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Weak Courts, Strong Rights:
Judicial Review and Social Welfare Rights in Comparative Constitutional Law
Mark Tushnet

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CHAPTER 1

Why Comparative Constitutional Law?

Recent Supreme Court opinions mentioning constitutional decisions by courts outside the United States have generated a strong—and grossly overstated—critique by conservative commentators.1 The thrust of the critique is that these opinions portend inroads on the sovereign ability of the American people to govern ourselves, and the embedding in the U.S. Constitution—through judicial interpretation—of the values of a cosmopolitan elite that could not persuade the American people to adopt those values through purely domestic legal processes.

Only a brief comment on these “arguments” is appropriate here.2 First, Supreme Court mention of decisions by courts outside the United States is no recent development, but at most a revival of an earlier tradition that had been submerged for perhaps a decade or two.3 Second, mention is the right word. Only one recent opinion relies on the substance of a decision by a non-U.S. court to support a proposition that played some role in the Court’s reasoning.4 Other references to such decisions have been in the form of factual observations about what other courts have done. Third, the idea that references to non-U.S. decisions might somehow produce decisions that would not be reached by using other materials for interpreting the Constitution is quite implausible. It seems to require that some justice who would not otherwise be persuaded by those other materials would nonetheless change his or her mind when confronted with the non-U.S. materials. That might happen, someday, for one justice perhaps, but surely not on a large enough scale for anyone to care about. Fourth, the concern about sovereignty seems equally misplaced. The U.S. Supreme Court is, after all, a domestic lawmaker no less than is, for example, the U.S. Senate, which ratifies treaties limiting what the U.S. government as a whole can do. That is, a domestic institution would impose any restrictions on U.S. lawmaking by references to non-U.S. court decisions. There is no impairment of sovereignty in that. And, finally, the concerns about self-government expressed by critics of these Supreme Court decisions are valid ones—when made about judicial review itself. There is nothing, though, that distinguishes non-U.S. decisions from anything else the Court might rely on to limit self-government through judicial review.

This recent tempest in a teapot has placed the question of the value of comparative constitutional study on the table. Why study comparative constitutional law? For a scholar, of course, the value seems obvious: more knowledge is generally better than less. Others have a more instrumental interest. They might want to know whether studying comparative constitutional law might improve our ability to make domestic constitutional law. Responding to that inquiry requires some examination of how we can actually do comparative constitutional law.5

I confine my attention to questions implicated in doing comparative constitutional law as law. There is, of course, a large field of comparative studies of governmental organization, conducted by political scientists as well as lawyers, and some of that field overlaps with the field of comparative constitutional law. There is, though, one large difference between the fields. Comparative constitutional law involves doing law. And, as I have learned, it is quite difficult to be comfortable in doing law in more than one legal system. Even when language barriers do not intervene, legal cultures do. For example, I have been persuaded—despite my initial skepticism—that Australian constitutional culture is far more formalist than U.S. constitutional culture. It is less open to what seem to me the inevitable intellectual challenges from those influenced by American legal realism and its legacy. As a result, constitutional doctrines in Australia, such as those dealing with the allocation of authority between the national and the state governments, are more stable than similar doctrines in the United States, even doctrines framed in language that seems parallel to that used in the Australian cases. These and other differences in constitutional cultures complicate the task of doing comparative constitutional law, perhaps to the point where the payoff in any terms other than the increase of knowledge is small.

AN OVERVIEW OF METHODS IN COMPARATIVE CONSTITUTIONAL LAW

I think it useful to identify two ways of doing comparative constitutional law, as a preliminary to criticizing and deepening them to suggest a third method. Without insisting that they are sharply different, I call the first two methods normative universalism and functionalism.6 These two methods involve efforts to see how constitutional ideas developed in one system might be related to those in another, either because the ideas attempt to capture the same normative value or because they attempt to organize a government to carry out the same tasks. I call the third method contextualism. This method comes in two variants, which I call simple contextualism and expressivism. Simple contextualism insists that constitutional ideas can be understood only in the full institutional and doctrinal context within which they are placed. Expressivism takes constitutional ideas to be expressions of a particular nation’s self-understanding. Both methods raise questions about the coherence of the idea that constitutional ideas can migrate (without substantial modification) from one system to another.7

UNIVERSALISM AND FUNCTIONALISM

Normative universalism emerges primarily from the dialogue between those who study comparative constitutional law and those who study international human rights. The idea is simple: constitutionalism itself entails— everywhere—some fundamental principles. Some of those principles involve human rights: the protection of some universal human rights, such as rights to political participation, to equal treatment under the law, to freedom of conscience and expression, and, for many human rights advocates, much more. Others involve structures of government. Here the list is typically shorter: independent courts for sure, perhaps some version of the separation between law enactment and law execution (another aspect of the separation of powers), and probably little more.

