Professional Documents
Culture Documents
1. Introduction
That the Constitution should be rigid – more difficult to amend than ordinary
legislation – is relatively easy to defend when it comes to that part of the
Constitution that establishes the structure of government. Given that there are
several institutional arrangements a polity can adopt, all of them reasonable, and
given the need to stabilize one of them for political life to proceed in an orderly
way, it is a good idea to establish a particular arrangement in the Constitution
and to make that Constitution difficult to amend. It is more important to have a
settled system of government, even if it is not the best one, than to discuss all the
time which is the best system to have. Stability is itself a value 1. When it comes
to individual rights, however, things are more complex. On the one hand,
constitutional rigidity may look excessive: it is very important for the polity to
adopt the right decision in this context, and it is not at all clear why the
constitutional decision reached by a majority in the past as to what rights
individuals have should bind present majorities. On the other hand, constitutional
rigidity may look insufficient: if we think that individuals are entitled to certain
moral rights that the polity should acknowledge, and it is for this reason that
* This is a short version of a longer piece I have been working on for some time. I
would like to thank Bruce Ackerman, Chris Eisgruber, Owen Fiss, Barry Friedman,
Roberto Gargarella, Larry Kramer, Josep Lluis Martí, Luis Javier Mieres, Carlos
Rosenkrantz and Larry Sager for their helpful comments on that longer and earlier piece. I
am also indebted to all the participants at the Colloquium on Constitutional Theory of The
New York University School of Law, where that longer paper was discussed on April 20,
2000, as well as to those who took part in the “V Congreso Hispanoitaliano sobre Teoría
del Derecho”, which took place in Alicante in October 1999, where I presented some of
my ideas on the same issues. All their remarks were extremely useful. None of them is to
be blamed, of course, for my mistaken views. I would also like to thank Riccardo Guastini
for encouraging me to publish this paper here.
1 For a powerful version of this argument, see Stephen Holmes, “Precommitment and
the paradox of democracy”, included in Jon Elster and Rune Slagstag (editors),
Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988), p.
195.
those rights are enshrined in the Constitution, why should it be possible for
future majorities or supermajorities to change those rights through the
amendment process?
In this article I want to offer a defense of the constitutional rigidity of the Bill
of Rights. I will first characterize rigidity (2). I will then argue that for a rigid
Bill of Rights to ensure its democratic legitimacy through time it must use rather
abstract terms to define those rights (3). I will then offer a justification of judicial
review of legislation under an abstract Constitution (4). Finally, against this
background, I will defend constitutional rigidity (5).
3 See article V of the United States Constitution. This feature of the American
Constitution has been criticized by Bruce Ackerman, We the People. Transformations
(Cambridge: Harvard University Press, 1998), chapter 13. According to Ackerman, the
requirement that three fourths of the States ratify an amendment made sense when the
constitutional identity of Americans had both a national and a state dimension. But now
Americans understand themselves to constitute “We the People of the United States”.
There is thus a “mismatch between modern constitutional identity and the classical
forms of amendment” (p. 413). He proposes a new method for reforming the
Constitution: Upon successful reelection, the President should be authorized to propose
amendments in the name of the American people. When approved by Congress, such
amendments should be placed on the ballot at the next two Presidential elections. Each
voter would be treated as an equal citizen of the nation: “his judgment on the
referendum question [would] not count more if he [happened] to live in Wyoming than
in California” (p. 410).
4 See the Constitutions of the United States (article V), Austria (article 44), Germany
(article 79), Portugal (article 286), Belgium (article 195), Luxemburg (article 114), The
Netherlands (article 137), Greece (110), and Spain (articles 167 and 168).
5 See the Constitutions of Denmark (article 88), Ireland (article 46), and Sweden
(Chapter VIII, article 15).
6 See the Constitutions of France (article 89) and Italy (article 138).
In the American context, Akhil Amar has argued that the federal Constitution could be
amended by a simple majority of the voters through a national referendum. A
supermajority requirement should operate only when it is the people’s representatives –
and not citizens directly – that amend the Constitution. See his article “Popular
Sovereignty and Constitutional Amendment”, in Sanford Levinson (ed.) Responding to
Imperfection. The Theory and Practice of Constitutional Amendment (Princeton:
Princeton University Press, 1995), pp. 89-115.
4
7 See the Constitutions of Denmark (article 88), Ireland (article 46), Sweden (Chapter
VIII, article 15), Belgium (article 195), Luxemburg (article 114), The Netherlands (article
137), and Greece (article 110).
