Institutions for Implementing Constitutional Law

Mark Tushnet
1
This Essay considers institutions for implementing constitutional law understood
as political law. After a brief discussion of what it means to describe constitutional law
as political law the Essay e!amines the ways in which institutions can be designed to
respond to different "proportions# of politics and law in one$s understanding of
constitutional law. The aim is primarily to map understandings of constitutional law on
to institutional designs in a way that illuminates the obser%able %ariations in institutions
actually used to implement constitutional law.
Larry &ramer has recently brought to the attention of '.(. constitutionalists an
understanding of constitutional law that had been lost from %iew for a while in the 'nited
(tates although it has remained close to the forefront of discussions of constitutional law
elsewhere in the world.
)
*n that understanding constitutional law is political law. +oth
terms on the right side of the e,uation matter. Constitutional law is political in a sense to
be described shortly but it is also law in the usual sense. Law is a set of normati%e rules
and principles designed to guide decision in particular cases pursuant to a disinterested
-"neutral# to use a term familiar from '.(. constitutional discussions. application of the
rules and principles to the facts at hand. In addition the guidance law pro%ides is
reasonably well/defined0 no doubt there is a range of choices a%ailable to sincere
1
Carmack 1aterhouse 2rofessor of Constitutional Law 3eorgetown 'ni%ersity Law
Center.
)
cite
1
interpreters but that range is reasonably small.
4
Constitutional law could be understood to be ordinary albeit supreme law.
Marbury v. Madison e!emplifies that understanding. The %iew that constitutional law is
political law is different5 "2olitical# does not mean -merely. supreme. 6ather
constitutional law is political law for se%eral other reasons. Consider first a standard
distinction between law and politics. 2olitical actors empowered to adopt statutes and
regulations e!ercise a relati%ely unconstrained discretion.
7
They are charged with
enacting statutes that ad%ance the general welfare for e!ample or that are compatible
with an e!pansi%ely understood police power. Constitutional law is political in part
because the range of interpreti%e discretion with respect to constitutional rules and
principles is closer -in si8e. to the range of discretionary action that legislators ha%e than
to the range of discretion that e!ists with respect to ordinary law. In this sense as
continental legal theorists emphasi8e a constitutional interpreter is a special type of
legislator.
9
In addition constitutional law is political law because it deals with what :rank
4
I do not ha%e a metric for determining the si8e of the range of choice though.
7
This is not the only distinction between law and politics but it is the one that matters
here.
9
I belie%e that there is something to the idea that constitutional interpreters are legislators
because they ha%e a relati%ely wide range of discretion in interpretation whereas
interpreters of ordinary -non/political. law ha%e a smaller range of discretion. I also
belie%e though that this idea should not carry a great deal of weight because the range
a%ailable to interpreters of ordinary law is wider than continental legal theorists belie%e it
to be.
)
Michelman calls the laws of law/making.
;
These are the rules that go%ern the processes
by which ordinary laws are made. <emocratic participation in making the laws of law/
making is particularly important because the resolution of disagreement about what those
laws should be has strong implications for the ordinary laws that are then generated. The
point is ob%ious with respect to free e!pression. If the laws of law/making are interpreted
to allow the go%ernment to prohibit ad%ocacy of particular policy positions it will surely
be more difficult to enact those policies than if the laws of law/making barred the
go%ernment from enacting such a prohibition. (imilarly a law of law/making that
forecloses some systems of financing election campaigns will also foreclose = or at least
make it more difficult to enact = some substanti%e laws that could be more easily enacted
were one of the prohibited campaign finance systems in place.
Constitutional law is political then because it is more discretionary than ordinary
law and because it deals with fundamental ,uestions about law/making.
>
It is law
;
cite
>
*ne standard distinction between law and politics is howe%er ruled out by treating
constitutional law as political law. That distinction treats politics as a forum for -mere.
preference aggregation and law as a location of deliberations that include some elements
other than preference aggregation -and that on what is probably the pre%ailing %iew
e!cludes preference aggregation altogether.. Treating constitutional law as political law
strongly suggests that the political component of constitutional law is different from
preference aggregation although perhaps the political component could be understood to
be that portion of law if there be one that does implicate mere preference aggregation.
