—Lech Garlicki, University of Warsaw
[ICON Editors’ Choices for New Year Readings and Gifts: ICON’s Book Review Editor, Isabel Feichtner, invited our Board members to reflect on the books that have had a significant impact on them over the past year. They write about books, not necessarily published in 2014, but read or reread in the past year, and which they found inspiring, enjoyable or consider ‘must reads’ for their own work or comparative constitutional law scholarship in general. These editors’ choices are not intended to be a prize in disguise, but rather are personalized accounts of the reading experiences of our Board members.]
Reading is fun, but it is a time-consuming activity and, being confronted with a mass production of new publications, the choice is often instrumental to our current research. Thus a lot remains unread and, what is worse, there is no way to establish a “canon” of newest books and articles. That is why my selection of books is not governed by any rational considerations. I based this selection on “generational parity,” picking one book written by a young and ascending scholar, another one by a well-established scholar of the middle generation and, finally, the last one delivered by one of the leading scholars of a global dimension. As is usual in constitutional law, all of these authors write about courts, constitutions and rights, but this does not mean that their approaches are the same.
Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective, by Federico Fabbrini. New York: Oxford University Press. 2014.
This book undertakes a two-fold enterprise. On the one hand, it offers an interesting and complete presentation of four areas in which challenges and transformations of fundamental rights are particularly instructive (due process for alleged terrorists, voting rights of non-citizens, the right to strike and, finally, abortion). In each of those areas Fabbrini discusses legislative regulation and judicial decisions of the leading European countries and institutions, and also includes references to the U.S. situation.
On the other hand, Fabbrini notes the multilevel nature of the European system of protection of fundamental rights and uses his four case-studies as an empirical backing to contest the “mainstream” visions prevailing in European legal scholarship. In his opinion, this scholarship can be criticized due to its bipolarity: too often it is focused either on the sovereigntist or on the pluralist approach. The former emphasizes the primacy of national constitutions in their relations with international and supranational guarantees, whereas the latter prefers a decentralized vision of the multilevel system of fundamental rights and of their judicial protection. Fabbrini’s preference is to combine (instead of contrast) these two approaches and to propose “a new federal vision – a ‘neo-federal’ theory – which is able to frame the dilemmas behind the European multilevel architecture for the protection of human rights.”
I am ready to concur with the need to elaborate a new description (and diagnosis) of the European situation and I am convinced that Fabbrini’s suggestions deserve to be followed. I have more problems in determining to what extent the U.S. analysis is applicable in the European setting. It is obvious that, as far as substance is concerned, it would be counterproductive for the European courts to ignore the U.S. cases and doctrines, as – in many respects – they are more advanced than their European equivalents. It is also true that elements of a multilevel system of protection of rights are present within the U.S. constitutional architecture. But, at the same time, it seems that the U.S. Supreme Court is vested with the power of “the last word” in most cases and controversies involving fundamental rights. The situation in Europe is different. It is the very essence of its multilevel system of protection that none of the highest courts can claim the power of a “last word” (although several courts erroneously believe to have such a power). This leaves more room for different mechanisms of so-called “judicial dialogue” and, in consequence, it creates a different context for any federalist or neo-federalist theory. From this perspective, Fabbrini’s book is particularly valuable as it prepares a sound and solid ground for further debate.
The New Commonwealth Model of Constitutionalism. Theory and Practice, by Stephen Gardbaum. New York: Cambridge University Press. 2013.
This work introduces us to new developments in the relocation of powers between the courts and political branches of government in the traditional strongholds of parliamentary supremacy: Canada, New Zealand, Australia and the U.K. It is quite significant that all of these developments resulted from various efforts to strengthen the protection of fundamental rights. In other words, they demonstrate that the primary way to increase that protection is to invite the judicial branch into the realm of constitutional law.
Like Fabbrini, Gardbaum presents a two-fold analysis. He first offers a very competent and instructive description of the situation in all four countries and presents the different ways in which they attempt to reconcile the classic concept of parliamentary supremacy with the growing powers of courts and judges. Since 1982 Canada, New Zealand and the U.K. (as well as some subfederal entities in Australia) have adopted general (codified) bills of rights. Although none of them has become fully entrenched, their very adoption represented the first step in the erosion of the traditional approach. The practice of judicial implementation considerably advanced that erosion, particularly in Canada. Nevertheless, in all four countries, the “last word” not only remains reserved for the legislature, but can be spoken without having to use the “nuclear option” of constitutional amendments.