8 See the Constitutions of Austria (article 44) and Spain (articles 167 and 168).
9 On this Austrian practice, see Heinz Schäffer, “Austria: La relación entre el Tribunal
Constitucional y el legislador”, in Eliseo Aja (editor), Las tensiones entre el Tribunal
Constitucional y el Legislador en la Europa actual (Barcelona: Ariel, 1998), pp. 40-42.
10 The result is that only one amendment has been made up to now (enacted on
August 27, 1992), which had to be introduced in order to make it possible for Spain to
validly ratify the Maastricht Treaty, which included a provision concerning the rights of
European citizens to vote in local elections which collided with article 13.2 of the Spanish
Constitution. (In fact, the Spanish government tried to convince the Constitutional Court
that it was not really necessary to amend the Constitution. See the “Declaration” by the
Constitutional Court of July 1, 1992).
5
It is usually said that the Bill of Rights of the Constitution expresses the most
fundamental values of the political community. Because there is a wide
consensus among citizens and their representatives that certain rights are
especially valuable, they are placed in the Constitution.
I think that this view is basically correct. There certainly is a correlation
between the Bill of Rights and the fundamental values the community shares.
Moreover, it makes democratic sense for the Bill of Rights to be the political
product of the self-governing community, and not a constraint imposed on it by
external forces. But we must draw the full consequences of this: Since there can
be no “consensus” in the community unless the majority is included in it (a
“consensus” is, at least, a majoritarian consensus), it follows that the Bill of
Rights of the Constitution expresses values that the present majority
acknowledges and accepts. The Bill of Rights, in other words, is not counter-
majoritarian at its foundations.
Now, how can a Bill of Rights that was framed in the past express the
fundamental consensus of today? In this connection, rigidity is a problem. For if
the Constitution were flexible and could thus be changed quite easily by each
new majority, it would be easy for the Constitution to express the fundamental
judgments of the present community (which must be shared, at least, by the
majority). But, as we have seen, most Constitutions make amendment difficult,
and quite often they establish supermajoritarian requirements. Under a rigid
Constitution, therefore, the risk exists that some of the rights it defines will not
be deemed “right” by the present and future majorities, and yet these majorities
will be unable to change them. A different risk exists too: the list of rights may
be considered insufficient by the present and future majorities, but rigidity may
make it impossible for those majorities to amend the Constitution to include the
11 This is what James Bryce thought about the “English Copnstitution”. See his
“Flexible and Rigid Constitutions”, op. cit., pp. 19-22.
6
“new rights”. (Of course, they are free to protect the “new rights” through
ordinary legislation, but if the point of the Constitution is to express the
fundamental values the community acknowledges, the Constitution is deficient if
it does not cover the “new rights”).
To counteract this risk, rigidity needs abstraction: the Constitution must use
rather abstract language to define the scope of, as well as the restrictions on,
rights. The Bill of Rights can then accommodate the evolution of moral
judgment 12. This evolution can take place both in a restrictive and in an
expansive direction. Moral progress can suggest that a particular right is not as
broad as it was originally deemed to be, or it can suggest, on the contrary, that it
is broader. In particular, it may happen that as the scope of a particular right is
enlarged, another right with which it collides must then be restricted more
severely than it was thought to be acceptable in the past 13.
If, in contrast, the Constitution expressed rights through very detailed and
categorical clauses, it would be much more difficult for it to attract agreement in
the future. The more detailed and categorical the clauses, the higher the
likelihood that the future majorities would disagree with them or find them
insufficient.
So abstraction is necessary for a rigid Constitution to preserve its democratic
legitimacy through time. Because of this, rigidity tends to generate abstraction,
in the following sense: to the extent that it is feasible (given a certain tradition of
12 Benjamin Cardozo, for example, contrasted statutes and Constitutions in the
following way: “Statutes are designed to meet the fugitive exigencies of the hour.
Amendment is easy as the exigencies change. In such cases, the meaning, once construed,
tends legitimely to stereotype itself in the form first cast. A constitution states or ought to
state not rules for the passing hour, but principles for an expanding future. In so far as it
deviates from that standard, and descends into details and particulars, it loses its
flexibility, the scope of interpretation contracts, the meaning hardens. While it is true to its
function, it maintains its power of adaptation, its suppleness, its play”. The Nature of the
Judicial Process (New Haven: Yale University Press, 1960), pp. 83-84.
In Spain, Francisco Tomás y Valiente also insisted on the importance of the inclusion
of abstract values in the Constitution so as to ensure its “resistance” to the passage of
time: “La resistencia constitucional y los valores”, DOXA num. 15-16 (1994), p. 642.