Combining the latter %iew with standard notions that bar ?udges from implementing their
preferences suggests that constitutional law as political law should not be implemented
4
though because it is not nearly as discretionary as other law/making processes. Clearly
constitutional law can ha%e its political and legal components in any number of
combinations. :or con%enience in the this Essay$s mapping e!ercise I di%ide the
possibilities into two types and then the latter type into two groups. The two types are
institutions of constitutional change through formal amendment and similar action and
institutions for the consideration and application of e!isting fundamental law. 1ithin the
latter type which includes importantly systems of ?udicial re%iew for constitutionality
the political component of constitutional law has the larger role in the first group I
consider the legal one the larger role in the second.
@
1ritten constitutions can be easy to amend or hard to amend. Consider first a
constitution that is ,uite easy to amend = in the limit of course by a simple ma?ority %ote
of the usual legislati%e ,uorum. (uch a constitution is simultaneously entirely legal and
entirely political. Its legal component is e!pressed when it is applied its political
component when it is amended perhaps in response to an une!pected or disfa%ored
application. As the difficulty of amendment increases so does the legal component of
constitutional law. 2olitics will still play a large role in determining fundamental law
when a constitution can be amended by a ,ualified ma?ority of a sitting legislature -a
ma?ority of the house rather than a ma?ority of a ,uorum or a super/ma?ority of the
by ?udges.
@
My e!amples of how different conceptions of constitutional law map on to different
institutional forms are ,uite styli8ed. :or e!ample in discussing parliamentary
supremacy I ignore the complications introduced by the effects in 3reat +ritain of the
Auman 6ights Act 1BB@ and 3reat +ritain$s agreement to be bound by the decisions of
the European Court of Auman 6ights.
7
house. and e%en when it can be amended by ma?ority action in successi%e parliamentary
sessions.
+eyond those forms though the legal component begins to play the predominant
role. There are I think two reasons for making constitutions difficult to amend. The
first is a desire for stability in fundamental law. And yet it is not immediately apparent
why stability in fundamental law needs to be secured by pro%isions making the
constitution difficult to amend. After all legislators able to amend the constitution easily
could nonetheless recogni8e on their own the importance of stability in fundamental law.
(uch legislators would amend the constitution only when they thought the benefits of
change e!ceeded the costs of instability.
B
The second reason for making constitutions difficult to amend is precisely that a
difficult amendment process is a way of demonstrating that the constitution is more legal
than political. In the 'nited (tates for e!ample there is a rhetoric that opposes
constitutional amendment in principle but resting instead on the ground that particular
proposed amendments are bad ideas that rests on the assertion that getting into the habit
of amending the Constitution would lead the people to think of the Constitution less as
law and more as a mere instrument of politics.
1C
Constitutional amendments change the constitution permanently. There are
B
2erhaps the idea is that legislators will percei%e short/run benefits from amending the
constitution and under%alue the long/run costs in instability from doing so. Det the idea
of instability as a long/run phenomenon sits uneasily with the ob%ious fact that society
and its laws change without anyone being concerned that such change e%idences
instability.
1C
Cite to (ulli%an
9
de%ices for changing it pro tanto with respect to a particular proposal at hand. These
de%ices too respond to different conceptions of the role of the political in constitutional
law and can be organi8ed by identifying the triggering e%ent that leads to displacing the
e!isting constitutional rule. The most modest e%ent is a sense arising from the culture of
constitutionalism that the proposal is inconsistent with the constitution. Legislators can
respond to that sense by denying the e!istence of an inconsistency by modifying the
proposal or by acknowledging the inconsistency and concluding that present e!igencies
?ustify a one/time departure from the constitution.
