Thursday, September 3, 2009

An Unconstitutional Constitutional Court?

The doctrine of “unconstitutional” constitutional amendments has made several appearances in American constitutional theory (most recently in the early 90's, during the controversy about the Flag Burning Amendment, but also when the 13th and 18th amendments were adopted), although not generally accepted as a matter of constitutional practice.

The basic idea is that there might be an amendment that, despite being adopted according to the established amendment procedure, either: (1) contradicts an explicit limit to constitutional reform (an example can be found in Article 60(4) of the Federal Constitution of Brazil: "No proposal of amendment shall be considered which is aimed at abolishing... individual rights and guarantees"); or (2) contradicts an implicit limit to constitutional reform by involving a change that is so fundamental that amounts to the creation of a new constitutional regime rather than to a mere amendment of an already existing one (consider, for example, an amendment that modifies a typical liberal constitution in order to put the executive, legislative, and judicial powers in the hands of a single individual).

In Latin American constitutionalism, where the doctrine has been adopted by several courts (including courts in Colombia, Perú, and Venezuela), there is an additional twist. Explicit and implicit limits to constitutional reform, it is usually argued, only operate against government (e.g. a legislature making use of the ordinary amendment procedure). In other words, they limit the scope of the ordinary power of constitutional reform but have no effect whatsoever against 'the people' in the exercise of their constituent power (the unlimited power to create and re-create constitutions). Constituent power is usually exercised through an extraordinary mechanism such as a Constituent Assembly.

Naturally, the institution which usually has or assumes jurisdiction to declare an amendment 'unconstitutional' is a Constitutional Court or its equivalent. Now, what happens if it is the very amendment creating the constitutional court what is being claimed to be 'unconstitutional'? This issue was in fact considered a few years ago by the Constitutional Chamber of the Supreme Court of Justice of Costa Rica. The Constitutional Chamber was established in 1989 through an amendment to Article 10 of the Political Constitution. In 2002, Hubert May Cantillano presented an action claiming, among other things, that since that amendment gave a specialized chamber of the Supreme Court of Justice the exclusive power to declare invalid the acts of the other branches of government, it altered the constitutional regime in a fundamental way and thus was out of the scope of the ordinary power of constitutional reform.

After rejecting the claim on procedural grounds, the Constitutional Chamber expressed that what May Castillano was asking the court was a "juridical impossibility". According to the court, even if it agreed to declare the amendment in question unconstitutional, its decision would be nothing but a nullity, an act without any legal effect. That is to say, for the Constitutional Chamber to declare the amendment unconstitutional would be to recognize that it lacked the very power it was attempting to exercise. Apart from the fact that the substantive merits of the action presented by May Cantillano were dubious, to say the least, I wonder if you think there is a way out of the puzzle identified by the court and described in the previous two sentences. That is, can a Constitutional Court, confronted with the right set of arguments, declare its very existence 'unconstitutional'?


  1. I wonder if I might reason by analogy to an area of law I actually know something about, which is international arbitration. Arbitral tribunals derive their power from the existence of an agreement to submit present or future disputes to arbitration. Without that agreement, the tribunal has no power whatsoever--it cannot even exist. However, under the competence-competence doctrine (which is by now universally accepted), tribunals have the power to determine whether they have any jurisdiction. This includes the power to determine whether there exists a valid arbitration agreement that gives them any power they might have. If they decide that no such agreement exists, they write awards that deny jurisdiction and effectively wink out of existence.

    Where the analogy breaks down is that arbitral tribunals work within a framework of state court authority. If a tribunal decides that it does have jurisdiction and later a court decides that the tribunal really didn't, then the court can annul the award or refuse to enforce it. No such backstop of external supervisory authority exists for constitutional courts.

    However, I think the analogy can still work. We accept as a matter of general principle that tribunals, be they state courts, administrative entities, creatures of treaty like the ICJ, or separately constituted private tribunals, have the power to determine the scope of their jurisdiction. Administrative tribunals do this all the time with reference to their enabling legislation. Courts do it all the time by reference to rules of civil/criminal procedure or constitutions. Why, then, should this power to determine the scope of jurisdiction not extend to the question of whether the tribunal has any jurisdiction at all?

    Yes, it's paradoxical. In the arbitration context, competence-competence is agreed by all to be paradoxical, and yet is accepted because without it international arbitration could not occur without a prior court finding that a valid arbitration clause exists. That would subvert the parties' intention in going to arbitration in the first place--to keep their dispute out of the national courts. Give the doctrine whatever other label you would like; competence-competence is nonsensical but it works. Why can't it work for a court too?

  2. I don't know anything about international arbitration, but the analogy you propose seems to be a good one. In a way, I think there is something akin to an "external supervisory authority" for a constitutional court, even if undesirable or rarely invoked: the 'political' power to abolish it through a constitutional amendment.

  3. As you know, Joel, I am a huge admirer of your work on democratic constitutionalism. Your approach to the enduring tension between constitutionalism and democracy is appealing to me insofar as you propose to recalibrate the balance of power toward democracy--and away from constitutionalism. I agree with you on that point.

    Having said that and having read your published work, I cannot pinpoint how you would answer the question you've posed to readers. Whether a court can or cannot declare its own being "unconstitutional" does not follow from a preference for weak constitutionalism. Or does it?

    I'm inclined to think that you would take a position inspired by Marbury v. Madison, namely that for a court to decline to exercise power in one circumstance actually increases the scope of its authority going forward.


  4. Thanks Richard, for the kind words. I actually had not thought before about the question of whether a court can (or not) declare its own unconstitutionality from the perspective of 'weak constitutionalism', and I am not sure if a particular answer follows from that conception. As for how I would answer the question, I am not sure (that is why I asked!). It seems to me that what the question does is to suggest that, after created, constitutional courts assume a life of their own and their 'legality' or 'constitutionality' is -to put it that way- of a different nature than that of the other institutions of government .

  5. A fascinating thread. I suspect that the actual legality or constitutionality of the judicial branch is not in theory different than that of any other branch of government where there is a written constitution or other similar document that spells out the powers of the various branches. The difference is all in practice and not in theory, because the difference is who gets to say whether a branch of government has exceeded its constitutional remit. You might call it a who-watches-the-watchers issue: at some point, you will reach some institution that is meant to watch itself. Of course, as you point out, there is the ultimate option of exercising political power to abolish or reign in a "rogue" constitutional court. So the ultimate watcher is the people. (Is that what is meant by "weak constitutionalism"? I don't know the terminology.)

    Now for the really tricky question: what about countries without written constitutions? (And the UK doesn't count, since the doctrine of parliamentary supremacy means--for now, anyway--that the judicial branch is subsumed within, and subject to, the legislature.) Today, I seem to be all about giving blithe, simple answers to profound, complex questions but I can't even wrap my head around that question, let alone answer it.

  6. Is it fine to say that the answer to Joel´s question may depend on on one´s conception of democracy? One could have an account that explains why constitutional courts should not have the final word on the constitutionality of their very existence. For instance,
    according to a very familiar legal system, the role of Courts is to protect the rights of minorities from oppressive majority rule. - e.g. right to decent housing, etc. Ths is a counter-majoritarian objection to judical review.


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