13 In contrast, Jed Rubenfeld, “Legitimacy and Interpretation”, in Larry Alexander
(editor), Constitutionalism: Philosophical Foundations (Cambridge University Press,
1998), pp. 219-227, argues in favor of an expansive reading, but not a restrictive one. The
set of cases that the framers understood to be examples of violation of a particular right
should not be reduced today. The present interpreter can go beyond that set, but it cannot
restrict it. His theory, then, is a sort of “asymmetrical originalism”. In my view, although
we need paradigmatic cases to anchor the interpetative process, this does not mean that all
the paradigmatic cases of two hundred years ago (or, for that matter, twenty years ago)
should be paradigmatic cases today. As Ronald Dworkin argues, Law’s Empire
(Cambridge: Harvard University Press, 1986), pp. 72-74, some cases may have ceased to
be paradigmatic and become controversial.
7
interpretation, which constrains what readers can make texts say), the present
and future generations will tend to read the clauses of the Bill of Rights to be less
detailed and categorical than they could otherwise be read to be, so as to make
rigidity acceptable. Thus, interpreters will say that rights are prima facie, that
there are implicit exceptions to the norms the Bill expresses, even if those norms
look rather categorical; and, conversely, that the specific rights it announces are
evidence of more abstract and fundamental principles that underlie them and that
can be resorted to in order to expand the set of rights.
Abstraction is necessary even if the Constitution is taken to be a more
genuine expression of popular judgment than the ordinary legislation passed by
the present legislative majorities. Bruce Ackerman, for example, who defends the
superior rank of the American Constitution on the ground that it expresses the
more considered judgments of the people, implicitly resorts to the virtues of
abstraction in order to answer the objection that the people of the past (which
excluded blacks and women) should not constrain the people of today (which
includes them). He argues that those “old-timers provided a constitutional
language and institutions through which later generations of women and blacks
have won fuller citizenship” 14. But the constitutional language cannot have this
capacity unless it uses rather abstract concepts. A more specific language would
reveal the racist and sexist conceptions of the old framers, and it would be
objectionable, of course, to make those conceptions bind current majorities. It is
therefore coherent for Ackerman to defend an abstract understanding of the
Constitution and reject the views of originalists like Robert Bork 15.
Abstraction is necessary, moreover, to facilitate the peaceful change of
political opinion within the same generation. If a Constitution is too detailed, it
may be too partisan, with the consequence that when a different majority gains
power, the authority of that Constitution will be in crisis. The Spanish
Constitution of 1931 (of the Second Republic), for example, explicitly
guaranteed the right to have a divorce. At that time this was a very controversial
decision, which alienated the Constitution from large sections of society and
from the conservative political forces. This right should probably not have
figured so explicitly in a Constitution that wanted to establish a stable framework
of government.
Abstraction in a rigid Constitution is thus a device for uniting the nation
under common principles of fundamental justice: it links the diverse political
majorities that succeed each other within a generation, and it links the diverse
generations through history 16.
14 We the People. Foundations (Cambridge: Harvard University Press, 1991), p. 316.
15 See Ackerman’s article “Robert Bork’s Grand Inquisition, 99 The Yale Law
Journal 1419 (1990).
16 In this connection, I find Jed Rubenfeld’s theory of constitutional democracy as
demo-graphy very illuminating. (“Legitimacy and Interpretation”, op. cit.). He argues that
by writing a text (the Constitution), the people commit themselves to certain principles
8
All this does not mean, however, that abstraction generates agreement at the
cost of emptiness. The clauses that describe abstract rights and liberties are
different from a clause that simply announces that legislation must be “just” (or
“reasonable”). When present and future generations acknowledge those values,
they agree upon something more specific than “justice” (or “reasonableness”).
This agreement is possible because they are not complete strangers to each other:
Each generation does not erect its political values from scratch. It enters a
political space that is already filled with values. It is “educated” into them. If this
education is based on freedom, the new generation may disagree with the way
those values have been interpreted and applied in the past. But there is still
something non-trivial that it shares with the past 17.
Now, if the contemporary majority of citizens and their representatives accept
the worth of a set of fundamental rights, why should they figure in the
Constitution then? What’s the point of constitutionalizing what the majority
already accepts? The answer has to do with the costs of respecting fundamental
rights. These rights are not cost-free: in order to satisfy them, other interests must
be sacrificed. Due to weakness of will or cognitive limitations, the majority may
end up ignoring some of the rights whose validity and important weight it
acknowledges 18. In the same way that it is possible for an individual to act
inconsistently with the moral principles he freely accepts, it is possible for the
over an extended period of time. He says, however, that “we are members of the same
people that gave itself this law” (p. 215). I prefer to say that the different generations
govern themselves under commitments written in a Constitution that they share. It is not
necessary to say that those generations are members of the same people that framed the
Constitution. It has always tempted dictators to hold that the living people is just a
fraction of the Nation, and that they (the dictators) represent the Nation. The “Fifth
Fundamental Principle of the Movimiento” of the Francoist regime, for example,
explicitly said that the Spanish nation was “the sum of past, present and future
generations”. The Monarch (and, while there was none, Franco) represented the will of
that Nation.
