Judges, Democracy and the “New Commonwealth Model of Constitutionalism”

—Tom Hickey, Dublin City University

Aileen Kavanagh and Joseph Raz are among many supporters of constitutional judicial supremacy who characterise their support as justified despite what they see as its non- or perhaps even anti-democratic nature.[1] They employ the “ends-justifies-the-means” mantra: better to have system that makes “good” outcomes more likely, at the cost of perhaps occasionally thwarting the will of the people, than a perfectly democratic system that more routinely makes for “bad” outcomes.[2] In a recent article, Kavanagh reminds us of John Hart Ely’s proclamation that “we may grant until we’re blue in the face that legislatures aren’t wholly democratic but that isn’t going to make courts more democratic than legislatures” and then herself proclaims that “no matter how ingenious the various attempts are to reconcile constitutional judicial review with democracy, this [i.e. Ely’s] rejoinder is always possible…”[3]

I don’t agree with Kavanagh on the general point, as I outline in a forthcoming article in the International Journal of Constitutional Law.[4] Although it would of course be difficult to argue that courts are “more democratic” than legislatures, Ely’s line (as Kavanagh herself would acknowledge) is a little reductive. The important question in this context is what institutional relationship between courts and legislatures might best correspond with the ideal of democracy. If we reflect more carefully on that ideal – and come to appreciate the incoherence of the “one-person-one-vote” caricature that often prevails in respect of democracy, including in these academic debates – we can not only reconcile constitutional judicial review with democracy but see it (at least in a certain form) as among its important institutional requirements.

Even on the etymology alone, democracy must mean that the people (demos) enjoy control (kratos) over government, although that doesn’t bring us very far in the judicial review debates. Jeremy Waldron, for instance, would be happy with that account but would take it to correspond with the procedural one-person-one-vote majoritarianism that he has so influentially deployed to make the case against judicial review.[5] But there are obvious ways that that procedural model conflicts with what Philip Pettit calls an “equally shared popular control” that he develops as a republican model of democracy.[6] Pettit sets a high threshold for control to be equally shared in an adequate sense. It must be that when individual citizens are frustrated by legislative initiatives as they inevitably will be from time to time – or when they see particular initiatives as defeats – that they can attribute those defeats to something like bad luck rather than as arbitrary impositions upon them. If a cultural majority could use electoral processes to entrench certain privileges, for instance, cultural minorities are likely to see those defeats as dominating impositions despite their having had equal votes in the processes that brought them about. So too where a defeated citizen can attribute the passing of legislation she finds offensive to government’s desire to placate an important campaign donor, for instance, or to ingratiate itself with a media corporation with excessive clout.

Although much more is needed than space allows here, we can broadly see that so many of the non-vote based institutions that have developed in western democracies over the past half century or so – like press councils, ombudsmen of different kinds, standards in public office commissions and so on – are designed to promote something like equally shared popular control. They are democratic in themselves, not despite but rather because of their non-electoral credentials. Democracy on a republican analysis thus requires non-electoral contestatory mechanisms to complement vote-based majoritarian mechanisms, and judicial review might be best understood as one among them.

This overall line of thinking on democracy may be familiar.[7] It holds simply that it is the idea of the free and equal citizen that is at the heart of democracy and that that idea comes prior to voting and elections; indeed voting and elections only make sense – and play such an important role in a democracy[8] – because of that prior idea. But there is a related if perhaps more abstract notion developed by Pettit that bears on the relationship between democracy and judicial review, and that I think informs the form that democratic judicial review ought to take. This is that in a democracy, political decisions ought to be taken based on arguments that are “commonly avowable” or relatable to all citizens regardless of their particular worldviews.[9] The idea may evoke deliberative democracy, but here there is an important difference. Opponents of judicial supremacy like Waldron and (perhaps particularly on this point) Richard Bellamy rail against the tendency of prominent supports of judicial review (like Rawls, Dworkin, and their apostles) to justify their support on the basis that it represents an idealized forum where the deliberators are liberated from the prejudice-inducing factors that apply in the case of elected politicians.[10] Courts are thus forums of principle in which judges can somehow reach a “rational consensus.” But a politics oriented around commonly avowable norms recognizes and indeed embraces the fact of reasonable disagreement among citizens. It is the disagreement that drives citizens to seek out arguments for their preferred political outcomes to which others might at least be able to relate. Insofar as this is how democratic politics works in practice, then it might be said to operate in two modes: a short-haul mode or the year-to-year cut and thrust in which disagreement is intense (disagreement holds, in other words, rather than any supposed rational consensus emerging), and the long-haul mode where more sophisticated conceptions of commonly avowable norms develop over the decades, making dominating political outcomes less likely, and common-good oriented outcomes more likely, over time.

