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The Challenges of Transformative Constitutionalism – A Reply to Jorge González Jácome

–Carlos BernalJustice, Colombian Constitutional Court[1]

I

In “The Promise and Peril of “Transformative Constitutionalism,” Jorge González Jácome comments on my earlier post here at I-CONnect on “The Paradox of the Transformative Role of the Colombian Constitutional Court.” González makes seven claims about my post:

  1. (a) That I “advanced an argument against the transformative role of constitutional tribunals”; and (b) that I argue that “transformative constitutionalism should be abandoned because it has not been able to fully achieve the goals set by the constitution.”
  2. That I hold that (a) “there are some constitutional goals set beforehand that the Court should seek to fulfill within the framework of its institutional constraints”; and (b) that “judges should not take part” in the process of “adopting constitutional goals.”
  3. That I imply that “we should think of constitutional adjudication differently […] leaving courts as a secondary character within the framework of constitutionalism”.
  4. That I endorse “self-restraint” of Constitutional Courts as a solution for the challenges of transformative constitutionalism.
  5. That I claim that “aggressive adjudication of social and economic rights must be abandoned.”
  6. That I hold that rights and courts are captured by strategic litigation.
  7. That I “argue that more activism of the Court implies less congressional action.”

These claims are a misrepresentation of my views of the challenges that transformative constitutionalism undeniably faces. I do actually not make any case against transformative constitutionalism. Instead, I point to some side effects of its implementation. Minimizing those side effects will strengthen transformative constitutionalism and make it more effective. In what follows I will address all the claims González makes. I will show that his overall argument is flawed because of the falsehood of its premises.

II

1

In my post I did not advance the argument “against the transformative role of constitutional tribunals”, namely, that “transformative constitutionalism should be abandoned because it has not been able to fully achieve the goals set by the constitution.” Instead, I highlighted some challenges that transformative constitutionalism undeniably faces by means of stating a paradox. Transformative constitutionalism is the unfinished project of realizing constitutional rights (in particular, of realizing economic and social rights), the rule of law, and deliberative democracy. Constitutional courts are central institutions for carrying out the project of transformative constitutionalism. However, that institutional fact gives rise to a paradox. As I wrote in my post, “if the Court declines the task of continuing the transformations, the constitutional objectives concerning the realization of constitutional rights, the rule of law, and deliberative democracy will never be achieved in full. However, [due to some side effects] if the Court carries on with the changes, its decisions might not generate the desired transformative effects.”

Stating this paradox does not imply that constitutional courts should relinquish their institutional responsibility to keep carrying out the project of transformative constitutionalism. Indeed, as I contended in a recent lecture in Belo Horizonte (Brazil), at least in the Global South constitutional courts have a non-renounceable transformative constitutional duty. This duty is incompatible with solving the paradox by accepting the first horn. Denying the side effects cannot produce a plausible solution either. Only implementing innovative ways to deal with the side effects can we hope to resolve the paradox. As I stated in the last paragraph of my post: “The most pressing challenge of the Constitutional Court is finding out a way to minimize those side effects.”

2

González attributes to me two claims concerning constitutional goals: (a) “there are some constitutional goals set beforehand that the Court should seek to fulfill within the framework of its institutional constraints”; and (b) that “judges should not take part” in the process of “adopting constitutional goals.”

I do endorse the first claim. Indeed, it is a necessary truth about every constitutional system in which there is an apex court. However, I do not endorse the second claim. It does not follow from the former, and asserting otherwise amounts to a clear non-sequitur. I actually think the second claim is normatively impossible. As I explained in chapters 1 and 6 of my book on El principio de proporcionalidad y los derechos fundamentales [The Principle of Proportionality and Constitutional Rights], the open texture of constitutional rights provisions makes it necessary for judges to participate in the process of creating indirect, mediate, and immediate constitutional goals.[2]

3

According to González, I imply that “we should think of constitutional adjudication differently […] leaving courts as a secondary character within the framework of constitutionalism.”

A problem in this claim is that the term ‘secondary character’ is ambiguous. This claim is trivially true about any constitutional democracy (and, naturally, I agree with it), if it means that, in such a political system, political authorities—namely the Congress and the President—hold the main responsibility to implement constitutional rights and other constitutional goals and ends. Courts have neither constitutional power nor institutional capacity to enact the annual state budget, create development plants, and general policies about every desirable aim.

However, if ‘secondary character’ implies that courts should relinquish their constitutional duty to carry out the project of transformative constitutionalism, then, I do not agree with that claim. Moreover, I have never endorsed it. According to González, my aim is to “revive the paradigm of deliberative democracy, thus leaving courts as a secondary character within the framework of constitutionalism”. I agree that deliberative democracy should be strengthened. However, it does not follow that courts should have a secondary character. Moreover, as Alexy has shown, one of the best ways to understand constitutional courts is as deliberative representatives of the people.[3]

4

In González’s view, I defend “self-restraint” of Constitutional Courts as a solution for the challenges of transformative constitutionalism. This is misleading. In my post I did not endorse such a claim. Due to the nature of the challenges that transformative constitutionalism is currently facing—namely, minimizing undesirable side effects—judicial self-restraint does not seem to be an overall plausible solution.

