document to interpret. Theorists generally differ on how to interpret the constitution, but fail to explain what they take as the object of interpretation. Smith believes that the “constitution” is a convenient placeholder, a “facilitative modern equivocation” like “morality” or “equality” (p.36), though for what nobody knows. Nonetheless, people blindly refer to this placeholder so as to engage in what they believe is meaningful debate and discussion.
Smith seems too skeptical of a common reference point, at least so far as the US is concerned. In the US, those engaged in constitutional interpretation are surely referring to, at a minimum, the physical document. Some say it should be interpreted in light of the intention of its framers, others in light of general principles embodied therein, but nobody believes the document irrelevant. One can view disagreement as a dispute over the way to interpret, and not what counts as, the constitution. Additionally, the fact that a significant body of constitutional law exists as judicial statements does not detract from the importance of the document. Cases interpreting the document may enter the pantheon of constitutional law, though they do so by virtue of the interpretive gloss they give to the document.
According to Larry Alexander, assuming there are real moral rights, they bind government institutions whether or not they are entrenched in a constitution. Thus, the real question is not whether to constitutionalize moral rights, or whether ordinary legal decisions made by the executive, legislative, and judicial branches must be consistent with those moral rights (they must), but which institution’s view of what those moral rights are and what they require shall prevail. Simply stating that a legislature is the most democratic branch does not answer this question, unless democratic representation is a proxy for accuracy in moral matters. Thus, Alexander raises, [*1040] but does not answer, the question of which institution is most competent to analyze and determine the requirements of morality. Jeremy Waldron believes it is the legislature.
Waldron builds on his prior scholarship that seeks to justify judicial deference to legislative decisions. According to Waldron, legislatures are arguably more institutionally competent than courts to adjudicate certain major individual rights cases involving significant moral and political issues such as abortion, affirmative action, and the rights of criminal suspects. First, while judges are constrained by statutes and precedent when engaging in moral reasoning within a case, legislatures are not. Second, legislatures are more likely to conduct society-wide, and not individual, moral reasoning. Society-wide moral reasoning is not concerned with “any particular comprehensive conception” of morality (p.57), but is instead concerned with providing moral justifications that can garner the widest social support in a community with moral dissensus.
Waldron does not pay enough attention to the perennial problem of majority rule and minority protection. A bill of rights exists, in part, to protect minorities. Majorities need no protection, as they are ensured, through voting power, control over government. Significant judicial deference to legislatures removes a bulwark against minority oppression. As a reflection of majority will, the legislature seems ill-equipped to protect minorities. A convincing argument for judicial deference must address this problem, and Waldron does not. David Dyzenhaus makes a similar point. He claims that Waldron ignores the dangers of consolidating power in a majoritarian body that can be captured by ignorant and or minority-discriminating interests. Dyzenhaus also lodges other criticism. First, Waldron is just as prone to romanticize the legislature as common law enthusiasts are to romanticize the judiciary. The legislature, he notes, often underwhelms. Second, the kind of moral debate necessary for intelligent legislating is often catalyzed by judicial decisions calling into question a law’s compatibility with the constitution. Third, legislative debates are concerned primarily with morality and policy, not legality. For Dyzenhaus, the second and third points demonstrate the necessity of a judicial role in major individual rights cases: some institution must help catalyze debate and attend to concerns of legality.
James Allan wonders how Waldron would decide constitutional issues that pit legislative decisions against individual rights if he were a justice on a nation’s highest court. Textualism, which stresses fidelity to the literal import of constitutional provisions, would confer too much power on judges, as bills of rights are often vague and sweeping. Living constitutionalism, the view that “the meaning of rights in bills of rights evolves and changes in accordance with the needs of contemporary society” (p.170), is also unacceptable, as it does not sufficiently constrain judges. Perhaps Waldron would employ the “puke test,” invalidating legislation only when it is utterly repulsive. Allan does not arrive at an ultimate answer.
