Judicial Review of Statutes

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by Augusto Cerri

1. The premises of a judicial review of statutes.

According to one widespread opinion, the problem of judicial review of legislation arises only in connection with a rigid constitution. It is held, however, that constitutional rigidity is a necessary but not sufficient condition for judicial control over laws and that further conditions lie in the general relationship between powers and reasonable confidence in judges. The questions are, essentially, two. Why a rigid constitution? Why a control of constitutionality by a court? 

2. The problematic distinction between rigid and flexible constitutions.

The distinction between rigid and flexible constitutions is, indeed, relative and historic. All constitutions are, in effect, necessarily rigid in the first principle of attribution/distribution of power and repealability of a statute by a successive statute (lex posterior derogat anteriori). Thus, the proceedings of legislation is a positive, restrictive and constitutional principle (H. Kelsen, 1928, 114), that cannot necessarily be referred, e. g., to a modern rigid constitution (C. Esposito, 1964, 170) and that could not be, as well, entirely referred, e. g., to the statutes of the ancient Athens (see, e. g., G. Glotz, II, 3). The problem of modifying this principle is an authentic paradox (C. Esposito, 1964, 63-65, 70, 146): can a statute, in a flexible constitution, modify the same flexibility? If it cannot, the principle of repealability of statutes is rigid (lex posterior derogat anteriori); if it can, every statute is rigid, that is, modifiable by successive statutes only by its tacit or explicit consent (on Esposito's thought, see A. Cerri, 1993). The natural limits of all human things are also, obviously, a limit on all private and public power: an inconsistent law or one impossible to comply with cannot, of course, be applied (Celsus, D. L, 17, 188; E. Coke, in Bonham case quoted by E.S. Corwin, 1928-29; and, recently, Esposito C., 1964, 144; A. Peczenik, 1989, 201). Social forces support all constitutions and this support would collapse when the fundamental interests of these forces are seriously offended. The protection of these interests is, therefore, a natural limit on political power (see, e. g. C. Mortati, 1962). Some social and civil changes are, probably, irrevocable. It would be intolerable, in the framework of the English flexible constitution, to pass a bill which seeks to restore slavery or cannibalism (P. Calamandrei, 1946, LI-LII).

3. The historical and present reasons for rigid constitutions.

These remarks do not exclude, however, a historically important distinction between flexible and rigid constitutions. Rigid constitutions are an explicit declaration of the rights of citizens or men, an explicit regulation of the proceedings of public power, etc., put by an act and fixed by a charter, that is not or that is only repealable with difficulty. Rigid constitutions arise as a guarantee of the rights of individuals (citizens and men) and are rooted in a contractualist, jus-naturalist, jus-rationalist, or a utilitarian view. A rigid constitution has also been affirmed in promoting a structure that serves to join, harmonise, lead, and orient society as well as its distrusts (R. Smend, 1928, in a rather substantial blending; H. Kelsen, 1930, in a more procedural perspective); see also, for a constitutional culture, P. Haeberle, 1998).

Rigid constitutions are a guarantee against public power and, in a democracy, they are also a guarantee among social and political parties. Rigid constitutions, in a democracy, are a limit to the majority principle. The majority principle measures, indeed, the number of consents, but it does not measure their intensity (see R.M. Hare, 1981, 44 ss., 117 ss.; A. Peczenik, 1989, 350, § 6.6.4.). The protection of this intensity is, in its turn, justifiable in a contractarian, utilitarian, jus-naturalist, (as that of German Grundgesetz: see C. Amirante, 1962) jus-rationalist, or social-historical view.

The problem of measurement of intensity of interests is especially vivacious in utilitarian and economic thought. When we exclude interpersonal comparisons and we assume that the social optimum can be obtained only by increasing the welfare of all or the welfare of anyone without decreasing the welfare of others (paretian criterion), we introduce a sharp limitation to the majority principle; that, in a first approach, can operate only in the choice among the moves that impair no one (1897, I, 20 et seq.); and that, in a further approach, can operate to all matters for which the costs of a general transaction exceed the costs of an eventually adverse decision adding the costs of political process (J. Buchanan - G. Tullock, 1962, 63 et seq.). The contractarian principle in this insight, is, on the contrary, spread and includes not only the constitutional framework of public choice, but also bargaining on the side of political process. This can alter the results of a simple majority-principle by providing to the majority a part of the advantages that a public choice would provide to a minority (J. Buchanan - G. Tullock, 1962, 78, 131 et seq.), thus the so-called theory of compensation (N. Kaldor, 1939; J.H. Hicks, 1939) has enlarged the limits of public choice without interpersonal comparisons.