11
In one of its uses (ection 44 of the Canadian Charter of 6ights ser%es this
function. (ection 44 authori8es legislatures to make legislation effecti%e -for no longer
than fi%e years. notwithstanding its inconsistency with some of the rights guaranteed by
the Charter. The Canadian (upreme Court has held that (ection 44 can be used
prospecti%ely that is before any court has actually found such an inconsistency.
11
The +ritish anti/terrorism legislation adopted in )CC1 illustrates this possibility with
the peculiar twist that the constitutional norms applied are e!ternal to the +ritish legal
system. The Auman 6ights Act 1BB@ directs +ritish courts to construe legislation to be
consistent with the European Con%ention on Auman 6ights where such a construction is
fairly possible and to make a declaration that legislation is incompatible with the
Con%ention when it cannot be so construed -and is in the court$s ?udgment incompatible
with the Con%ention.. *ne pro%ision of the proposed anti/terrorism legislation was
clearly incompatible with the Con%ention. 2ursuant to Con%ention pro%isions the +ritish
go%ernment issued a declaration derogating from the rele%ant Con%ention pro%ision with
respect to the legislati%e proposal -that is declaring that the Con%ention pro%ision was
inapplicable.. EcitesF
;
2rospecti%e uses of (ection 44 are rare and in the Canadian constitutional culture seem
likely to occur only when the legislation$s proponents belie%e that the courts would find
the legislation in enacted to %iolate Charter rights.
1)
(ection 44 used prospecti%ely
displaces the otherwise applicable constitutional law in the ser%ice of politics.
There are also more formal institutions to trigger that sort of reconsideration. A
legislature might ha%e a committee on constitutional matters charged with %etting
legislati%e proposals for constitutionality. Aa%ing concluded that a proposal is
inconsistent with the constitution the committee will notify the legislature which again
has the opportunity to respond in the ways I ha%e mentioned. The +ritish 2arliamentary
Goint Committee on Auman 6ights is an e!ample of a legislati%e committee on
constitutional matters. The Committee consists of members from the Aouse of Commons
and the Aouse of Lords.
14
It is charged with "e!amining matters relating to human rights
in the 'nited &ingdom# and has taken a fairly acti%e role in %etting proposed legislation.
Although it is a relati%ely recent inno%ation it appears to ha%e worked reasonably well in
bringing constitutional problems with proposed legislation to the attention of members of
2arliament.
Legislati%e committees on constitutional matters are of course composed of
members of a go%ernment$s political branches and so are likely to gi%e the political
1)
:or e!ample (ection 44 was in%oked prospecti%ely by the go%ernment of Alberta to
insulate its statutes limiting marriage to heterose!uals from a Charter challenge that
Canadian constitutionalists fully e!pect to succeed within a few years with respect to
some other pro%ince$s marriage statute. EciteF
14
At present si! Committee members are from the Labour 2arty two are Liberal
<emocrats three are Conser%ati%es and one is a "cross bench# member.
>
component of constitutional law a large role in their deliberations. Det the members
chosen to ser%e on such committees and willing to do so are likely to think that the
constitution has a substantial legal component as well. And a legislature that sets up
such a committee is = by that %ery fact = indicating its %iew that the legal components of
constitutional law deser%e more attention than the legislature would gi%e them on its
own.
17
*ne can increase the legal component e%en more by charging a court with the
responsibility to determine whether legislation is consistent with the constitution and
then gi%ing the legislature an opportunity to respond to the court$s action.
19
The +ritish
Auman 6ights Act 1BB@ is an e!ample. 'nder the Act courts ha%e the power to declare
statutes incompatible with the European Con%ention on Auman 6ights. (uch
declarations -of which only a handful ha%e been made so far. ha%e no immediate legal
effect on any ordinary person$s rights. 6ather the declaration is a trigger for
reconsideration of the legislation. The minister responsible for the legislation can do
nothing in response of course or may introduce amendatory legislation in the ordinary
course. More important for present purposes though the minister has the power to
introduce such legislation and automatically place it on a fast track for adoption and e%en
to amend the legislation himself or herself if doing so is urgently necessary sub?ect to
parliamentary ratification.