Bradley W. Miller addresses an aspect of constitutional drafting, arguing that [*1041] rights provisions that have inherent within them limitations clauses are superior to those that have separate limitations clauses. In the US, a right is defined to include its own limits; in Canada, rights are conceived of expansively, while a separate clause allows what are putatively public policy concerns to outweigh the right in appropriate circumstances. Miller believes the US model is superior for two reasons. First, it avoids skewing public discourse over rights. A right that is defined expansively and without qualification becomes difficult to understand when it can be overridden by another provision. More certainty and meaning obtains when a right is viewed as extending, in itself, only so far as it does not hamper the greater rights of others. Second, a separate limitations clause conveys the false impression that one provision is concerned with rights and the other with public policy. Instead, Miller argues, a limitations clause is really about the potentially superior rights of others, and thus should not be analytically separate from a clause about rights. For instance, limiting my right to speak freely may protect others from infringement of their right to truthful information in commercial advertisements.
W.J. Waluchow’s essay, the gem of this collection, demonstrates how judicial review involving moral calculus can be democratically legitimate and truly enforce the constitution. Constitutions often include bills of rights or other provisions that refer to generalized normative concepts such as “equality.” Waluchow explicates the important distinction between mere moral opinions and moral commitments. If one thinks that homosexuality is wrong or that driving above the speed limit is bad, one is expressing mere moral opinion. Equality, on the other hand, is a general moral commitment. It is an abstract principle, ensconced in a constitution so as to secure protection from both majority and minority encroachment. It is generalized, as a constitution must be brief and widely applicable; specific instances of equality cannot be exhaustively addressed.
Individuals, majorities, or legislatures may each hold mere moral opinions on a wide variety of matters. Judges, though, need not and should not simply enforce these opinions. Judicial review in watershed rights cases involves evaluating legislation or behavior in light of moral commitments embodied in the constitution. One might think, for instance, that black men should not be able to marry white women or that Jews should not be able to marry Christians. The problem is that however popular these views are, and even if they garner majority support, they are completely inconsistent with a moral commitment reflected in the constitution – equality. The job of the judge then is to take these mere moral opinions and determine if they are or can be consistent with moral commitments made in the constitution. In this way, the judge is making a constitutionally uncontroversial moral evaluation, and may justifiably strike down a legislative decision that has the mere moral support of a democratic majority. The judge’s behavior is legitimate; he is not imposing his own morality, but a morality embodied in the constitution (which often requires a super-consensus to create and is superior to ordinary statute or moral opinion). [*1042]
Aileen Kavanagh explains the rationales that variously justify a reviewing court’s decision to (or not to) defer to the judgments of other branches of government. Noting that the decision can be rooted in concerns of institutional competence, expertise, or legitimacy, she concludes that it is too simplistic to equate “striking down with activism and failure to strike down with deference” (p.213). Courts may, for instance, uphold legislation even when only minimally deferring to the legislature, where the court believes the legislation valid. Conversely, courts may strike down legislation even while according substantial deference, where the legislation is positively and perniciously invalid.
T.R.S. Allan believes that if one takes the purpose of law to be a bulwark against arbitrary power, certain formal and substantive requirements follow that cannot be overridden by legislative or judicial decision. These are requirements of equality, fairness, and reason. First, laws must be written in general form, applicable to all and not targeting specific persons. Second, citizens must be treated equally under the generally applicable law. Third, legal rules must “embody a coherent rationale, consistent with a plausible account of the public good” (p.223). Absent such a rationale, the law becomes arbitrary. Fourth, the judiciary must be impartial. According to Allan, both individuals and courts must review legal rules to ensure compliance with this concept of law. Thus, if the legislature enacts a rule inconsistent with principles flowing from the conception of law as a bulwark against arbitrary power, and the courts uphold the rule, the citizen may refuse to obey it. Such a rule is an ultra vires act and commands no authority. Allan’s contention that the citizen who rejects an improper judicial decision is on the same moral footing as the judge who rejects an invalid act of the legislature confers great power on the individual citizen. This broad defense of civil disobedience may be troubling for those constitutional theorists who are concerned with maintaining order within a society characterized by moral dissensus.
