—Richard Mailey, University of Trier, Lecturer in English Law and Terminology
Since the passage of the Canadian Charter of Rights and Freedoms in 1982, the idea of “weak-form judicial review”[1] has sparked a significant level of academic interest, and has been adopted in amended form by New Zealand and the UK in the framing of their own justiciable bills of rights in the 1990s. At its simplest, the idea that unites the primary bills of rights of Canada, New Zealand and the UK (“new commonwealth”[2] bills of rights) is that while courts can and should play an important role in the protection of fundamental rights, they should not – because of their “counter-majoritarian” status – be capable of claiming a de facto monopoly on the interpretation of fundamental rights, as the US Supreme Court often does, for example (because of the difficulty of overriding the USSC politically, via Article V amendments to the US Constitution). For this reason, section 33 of the Canadian Constitution Act 1982 gives Canada’s federal and provincial parliaments the power to “override” certain rights contained in the Canadian Charter of Rights and Freedoms for renewable five year periods, while the UK’s Human Rights Act 1998 withholds from courts the power to invalidate Acts of Parliament, thereby enabling the UK’s central parliament to simply ignore human rights rulings with which it disagrees.
As many readers will know, though, the balance between parliaments and courts that is anticipated by the use of the above mechanisms has not always come to fruition.
On the contrary, for the most part, judicial findings of human or constitutional rights violations in Canada and the UK have led to legislative subservience, with Canada’s section 33 clause now in a state of “dormancy,”[3] and with the UK parliament routinely amending laws that have attracted judicial “declarations of incompatibility.” This has led many scholars to ask, quite understandably: if the key point of mechanisms like section 33 is to prevent US-style judicial supremacy, then haven’t they failed? After all, at a practical level, there is surely little difference between the dormancy of Article V in the US, and the dormancy of section 33 in Canada. In both cases, the effect is the same: the interpretations of the courts tend to stick, at least until the political composition of the courts changes and they reverse themselves (see the Canadian Supreme Court’s recent decision on assisted suicide as an example).[4]
Of course, this diagnosis is not universally shared, but rather than try and debunk it, I want to look instead at a potential way of defending weak-form review when the above diagnosis is assumed to be accurate. To explain (and to begin my proposed defence): in the US, the constitutional theorist Bruce Ackerman has suggested that the general inaccessibility of Article V has led to the legitimate use of another form of popular, constitutional amendment: the “constitutional moment.”[5] Put simply, a constitutional moment is the name that Ackerman gives to a determined, popular reorientation of constitutional law, typically involving questionable uses of Article V (as with reconstruction, after the civil war), or bypassing Article V altogether (as with the renovations of the New Deal, and the “Civil Rights Revolution”). The crucial factor is that, because of their dubious or absent legality, constitutional moments should only be attributed, for Ackerman, to changes in public mood that 1) lead to a situation of inter-institutional agreement (after a period of inter-institutional conflict), 2) persist over a significant period of time (a “generation”[6]), and 3) are exceptional (constant recognition of constitutional moments could make Ackerman susceptible to charges of populism, i.e. of endorsing rule by public opinion, rather than rule by laws that have been intermittently influenced by strong shifts in public opinion).
In effect, then, Ackerman accepts the legitimacy of popular, extra-legal changes to constitutional law, but in a very precise, non-populist way that gives rise to a two-tiered legitimacy test. To explain: when the use of formal amendment procedures is problematic, it is presumed that political and legal actors may legitimately act outside of or stretch pre-existing laws to publicise an emergent movement to reorient national values (as the Warren Court did, for example, with its Brown decision). At one level, Ackerman’s theory regards such action as legitimate, since it promotes republican debate over national values (essential for the production of constitutional moments). However, at another level, Ackerman’s theory also regards such action as illegitimate – or rather, as not-yet-legitimate – because responsible actors can not yet claim to be acting in the name of “the people,” only in the name of a budding popular will that they aim, precisely, to let/make bloom.
If it is unclear where I am going with this, then let me cut to the point. Could it be, I wonder, that mechanisms like Canada’s section 33 are best defended as ways of rendering the first step of the process described above – the step of challenging pre-existing law in the name of “the people” – legally legitimate, so that the legal right of legislatures to confront (and even “override”) controversial court decisions is strengthened?