1;
17
Cite to political science literature on committee composition
19
*b%iously the legal component is high here because of the general %iew that court
decisions ha%e as large a legal component as one can ensure in institutional design.
1;
:inally it is worth noting that we can make a legislature$s power to o%erride e!isting
constitutional pro%isions pro tanto less or more difficult to e!ercise. As noted (ection 44
@
I turn now to the second type of institution concerned with constitutional law as
political law. (ystems of parliamentary supremacy ob%iously gi%e the political
component of constitutional law a %ery large role. Indeed one might wonder whether
such systems treat constitutional law as law at all. The answer though is that they do =
or at least that they can. :irst a culture of constitutionalism places some limits on what
legislators in such a system belie%e they can properly do. The difficulty is that such a
culture is a form of long/term politics and legislators may succumb to the pressures of
short/term politics and treat constitutional fundamentals in the same way they treat
ordinary issues of public policy. *r put another way a culture of constitutionalism may
not count as an institution for implementing constitutional law.
(till culture may matter at least sometimes. The political ,uestions doctrine of
'.(. constitutional law when understood in a particular way pro%ides an e!ample of how
a constitutionalist culture operating through politics can constrain action and thereby
enhance the effecti%e role of the legal component of constitutional law in a system that
treats legislati%eHe!ecuti%e action as final. 2olitical ,uestions are ,uestions of
constitutional interpretation fairly open to disagreement where the political branches$
interpretation is final. The problem for the political ,uestions doctrine has always been to
identify the criteria for determining when a constitutional ,uestion is a political ,uestion.
The best answer to that problem I belie%e is that political ,uestions are those where
there is good reason to belie%e that the political branches ha%e strong incenti%es to
has an automatic sunset pro%ision unlike all other legislation. *ne could re,uire that
legislati%e o%errides of constitutional pro%isions be adopted by superma?orities or by
ordinary ma?orities in successi%e parliamentary sessions or by any of the other de%ices
that are used to make permanent amendments difficult to adopt. Cite to +ork$s proposal.
B
interpret the Constitution in a reasonably disinterested way.
1>
(ome hints of this answer come in the opinion of Gustice Gohn 2aul (te%ens in
Walter Nixon v. United States.
1@
That case in%ol%ed an impeachment of a federal ?udge.
After the Aouse impeached the ?udge the (enate con%ened a committee to hear li%e
testimony. That committee prepared a report which pro%ided the basis for a %ote on
con%iction or ac,uittal by the entire (enate. Gudge Ii!on argued that this procedure did
not gi%e him the "trial# to which he was entitled by the Constitution. The Court held that
the ,uestion of whether Gudge Ii!on recei%ed a trial within the meaning of the
impeachment clauses presented a political ,uestion. In doing so the Court necessarily
held that Gudge Ii!on could not challenge in court a "trial# that consisted of a coin toss.
In response to that conclusion Gustice (te%ens wrote "6espect for a coordinate +ranch of
the 3o%ernment forecloses any assumption that improbable hypotheticals . . . will e%er
occur. . . .#
1B
Gustice (te%ens$s thought here is that (enators will be constrained by
something to pro%ide basic fairness in their procedures. The best candidate is a sense of
constitutional responsibility that is a sense that with respect to constitutional
fundamentals the (enate should treat the Constitution as ha%ing a significant legal
component. That sense is induced by electoral considerations5 (enators reasonably fear
that their constituents will retaliate against them at election time unless the (enators take
their constitutional responsibilities seriously.
)C
1>
Cite to casebook
1@
cite
1B
cite
)C
:or discussions of actual practice see Mark Tushnet E<uke L.G.F0 Mark Tushnet Ion/
Gudicial 6e%iew Aar%. G. on Legislation.