17 Barry Friedman and Scott Smith, “The Sedimentary Constitution”, 147 University
of Pennsylvania Law Review, 1 (1998), emphasize the extent to which the meaning of the
Constitution is the product of a gradual accumulation of popular understandings that the
present generation inherits from the past. In their view, the founding moment does not
have the privileged status that originalists claim. Rather, “because all of our accumulated
history is immanent in us, our constitutional commitments may be found in more recent,
rather than more ancient, history” (p. 8). The problem, of course, is how to distinguish the
mere preferences of the present majority from the deepest commitments of the present
generation. The point of constitutionalism, they argue, is to make the latter prevail over
the former.
18 On the importance of constitutional constraints in order to overcome problems of
weakness of will and cognitive limitations, see Jon Elster, Ulysses Unbound (Cambridge:
Cambridge University Press, 2000), pp. 88-174.
9
19 Thus, the last article of the French Constitution of 1793 – article 124 – provided
that the Declaration of Rights and the Constitution would be engraved on tables at the
legislative assembly and in the public squares of the nation. The idea was that the
Declaration of Rights would preside over the public deliberations of citizens and their
representatives.
20 See Robert Bork, The Tempting of America. The Political Seduction of the Law
(New York: The Free Press, 1990); and Antonin Scalia, “Originalism: The Lesser Evil”,
57 Cincinnati Law Review, 849 (1989), and A Matter of Interpretation (Princeton, New
Jersey: Princeton University Press, 1997), pp. 37-47, 144-149.
21 An interesting case arose in Spain in this connection: The very same Parliament
that enacted the Constitution of 1978 (which was later ratified by the people in a
referendum) passed a tax law. Some years later, in its decision 45/1989, the Constitutional
Court invalidated that tax law on the ground that it was contrary to the principle of
equality (for it unjustly disadvantaged married couples). The Constitution was not
interpreted in light of the practice of the framers. Rather, the practice of the framers was
judged against the constitutional principles they announced. This presupposes, of course,
that the majority that enacts a Constitution may act inconsistently with those principles.
10
candidate to perform that role 23. This is so even in countries like France that have
adopted some elements of a presidential system 24.
The case in favor of judicial review is strengthened to the extent that the
Court can make new voices present, thus enriching the available set of reasons
and counter-reasons that are relevant to measure the constitutional validity of a
statute. Although representative democracy makes it possible for different social
perspectives and political ideas to encounter each other in a legislative assembly,
it has inherent limitations. The assembly is too small, and some voices will not
be present. The representative system has a structural tendency to simplify.
Moreover, in actual democracies access to the legislative assembly is costly, and
the resources that are necessary to have access to it are not evenly distributed.
There is therefore a risk of legislative bias against those groups that are more
marginalized in society. To the extent that those groups have easier access to the
judicial process, the Court decides on the basis of a more complete set of
arguments 25. Public debates can thus be enriched with the new voices and
23 It is worth noting, by the way, the following paradox. One the one hand, the fact
that in parliamentary systems there are no real checks and balances that constrain the will
of the executive and the political majority that supports it is often taken to be a reason in
favor of establishing judicial review. On the other hand, the very fact that a presidential
system like that of the United States is based on a complex system of checks and balances
is also taken to be a reason in favor of judicial review: The latter is a new element in that
system; since there are so many checks, why bother about an additional one?
On several issues concerning the doctrine of separation of powers, see Bruce
Ackerman, “The New Separation of Powers”, 113 Harvard Law Review, 633 (2000).
Ackerman shows the defects of the American version of the separation of powers (which
is presidential) and defends a different model, “constrained parlamentarianism”. This
model is a parliamentary system where a Constitutional Court serves as a check on the
political majority and where the people are allowed to frame and change the higher law
through successive referendums.
24 Dominique Rousseau, for example, in his article “The Constitutional Judge:
Master or Slave of the Constitution?”, 14 Cardozo Law Review, 775 (1993), justifies the
role of the French Constitutional Council in the following way: “In light of the silence and
weakness of Parlement, the Council appears as the only place in which the government’s
legislative will may be effectively discussed. The decline in confrontation between
government and Parlement corresponds to the increase in confrontation between the
executive and the Council, the latter thus appearing as the modern counterweight in a new
constitutional balance” (pp. 792-93).
