Tuesday, September 8, 2009

Legislative-Judicial Dialogue

My recent research has been focused on interbranch dialogic mechanisms. Specifically, I look at how judicial review can facilitate dialogue between government branches. There has been a flourish of scholarship on this issue, a lot of it comparative (Canada's Notwithstanding Clause has received ample attention, for example). The term dialogue, in my opinion, was always somewhat of a misnomer, wishful thinking at best. Dialogue theorists have often attempted to put a positive gloss on the actual power struggles that occur between legislatures and courts, especially after a controversial constitutional ruling by the court.

That said, dialogic mechanisms do exist, and as a matter of institutional design, some countries have attempted to constitutionalize them. In addition to Canada's Notwithstanding Clause there are also incompatibility declarations according to the British Human Rights Act; constitutional Amendment procedures can be considered a dialogic mechanism, and some argue that proportionality tests are a form of interbranch dialogue as well.

Be that as it may, it is interesting to look at the experience of countries that conduct their interbranch "dialogue" without a formal institutional mechanism designed for that purpose.
I am thinking here, of course, of the United States, which has an almost insurmountable amendment process and lacks something like Canada's Section 33. Interestingly, between 1962 and 1987 there have been 27 attempts to enact a constitutional amendment allowing for congressional override of Supreme Court decisions, but to no avail.

Scholars in the U.S. have pointed to two different dialogic tracks. First, political mobilizations, social movements and civic engagement that, over time, succeed in convincing the Court to backtrack. Legislators, however, usually turn to other strategies. Among those are attempts to change the Court's composition, introduce term limits, budgetary cuts, requirements of judicial supermajorities when invalidating legislation, and jurisdiction stripping statutes meant to combat the Court's expansion (in the critics' minds) into undesirable territory. In a recent article, Dion Farganis counts 360 "court curbing"proposals between 1937 and 2008. However, only three such attempts have been considered successful, per Professor Farganis.

This leads me, finally, to the point of this post. It seems that absent explicit institutional mechanisms intent on promoting legislative-judicial dialogue, what follows is a crude and unfocused attempt by legislators to "punish" judges, instead of concentrating on the particular constitutional issue that is at stake. For example, a legislator is unhappy with a particular abortion decision, but because she can't simply reenact the statute, she will introduce a blunt measure, such as jursidiction stripping or term limits, which will have much larger ramifications than if she could focus on the particular decision.

But, the reader will say, almost all the congressional attempts at court curbing have been unsuccessful, so does it really matter? I think it does. First, if congressional attempts are almost always unsuccessful, this means that a lot of legislative resources and energies are wasted on unproductive activity. Second, at the discursive level, there is a lot of noise which obfuscates meaningful discussion on issues of constitutional importance. If we give our legislators blunt instruments to deal with constitutional issues, such as jurisdiction stripping or term limits (which may or may not be a good idea notwithstanding), then perhaps it is inevitable that this should happen. My question, therefore, is do you think that dialogic mechanisms at least help focus the debate and keep it on the substantive level, or, perhaps, even with institutional mechanisms in place we are still likely to have low-quality political debate surrounding constitutional decisions?


  1. Many thanks Adam for a very interesting post.
    As a footnote to your post, I would like to add as an example what has been recently been going on between the Supreme Court and the Executive and Legislative branches in Argentina. The more recently appointed judges to the Supreme Court are influenced by the approaches by mainly both the Canadian and the South African Supreme Courts, whose decisions have been quoted recently by our Supreme Court - another way of looking at the issue is to say that,actually, the clerks at the Argentine Supreme Court have studied that case law and use it in the drafts they write for their Justices.
    In some cases, the Court has ordered the Executive or the Legislative to work on something. For instance, the Court has asked the Legislative to work on actualizing pensions. The Court has also ordered the Federal Government and the governments of the Province and City of Buenos Aires to work on a program to clean the "Riachuelo" - a polluted river that separates the city from the Province.
    This exchange is informal because we do not have a provision like Section 33 in our Constitution.
    We know from the press that some legislators are annoyed at the Court telling them what to do and we also know that the Executive has not been very happy with the Court's approach.
    The quality of the political debate is not -generally speaking -sophisticated in Argentina. However, my sense is that this sort of dialogue between the different branches had some impact on public opinion because it has put the Executive and Legislative on the spot. Thus, it will probably help improve the quality of the debate.