1C
(econd and perhaps more important in the present conte!t "parliamentary
supremacy# should not be taken to refer e!clusi%ely to systems in which e!ecuti%e and
legislati%e power is combined as they are in 3reat +ritain. 6ather it refers to a system
in which decisions about constitutional matters taken by ordinary political actors = not by
?udges = are final. (o a separation of powers system can gi%e a %ery large role to the
political element of constitutional law. *ne aspect of The Federalist$s argument for a
separation of powers system deser%es note here. (eparation of powers worked to secure
constitutionalism according to The Federalist because it set ambition against ambition
and linked the political interests of particular power/holders to the interests of the
institution in which they held power. The libertarian/leaning interpretation of this
argument is that separation of powers makes it hard to get the go%ernment to do anything
which itself preser%es liberty. There is another interpretation though more resonant with
the interests of this Essay. The purely self/ or constituency/oriented interests of particular
power/holders cancel each other out when ambition is set against ambition. Det ambition
means that power/holders want to get something done. In the absence of self/interest or
constituency/interest all that power/holders can do is enact laws that ad%ance the public
interest = or in the terms I ha%e been using promote fundamental constitutional %alues.
A constitutionalist culture and separation of powers then are two institutions that
fit reasonably well the conception of constitutional law as law that is primarily political.
*ther possibilities deser%e mention as well. The pre%iously mentioned legislati%e
standing committee on constitutional matters is one. Another is an office in the e!ecuti%e
branch whose charge is to %et e!ecuti%e proposals and about/to/be/enacted legislation for
constitutionality.
)1
And finally a "court# understood as largely political might be gi%en
)1
The *ffice of Legal Counsel in the '.(. <epartment of Gustice is an e!ample of an
11
power to determine = either pro%isionally or finally = that legislation is unconstitutional.
These institutions gi%e the legal component of political law a slightly larger role than
pure parliamentary supremacy does.
These agencies speciali8e in constitutional matters and therefore are likely to
think of their "mission# as taking constitutional fundamentals more seriously than do the
generalist politicians elsewhere in the go%ernment. Their staffs are likely to ha%e a large
number of lawyers and may de%elop an institutional culture in which responsibility to the
legal aspects of constitutional law plays a significant role. *f course they are members of
the go%ernment and so are not likely to treat constitutional law as law only. :urther they
report to ordinary politicians and their reports will be acted on or not with an eye to the
political dimension of constitutional law.
))
This is only to say that these institutions still
fall in the category of institutions in which the political component of constitutional law
plays a larger role than the legal one.
Also in this category but mo%ing toward the "more law/like# end of the spectrum
are constitutional courts on the &elsenian model. According to &elsen the political
component of constitutional law meant that the ordinary courts could not properly be
in%ol%ed in "?udicial# re%iew. Instead a court that speciali8es in constitutional law
should e!ercise the power of re%iew. (peciali8ation and the concomitant remo%al from
the administration of ordinary law would make such a court sensiti%e to the political
e!ecuti%e branch agency with similar responsibilities.
))
2olitical circumstances might be such that the go%ernment would not be embarrassed
by a report from one of these agencies that a legislati%e proposal %iolates constitutional
principles or might be willing to acknowledge the %iolation but enact the law that
e!cepts the statute from ordinarily applicable constitutional principles.
1)
component of constitutional law. :urther &elsen thought the constitutional court should
be remo%ed from case/specific ad?udication where indi%idual claimants would assert that
they had constitutional rights to be determined according to law. Indi%idual claims that
is would induce re%iewing courts to reduce the political component of constitutional law
and fa%or the legal component more than they should. :inally the decision/makers who
compose a &elsenian constitutional court should be selected with an e!plicit concern for
their sensiti%ity to the political component of constitutional law.
*f the modern systems of constitutional re%iew probably only :rance$s fits the
&elsenian model reasonably well.
)4
:rench legal theorists conceptuali8e the Conseil
Constitutionel as an e!tension of the legislati%e process thereby emphasi8ing the political
o%er the legal. It e!ercises re%iew before legislation goes into effect entirely di%orced
from case/specific ad?udication. 2olitics of the ordinary sort plays an e!plicit role in
selecting members of the Conseil Constitutionel as is symboli8ed by the entitlement of
former presidents of the 6epublic to sit on the Conseil.