Universalists study comparative constitutional law to identify how particular constitutions instantiate those universal principles. By comparing different versions, we can better understand the principles themselves. Then we might be able to improve a domestic system’s version of one or another principle by using that enhanced understanding to modify it.

Three examples from free speech law, two controversial, the other not, illustrate the universalist method in comparative constitutional law. The uncontroversial one is the law of sedition, a criminal offense consisting of criticism of existing government policies. Over the past century, the United States Supreme Court has grappled with the problem of reconciling the law of sedition with the First Amendment’s protection of free expression. Its sustained attention to the problem has yielded two conclusions. The first is widely accepted. Government efforts to suppress speech critical of its policies must be treated with extreme skepticism, captured variously in formulations like “clear and present danger” or “intended to and likely to cause imminent lawless conduct.”8 The latter formulation indicates the second conclusion we can draw from the U.S. sedition cases. The problem of seditious speech, analysis has shown, is only one aspect of a broader problem—how can governments regulate speech that, they fear, will cause people to break the law?

Governments around the world have confronted the problem of seditious speech, and all governments must deal with the problem of speech that increases the risk that laws will be broken. Comparative constitutional study allows us to examine the different ways in which they deal with the problem. And, most scholars and many constitutional courts believe, something like the U.S. approach is the best one available.9 The European Court of Human Rights, for example, has dealt with cases arising out of Turkey’s often violent confrontation with the Kurdish separatist movement there. One, decided in 2000, involved a newspaper article by the president of a major labor union, in which the author said that “not only the Kurdish people but the whole of our proletariat must stand up against” the nation’s anti-Kurdish laws and policies.10 The Court wrote that “there is little scope [in the applicable international human rights law] for restrictions on political speech,” but that governments could limit free expression when a speech “incites to violence against an individual, a public official or a sector of the population.”11

The law of personal libel provides a second example. Here the United States has adopted a notably stringent rule restricting the circumstances under which a person the Supreme Court calls a public figure can recover damages for the publication of a false statement that injures his or her reputation. The category of public figures is a large one in the United States, including leaders of large private corporations and prominent football coaches and celebrities as well as politicians.12 Public figures can win only actual damages, which are usually relatively small, and even then only if they show that the false statements were made by someone who knew they were false or at least made a conscious decision to forgo any effort to find out whether they were true or false.13

Not surprisingly, other constitutional courts regularly confront libel cases brought by public figures. They have reached a range of conclusions, but none is nearly as restrictive of recovery as is the United States. For example, Australia uses a test of reasonableness. One major formulation was offered in a case brought there by a member of New Zealand’s parliament who had been that nation’s prime minister:

[A] defendant’s conduct . . . will not be reasonable unless the defendant had reasonable grounds for believing that the imputation [of something that damages reputation] was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response (if any) made except in cases where the seeking or publication of a response was not practicable.14

Many in the United States find our domestic law of libel unsatisfactory.15 Universalist scholars of comparative constitutional law suggest that looking at the solutions that other constitutional democracies have come up with would help us develop a better law of libel.

The most controversial example involves the regulation of hate speech. Proponents of more extensive regulation of hate speech in the United States often refer to transnational constitutional norms—the existence of hate speech regulation in Canada,16 the existence in some international human rights treaties of a duty to regulate hate speech17—in defending the proposition that hate speech regulation should not be treated as unconstitutional under the First Amendment to the U.S. Constitution.18 They argue, quite rightly, that the fact that modern liberal democracies do in fact regulate hate speech without descending into totalitarian tyrannies where the government engages in extensive thought control shows that hate speech regulation in itself is compatible with a system that respects general norms of free expression. They conclude that hate speech regulation in the United States could be adopted without risking anything other than making the United States more like Canada—not, in their view, an obviously bad thing.

Again, this exemplifies the universalist use of comparative constitutional law. According to universalists, general principles of free expression and human dignity come into play when someone makes a speech castigating a racial, religious, or national group. Examining how a number of nations have worked out accommodations between those principles might be useful in developing the contours of any nation’s domestic law dealing with hate speech.

The functionalist approach to comparative constitutional law is similar to the universalist one to the extent that it tries to identify things that happen in every constitutional system that is the object of study. So, for example, every democratic nation has to have a mechanism in place for going to war or for dealing with domestic emergencies that threaten the nation’s continuing existence. But, the functionalist analysis goes, democratic nations should be careful about going to war, and about determining that a truly grave emergency exists. Functionalists believe that examining the different ways in which democratic nations organize the processes of going to war and declaring emergencies can help us determine which are better and which are worse processes.