25 On this ground, a system (like the American) that gives all judges the power of
constitutional review when deciding concrete cases is superior to a system (like the
“European model” in its original version) that entrusts such power to a special
Constitutional Court that decides issues in the abstract and to which individuals and
groups have no access, or no easy access.
12
arguments that the Court makes visible through its decisions 26.
The establishment of judicial review entails a risk, however: judges could
start to enforce values that are different from those that the political community
accepts. In order to offset this risk, democracies usually entrust the selection of
constitutional judges to the majoritarian political branches 27. In this way they
ensure that judges will interpret the Constitution according to the understandings
that are most commonly shared. In this regard, however, there is an important
difference between the United States and Europe: in the United States the federal
judges have tenure for life, whereas the justices of the Constitutional Courts in
Europe normally serve for a limited period of time 28. The American solution has
26 As Owen Fiss argues (“The Supreme Court 1978 Term. Foreword: The Forms of
Justice”, 93 Harvard Law Review, 1 (1979), p. 13), judges exercise their power after a
dialogue with very special qualities has taken place: “(a) Judges are not in control of their
agenda, but are compelled to confront grievances or claims they would otherwise prefer to
ignore. (b) Judges do not have full control over whom they must listen to. They are bound
by rules requiring them to listen to a broad range of persons or spokesmen. (c) Judges are
compelled to speak back, to respond to the grievance or the claim, and to assume
individual responsibility for that response. (d) Judges must also justify their decisions”.
Although Fiss refers to these features in order to support his thesis that judges are in an
institutionally suitable position to give meaning to the public values of the community, I
think those features are also relevant to support my thesis that courts can enrich public
debates and contribute to maintain a general public culture that is sensitive to rights.
27 In the United States, for instance, the Justices of the Supreme Court are appointed by
the President with the advice and consent of the Senate. In Europe, the members of
Constitutional Court are normally selected by the majoritarian institutions. In Austria, the
Court is composed of 14 justices: 8 are selected by the executive, 3 by the National Council,
and 3 by the Federal Council. In Germany, there are 16: 8 are elected by the Bundestag and
the other 8 by the Bundesrat. In Italy, there are 15: 5 are selected by the President of the
Republic, 5 by Parliament, and 5 by the high courts (2 by the Council of State, 2 by the
Supreme Court, and 1 by the Court of Accounts). In Spain, the Constitutional Court is
composed of 12 justices: 4 selected by the Congress, 4 by the Senate, 2 by the executive, and
the other 2 by the General Council of the Judicial Power (whose members in turn are
appointed by the Congress and the Senate). In Portugal there are 13 justices: 10 of them are
elected by the Assembly, and the other 3 are appointed by those 10 themselves. France is a
special case, in that it is not the Houses of Parliament but their Presidents that decide the
appointments: of the 9 justices of the Constitutional Council, 3 are selected by the President
of the Republic, 3 by the President of the National Assembly, and the other 3 by the
President of the Senate. For useful information on this, see Dominique Rousseau, La justice
constitutionnelle en Europe (Paris: Montchrestien, E.J.A., 1998), pp. 49-57.
28 The period is 12 years in Germany and 9 years in Italy, France, Spain and
Portugal. In Austria, in contrast, the justices of the Constitutional Court serve until they
reach the age of 70 years. (An age limit of 68 years also exists in Germany). See
Dominique Rousseau, La justice constitutionnelle en Europe, op. cit., pp. 57-59.
13
the disadvantage that it may allow the Court to depart too much from the present
majoritarian consensus 29. On the other hand, a long tenure may be necessary in
order to allow judges to act in an impartial way 30. There is a difficult trade-off
here. This is one of the most complex questions of institutional design in a
constitutional democracy.
5. The Justification of Constitutional Rigidity
29 Michael Perry, for example, in his book The Constitution in the Courts – Law or
Politics (New York: Oxford University Press, 1994), p. 197, has suggested that the
justices of the Supreme Court should be appointed for a limited period of time, in order to
ensure that the Court’s views are closer to the present will of “We the People”.
30 Because the Justices of the Supreme Court of the United States enjoy tenure for
life, they have no professional ambitions for the future, and this strengthens their
independence. Christopher Eisgruber, Judicial review as a democratic institution
(unpublished manuscript), rightly stresses this point. Interestingly, it has been argued that
the fact that the Justices of the Italian Constitutional Court vote in secret and no dissenting
opinions are published is a factor that serves to protect the Justices against external
influences where future career may be implicated. See Mary Volcansek, Constitutional
Politics in Italy. The Constitutional Court (New York: St. Martin’s Press, Inc., 2000), pp.
