In his piece on constitutional review, Kyritsis argued that ‘constitutional design can choose from among a number of institutional options and experiment with variables such as the scope and intensity of review’.Footnote 64 In this section, I apply that idea to Kelsenian institutions with the hope of achieving a better balance between the conflicting values that constitutional courts ought to maximize simultaneously. To do so, I first explore the possibilities of institutionalizing deference to the legislature through changes in Kelsenian courts’ benchmarks for review and internal procedures of decision making. Second, I explore institutional alternatives to current political forms of appointment of constitutional judges and other aspects of court design with a view to fostering judicial independence and increasing the technocratic legitimacy of these institutions. As I argue below, these two aspects are not unrelated. In contrast, they are complementary and only make sense if implemented simultaneously.
Constraining Courts’ Powers of Review
The first element of my proposal deals with the idea of constraining constitutional courts’ capacity to declare the unconstitutionality of legislation. In general, we can also think of constitutional review as a continuum. In one extreme of the continuum, we would find the British system of parliamentary sovereignty, where no court can strike down primary legislation. In the opposite extreme of the continuum, we would find models of constitutional review with widely empowered constitutional courts,Footnote 65 which are powerful given the role they play in democratic processes and the extensive opportunities to strike down legislation that they have. What is important to keep in mind is that these two grand models are not the only institutional possibilities available to constitution makers. Instead, in this subsection, I will argue that in between them there is a wide range of intermediate approaches, which can be selected by playing with courts’ institutional settings along two dimensions: the breadth of courts’ benchmark for review and courts’ internal decision-making rules.Footnote 66 Indeed, these two aspects can interact, offering a wide range of possible constitutional courts with a more moderate capacity to declare legislation unconstitutional. Furthermore, the diverse types of designs to which these institutional settings give rise provide for different solutions to the problem of the conflicting values that Kelsenian institutions ought to maximize, although, as I will argue, some of these options might be risky from the perspective of the protection of democracy.
With this background, in this section, I explore three potential ways to embed deference to the legislature into courts’ design. In line with the general argument of this article, my starting point is the acknowledgement that each of these three possibilities also faces unavoidable dilemmas and trade-offs, as each of them maximizes certain values of Kelsenian courts at the cost of reducing the weighting of others:
- The first option is to reduce courts’ benchmark for review to only certain aspects of the constitution. Put simply, the constitutional court could be allowed to invalidate statutes that contradict certain constitutional provisions but not all provisions of the constitution. Of course, in choosing which provisions to include, there would be a new trade-off: the more constitutional provisions that are included in the benchmark for review, the weaker is the institutionalized deference to elected politicians. Conversely, the inclusion of fewer provisions would maximize deference to the democratically elected legislature but at the cost of reducing the capacity of the court to protect certain aspects of the constitution. It is for every political community to make the, political, choice of which provisions to include based on the specific needs, circumstances and preferences of their society. However, in any democratic polity, at least all the provisions that protect human rights and the functioning of democratic institutions (which are often the majority of the constitution) should be always included.Footnote 67 Therefore, the protection of democracy and human rights, the first of the values of constitutional courts, would also be maximized. For the rest of provisions, a good criterion could be the inclusion of specific and concrete rules, as they constrain judges to a larger extent and leave less room for activism. More abstract, vague and general rules and principles could be excluded, as these allow judges’ personal preferences to filter more easily into judicial outcomes.Footnote 68 Together, these two criteria provide for an interesting interplay. If seriously taken into account, they mean that the benchmark for review must always include the catalogue of fundamental rights of every constitution, as well as provisions establishing the separation of powers and rules that are specific in the regulation of the functioning of democratic organs. Provisions that can, but do not need to be, included comprise inter alia those stating general principles of the legal system or general, vague principles about the functioning of the institutions and those establishing federal arrangements and the economic constitution (except when constitution makers opt for phrasing social and economic rights as enforceable fundamental rights). Note that, even if not included in the benchmark for review, such provisions would have constitutional value as a mandate to political actors and citizens, although they would not be enforceable by the constitutional court. The reason for this is simply to give democratically elected actors more freedom with regard to how such provisions should be interpreted. Finally, in order to provide for legal certainty and to avoid an expansive interpretation by the constitutional court, the very constitutional document could specify which provisions are part of the benchmark of review of the court and which are not.