In my previous post, I mentioned that, at least in Colombia, the fact that the Constitutional Court plays a central institutional role in carrying out the project of transformative constitutionalism might be giving rise to at least three side-effects:

  • that some profound social problems are dealt with by means of constitutional litigation evading a broad deliberation by the institutional and informal means of representative, participatory, and deliberative democracy. This could lead to mistaken judicial solutions, a judicialization of politics, and an over-constitutionalization of justice;
  • that some ambitious decisions made by the Constitutional Court can become inefficacious, given that most of them require active cooperation by all branches of government. This could increase mistrust in state institutions and even in constitutional justice; and
  • that judicial decisions on economic and social rights can prioritize the protection of middle and upper-class interests, which are well represented in litigation, over the protection of rights of the poorest and most vulnerable people.

There is strong empirical evidence about the existence of these side effects. Naturally, they are not incompatible with an appreciation of all the accomplishments of the Colombian Constitutional Court in the last 26 years. However, the Court is in need of innovative solutions to minimize the side effects. Self-restraint does not seem to be a plausible strategy for the Court to make effective its decisions, and to give priority to the rights of the most vulnerable. Also, the relationship between self-restraint and catalyzing rights protection and deliberative democracy seems complex. It is clear that in some cases, the creation of strategic judicial incentives could facilitate the achievement of those goals.

5

González attributes to me the claim that “aggressive adjudication of social and economic rights must be abandoned”.

In this statement, ‘aggressive’ is ambiguous. I agree with the claim if ‘aggressive’ is linked to a jurisprudence in which two jointly necessary conditions are met: (a) it implies the judicial creation of social and economic policies and programs; (b) it implies that courts should disregard the financial impacts of that creation, in terms of sustainability of state finances, redistributive effects across all relevant state-holders, and generation of incentives and disincentives for market players (in particular, investors and companies). There are scholars and judges who actually endorse such ‘aggressive’ methods. In contrast, I think those methods are incompatible with constitutional democracy and ineffective to achieve the goals of transformative constitutionalism.

However, I do not agree with the above-mentioned claim, if the alternative to ‘aggressive’ amounts to accepting weak strategies for economic and social rights adjudication. Indeed, in several scholarly pieces, I have expressed my disagreement with weak strategies of adjudication, such as the way in which the South African Constitutional Court employed the test of reasonableness in its first jurisprudence.[4]

6

González attributes to me the view that rights and courts are captured by strategic litigation, and claims that I feel discomfort with strategic litigation. The latter part of the claim is an exaggeration, which I have never endorsed.

My view on strategic litigation is twofold. On the one hand, as González and others have pointed out, like lobbying, strategic litigation is a valuable practice that can highlight blind spots concerning the protection of constitutional rights and it can facilitate the guarantee of the rights of groups underrepresented in legislatures. On the other hand, strategic litigation is democratically unhealthy when it leads to an instrumentalization of constitutional courts. It is at odds with the tenets of constitutional democracy that few judges (in Colombia, most of the constitutional rights decisions at the Constitutional Court are made by 3 judges; in Brazil only one judge can sometimes make a constitutional decision) have the final say about some constitutional and deeply-rooted societal conflicts. This is an evasion of direct, representative, and deliberative democracy.

7

Finally, according to González, I “argue that more activism of the Court implies less congressional action.” What I actually argue is that activism of the Court can lead to less political action. This can follow from the evasion of direct, representative, and deliberative democracy I just mentioned.

Nevertheless, this is not at odds with the fact that the Court can catalyze political action and deliberation. In my previous post I mentioned the successful example of the Judgment T-760/2008 that triggered an overhauling of the system, which in turn led to the statute of health (Law 1751/2015). Also, on 13 December 2018, I held a public hearing within the framework of the constitutional review of a Bilateral Investment Treaty between Colombia and France. The hearing catalyzed a deliberation on bilateral investment treaties without precedent in Colombia.

III

González is right when he argues that “people go to courts instead of going to the legislature.” In 2018, people filed almost 600,000 tutelas in Colombia. In a population of roughly 46 million, this means one tutela for each 75 persons. Naturally, this does not prove that courts actually deliver effective rights protection. If this is not true, then people would be anchored to an illusion or, as Rosenberg famously named, a “hollow hope.”[5] The only way for making impossible the instantiation of that peril is addressing the side effects of transformative constitutionalism. I have begun to develop some ideas about plausible strategies for that aim. I will discuss them in another post. In any case, if any one would like to share with me some suggestions, I would love to receive them. The advancement of transformative constitutionalism is at stake.

Suggested citation: Carlos Bernal, The Challenges of Transformative Constitutionalism – A Reply to Jorge González Jácome, Int’l J. Const. L. Blog, Jan. 1, 2019, at: http://www.iconnectblog.com/2019/01/the-challenges-of-transformative-constitutionalism-a-reply-to-jorge-gonzalez-jacome/

[1] I would like to thank Richard Albert, Diego González, David Landau, and María José Viana Cleves for suggestions on this draft.

[2] Carlos Bernal Pulido, El principio de propocionalidad y los derechos fundamentales (Bogotá, Universidad Externado de Colombia, 4th ed., 2014)

[3] See, Robert Alexy, “Balancing, Constitutional Review and Representation”, 3(4) Int’l J. Const. L. 572 (2005).

[4] See, for example, Carlos Bernal, “The Right to Water: Constitutional Perspectives from the Global South” in: Shawkat Alam, Sumudu Atapattu, Carmen G. Gonzalez, and Jona Razzaque (eds.), International Environmental Law and the Global South (Cambridge: Cambridge University Press, 2015).

[5] Gerald N Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 2nd Ed., 2008).

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Published on January 1, 2019
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