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The Promise and Peril of “Transformative Constitutionalism” – A Reply to Justice Carlos Bernal

Jorge González Jácome,[1] Universidad de los Andes

In a recent piece published in this blog, a justice of the Colombian Constitutional Court, Carlos Bernal, advanced an argument against the transformative role of constitutional tribunals, particularly the Colombian Constitutional Court. In Justice Bernal’s view, when Courts adopt creative and strong mechanisms to make other branches of government fulfill their obligations, they create a “paradox”: courts’ decisions cannot achieve the transformations that they envision, and, at the same time, they must continue intervening because withdrawal would entail a denial of advancing constitutional goals. The paradox is created by judicial activism and Justice Bernal implies, by the end of the piece, that we should think of constitutional adjudication differently, perhaps through a reshaping of constitutionalism in order to revive the paradigm of deliberative democracy, thus leaving courts as a secondary character within the framework of constitutionalism. As he concludes, “transformative constitutionalism [led by courts might be] an oxymoron disguising an illusion”.[2]

Justice Bernal’s piece is a state-of-the-art discussion about the role of courts in contemporary democracies. His provocative piece invites a transparent debate about what we should require from courts in a democracy. Although I agree that asking about the actual transformative effects of constitutional adjudication is very relevant, I ultimately disagree with Justice Bernal’s reasons for questioning what he calls “transformative constitutionalism.” I believe that parts of his arguments are embedded in an unduly narrow conception of what constitutional adjudication is and should be, others derive problematic implications from scholarly work about the effects of social and economic rights adjudication, and his overall argument hints toward a discomfort with the role of courts as a site for democratic debate, which I do not share. I address these three issues in turn.

1. Narrow idea of constitutional adjudication

Justice Bernal argues that “transformative constitutionalism” should be abandoned because it has not been able to fully achieve “the goals set by the constitution.” This presupposes that it is easy to identify the goals of the constitution. Our current understanding of constitutional interpretation rests on the fact that judges must figure out the best ways to address conflicting goals within legal texts and precedents. Equality and liberty, self-rule and the principles of the rule of law, human rights values and multiculturalism are only part of broad concepts that clash in constitutional adjudication. Hence, figuring out what the goals of the constitution are is not an a priori task, but one that is fully grasped in a case by case basis. Transformative constitutionalism might fall short of achieving, for instance, full equality between different sections of society; but even still, courts are relevant as a check to the power of government that might abstain in adopting policies that are gravely detrimental to the value of equality. Perhaps the fully redistributive effect of transformative constitutionalism might not be achieved, but constitutional adjudication emerges as a reminder that judges are actually looking out for the protection of rights. In this sense, Courts fail to fully achieve the goal of equality, but triumph in operating as an effective check on governmental power. We should read the rich case law of constitutional adjudication in Colombia not only as a failure in the achievement of equality, but as a victory in creating new spaces to challenge the authority of the legislature and the executive.

Constitutional goals not only conflict but also tend to change, even though the actual text of the constitution may remain unamended. Justice Bernal implies that there are some constitutional goals set beforehand that the Court should seek to fulfill within the framework of its institutional constraints. My view of constitutional interpretation is different. Most constitutional goals are permanently negotiated by different actors like the citizenry, elected officials, and judges. Rights are filled with content when new cases arise and form new scenarios of conflict, and thus the meaning of constitutional rights and goals are constantly reshaped. Constitutional tribunals contribute greatly to the setting of those goals, since it is nearly impossible to argue that all the goals of the constitution are given exclusively by the written text of the charter. For instance, decisions on structural remedies have produced different understandings of the fulfillment of rights and the role of institutional bodies in doing so. Likewise, the unconstitutional constitutional amendment doctrine (or the substitution of the constitution doctrine as it is known in Colombia) strengthened the goal of constitutional duration or stability. Considering these cases, I believe that we need stronger reasons to argue that judges should not take part in this “jurisgenerative” process of building, negotiating, and adopting constitutional goals.[3]

2. Social and economic rights and their role around inequality

Quoting David Landau’s work, among others, Justice Bernal suggests that the Colombian Constitutional Court’s activism around social and economic rights has often favored the middle and upper classes. Landau argues that the Court has been able to reach poorer sections of society only through structural remedies that, among other things, are politically costly for constitutional tribunals.[4] However, this argument should not lead us to conclude that aggressive adjudication of social and economic rights must be abandoned. The main question revolves around the way we think about rights against the backdrop of mainstream contemporary political economy. This latter framework has hindered our capacity of thinking in more radically redistributive ways in which rights can counter inequality and address issues about poverty.[5] It is impossible to assess whether Colombians would be better off in these issues had the Court restrained from aggressive social and economic rights adjudication since the early 1990s. Social and economic rights adjudication have not been able to control inequality; but we cannot conclude that we should abandon the project altogether.[6]

In my view, as constitutional scholars, we should think about how rights discourses, not only in constitutional courts but all along the domestic and international institutional spectrum, are articulated around commitments toward a market economy that might have done poorly with (or been unconcerned with) tackling raising inequalities. Rights, in general, cannot be disconnected from the global economy and thus the problem is not only how courts adjudicate, but also the limits that rights have as valid arguments to justify the distribution of resources in societies. Although Bernal may be right in pointing toward a problem in the poor achievements of rights vis-à-vis inequality, he is wrong in suggesting that the solution should be the constitutional tribunal’s self-restraint. Rights discourses will also be used in other sections of government as arguments to distribute resources and the result could be similar or perhaps worse when the justifications are mixed with public policy reasons.[7] I do not think that Landau and others have underscored the shortcomings of some social rights adjudication as an argument to its abandonment, but as a way of asking how we can correct this within the courts without leaving the question of social rights to the primary decision of other agencies of government.