As the example of war-making and emergencies suggests, functionalists tend to focus on issues of government structure. With respect to federalism, for example, a functionalist might ask: What forms of federalism best accommodate the diversity in a nation’s regions? Can federalism be adapted to deal with diversities that are not tied closely to geography? Belgium’s experiment with an incredibly complex set of federalist institutions—some geographic, some linguistic—layered on to each other might provide some insights into these questions.19 Drawing on work by political scientists, functionalists consider whether presidential or parliamentary systems are better vehicles for achieving the goals a nation’s people set for themselves.20

Both the universalist and functionalist methods are flawed, though. Put most generally, their difficulty is that they operate on too high a level of abstraction. We can assume that there are universal principles of liberty and justice, for example, but we can be reasonably confident that such principles are not fully captured in general terms such as free speech or equality. The free speech principle, whatever it is, is likely to be extremely complex, sensitive to the circumstances presented by particular problems. The law of freedom of expression must deal with forms of expression that involve words alone, words coupled with symbols, symbols alone, and actions whose social meaning is understood to be communicative. It must deal with expression that is thought to cause harm by persuading listeners of the rightness of the claims made, by structuring the environment in which listeners evaluate other claims, or by triggering responses without engaging a listener’s cognitive capacities. It must deal with harms ranging from assaults on dignity to threats to national survival. And, of course, it must deal with political speech, commercial speech, sexually explicit speech, and many other varieties of expression. With so many variables going into the structure of the free speech principle, it may well be that a nation’s experience with the cases thrown up in its own history will be substantially more illuminating of the underlying principle than other nations’ experiences with their histories.

A parallel point holds for issues of government structure. Consider, for example, the question of going to war. Separation-of-powers systems might be leery of giving a president the power to initiate substantial military engagements, because, as William Treanor has pointed out (drawing on the views held by the framers of the U.S. Constitution), a single person may be reckless in seeking to obtain honor in military operations.21 Members of the legislature, in contrast, gain little individually from authorizing military operations, and so may be more cautious than a president. Clearly, though, this argument depends on the precise structure of a nation’s separation-of-powers system, and in particular on the relation between the president as party leader and the president as commander in chief.

CONTEXTUALISM AND EXPRESSIVISM

Contextualism, a third approach to comparative constitutional law, emphasizes the fact that constitutional law is deeply embedded in the institutional, doctrinal, social, and cultural contexts of each nation, and that we are likely to go wrong if we try to think about any specific doctrine or institution without appreciating the way it is tightly linked to all the contexts within which it exists. Contextualist comparative studies come in many forms—ethnographic and historical, for example. My concerns in this book lead me to present contextualism in a relatively thin way.

For present purposes, I limit my discussion of the contextualist approach to its focus on the institutional and doctrinal contexts of specific doctrines.22 Constitutions combine substantive norms, such as commitments to free speech and equality, with institutional arrangements, such as federalism and parliamentary government. The substantive norms are implemented within the institutional arrangements, and particular institutional arrangements are sometimes more compatible with some interpretations of the substantive norms than with others.23

The hate speech issue provides a good example of why institutional contexts matter.24 The arguments for hate speech regulation operate on the level of principle—free expression and equality. Those arguments typically overlook the institutional context within which hate speech regulations are implemented. One principle—among many—that (everywhere) guides the interpretation of constitutional protections of free expression is that those protections are designed to counteract a tendency on the part of government officials to overreact to perceived threats to order. Criminal law enforcement is much more highly centralized in other constitutional systems than it is in the United States. Great Britain’s hate crime statute requires that prosecutions be authorized by the attorney general, a single official.25 Even in Canada’s federal system, criminal law enforcement is centralized in each province’s attorney general.26 The risk of abusive prosecutions for hate speech may be reduced by this centralization and the attendant responsibility for, and public visibility of, decisions to prosecute. Compare the United States, where thousands of local district attorneys have the power to initiate and carry prosecutions through.27 The way the U.S. federal system is organized, that is, may increase the risk that clearly inappropriate prosecutions for hate speech will be brought. And, finally, that risk is relevant to determining whether a domestic constitutional provision protecting free expression should be interpreted to permit or prohibit criminal hate speech regulations. The institutional context of criminal law enforcement in the United States and elsewhere must be taken into account in determining how to interpret the substantive commitment to free expression.28

The doctrinal context matters as well. Here we can reconsider the earlier example of libel law. Cast in the most general terms, libel law provides the structure for accommodating interests in speech with interests in reputation, the latter an aspect of human dignity. Note, though, that in the United States the interest in speech is of constitutional magnitude, whereas the interest in reputation is merely one of policy.29 The accommodation of interests in the United States must give greater weight to the interest in speech than to the interest in reputation. In contrast, in Great Britain and Australia, neither the interest in speech nor that in reputation is of constitutional magnitude. There the common law can develop in ways that give “appropriate” weight to both interests. And, finally, in Germany both the interest in speech and the interest in reputation as an aspect of human dignity are of constitutional magnitude. The balancing of interests in Germany will necessarily be different from that in the United States because the underlying constitutional provisions differ.