If democracy is understood in these terms, it becomes easier to see judicial review as democratic in itself, rather than as a kind of necessary constitutional evil required to save democracy from itself. But it also seems to point towards a more constrained form of judicial review along the lines of Stephen Gardbaum’s “new commonwealth model of constitutionalism,” as exemplified in the UK and Canada.[10] In these systems, there is pre-enactment political rights review (i.e. through both executive and parliamentary rights-based scrutiny of bills) as well as the possibility of a constrained form of post-enactment judicial review where courts can merely make declarations of incompatibility, leaving “final word” to the legislature. This form of judicial review might be said to achieve all that the strong US-type version achieves from the republican perspective. In the short haul sense, it operates as an individualized forum of contestation, as well as of participation, for those who might lack clout in ordinary political channels. In the longer haul, it contributes, just as it does under the alternative model, to the development of commonly avowable norms. But it may be said to work better on that front under this model for various reasons that go beyond the present scope. One among them is that judges are perhaps liberated from concerns about the legitimacy of their own authority (as Waldron and others insist that they are under judicial supremacy) and can thus focus more forthrightly on the rights-based elements. They are therefore more likely to better draw out and refine the norms that might count as commonly avowable, so that they might in turn be reshaped in other democratic settings.

The pre-enactment political rights review features of the model can similarly be understood as feeding into the broader norm development process over the long haul. But in the more immediate sense, the legislative scrutiny may give voice in this process to the perspectives of citizens who might see themselves as having been defeated in electoral contests for government (admittedly depending on how well-functioning that element of the model is in practice). Policy-makers and legislators are ultimately institutionally bound to engage forthrightly with the rights implications of proposed legislation – where their deliberations are informed but not governed by judges – thus appropriately catering for concerns around both electoral/political and non-electoral/judicial sources of domination.

Suggested Citation: Tom Hickey, Judges, Democracy and the “New Commonwealth Model of Constitutionalism”, Int’l J. Const. L. Blog, Jan. 29, 2016, at: http://www.iconnectblog.com/2016/01/judges-democracy-and-the-new-commonwealth-model-of-constitutionalism

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[1] Raz’s argument is defended on the basis of a prioritization of outcomes over processes or in virtue of elevating the “instrumental condition of good government” over “fair” processes. See J. Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994), p.117. See A. Kavanagh, “Participation and Judicial Review: A Reply to Jeremy Waldron” (2003) Law and Philosophy 451.

[2] Kavanagh suggests, for example, that “in order to see why democratic government is subject to the instrumentalist condition, we should note that what is just or right or fair does not always correspond to what is voted for through democratic procedures”. See Kavanagh, ibid, p 460. She later argues that “while acknowledging the value of democratic government, I aimed to show that democratic values are not, and should not be, the whole of our political morality”. See Kavanagh, ibid, p 451. It is important to note, however, that the “end” that Kavanagh prioritises ahead of “democracy” is democratic participation.

[3] This insightful article argues that the conception of judicial review underpinning many of the arguments against it rests on a false characterization of the practice; one that in her view falsely portrays it as wresting the “last word” from the legislature. See A. Kavanagh, “A Hard Look at the Last Word” (2015) 35(4) Oxford Journal of Legal Studies 825.

[4] See T. Hickey “The Republican Virtues of the ‘New Commonwealth Model of Constitutionalism’”, forthcoming I-CON, available at https://www.academia.edu/15033202/_The_Republican_Virtues_of_the_New_Commonwealth_Model_of_Constitutionalism_

[5] See J Waldron ‘The Core of the Case Against Judicial Review’ (2006) 115 TYLJ 1346.

[6] See generally P Pettit On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2012).

[7] Although, in the detail, Pettit’s work here is novel and comprehensive.

[8] The account may thus broadly correspond with that set out by Dworkin in the opening chapter of Freedom’s Law. See R Dworkin Freedom’s Law: The Moral Reading of the American Constitution (Cambridge: Harvard University Press, 1996), pp. 1-43.

[9] See Pettit, note 6, pp. 252-269.

[10] See R Bellamy Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007).

[11] See S Gardbaum The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge: Cambridge University Press, 2013).