8, 24.
14
but it will not help the minority of 1% very much, which is supposed to be much
more vulnerable 31.
So the connection between rigidity and the protection of minorities is not
very clear. An alternative way to justify rigidity, and to define its role and limits,
is as follows:
The rigidity of the constitutional clauses that express rights and liberties can
be justified as a means to protect the practice of deliberation before the Court in
charge of reviewing ordinary legislation. A flexible Constitution (by which I
mean a Constitution that, as a matter of fact, can be amended as easily as
ordinary legislation) would make it possible for the parliamentary majority to
easily escape the burden of justifying its legislative decisions to the Court: The
majority could easily decide to alter the relevant clauses of the Bill of Rights in
advance, so as to make it legally impossible to discuss whether a particular
statute it wants to enact is consistent with those rights. Alternatively, the majority
could decide to amend the relevant constitutional clauses later, if the Court
strikes down the statute. This would reduce the pressure on the majority to give
good reasons to the Court to convince it that the statute respects the rights that
are at stake.
A rigid Constitution, in contrast, makes it more difficult to neutralize ex ante
or ex post the effects of judicial review. To this extent, it presses the majority to
give good reasons to the Court. And, conversely, it encourages those who think
they have good arguments against a statute, to go to the Court and make them
explicit: they know that if they convince the Court, their victory will not be
easily taken away through a constitutional amendment.
This conception of rigidity can accommodate those Constitutions that require
no supermajority for amendment, but require instead that the majority in
Parliament seek the direct or indirect support of the people. Such Constitutions
can still protect the practice of judicial review: the decisions of the Court striking
down legislation will not be easy to neutralize by the ordinary majority in
Parliament, since a more complex procedure will have to be followed.
Constitutional rigidity, then, protects the practice of judicial review,
understood as a reason-giving practice. It can also protect, by the way, the
institution of judicial review itself. From a formal point of view, the institution
31 The same line of reasoning applies to the fact that in some countries it is not a
simple majority of Parliament, but a supermajority, that is needed to select the members of
the Constitutional Court (in Germany and Portugal, a supermajority of 2/3; in Italy, a
supermajority of 2/3 for the first three votes, and of 3/5 for the successive votes; in Spain,
a supermajority of 3/5). That supermajority is not going to offer much protection to those
social groups that, because of their few numbers, are supposed to be the most vulnerable.
15
Now, that the rigidity of an abstract Constitution can be justified in the way I
have suggested does not mean that the political branches have no say in the
interpretation of the rights and liberties it announces. Although the rigidity of the
Constitution protects the decisions of the Court against easy erosion, there
should be a space for a “dialogue” or dialectical interaction between the Court
and those branches. Peter Häberle has rightly said that there must be an “open
32 A comment on this Act, which took effect in October 2000, can be found in K.D.
Ewing, “The Human Rights Act and Parliamentary Democracy”, 62 The Modern Law
Review, 79 (1999).
33 Article 288 k) of the Portuguese Constitution explicitly establishes that any
constitutional amendment must respect the existence of judicial review of the
constitutionality of legal norms.
34 For a provocative and thoughtful argument against the institution of judicial review
by an American scholar, however, see Mark Tushnett, Taking the Constitution Away From
the Courts (Princeton: Princeton University Press, 1999), especially Chapter Seven. But
Tushnett himself says that he is “swimming upstream” in the American context (p. 173).
Jeremy Waldron (who is not American) is critical of judicial review too, but he has no
hope that his arguments are going to dislodge such a firmly entrenched practice in
America. See Democracy and Disagreement (Oxford: Clarendon Press, 1999), p. 16.
There has been discussion, though, as to whether Congress could curtail constitutional
review through its power to define, and therefore to limit, the appellate jurisdiction of the
Supreme Court and the original and appellate jurisdiction of the lower federal courts. For
a general discussion, see Michael Perry, The Constitution, the Courts and Human Rights
(New Haven: Yale University Press, 1982), pp. 128-139.
16
indirectly referred to by the French Constitution, and this is a text that can be amended. In
this way, a new rule could be introduced in the Constitution regarding the proper
interpretation of a particular unwritten principle.
40 It could be argued that under all Constitutions we can distinguish a “written part” and
an “unwritten” one. The written part is the text itself, whereas the unwritten part is the set of
principles the legal community uses in order to interpret that text. The “semantic
Constitution” that the Court enforces is the product of the text and that set of principles of
interpretation. The political branches could amend the text, but not such principles. Still, to
the extent that those principles give considerable weight to the plain meaning of the text in
the overall set of interpretive arguments, it is obvious that the easier it is for the political
branches to alter the constitutional text, the more easily they can make their will prevail.