As I have described contextualism to this point, it simply insists on taking an appropriately wide view of the field in which constitutional law operates. Expressivism is a different, perhaps even more comprehensive version of contextualism. For an expressivist scholar, constitutional law—doctrines and institutional arrangements—are ways in which a nation goes about defining itself. Preambles to constitutions may be particularly useful for an expressivist. So, for example, the preamble to the Irish Constitution of 1937 is an especially rich text for these purposes. The preamble states:

In the name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Ireland, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution.

The preamble’s opening words and its later reference to Jesus Christ identify the nation with Christianity, and its use of the terms final end and prudence, justice, and charity show that the nation is specifically Roman Catholic. The document also looks backward in a powerful way, with its references to centuries of trial and a heroic and unremitting struggle. And, finally, the formulation “give to ourselves” states a relationship of self-donation and acceptance between the people of Ireland and their constitution that embeds the 1937 document in the nation’s ongoing identity.30

An expressivist approach to comparative constitutional law would contrast the self-understandings found in the constitutional documents of different nations. For example, such an approach might point to the differences in self-understanding expressed in Canada’s Burns decision and the Stanford decision in the United States. In the former, the Canadian Supreme Court significantly modified a prior holding to impose rather severe restrictions on the power of the national government to extradite a fugitive from the United States charged with a capital crime, unless the government obtained assurances that the death penalty would not be imposed.31 The theme that the Canadian government had taken the lead in international discussions and implementation of human rights ran through the Court’s opinion. So, for the Burns court, Canada’s self-understanding as a leader on human rights led to the constitutional doctrine the court articulated. In Stanford, the U.S. Supreme Court applied a constitutional standard referring to “evolving standards of decency” in the context of the death penalty by insisting that the relevant standards of decency were those of the people of the United States, not those of the wider international community.32 An expressivist analysis could use these cases to distinguish between the outward-looking self-understanding of Canada and the inward-looking one of the United States.

My discussion of what we can learn from comparative constitutional law offers some cautionary notes, not knock-down arguments against its use in domestic constitutional interpretation. Sometimes it is said that comparative law can bring to mind possibilities that might otherwise be overlooked or thought too utopian to be considered as part of a real-world constitution. Comparative law, the thought is, can help us rid ourselves of ideas of “false necessity,” the sense we might have—grounded in our own experience because that is the only experience we have—that the institutions and doctrines we have are the only ones that could possibly be appropriate for our circumstances.

Combining contextualism with the insight that comparative study can raise questions about whether some arrangements that seem necessary to us are actually false necessities may have more subversive implications for the comparative enterprise than it might seem initially. The difficulty is that contextualism might lead us to see that the arrangements are indeed necessary, given the complete context within which they are set. The question is the extent to which the constraints imposed by a nation’s legal institutions and arrangements, by its doctrinal history, by its legal culture, and so on down the list of constraining factors intersect in a way that reduces the set of choices (be they institutional, doctrinal, or whatever) to one—that is, to the one that is actually in place.33 I doubt that this question can be answered in the abstract, or generally.34 I believe, though, that the comparative inquiry must be sensitive to all the contexts to which contextualism directs our attention.35

More precisely: contextualism in both its versions raises challenges to the idea that comparative study can help identify false necessities. The first version suggests that these institutions and doctrines might not be “false” in some strong sense because they may be so tightly integrated that no significant changes are possible. Expressivism suggests that a nation has a (single) self-understanding that its constitution expresses. Yet, these challenges should not be given more weight than they properly bear. Everything we know about the doctrines and institutions of law tells us that doctrines and institutions can accommodate much more change than we might think. We have discovered that we can tinker with a wide rangeof doctrines and institutions without transforming in the short run what we regard as constitutional fundamentals. And, as time goes on, our understanding of what those fundamentals are can itself change, sometimes in response to prior tinkering. This observation will play a large role in my discussion of forms of judicial review in chapter 3.