However, the just examined conceptual framework is itself dubious. Pareto, indeed, knew very well that the real political decisions imply interpersonal comparisons; only he was of the opinion that it is impossible to obtain an exact measure of the tastes of different individuals; and, then, distinguish the optimum "of" a society (above defined), that is only "ordinal" and that is scientifically estimable, and the optimum "for" a society, that is cardinal and implies political choices (W. Pareto, 1913). What in Pareto was an epistemic doubt became in the next economic writings a political principle. It is true that an exact comparison of the tastes of different individuals is very difficult and inevitably an approximation that only an archangel, it is said, can accomplish (R.M. Hare, 1981, 44 et seq.); but a complete prohibition of interpersonal comparisons undermines the same moral reasoning (R.M. Hare, 87, 117 et seq.). The reasonableness criterions (à la Rawls) are a means for non-arbitrary comparisons.

It is, in any case, necessary or expedient to pay more attention to anotherr concern of the majority principle. According to one well known opinion it is inherently just, because it sacrifices the preferences of the minimum number of individuals (H. Kelsen, 1928); this argument is, perhaps, disputable since the sacrifices of a larger number of preferences, in a system of qualified majority or of unanimity, are, just so, compensated by a lesser intensity of the sacrifices of minority-preferences (C. Lavagna, 1956; A. Lewis, 1965). The majority principle, however, has the highest neutrality among social interests and, particularly, with regard to the status quo (V.W. Fach, 1975), that is, in its turn, not always justified. The majority principle is the most neutral rule of decision compatible with the coherence of the outputs (D. Mueller, 1979, 31 et seq.). All other rules of decision (plurality principle, e. g., or qualified majority, etc.) are not able to assume coherent outputs or are biased in favour of status quo.  The same social contract, in a given and unjustified condition, repeats and reproduces the initial and original injustice; it is vital, moreover, for a dynamic society to have a quick and legitimate rule of decision (see the fundamental economic essay of Buchanan and Tullock, 1962, 131 et seq., over the internal and insufferable costs of a widespread unanimity principle; see also the historical essays of E. Ruffini, 1977).

The majority principle and virtually unanimous principles coexist and are harmonised in the framework of a rigid constitution, a guarantee of essential human needs and rights and also of the efficacy and neutrality of public and social institutions. We can, then, conclude that a consensus basis is necessary for the practicality of the majority principle; but that this principle is, in its turn, necessary, in a certain and ample room, for a democratic government. The consensus that is connected to the idea of a rigid constitution when by intersection (see J. Rawls, 1996) assumes a social value, because, by default, the institutions are unstable and the competition of interests ungovernable.

Various reasons, moreover, combine to overcome the idea of a social compact as only a historical and effective agreement among citizens. It is difficult to justify why a compact among the people of long ago should bind the people of today. This objection appeared during the American and French revolutions (see, e. g., Sect. 1, 8, § 4, Tit. VII French Constitution 1791; Sect. 28, 123, French Const. 1793 French Const. 1793; Sect. V Cost. Un. St. A.; Sect. 120  Helv. Const.) and probably cannot be answered. Locke’s reply, according to which acceptance is implied in the use of inherited rights (J. Locke, Second Treatise of Government, § 117), is hardly credible (see, critically, J.W. Gough, chap. IX and, for further discussions, chap. X, XI). This idea induces, moreover, a too rigid interpretative approach, so-called originalism (A. Scalia, 1989 (a) and (b), 1997; R.H. Bork , 1990), whichh cannot be an adequate basis for dynamic modern societies. The reference to resolute commitments that were necessary to affirm a principle may be usefully emphasized and the appeal to the "Founding Fathers" in some decisions (or dissenting opinions) of the United States Federal Supreme Court has an indisputable emotional impact. These same principles, however, must be intended not in the pure original and historic context, but as a model of a reasonable social agreement, that the ethical tension of the origins has suggested, but that reason can now expand. This approach (of jus-rationalist type) is, indeed, close to that of Rawls (1971). This approach is also preferable to a pure jus-naturalist, that brings a constitutional fundamentalism that undermines the dynamics of a democratic government (see C. Schmitt ()).

