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”.
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.