)7
Contemporary international courts pro%ide an e!ample of another institutional
arrangement that responds to the dual components of constitutional law although of
)4
*ther post/1orld 1ar II constitutional courts depart in %arying degrees from the
&elsenian model. In particular most such courts ha%e some mechanism for consideration
of indi%idual complaints either by reference from the ordinary courts when a
constitutional ,uestion arises in connection with a pending case or by direct
consideration of applications from aggrie%ed indi%iduals. In such courts the balance
between the political and the legal components of constitutional law begins to tip in fa%or
of the legal.
)7
The point is symbolic because the entitlement has gone largely une!ercised.
14
course they do not enforce constitutional law in the usual sense. The most ob%ious
recognition of the political in international tribunals is their composition5
6epresentati%es of the states whose actions are in ,uestion are entitled to sit on the
tribunal considering the complaint. At present for e!ample each member/state of the
European 'nion appoints a ?udge on the European Court of Gustice.
)9
In other tribunals a
temporary ?udge will be appointed when the court does not ha%e a ?udge from a state
whose action is at issue.
In addition the European Court of Auman 6ights uses a legal doctrine that
recogni8es the political component of the law it administers. This is the "margin of
appreciation# doctrine which seems likely to be increasingly emulated in international
tribunals. According to that doctrine each nation is to be gi%en some leeway in its
application and interpretation of fundamental human rights because nations face different
arrays of social economic and political problems such that what is acceptable as an
interpretation of fundamental law in one nation -perhaps one e!periencing high and
persistent le%els of crime. would not be acceptable in another. At the same time the
actual ad?udications of international tribunals tend to be highly legali8ed.
1ith the introduction of -real. courts into the institutional mi! I can turn to the
second group of institutional arrangements I mentioned earlier. These are arrangements
that emphasi8e the legal component of constitutional law o%er the political component
essentially by gi%ing courts a large role in implementing the constitution.
);
Earlier I
)9
That may change as the 'nion$s membership e!pands although my understanding is
that those responsible for institutional design in the 'nion e!pect the ECG to grow.
);
These courts could be speciali8ed constitutional courts or generalist courts. :or reasons
suggested earlier generalist courts are likely to gi%e the legal component of constitutional
17
discussed prospecti%e uses of Canada$s (ection 44 procedure but more commonly
(ection 44 is seen as pro%iding opportunities for legislators to respond to ?udicial
rulings.
)>
The idea is that the Canadian courts can approach constitutional interpretation
in a relati%ely legali8ed way knowing that if they under%alue the political component of
constitutional law the political branches can read?ust the balance by o%erriding the courts$
interpretation. Constitutional law as a whole then consists of ?udicial interpretations
which treat constitutional law as mainly ordinary law and legislati%e decisions to
o%erride or not which treat constitutional law as mainly political.
That way of understanding the power to o%erride allocates the different
components of constitutional law to different institutions. (ection 44 says that
legislatures can declare legislation effecti%e notwithstanding Charter pro%isions -rather
than notwithstanding ?udicial interpretations of the Charter.. This suggests that the
legislature is insisting on implementing the statute despite its inconsistency with the
Charter because it regards the statute$s policy as more important than the Charter$s law.
(ection 44 treats constitutional law as articulated by the courts as almost entirely legal
but constitutional law as articulated by the Canadian go%ernment taken as a whole inserts
a political element through the possibility of the legislati%e o%erride for policy or political
reasons. *ne who belie%es that constitutional law is political law might be concerned
with the incenti%es (ection 44 pro%ides courts and legislatures on this conceptuali8ation.
There is howe%er an alternati%e conceptuali8ation that uses (ection 44 to show
that constitutional law is political law through and through and that its different
components need not be allocated to different institutions. *n the alternati%e
law a larger role than they gi%e the political component.
)>
(ee "dialogue# literature.
19
conceptuali8ation a legislature$s o%erride is not a -mere. policy ?udgment inserting
political considerations into an otherwise legali8ed constitution. 6ather it is an
e!pression of disagreement with the courts$ interpretation of the constitution. That is a
legislature using (ection 44 is not necessarily making a statute effecti%e notwithstanding
the Charter but is making it effecti%e notwithstanding an erroneous Charter interpretation
pro%ided by the courts. The legislature$s action is ?ust as legali8ed as the courts$.