A number of factors support this reading. Firstly, Ackerman’s concern with the “durability” of public opinion (his concern that only long-term shifts in public opinion should influence interpretations of constitutional rights) is reflected, at least in Canada, by section 33’s requirement that legislative overrides be renewed every five years.[7] Secondly, and perhaps more importantly, Ackerman’s insistence that constitutional moments should be “exceptional” is reflected by the way that, in practice, the perceived legitimacy of court decisions on constitutional rights seems to discourage all but a few uses of legislative override powers (or powers to ignore judicial “declarations of incompatibility”). When such powers are used, then, one may assume that it is because the level of public opinion against a particular court ruling is high enough to outweigh the perceived illegitimacy, generally speaking, of acting against the courts. In other words, practice suggests that such powers will only be used where the case for a coming constitutional moment is at its most plausible (or at the very least, where parliaments perceive such cases to be at their most plausible).[8]
To clarify, legislative overrides are not equivalent to and don’t necessarily yield constitutional moments. On the contrary, what I am saying – all that I am saying – is that legislative override powers can perhaps be viewed as legally authorising a crucial moment in the slow, dialogic production of constitutional moments (recall that this “crucial moment” is usually extra-legal or dubiously legal in Ackerman’s reading of American legal history). To illustrate what I mean, imagine a scenario where a controversial Canadian Supreme Court decision is subsequently overridden by a piece of federal legislation. This, in turn, mobilises supporters of the initial court decision, and a period of public debate follows, which comes to a head after five years when the override clause is up for renewal (as per section 33’s requirements). If parliament re-enacts the law as it was again, then a proponent of Ackerman’s theory may argue that a constitutional moment (a democratic reorientation of national constitutional rights) is potentially underway, and that future courts interpreting the rights at stake should consider bringing their interpretations in line with parliament’s evident intent. In effect, this is how Ackerman reads key developments in American constitutional law, with the demise of “Lochnerian”[9] jurisprudence in the midst of the New Deal serving as a key example (although the difference, of course, is that the USSC’s switch in time in the 1930s was provoked by FDR’s mandate, and court packing plan, whereas legislative override clauses offer somewhat clearer and arguably more legitimate markers of democratic opinion against a particular line of jurisprudence).
To sum up, then, my question is whether Ackerman’s theory of constitutional moments could be used to make sense of a fact that is normally counted against the practice of weak-form judicial review: namely, the fact that legislative override clauses (or legislative powers to simply ignore judicial findings of human rights violations in the UK) are rarely used, leading to allegations of de facto judicial supremacy. To be sure, a more detailed analysis would be required to determine whether this is in fact a plausible way of justifying weak-form review, but it is at least worth flagging the question, given the problems that are raised, today, by the dormancy of override clauses (or their equivalent).
Suggested Citation: Richard Mailey, Weak-Form Judicial Review as a Way of Legally Facilitating Constitutional Moments?, Int’l J. Const. L. Blog, Feb. 22, 2018, at: http://www.iconnectblog.com/2018/02/weak-form-judicial-review-as-a-way-of-legally-facilitating-constitutional-moments
[1] There is a huge volume of literature available on the concept of weak-form review. See, for example, Mark Tushnet, “The Rise of Weak-form Judicial Review” in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar Publishing, 2011).
[2] See Stephen Gardbaum, The New Commwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013).
[3] Stephen Gardbaum, “Reassessing the New Commonwealth Model of Constitutionalism” (2010) 8 International Journal of Constitutional Law 167.
[4] Carter v. Canada (Attorney General) [2015] 1 SCR 331.
[5] For Ackerman’s most recent framing of this idea, see Bruce Ackerman, We the People, Volume III: The Civil Rights Revolution (Harvard University Press, 2014).
[6] See Bruce Ackerman, “A Generation of Betrayal?” (1996-1997) 65 Fordham Law Review 1519, at 1519.
[7] The fact that the renewable override is only a feature of the Canadian system raises the possibility that other systems of weak-form review are less associable with Ackerman’s theory, but addressing this point would require a more detailed analysis of constitutional practice in other systems than I can provide here.
[8] One respect in which Canada’s section 33 differs from Ackerman’s model is that it doesn’t allow for the same level of sustained conflict between courts and legislatures (since courts have no recourse against legislatures while a “notwithstanding” clause is in force). To what extent might this lack of sustained conflict affect the applicability of Ackerman’s theory?
[9] See Lochner v. New York [1905] 198 US 45.
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