3. Rights and courts captured by strategic litigation

The final disagreement that I would like to highlight revolves around Justice Bernal’s discomfort with strategic litigation. In his view, some political agendas are organized around powerful transnational groups that seek transformation in legislation through constitutional litigation and not through the democratic legislative process. This issue, in Bernal’s terms, weakens democracy and replaces political deliberation with constitutional argumentation. Litigation around sexual and reproductive rights, among other issues, come to mind when this particular argument is evoked.

This is a criticism often raised by popular constitutionalists, who envision that the legislature guarantees a more democratic and inclusive place for debate, and that courts do not have the democratic legitimacy to discuss these issues. Standard arguments resisting this criticism raise the issue that rights adjudication are guarantees for minorities that will not be fully represented in the legislative process,[8] and that structural remedies have created instances for democratic experimentalism where the Court becomes not only a site for reasoning, but for public debates and hearings before making decisions.[9]

I do not want to engage with this unresolved debate, but instead to stress that it seems that the question is why we tend to think that strong constitutional adjudication will replace democratic deliberation if we argue, as Justice Bernal does, that the former is ineffective. Why would people go to Courts instead of going the legislature if, as he argues, tribunals cannot fulfill the goals of the Constitution? This question is puzzling and has no easy answer, but my sense is that we need to know more about several issues before concluding that courts should commit to self-restraint.

We need to understand better the ways in which transnational legal activism works and impacts both courts and legislatures. Constitutional litigation and congressional lobbying are sometimes two simultaneous strategies that interests groups use to advance their agendas. We also need to understand better how lobbying works across different legislatures, and then reassess our claims about what types of democratic exercises really take place in the legislature and in courts. My intuition is that contemporary polities need plural places to discuss constitutional issues, and thus both legislatures and constitutional tribunals should have a say in order to fulfill the demands of democracy. Justice Bernal tends to argue that more activism of the Court implies less congressional action, but I believe that this is not necessarily the case. Plural places of constitutional debate might lead to richer interactions between different agencies of government in the generation of constitutional meaning.

The fact that some agendas are advanced by interest groups, and not right and left-wing political parties as in the past, does not change the issue. Some interest groups might defend women’s rights, while others want to enhance the power of the pharmaceutical industry; but if courts generically close the door to constitutional claims solely because they are advanced by strategic groups, they might end up treating in the same way demands for the redress of historical injustice against women and capitalistic interests of industries. Therefore, I believe that we need some nuance in order to address Justice Bernal’s critique.

In sum, I believe that Justice Bernal highlights important and complex predicaments of constitutional law in the present, but I do not think that he offers compelling arguments for advocating solving these problems through judicial restraint. Instead, one of the roles of constitutionalism should be the pluralization of public debates about the meaning of the Constitution, especially in an era of growing authoritarianism.

Suggested citation: Jorge González Jácome, The Promise and Peril of “Transformative Constitutionalism” – A Reply to Justice Carlos Bernal, Int’l J. Const. L. Blog, Dec. 27, 2018, at: http://www.iconnectblog.com/2018/12/the-promise-and-peril-of-transformative-constitutionalism-a-reply-to-justice-carlos-bernal/

[1] The author wishes to thank Antonio Barreto, Esteban Restrepo, and David Landau for their comments on this piece.

[2] Carlos Bernal, Introduction to I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part II: The Paradox of the Transformative Role of the Colombian Constitutional Court, Int’l J. Const. L. Blog, Oct. 31, 2018, at: http://www.iconnectblog.com/2018/11/introduction-to-i-connect-symposium-contemporary-discussions-in-constitutional-law-part-i-the-paradox-of-the-transformative-role-of-the-colombian-constitutional-court .

[3] On jurisgenerative politics, see: Frank Michelman, “Law’s Republic”, 97(8) Yale Law Journal 1988 (1493-1537).

[4] David Landau, “The Reality of Social Rights Enforcement”, 53 (1) Harvard International Law Journal (2012) 190-247.

[5] Cfr. Samuel Moyn, Not enough. Human rights in the world today, Cambridge, Harvard University Press, 2018.

[6] In fact, since 2001, the Court increasingly grew wary about the distributive effects of health rights litigation. Rodrigo Uprimny’s concurring opinion in decision T-1207/01, in my view, paved the way to a new consideration about the right to health and its interaction with governmental policy that was partially materialized in the structural remedy contained in decision T-760/08.

[7] Unlike Dworkin’s classical distinction between rights and policy arguments, rights arguments are also elevated in Congress and administrative agencies to justify decisions, where they tend to blend with public policy consideratins.

[8] On the classic debate of popular constitutionalism see: Erwin Chemerinsky, Richard Parker, Jorge González, Constitucionalismo Popular, Bogotá, Siglo del Hombre Editores-Ediciones Uniandes-Instituto Pensar, 2011.

[9] Among others, see the idea of democratic experimentalism in: Michael Dorf and Charles Sabel, “A Constitution of Democratic Experimentalism”, 98 (2) Columbia Law Review 1998 (267-473).

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Published on December 27, 2018
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