41 Examples of entrenchment can be found in the Constitutions of Italy (article 139),
France (article 89), Germany (article 79.3), Greece (article 110), and Portugal (article 288).
42 The Spanish Constitution, for example, contains no explicit clause to this effect.
Some scholars, however, consider that some principles are so basic that they cannot be
repealed through a constitutional amendment, such as the principles that guarantee
fundamental rights (or, at least, a privileged set of them). On this issue, see Pedro de Vega,
La reforma constitucional y la problemática del poder constituyente (Madrid: Tecnos,
1985), pp. 151-60, 219-303; and Javier Jiménez Campo, “Algunos problemas de
interpretación en torno al Título X de la Constitución”, Revista del Departamento de
Derecho Politico (UNED), num. 7, 1980, pp. 95-100. On the other hand, some parts of the
Constitution are so difficult to amend (because the special procedure of article 168
applies) that as a matter of fact it is as if they were immutable. The purpose of the framers
seems to have been to entrench them as a matter of fact, as Javier Pérez Royo explains, La
reforma de la Constitución (Madrid: Congreso de los Diputados, 1987), pp. 156-57, 190,
202.
In the United States the dominant view is that there are no implicit limits on the
content of constitutional amendments. In the past, however, some authors have defended
the contrary view. References to them can be found in John Vile, “The Case Against
Implicit Limits on the Constitutional Amending Process”, included in the collection of
19
essays edited by Sanford Levinson, Responding to Imperfection, op. cit., pp. 191-96. A
similar thesis is advocated by some scholars today. See, for instance, Walter Murphy,
“Merlin’s Memory: The Past and Future Imperfect of the Once and Future Polity”, also
included in Levinson, ibid.; and Jeff Rosen, “Was the Flag Burning Amendment
Unconstitutional?”, 100 Yale Law Journal, 1073 (1990).
43 The Human Rights Act of 1998 gives effect to certain provisions of the European
Convention on Human Rights and some of its protocols. Certain high courts in Great
Britain are authorized to issue a declaration of incompatibility between a legislative
provision and the Convention rights. The declaration has no coercive effect, however. The
law is still enforced, and it is Parliament that decides whether to amend it or not. Although
in the majority of cases Parliament is expected to accept the declaration of
incompatibility, it still holds the key. A comment on this Act can be found in K.D. Ewing,
“The Human Rights Act and Parliamentary Democracy”, op. cit.
20
celebrated 47. What needs to be stressed, however, is this: it should be possible for
that critical evolution to take place in two different directions: not only against
the legislature, but also in favor of it. That is, it should be possible for the future
Court not only to replace the constitutional interpretation that now renders a
statute valid, but also to replace the interpretation that renders a statute invalid.
Now, there are two ways in which a system can facilitate the reversal of the
Court’s doctrines in a direction that is favorable to the legislature:
1) One is federalism. In federal countries where legislation in the area of
individual rights is decentralized, it is not necessary that the same state
legislature that enacted the invalidated statute enact a new one. Another
constitutional case will arise under a similar statute of another state, and the
Court will then have the opportunity to review its doctrine and to establish
whether it must be qualified or abandoned. This is so in the United States, for
instance, and – to a lesser extent – in those European countries that have
established a federal system 48. Moreover, the European Court of Human Rights
and the European Court of Justice occupy a position similar to that of the United
States Supreme Court in this regard: the legislation emanates from a plurality of
sources (the Parliaments of the different member States of the Council of Europe
and of the European Union, respectively), and this generates the necessary
dynamic for jurisprudential changes 49.
47 Within limits, of course. If there are too many dissenting and concurring opinions,
there may be too much confusion. See Joseph Goldstein, The Intelligible Constitution.
The Supreme Court’s Obligation to Maintain the Constitution as Something We The
People Can Understand (Oxford: Oxford University Press, 1992). In Germany, Spain and
Portugal, dissenting and concurring opinions are published, but there are not so many of
them as there are in the United States. In Austria, France and Italy they are not authorized.
In connection to France, Dominique Rousseau notes that the critical opinions of
commentators are very important as a substitute (“The Constitutional Judge: Master or
Slave of the Constitution?”, op. cit., pp. 784-87). He too stresses the idea that the Court
does not have the final word: “More than anything, it would be unacceptable to posit, as
Dean Favoreu seems to wish, that ‘as soon as the constitutional judge’s decision is issued,
the debate ceases’. Although the Council calms political life, it must not lull it to sleep!”
(p. 783).
