Abstract
In previous work, I have characterized one of the two constitutive features of the new general model of constitutionalism adopted over the last 30 years in Canada, New Zealand, the United Kingdom, and two sub-national units in Australia as decoupling judicial review from judicial supremacy. In this chapter, I aim firstly to clarify this feature by exploring the relevant meaning of judicial supremacy (that the model rejects) in light of certain potential misunderstandings and alternative senses that could be given to the term. Then, in the belief that judicial review shorn of judicial supremacy is easier to defend than the standard version in which they are combined, I present the case for this part of the general model.
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Notes
- 1.
The term “penultimate judicial review ” was coined by Michael Perry (2003).
- 2.
- 3.
It should be noted that constitutional supremacy does not necessarily entail such judicial execution: it is possible to have a supreme law constitution without either granting courts the power of judicial review (of legislation) or providing for judicial supremacy . For example, the constitution of the Netherlands expressly denies courts the power to review legislation, and the Canadian constitution grants legislatures the power to reinstate statutes invalidated by the courts.
- 4.
Obergefell v. Hodges, 576 U.S.___ (2015).
- 5.
Assuming that the ban fails any relevant standard of review that the Supreme Court sets as part of its decision.
- 6.
So, for example, in the recent Hobby Lobby case in the US (Burwell v. Hobby Lobby Stores, Inc., 573 U.S.___ (2014)) had the Affordable Care Act itself mandated coverage for contraception, this would almost certainly have trumped the earlier Religious Freedom Restoration Act’s imposition of the “strict scrutiny” test for laws burdening religion, passed to “supplement” the Supreme Court’s interpretation of the scope of this constitutional right. Unfortunately for the Obama administration, the mandate was imposed by administrative regulation and not by statute.
- 7.
s6 New Zealand Bill of Rights Act 1990; s4 UK Human Rights Act 1998.
- 8.
Not all because a few specific Charter rights, including voting and minority language rights, are expressly excluded from the operation of section 33.
- 9.
Canadian Charter, s.33.
- 10.
Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461).
- 11.
- 12.
In the remainder of this chapter, I use the terms legal constitutionalism /judicial supremacy synonymously, as I do also with political constitutionalism /traditional legislative supremacy.
- 13.
A “reallocation” does not necessarily mean a “transfer” of power from one institution to the other. Thus, in being given the two new powers of declaring an incompatibility and interpreting statutes in a rights-consistent way wherever possible, UK courts are not exercising powers previously held by Parliament. See Kavanagh (2009), at n2, pp. 277–8.
- 14.
- 15.
See Tomkins (2005, 27–9); Waldron (2009). Mattias Kumm argues that the sort of legalistic distortions they describe are not a feature of contemporary rights adjudication in Europe under proportionality analysis, see Kumm (2007, 5–13). However, the second-order task of assessing the reasonableness of the government’s justification for a law, which Kumm argues is the point of judicial review , arguably replaces one set of distorting filters with another so that courts still do not directly address the merits of the rights issues. Moreover, the absence of such law-like reasoning may heighten the internal concerns about the legitimacy of the enterprise.
- 16.
Ibid., at 1728.
- 17.
Harel and Kahana (2010) present a broadly similar justification of judicial review , which they argue is designed to provide individuals with a necessary and intrinsic right to a hearing to challenge decisions that impinge on their rights, although they do not embed their justification in terms of the general legitimacy of law.
- 18.
Kumm (2007, 22–4) gives this example, based on the 1981 ECHR case of Dudgeon v. United Kingdom.
- 19.
- 20.
323 U.S. 214 (1944).
- 21.
The classic statement of this argument was made by James Bradley Thayer in his book, John Marshall (1901). Thayer considered that the tendency of legislatures within a system of judicial supremacy to leave consideration of constitutional limits to the courts and to assume that whatever they can constitutionally do they may do, meant that “honor and fair dealing and common honesty were not relevant to their inquiries.” Even more famously, he argued that as judicial review involved the correction of legislative mistakes from the outside, it results in the people losing the “political experience, and the moral education and stimulus that come from…correcting their own errors. [The] tendency of a common and easy resort to this great function [is] to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.” Ibid., pp. 103–7.
- 22.
Lochner v. New York, 198 US 45 (1905).
- 23.
This argument is made by Fallon (2008, 1709).
- 24.
- 25.
For the few exceptions to this standing limitation and for general discussion of the merits and critiques of abstract review, see Ferreres Comella (2009, 66–70).
- 26.
This conceptualization and defence were first presented in Marbury v. Madison. Harel and Kahana’s argument seeks to justify “case-specific judicial review ” only and not the broader precedential force of these decisions underlying claims of judicial supremacy , although they believe their argument has “implications” for the latter (Harek and Kahana 2010).
- 27.
- 28.
This argument originates with Alexander Hamilton in Federalist Paper 78.
- 29.
In the UK, and drawing on Dworkin, see Jowell (1999).
- 30.
The current delaying power of the House of Lords is 1 year under the 1949 Parliament Act.
- 31.
Most famously, “the Wednesbury unreasonableness” test in the UK. Associated Provincial Picture Houses v. Wednesbury Corporation [1947] 1 KB 223.
- 32.
Alon Harel and Adam Shinar ask the different, if not unrelated, question of whether strong-form judicial review (“a strong right to a hearing”) rather than “constrained judicial review” is necessary to satisfy the right to a hearing that they claim grounds the justification of judicial review. Harel and Shiner (2012).
- 33.
See Perry (2003, 661). Mattias Kumm also appears to accept this principle, which is why for him judicial review is limited to policing the boundaries of the reasonable.
- 34.
That is, in applying the second and third prongs of the proportionality principle courts tend to ask whether the legislature’s justification for limiting a right is in fact necessary (or the least restrictive means) and proportionate in the strict sense, rather than reasonably necessary and proportionate. I, too, have argued that under ordinary (i.e., strong-form) judicial review courts should limit themselves to asking whether the government’s justification for limiting a right is reasonable, contrary to the general practice – although for a somewhat different reason than Kumm. See Gardbaum (2007).
- 35.
At the time of its enactment in 1998, no other system of constitutional review of legislation in the world had the same or a similar judicial power.
- 36.
- 37.
Canada held its first ever public hearing for a nominee to the SCC in 2006, albeit brief and non-partisan, but so far this has not been repeated for subsequent appointments.
- 38.
As Wojciech Sadurski persuasively argues in the context of central and eastern Europe, although his argument is premised on the two traditional choices only. See Sadursky (2002).
- 39.
For an elaboration of this argument, see Gardbaum (2015).
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Gardbaum, S. (2016). Decoupling Judicial Review from Judicial Supremacy. In: Bustamante, T., Gonçalves Fernandes, B. (eds) Democratizing Constitutional Law. Law and Philosophy Library, vol 113. Springer, Cham. https://doi.org/10.1007/978-3-319-28371-5_5
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