Mark Walters advances a theory of unwritten constitutionalism that attempts to withstand charges of structuralism (unwritten law is simply interpretation of written law) and naturalism (unwritten law is a form of natural, inalienable and immutable law). Analogizing to the common law, and with Dworkinian undertones, he argues that the only significant difference between written and unwritten constitutions is that in the former, judges give specific meaning to general propositions of law, whereas in the latter, judges “articulate constitutional law by inferring general principles from a nonexhaustive and noncanonical set of specific legal propositions” (p.255). This is no resort to natural law, as the unwritten principles must be cognizable and coherent abstractions from particular specific propositions, which differ in each country’s written constitution. This is also no resort to structuralism, as the written constitution is seen as a specific embodiment of the unwritten constitution, and not vice versa.
Walters does not address how to resolve conflict between written and unwritten constitutional law. He does not even acknowledge it as a possibility. Surely, an imperfectly drafted constitution could [*1043] contain a provision incompatible with any overarching unwritten principle abstracted from the written constitution’s remainder. I also wonder how Walters would view a written constitution containing a clause disavowing the existence of an unwritten constitution.
Jeffrey Goldsworthy criticizes claims that there exist unwritten constitutional principles. He analyzes three arguments typically offered to explain the legitimacy of such principles. First, some argue that implicit in our concept of law is a moral content that exists in the form of unwritten constitutional principles. For Goldsworthy, the problem with this argument is that it muddles the distinction between legal validity and moral soundness. He thinks, for instance, that there is a general moral obligation to obey the law, and when a law is particularly evil, a competing moral obligation may require disobedience. Thus, legal validity is determined independent of moral value, though morality may affect the force given to law. Second, some argue that unwritten principles form a common law constitutionalism. In its strong form, the claim is that “the common law is the ultimate source of the authority of statute law, and perhaps written constitutions as well, and that therefore, either the common law already limits legislative authority, or it could be developed by the judiciary to do so” (p.289). Goldsworthy finds this argument lacking in historical and philosophical support. In particular, common law constitutionalists who claim that a legislature’s ultimate lawmaking authority cannot, on pains of circularity, derive from itself fail to explain how a judiciary, the repository of the common law, can derive its power if not circularly by its own decree. In its weak form, the common law claim is that judges may refer to unwritten principles of statutory interpretation when interpreting constitutional provisions, though these unwritten principles seek only to enforce unspoken legislative intent, not to supplant it. Third, some argue that unwritten constitutional principles simply embody background assumptions implicit in written constitutional provisions. This is a familiar linguistic concept (e.g., when I ask a doorman how I can reach the fifth floor of his building, we both understand, though I have not stated it, that I would only use the stairs or elevator, and not a crane, ladder, or helicopter).
Goldsworthy seems willing to grant the existence of an unwritten weak form common law or “implicit assumptions” constitutionalism, so long as it is understood that legislative authority and decree is supreme, that unwritten principles must be consistent with legislative intent, and that any implicit assumptions must be uncontroversial.
Huscroft has done a fine job of collecting interesting and timely essays. The book presents a politically and philosophically balanced view of constitutional theory, though it is by no means comprehensive. The essays are fairly accessible, though some, such as Goldsworthy’s, require more background than others. A few of the essays address areas that remain neglected within traditional theoretical discourse, such as Miller’s article on rights clauses, while others, such as Waldron’s, re-present familiar, though nonetheless important, views. [*1044]
While the book is divided into three sections, I found that the essays could not be so neatly categorized. In this review, I have re-ordered some of them. Huscroft’s introduction helps weave the patchwork of essays together, though in some cases I felt that the introduction parroted an essayist’s poorly-organized train of thought instead of repackaging it.
Altogether, the book is a good read, and is recommended for those interested in constitutional theory and interpretation, judicial review, and legal philosophy.
© Copyright 2008 by the author, Adam Shajnfeld.