Similarly, it is a mistake to think that a nation has a single self-understanding. Doctrines and institutions might seem true necessities to an expressivist who says, “Well, this is the way we (or they) are.” But, even within a nation’s constitution and constitutional traditions, “who we are” is often—perhaps always—contestable and actively contested. In contrast to the inward-looking self-understanding articulated in Stanford, for example, there is another, outward-looking self-understanding that can be found in U.S. constitutionalism.36

Contextualism’s challenge to the comparative enterprise, though serious, need not be fatal. The challenge does suggest that the study of the migration of constitutional ideas must be done with great caution—more caution, I think, than can be found in much of recent literature on “borrowing” constitutional ideas. Perhaps the true object of study should be the way in which those constitutional ideas that do migrate are transformed as they cross the border, or, alternatively, the way in which ideas that seem to have migrated have deeper indigenous roots than one might think, deeper even than the prevalence of citations to nondomestic sources would indicate.

CONCLUSION

I can begin to wind up this chapter by turning to an exchange between Justice Antonin Scalia and Justice Stephen Breyer. Justice Breyer has referred— probably mistakenly—to experiences with federalism in Germany to explain why it might be thought compatible with U.S. federalism to allow the national government to “commandeer” the executive resources of state governments to carry out national policy. Justice Scalia responded that Justice Breyer’s approach, and perhaps reliance on comparative constitutional experience more generally,37 was “inappropriate to the task of interpreting a constitution, though it was quite relevant to the task of writing one.”38 Justice Scalia’s distinction between constitutional interpretation and constitutional design is not as sharp as he suggests, though. Consider the issue the next chapters take up—whether strong-form or weak-form institutions of judicial review better accommodate the competing interests in constitutionalism and self-government. That issue presents a question of constitutional design. Today, constitution drafters may well write provisions into their constitutions that make it clear that they have adopted a strong-form system or a weak-form one. The drafters of the U.S. Constitution did not include such provisions. Indeed, they did not write anything about judicial review into the Constitution. The design issue of how to structure judicial review, that is, is entirely a question of interpretation in the United States.

It is not out of the question, of course, that that design issue has been entirely resolved over the course of U.S. constitutional history. In theory, the Constitution’s drafters may have understood that they were creating a strong-form or a weak-form structure. Or, equally in theory, an unbroken line of precedent might have resolved that structural question.

As it turns out, though, those possibilities are indeed only theoretical. The Constitution’s drafters had diverse views about the structure of judicial review. Departmentalism, for example, was one widely held view. Thomas Jefferson was not, strictly speaking, a drafter of the Constitution, but obviously he was a person whose thinking about the Constitution was and remains important. Jefferson’s version of departmentalism implied that judicial review, to him, had a structure quite similar to that of modern weak-form review.39 Courts could express their views on what the Constitution meant, but the president and Congress were entitled thereafter to continue to act on their own views even if those views were different from the courts’.

Precedent is a somewhat larger barrier to reimagining judicial review in the United States as weak-form. The contemporary Supreme Court certainly regards judicial review as having the strong form, and much of the public appears to agree.40 Exactly when we got strong-form judicial review is unclear, though. Something like strong-form review seems to have been the target of James Bradley Thayer’s famous 1893 essay, “The Origin and Scope of the American Doctrine of Constitutional Law,”41 but Thayer’s position in support of a weaker version of judicial review continued to have substantial support in Congress, the presidency, and even the Supreme Court through the middle of the twentieth century. The modern articulation of strong-form judicial review is provided in Cooper v. Aaron (1958), where the U.S. Supreme Court described the federal courts as “supreme in the exposition of the law of the Constitution,” and inferred from that a duty on legislatures to follow the Court’s interpretations.42 Cooper v. Aaron’s articulation of strong-form judicial review itself remains moderately controversial; contemporary conservatives continued to be attracted to some version of departmentalism, for example.43

In the end, I think the best assessment is that the question of what form the U.S. system of judicial review has is a design issue left incompletely resolved by the Constitution’s text, by understandings about judicial review at the time of the Constitution’s adoption, and by the precedents built up since then. If comparative constitutional law is relevant to designing the structures of judicial review, it is relevant to “interpreting”—really, figuring out—the structure of judicial review in the United States.44

Justice Louis Brandeis’s observation, “If we would guide by the light of reason, we must let our minds be bold,”45 may provide the best defense for doing comparative constitutional law. Or, as Claude Lévi-Strauss notably put it, ideas, like food, are “good to think.”46 For scholars, that probably should be enough. Those who address themselves to policymakers, including judges, and the policymakers themselves, should be appropriately cautious about what they believe they can learn from the study of comparative constitutional law.47

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