This proposal may seem radical, as it would deny full normativity to certain parts of the constitution. However, it is less radical than it might seem. First, many constitutions already establish distinctions between their many provisions, for instance, when they create flexible procedures of amendment for some rules and rigid procedures for others. Second, this idea is actually applied in countries that have constitutional systems with an uncontested democratic pedigree, such as Belgium. In this country the constitutional court can declare legislation unconstitutional only when it violates certain, but not all, constitutional provisions, inter alia those relating to fundamental rights or those defining the powers of different state authorities. In addition, finally, this idea is in fact connected with Kelsen’s original intuitions; he
insisted that constitutional review should only take place with respect to rather specific clauses of the constitution, for he thought that the final authority to interpret the more abstract clauses that protect, for example, “justice,” “liberty,” or “equality” should rest with the parliament.Footnote 69
The fundamental difference between my proposal and Kelsen’s original approach is that in my approach the catalogue of fundamental rights would be protected by the court. Unlike rules on the functioning of democratic institutions, which are often concrete and specific, provisions on human rights might be vague and abstract. Indeed, as Waldron suggests, some of the major issues that a democratic society faces have to do precisely with disagreements about the content of the rights.Footnote 70 I concede that these are powerful arguments in favor of deference to the legislature as well in this regard. However, I believe that rights provisions must still be judicially enforceable, together with rules on democratic institutions and procedures, as part of constitutional review. The reason for this position is that we can never exclude that, in addition to actors that disagree about the specific content of rights, our societies may face at some point actors who are willing to undermine the more general idea of a culture of rights in a democratic society.Footnote 71 I am therefore taking a precautionary approach here. The inclusion of rights as part of constitutional review implies, in effect, an important ‘delegation of policy-making authority’Footnote 72 and therefore an increased risk of judicial activism. It is the price to pay. After human societies experienced totalitarianism, facing the dilemma between greater protections of human rights and a more deferential court, the second must give way.
- The second option to increase constitutional deference to the legislature would consist of requiring a qualified majority of judges to allow the court to declare legislation unconstitutional.Footnote 73 This option is notably riskier, as was demonstrated by the recent example of Poland. For reasons of analytical exhaustivity and as it is relevant to the rest of my discussion in this section, I will explain this option here. However, as I will argue later, democratic systems should be very careful when considering this possibility and be fully aware of its inherent problems.
The normative justification for this proposal would lie in the idea that, if different judges, all of them highly qualified lawyers, largely disagree with regard to whether the constitution does or does not forbid the content of a rule, it must be because the constitution does not contain a clear prohibition, and in the absence of a clear prohibition, the court should be deferent to the legislature.Footnote 74 This idea could be deemed somewhat related to the principle of the ‘clear mistake rule’ that exists in countries without a Kelsenian court, such as Sweden and Finland. According to this principle, ‘only when the statute is unconstitutional beyond any reasonable doubt may a court set it aside for purposes of deciding the case’.Footnote 75 By requiring a higher threshold for judges to declare legislation unconstitutional, a form of the ‘clear mistake rule’ can be embedded into Kelsenian institutions through the norms of internal decision-making.Footnote 76 As with the former possibility, this option institutionalizes deference to the legislature, but it does it in a very different way. Instead of leaving parts of the constitution unprotected, the constitutional court can still enforce the normativity of all constitutional provisions as long as there is sufficient consensus to do so. Institutionalized constitutional restraint would be increased but only in case where judges disagree regarding the constitutionality of a rule.
As was said above, however, this option presents three very serious problems. The first is that, again, institutional design must confront dilemmas. In this solution, the price to pay for this increased form of deference to the legislature is a weakening of another important value of Kelsenian institutions: its capacity to protect democracy and human rights. As it will be more difficult for the court to strike down legislation, undemocratic and illiberal reforms might find less resistance from the court. Second, when the threshold to declare legislation unconstitutional is too high, the court might become paralyzed. Disagreement and the plurality of doctrinal opinions is inherent in judicial decision making; therefore, if the judicial consensus required is very high, the court will struggle to actually ever declare the unconstitutionality of legislation. Third, if this model is coupled with political control of the appointment of constitutional judges, the result might be fatal because it will be easy for political majorities to create a veto minority within the court. In fact, as I show in more detail later in this article, the case of Poland is a perfect example of how these three risks can materialize simultaneously, with dramatic consequences. Given these important risks, in what remains of this article, when I discuss my proposal for a new design of constitutional courts, I will be referring to the first option outlined above, or the third option explained just below, and not to this second model, unless I make a specific reference to it.