Those observations serve Gardbaum as the basis to, second, elaborate the concept of “the new model of constitutionalism” which, according to Gardbaum, can be regarded as a third or intermediate approach to the traditional dichotomy of parliamentary supremacy and judicial protection of the supremacy of constitutional law. He explains that “the new model treats legislatures and courts as joint or supplementary rather than alternative exclusive protectors and promoters of rights, as under the two traditional models, and decouples the power of judicial review from judicial supremacy or finality.”
It would be difficult to deny that something new has emerged in Canada, the U. K. and, at least to some extent, in New Zealand. Thus any attempt to propose a theoretical framework to understand these developments seems not only legitimate, but also very useful. Furthermore, it is obvious that all the above-mentioned countries adopted a “middle way” which is based on the assumption that judicial enforcement of a bill of rights is possible even within a “soft” or “weak” system of judicial review. That is why Gardbaum is right in proposing his “new model” diagnosis.
At the same time, it seems that the new model cannot proliferate beyond the classic Commonwealth system. Although this system may have preserved the traditional preponderance of parliament (at the expense of the courts), it has always been based upon an un-interrupted tradition of respect for fundamental rights and judicial independence. Thus, the new developments (i.e. the adoption of a codified bill of rights and the emergence of “soft” versions of judicial review) could easily find an adequate judicial response. This would not necessarily be the case elsewhere. In most modern countries, the judicial review of constitutionality was born out of systemic deficiencies in the protection of fundamental rights. In such an environment, the courts simply must have a “final word” and must not share it with the political branches of government. Any other arrangement would compromise the whole concept that the constitution (and, in particular, its bill of rights) must prevail over the political will of parliamentary majorities. In other words, what may be useful and attractive for well-established Commonwealth democracies may appear counter-productive (or even lethal) if transplanted somewhere else.
The Civil Rights Revolution, by Bruce Ackerman. Cambridge: Harvard University Press. 2014.
Finally, a brief note on the third volume of Bruce Ackerman’s “We the People.” As in the two previous volumes, Ackerman discusses the role of popular sovereignty in U.S. history, this time focusing his analysis on the 20th century. This book will surely give rise to a rich discussion between experts in the U.S., and I do not think I can offer any significant contribution to that domestic debate. However, at least one aspect concerning the concept of constitutional instruments is also very interesting from a comparative point of view.
Ackerman’s criticism of “conventional constitutional lawyers” is that they wrongly assume that in each of the three dramatic eras (the Civil War, Great Depression and the Civil Rights Movement) the political leadership “transformed America’s fundamental commitments by obediently following the path set out by the Founding Federalists for formal constitutional amendment.” Another common mistake is to attach too much exclusivity to judicial leadership, as no significant transformation can take place without its elaboration in “a series of landmark statutes.” In Ackerman’s view, the constitutional canon is incomplete until those statutes have been duly recognized. This is not only a definitional question. The canonization of the role of landmark statutes was simply necessary to confirm the fundamental conclusion of “We the People”, namely that popular sovereignty is not dead in America.
It may be interesting to refer, in this context, to the French concept of the so-called “grand statutes” or “fundamental principles recognized by the statutes of the Republic.” Most of those statutes dated from the Third French Republic and their principal function was to fill the gap resulting from the lack of a constitutional guarantee of fundamental rights. Only in 1946 and 1958 did the two subsequent Constitutions vest those “fundamental principles” with quasi-constitutional rank, and only in 1971 did the Constitutional Council include them into the so-called “block of constitutionality.” The French experience shows that the combination of popular sovereignty and protection of rights can successfully be achieved through a series of landmark statutes. At the same time, their effective inclusion into constitutional law could not have been achieved without a final confirmation by the constitutional court. Has a similar pattern been present in the Civil Rights Revolution? To what extent did the Supreme Court act as the “prime mover” in the process of constitutional change and to what extent was its role concentrated on the ex-post confirmation of statutory decisions (taken in the exercise of popular sovereignty)? To what extent did such confirmation constitute the necessary prerequisite for “canonization” of a particular statute (or of “fundamental principles” expressed therein)? Those questions have a more universal nature and Bruce Ackerman’s discussion of U.S. constitutional history is extremely instructive in this regard.