  2. Fascinating, Adam. Really. I look forward to reading your published work on this.

    Your point about legislative efforts to punish judges calls to mind the New Zealand Bill of Rights Act of 1990, which compels judges to interpret and give meaning to legislation in a manner that is consistent with the Bill of Rights. This effectively divests courts of the power of judicial review.

    New Zealand may admittedly be out of place in the larger group of countries to which you refer-- namely the United States, Canada and to a lesser degree the United Kingdom--precisely because New Zealand remains perhaps the closest western liberal democratic approximation to a true legislative supremacy.

    Nonetheless, although the New Zealand Bill of Rights Act is not quite an example of an effort to punish judges, it is an illuminating instance of the broader family of strategies (or trend in liberal democracies?) to constrain the range of judicial authority.

  3. Thank you Martin and Richard for your kind words and comments.
    Martin - your point about judicial orders is right on. I wasn't aware of the situation in Argentina, but I am familiar with the South African situation. I think the difference between these orders and the institutional mechanisms I mentioned is along two lines. First, these orders are informal, in the sense that they are not part of a written institutional mechanism. Second, these orders are part of ongoing litigation, whereas classical dialogical mechanisms usually kick into effect after the litigation ended, and now the legislature "reacts". The last difference is not always clear cut, but I agree that such methods, like Argentina and South Africa, can also be considered "dialogic".
    Richard - I completely agree with the New Zealand example as an instance of judicial constraint, though I am less certain of its dialogic value, probably because I don't know enough about New Zealand jurisprudence and how that constraint is actualized.

  4. Some interesting thoughts here, by Adam, Martin and Richard. There are some other, perhaps a bit more skeptical considerations to have in mind.

    1. First, the idea of courts and legislatures having dialogues is a bit fanciful, in the sense that the support that such institutional arrangements rests ultimately on its political support, not in the establishment of formal institutions. Of course that some congressmen tend to feel offended when courts reverse their political decisions; this is just the tip of the iceberg regarding how to understand the political tensions that take place in the process of building or tearing down of such political support.

    2. Comparative constitutional law plays an important role in the understanding of how mechanisms like Tushnet's soft review analysis turn out. I believe, being a Ran Hirschl fan, that the use of such resources is much more important from a "political pedigree" point of view than from a sophisticated constitutional law analysis. In other words, the use of foreign jurisprudence in national courts, and sophisticated arguments presented by ConLaw scholars, tends to become an important rhetorical backbone that supports political action and furthermore particular decisions in a particular pull. However, the use of these decisions is displayed as means for legitimizing political decisions, not as an explanation of why these decisions were taken. Of course, you may actually believe that comparative ConLaw analysis is useful and has a true normative dimension; but then again, there's a BIG discussion regarding the use of case selection.

    3. A particular regional note: Has anybody noticed the use of the constitutional powers granted to the presidents and the congress of countries such as Colombia, Venezuela and Ecuador and the constitutional transformation of the rule of law in these countries? Presidents like Hugo Chávez and Álvaro Uribe have amended the constitutions of their respective countries through valid constitutional processes to increase their power and reduce the capacity of the other branches of government to make significant political opposition. The processes’ going on reminds us of, for example, the transformation of the German state after the enactment of the Weimar constitution... And ConLaw scholarship continues to have a blind eye for Latin American constitutionalism, in spite of the significant differences and resemblances it presents with other more well known systems.


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