- A third option is a mix of the two former possibilities. It would entail establishing two different groups of constitutional provisions, as in the first option. But similar to the second option, all constitutional provisions could be enforced if a sufficient consensus is reached among the judges. Core constitutional provisions, such as those regulating human rights and democratic institutions and procedures, could be enforced and used to declare the unconstitutionality of legislation as long as a simple majority of judges considered it necessary. However, for the rest of the constitutional provisions, a higher threshold might be required. This way, the institutional design would take a precautionary approach to the core democratic values and arrangements and a more deferential approach towards democratically elected actors with regard to the rest of the constitutional provisions. This option therefore offers a different mix of the three values that I have discussed throughout this article, and it confronts the dilemmas of constitutional courts in a different way: compared to most current Kelsenian institutions, this option does not reduce courts’ capacity to defend democracy and human rights, and it only slightly weakens their capacity to protect nonessential constitutional provisions. However, in exchange, this type of constitutional court is much less deferential to democratically elected politicians than the two options outlined above, although it is still slightly more deferential than most existing constitutional courts.
Outlined in this way, the proposal aimed at increasing constitutional courts’ deference to the legislature would be, in fact, modest and symbolic. However, these two qualities are an asset rather than a problem from the perspective of improving the design of constitutional courts.
The reform proposed would be quantitatively modest because it will in fact not significantly alter the everyday work of constitutional courts. This is true, first, because it only affects one of the functions of constitutional courts: constitutional review of legislation. Other functions, such as the adjudication of constitutional complaints or the mediation between organs or levels of government, do not need to be modified, even if, as suggested above, the proposal is not a priori incompatible with certain such modifications. More importantly, with regard to the review of the constitutionality of legislation, the aspects of the constitution excluded from review or subject to a higher voting threshold in the court are in fact a minority of provisions. The greatest majority of provisions in every constitution refer to fundamental rights or regulate the functioning of democratic institutions. Only for those constitutions that have a significant proportion of provisions proclaiming general and vague principles or rules unrelated to democracy and human rights would the proposal make a significant quantitative impact. Furthermore, when a law is brought for constitutional review before the court, it is usually on a mix of grounds that combine constitutional provisions that are both essential and nonessential for democracy. Therefore, in fact, the changes brought about in constitutional courts are very limited. The proposal is not for a revolution but rather for a modest reform. This is a good thing if we think about the fundamental importance of constitutional courts and the fact that gradual changes are less risky to implement. More importantly, the quantitative modesty of the reform clarifies an essential point: my proposal for a new design of constitutional courts is not about a more flexible or ‘weak’ constitutional review. In contrast, it advocates for the maximum possible deference to the legislature that is compatible with a strong protection of rights and democracy through constitutional review by a more independent court. In fact, nothing prevents constitution makers from enlarging the catalogue of rights in the constitution as a complement to the implementation of this type of court. Given the analytical complexity of the topic, I cannot here enter into a discussion of the political or moral merits of this latter option.
In addition to this quantitative modesty, however, the proposed reform would be qualitatively ambitious because it would affect very limited but yet very meaningful aspects of the constitution. It would affect mostly principles –as opposed to rules, that are vague, indeterminate and thus more prone to interpretative controversies and allegations of activism and judicial politicization. It would also affect provisions that are not essential for democracy, covering topics that democratically elected politicians should have a prominent role in regulating. By carrying out this reform, the political branches of government and the public will receive a signal that the constitutional court can no longer be accused of activism but without actually disempowering the court in its ability to carry out the functions that truly matter. Instead, as we will see below, disempowering constitutional courts with regard to aspects of the constitution that are not essential for democracy can –and should, empower it to enforce the constitutional rules on which the functioning of democracy actually relies.