This alternati%e conceptuali8ation is a useful correcti%e to the final mapping of
constitutional law as political law on to institutional forms. That mapping is of course
the '.(. system of ?udicial re%iew which I call strong/form re%iew.
)@
In strong/form
re%iew courts$ interpretations of the constitution are final and binding = in terms of
political morality if not in terms of enforceable law = on all political actors.
The '.(. (upreme Court$s recent decision in%alidating the 6eligious :reedom
6estoration Act e!emplifies strong/form re%iew.
)B
There the Court insisted that Congress
lacked the power to specify the content of constitutional norms differently from the way
the Court itself did e%en where Congress$ specification could not be dismissed as entirely
unreasonable.
4C
The tradition of strong/form re%iew goes back a long way though. *ne
can find it in what is perhaps the easiest reading of the passage in Marbury v. Madison
that has been taken to articulate the political ,uestions doctrine. Chief Gustice Marshall
wrote5
The pro%ince of the court is solely to decide on the rights of indi%iduals not to
)@
:or additional discussion see Mark Tushnet Alternati%e :orms of Gudicial 6e%iew
Mich. L. 6e%. -forthcoming..
)B
City of +oerne %. :lores cite.
4C
The most noted e!pression of strong/form re%iew is Cooper %. Aaron cite.
1;
in,uire how the e!ecuti%e or e!ecuti%e officers perform duties in which they
ha%e a discretion. Juestions in their nature political or which are by the
constitution and laws submitted to the e!ecuti%e can ne%er be made in this
court.
41
The most straight/forward reading of this passage has Marshall distinguishing between
,uestions of law which implicate indi%idual rights and political ,uestions which do
not.
4)
The Constitution that is is a legal document remitted to the ordinary courts for
ordinary interpretation when indi%iduals raise claims that their rights ha%e been %iolated.
Constitutional law has no political component at all0 politics is the realm of the discretion
conferred by the Constitution on the political branches.
If howe%er constitutional law is -by definition. political law strong/form re%iew
might cause some problems unless it is tempered with some other institutional de%ices.
(trong/form re%iew allocates the political and legal components of constitutional law to
different institutions. As noted in connection with the first understanding of the (ection
44 o%erride procedure described abo%e doing so may create incenti%es that lead
constitutional law to be o%erlegali8ed and underpolitici8ed.
The 'nited (tates lacks a (ection 44 procedure that tempers strong/form re%iew
but it contains some institutional de%ices aimed at ensuring that the courts ha%e some
incenti%es to treat constitutional law as at least in part political. These are the
mechanisms usually enumerated as ones of political ontrol of the courts5 Congress$s
41
cite
4)
*n this reading the reference to ,uestions that are submitted to the e!ecuti%e by the
constitution is e,ui%alent to a statement that the e!ecuti%e$s action in resol%ing such a
,uestion implicates no legal rights.
1>
power to regulate the ?urisdiction of the federal courts the impeachment power and the
power of nomination and confirmation. The first two may seem primarily as methods of
retrospecti%e control or responses to decisions by the courts and in that they seem to
resemble the retrospecti%e uses of the (ection 44 power. +ut there is an important
difference. An o%erride used to correct an erroneous ?udicial decision need not affect the
?ustices who made that decision in the slightest0 they need not e%en be embarrassed by
the o%erride to the e!tent that they take it to e!press only disagreement on a matter about
which reasonable people can disagree. The e!istence of a power to o%erride ?udicial
decisions retrospecti%ely that is need ha%e no incenti%e effects on ?udges as they
consider what to do ne!t. The impeachment power is ob%iously different because it
gi%es the legislature a power to place a ?udge$s continuation in office in ,uestion. The
power to control ?urisdiction has some incenti%e effects as well albeit more modest ones5
The threat of losing work may be significant to a ?udge who has taken the position to do
something.