48 For an interesting account of the way the Supreme Court of the United States
engages in a complex set of interactions with the different state legislatures, see Barry
Friedman, “Dialogue and Judicial Review”, 91 Michigan Law Review, 577 (1993).
49 Thus, the plurality of legislative sources within the European Union has made it
easier for the European Court of Justice to qualify its first doctrine concerning reverse
discrimination in favor of women. In a first case, the “Kalanke case” (October 17, 1995),
it reviewed the legislation enacted by the Parliament of the German Land of Bremen
establishing a form of reverse discrimination, and found it contrary to the principle of
gender equality. In later cases, the Marschall case (November 11, 1997), the Badeck case
(March 28, 2000), and the Abrahamsson case (July 6, 2000), the Court has had to examine
22
similar statutes and regulations enacted by other Parliaments and Administrations. The
Court has thus been able to clarify and, to a certain extent, qualify, its first doctrine. This
contrasts with the situation of a national Constitutional Court that has to review legislation
enacted by a single central Parliament.
50 In favor of reenactment, for example, see Stephen Macedo, Liberal Virtues
(Oxford: Clarendon Press, 1991), p. 151.
51 The legitimacy of some degree of “disobedience” by public officials is accepted in
America even by scholars who have emphasized the importance of having an authority
that settles constitutional controversies. Thus, Larry Alexander and Frederick Schauer, in
their article “On Extrajudicial Constitutional Interpretation”, 110 Harvard Law Review,
1359 (1997), make an argument in favor of judicial supremacy, but they qualify their
conclusions in the following way: “With respect to cases in which the constitutional norm
speaks directly to officials, however, official disobedience will be necessary for the Court
to reconsider a ruling that a type of statute is unconstitutional. In some cases, an official
may feel strongly enough about the issue that she will be willing to engage in an act of
disobedience, and defend it as such. In other cases, the state of the law may allow a good
faith claim of uncertainty about the law’s application. And in still other cases, the age of
the prevailing Supreme Court case – or a change in the composition of the Court – will
permit a good faith claim that a different result might now be reached. Nothing in our
argument prevents these actions, and even widespread acceptance of our position would
leave the Supreme Court with sufficient opportunities to reconsider earlier rulings that
ought to be reconsidered. What acceptance of our position would make more difficult is
the kind of direct disregard by officials of Supreme Court opinions that are plainly ‘good
law’, in the sense of an overwhelming professional consensus that the same result would
be reached again by the Supreme Court” (p. 1386).
23
52 Thus, the Supreme Court in Casey (505 U.S. 833 (1992)) decided to reaffirm Roe
(410 U.S. 113 (1973)), in spite of its reluctance (in particular, Justices O’Connor,
Kennedy and Souter’s reluctance) to accept Roe as correct on its merits. It was the reasons
in favor of stare decisis (such as the protection of past expectations and judicial integrity)
that tilted the balance in favor of reaffirming Roe.
In this connection, an interesting proposal has recently been defended by Michael
Stokes Paulsen, “Abrogating Stare Decisis by Statute: May Congress Remove the
Precedential Effect of Roe and Casey?”, 109 Yale Law Journal, 1535 (2000). He argues
that Congress may abrogate stare decisis in a particular class of constitutional cases
(abortion, for example), and direct the federal courts to decide such cases in accordance
with the courts’best present understanding of the meaning of the Constitution, without
according prior judicial interpretations any decision-altering weight beyond the
persuasiveness of their reasoning. Congress would not substitute its judgment for that of
the courts on the merits of a particular constitutional issue: it would simply direct them to
examine the issue afresh.
53 Thus, the Spanish Constitutional Court, in its decision 23/1988, FJ 2, said that
ordinary courts cannot set aside a statute on the ground that it contradicts the Constitution,
24
Constitutional Court will have to speak again, and this will give it the
opportunity to review its past interpretations. Secondly, although the
Constitutional Court will try to respect its own precedents, it will not give them
as much intrinsic weight as they have in the United States. The idea that a
precedent has some authority beyond its being the correct interpretation of the
law is rather foreign to civil law traditions. As the German Constitutional Court
said, the “Court has to match acts of the legislative power with the Constitution
itself and not with precedents” 54. So the existence of a weak doctrine of
precedent moderates the rigidity that the European system of abstract review –
with its capacity to write statutes off the books – entails.
So, to sum up, we can say that the “legislative responses” I have argued for
are particularly necessary in those countries where (a) a single Parliament has
legislative authority on a certain matter, and (b) the Constitutional Court reviews
statutes in the abstract. In these systems, moreover, the absence of a strong
doctrine of precedent makes it easier for a “legislative response” to encourage
the Court to reconsider its past interpretations.
6. Conclusion