In summary, my claim is that this quantitatively modest but qualitatively ambitious change in the design of constitutional courts will alleviate concerns about excessive judicial activism and will increase deference to the legislature. Against this claim, the objection could be made that constitutional courts will still be enforcing human rights provisions. Since constitutional provisions protecting human rights are characterized by a high degree of generality and indeterminacy and by an expansive nature, their enforcement opens the door to judicial activism and the possibility of countermajoritarian decisions. This objection can be partially conceded without refuting the central claims of this article. Remember that the proposal in this article is not for constitutional courts to be unable to make countermajoritarian decisions. Rather, as was said above, the proposal is for an increase in constitutional courts’ deference to the legislature that is compatible with a strong protection of democracy and human rights. In the model that I propose, constitutional courts will still have opportunities to engage in countermajoritarian decisions. This is politically healthy given that these courts will do so when core elements of the democratic system of government are at stake. However, constitutional courts under this new design will still be more deferential to the democratically elected legislature because they will be less able to use general principles or rules that are nonessential to democracy in order to strike down legislation. That is, the catalogue of provisions that they would be able to mobilize to review the constitutionality of legislation will be more limited, even if it is still large enough to be active in the defense of democracy and human rights.
More Independent Courts
The second aspect of the proposal to constraint constitutional courts’ powers of review has to do with the need to, simultaneously, make them more independent from political actors. The appointment procedures of constitutional judges play a central role in this.
In general, forms of the appointment of members of constitutional courts have tried to combine two forms of legitimacy. On the one hand, constitutional judges are generally expected to be lawyers with a solid reputation and high moral character who are capable of making sophisticated decisions following the best knowledge of the law. This is a clearly technocratic form of legitimacy. On the other hand, however, constitutional judges are usually appointed by political actors, which, in theory, should bestow on them with a modicum of democratic legitimacy. This is, conversely, a political form of legitimacy. The problem is that, in practice, these two forms of legitimacy are often in tension. Earlier in this article, we saw that, when confronted with the dilemma of whether members of the constitutional court should be appointed by the parliament or by the administration, Kelsen opted for the first option as a means to protect democracy. However, we also saw that parliamentary appointment, which has become the standard practice, often means a degree of political control over Kelsenian institutions that undermines their reputation as independent courts. As was shown by the empirical literature,Footnote 77 such practices often lead to a filtering of political preferences into judicial decision making, which is at odds with strict conceptions of judicial independence and the idea of constitutional courts as unbiased constitutional adjudicators. In this subsection, I argue that judicial appointments to the constitutional court should move away from democratic legitimacy (and definitely avoid partisan appointments or quota systems) and focus on technocratic legitimacy in order to preserve their reputation as independent, neutral enforcers of the constitution or, even more importantly, impartial defenders of democracy.
The shift towards the technocratic legitimacy of constitutional judges would be facilitated by the general reform of constitutional courts proposed by this article. In exchange for an increase in constitutional courts’ deference towards democratically elected politicians, which I described above, these institutions can be compensated through an increase in their independence vis-à-vis those politicians. By circumscribing constitutional courts’ powers to defend basic democratic arrangements and human rights, the concern about judicial activism is alleviated. Constitutional courts will now be less likely to engage in activist countermajoritarian decisions. However, they will not do so because they are subject to a delegitimizing and often ineffective control by political actors. Rather, the minimization of potential activism will be embedded in courts’ mandates and the rules that regulate the internal functioning of the institution. With constitutional courts now less likely to engage in battles about issues of general policy and more focused instead on the protection of core democratic arrangements, politicians will have less to fear from them. These courts can now be emancipated from political control, while minimizing politicians’ concerns that they will make a fraudulent use of their newly gained freedom in order to impose their own policy preferences at the expenses of the democratic will.
The range of institutional reforms that potentially can be used to minimize political control over constitutional courts is relatively vast, although, unfortunately, there is still much at the empirical level that we ignore about the effectiveness of many of those arrangements.Footnote 78 In fact, Kelsen himself thought at some point about some alternatives to the parliamentary appointment of constitutional judges.Footnote 79 A good starting point would be to replace, where they exist, simple and absolute majorities for the appointment of such constitutional judges with supermajorities. However, as was said above, supermajorities have often proved insufficient due to the creation of political ‘quota systems’. To overcome this, a solution would be the combination of the system of supermajorities of members of the legislative chambers with a requirement that a qualified majority of parliamentary groups accept the appointment: this way, big political groups that can add up supermajorities of MPs would have to include in their agreements political minorities, making quotas less straightforward. Another option would be the granting to parliamentary minorities of certain types of veto rights on the candidates proposed by majorities, thus making more politicized candidates less likely to be appointed.