44
The retrospecti%e powers do ha%e some forward/looking effects. +ut in the
'nited (tates those powers ha%e fallen into disuse to the point that a rational ?udge
looking forward should not gi%e any more weight to them than he or she does to the
possibility that a legislator dismayed at a ruling would hire an assassin to kill the ?udge.
The problem with the powers o%er nomination and confirmation is somewhat
different. These powers operate as screening de%ices at the point of entry to the ?udicial
role. They can be used to ensure the selection of ?udges who understand constitutional
law to ha%e a political component as well as a legal one. They cannot influence the
beha%ior of ?udges once seated. :or ?udges to treat the political component of
44
6ecall the interpretation of The Federalist offered earlier.
1@
constitutional law with appropriate seriousness then the president and Congress must
insist on choosing ?udges who already ha%e and are likely to continue to ha%e the
appropriate understanding of constitutional law. 1ith respect to the latter one might
think that something like a minimum age ,ualification would be desirable. The theory
would be two/fold5 An older nominee has a longer track record on which the president
and Congress can base their ?udgment about the candidate$s understanding of
constitutional law and probably more important an older nominee$s %iews are less likely
to change because of the conser%atism associated with age.
1e might return to &elsen$s %iews in addressing the concern that nominees ha%e
the right understanding of constitutional law. 1orking within a ci%il law tradition in
which ?udges were members of a certain kind of bureaucracy &elsen thought that ?udges
on a constitutional court ought to be drawn from outside the ?udiciary precisely to ensure
that such ?udges take seriously constitutional law$s political component. &elsen$s
position in its strongest form seems inappropriate for a system of strong/form re%iew
like the 'nited (tates$ particularly where as in the 'nited (tates the constitutional court
is also a generalist court. +oth the generalist character of the court and perhaps more
important the system$s commitment to a strong/form system of ?udicial re%iew suggest
that the ?udges on such a court should treat the legal component of constitutional law as
the predominant one. 1hat can be said though is that these commitments must be
tempered a bit to ensure that the ?udges also understand that constitutional law is political
law. 2robably the best that can be done is to de%elop a norm for nominations and
confirmations that ?udicial e!perience is not a prere,uisite for ser%ice on a court with
substantial responsibility for constitutional law and that the desirability of ?udicial
1B
e!perience in a nominee will %ary depending on the composition of the court already in
place.
Det this set of institutions seems incomplete. It gi%es courts some incenti%es to
treat constitutional law as political. It does not howe%er contain arrangements that gi%e
the legislature incenti%es to treat constitutional law as law. 2erhaps though we might
return to points made earlier about systems of parliamentary supremacy. A culture of
constitutionalism and the institutions of separated powers may gi%e political actors the
appropriate incenti%es.
It would be con%enient were I able to conclude by arguing that some particular
mi! of the legal and the political in constitutional law was normati%ely desirable but I
cannot. Instead in the spirit of the descripti%e effort I ha%e made I end by obser%ing that
different constitutional systems appear to reflect commitments to different mi!es at any
one time. A few weak normati%e conclusions may flow from that obser%ation. :irst
institution designers probably should attempt to ensure that the institutions of
constitutional re%iew correspond to the mi! that their political/legal culture deems
correct.
(econd it seems likely that within any constitutional system the mi! that seems
desirable may change from time to time. Institution designers can respond to the
possibility of change in se%eral ways. They might make it relati%ely easy to change the
institutions of constitutional re%iew.
47
Alternati%ely they might be attenti%e to the ways
in which the political/legal culture affects the way in which the institutions they put in
47
That course seems acceptable only if their political/legal culture accepts the %iew that
whate%er is true about other matters the institutions of constitutional re%iew are almost
entirely political in nature.
)C
place are likely to operate in fact. +ut as noted earlier such cultural factors may be
particularly difficult to build into relati%ely stable institutional designs. In the end then
we may face a situation in which the institutions of constitutional re%iew recurrently
come into tension with the political/legal culture within which those institutions operate.
)1