All these arrangements, however, still put the appointment of judges in the hands of political actors. They still move within Kelsen’s dilemma between parliamentary versus administrative appointment,Footnote 80 opting for sophisticated forms of the first option. However, for once, there are ways out of this institutional dilemma. It is possible to imagine alternatives beyond these two options. Braver proposals would release partially or completely the appointment of judges from the hands of politicians from both the executive and the legislative branches. The appointment of constitutional court members could be bestowed upon ordinary judges or even official organizations of certain legal professions.Footnote 81 In general, the appointment of constitutional judges by bodies that have an institutional ethos that is deeply linked to the ideas of human rights and the rule of law can reinforce the independence of the institution vis-à-vis politicians, its reputation and its technocratic legitimacy. When correctly socialized, legal professionals or career judges can be ideal for this task. While it is important to acknowledge the risk that these actors or bodies may have their own ideological biases, the different forms of institutionalized deference to the legislature should reduce the problems this poses, albeit not completely annul them. Again, designing institutions means choosing among imperfect options. Additionally, the appointment of different constitutional judges by different methods and combinations of actors from legal and political backgrounds, and the introduction of veto rights and supermajorities in appointments, can also help further minimize such problems. A final idea has to do less with the type of appointer than with the criteria for appointment: difficult as this might be, systems of appointment that include objective and independent assessments of the technical merits of the candidates would also help to increase the technocratic legitimacy of constitutional judges and to minimize politicization in appointments.
All these proposals should increase the technocratic legitimacy of constitutional courts while reducing political control of the institutions. Of course, the risk in this case arises when and if political actors find new ways to repoliticize the new technocratic systems of appointment of constitutional judges. For instance, political actors could accept bestowing upon ordinary judges the appointment of some constitutional judges but only after securing control over those very ordinary judges. Maneuvers such as this would be, of course, contrary to the overall telos of the reform proposed by this article. In the next section, I will approach this type of questions in more detail, addressing the institutional design of constitutional courts from a configurational perspective. However, for now, suffice it to say that implementing reforms in constitutional courts is a delicate operation. Reforms to increase the independence of constitutional courts might be devoid of real content and might even become counterproductive if the source of the politization of the institution is displaced to other aspects of their design rather than suppressed.
The mechanisms for the appointment of constitutional judges are, however, not the only aspect of institutional design deserving of reform. Other reforms to strengthen judicial independence could include the prohibition of the renewability of judges where this exists, the granting of life tenure to them, or the selection of them exclusively from among members of the judicial branch. For instance, limited terms for constitutional judges, which is deemed to be detrimental to judicial independence,Footnote 82 is sometimes justified as a mechanism to ‘reduce the risk of a serious gap between the constitutional jurisprudence of the court and the basic moral and political beliefs of the people and their elected representatives’.Footnote 83 However, in the model of constitutional court proposed by this article, this would be less necessary because deference to democratically elected politicians is institutionalized through the courts’ benchmarks for review and the rules of judicial decision making rather than in the procedures of judicial appointment, thus also safeguarding judicial independence. Under this institutional setting, and as long as partisanship has been completely removed from the appointments, constitutional judges with life tenure might make much more sense. In general, the implementation of reforms aimed at the depoliticization of appointments and the granting of more independence to constitutional judges is both facilitated and demanded by this type of court.
The idea behind the proposal for a new design for constitutional courts can now be seen more clearly. The proposal aims at striking a better balance among the three values of constitutional courts. By transforming the appointment procedure, constitutional judges are emancipated from political control, thus maximizing judicial independence. In exchange, and to avoid the excessive activism this might cause, constitutional restraint is institutionalized in the internal rules of the functioning of the court but only for policy issues that are not essential to the functioning of a democracy and without having to subject constitutional judges to political control, as in the traditional model. Core democratic arrangements and human rights will still receive the protection of the constitutional court, which will now be more independent from politicians in carrying out this important function.