This is consistent with democratic principles - the guarantee, e. g., of the essential procedures of popular government, that are not, obviously, in the full disposal of the majority, because they are, in their turn, a precondition of a legitimate exercise of the majority power (J.H. Ely, 54-55, 105); that is why the Supreme Court of U. S. has affirmed a strict scrutiny in the "preferred positions" (free speech, equal protection clause, with reference to the suspect classifications, opposition's and minorities' rights, etc.).  Also the most radical democratic ideas, such as Rousseau's, maintain the equal protection clause, i. e. the universality or universability prescriptions of law, as a limit to a legitimate majority's power (Du contrat social, I, 7; II, 4; II, 6; Emile, L. V, etc.).  

The constitutional covenant as a hypothesis or a test of reasonableness leads, just so, to formulation of the pre-conditions of a legitimate democratic process beyond the pure logical premises of the power employed. The pre-conditions of a democracy are, in this framework, more ample than the pure guarantee of opposition free speech and organisation. They also entail, for example, a minimum of social welfare, because no one can loyally obey the majority’s prescriptions when his <<decorous subsistence>> is not guaranteed. This idea appeared in the framing of the Italian constitution and it is now argued in a more sophisticated manner. No man would accept a social contract when it does not guarantee him a final condition better than the state of nature (R.D. Luce - H. Raiffa, 1957, 193; Buchanan J. - Tullock G., 1962, 159; Dworkin R., What is equality?, now in 2000, ; Ackerman B., 1980).

The guarantee of minimal "social rights" is, however, a very difficult and often an impossible duty for a court. It may imply a comprehensive process of government, in which the governmental and the parliamentary role is fundamental. It is true, moreover, that when we pass from the civil preconditions to the social ones we also pass from logical (analytical) preconditions to reasonable ones.

4. The role of the courts in a democratic process.

A rigid constitution, then, aims at preserving the procedural and social conditions of a legitimate majority's power. But the defence of that constitutional framework has to be delegated only to the parliamentary dialectics and to the dynamics of opposition or also to the courts and, particularly, to a constitutional court? That is the dilemma; but, indeed, this is only a part of the question.

The structure of political process is the first guarantee of a democracy; there is and there has been no democracy and also no legal government, no freedom without a popular assembly or without a parliament. A democratic political process is a necessary condition of the best warranty of human rights; but it can be no more than a necessary one. A parliament (a congress), moreover, expresses laws and principles conformable to the values commonly accepted, because a parliament is responsible to the people, who hold such values; and, indeed, the same dynamic of electoral competition (especially in a two-party system) is ordinarily virtuous, because the parties converge ideologically upon the center but the fear of losing extremist voters keeps them from becoming identical (A. Downs, 1957, 114 et seq.).

An infringement, indeed, of the reasonable constitutional framework and also of accepted values by a law is, indeed, less rare than one might assume. It is, however, possible because (1) an infringement could spring from the undesired results of a complex system, results that become apparent in a judicial system through specific cases, rather than in an abstract approach like that of Congress, or from a general change of legal or/and factual conditions that justify the law. (2) An infringement could also arise from wilful discriminations (invidious distinctions) by majority against minorities; and also from negligent regard to the interests of outside minorities, scarcely influential in the electoral game (J.C. Livingston - R.G. Thompson, chap. VIII, IX, XI, XII, XV; R. M. Cover, 1982); they are guaranteed by rigid defence of rule of law, of the equal protection clause, of reasonableness and of constitutional rights. That is why the judge is seen as a guarantor of weak and marginalized minorities (3) It can also occur that the real process of government sometimes promotes the interests of active and focused minorities rather than those of the amorphous majority. If a minority obtains a great advantage from a decision that does little damage to the majority's interests, the decision propitious to the minority can be politically rewarded, because of the minority’s appreciation and the majority’s negligence (it is, indeed, a "cost" of information and it is a reasonable negligence, as far as the damages of ignorance are the lesser of these costs (A. Downs, 87, 205 et seq.)). (4) Political parties, moreover, are scarcely interestedper se in future returns from action; they are more concerned about the next election and the votes they receive therein (A. Downs, 174-75; von Hayek, 181).

These inconveniences are connected to a process of government as political bargaining; they are, indeed, not inescapable, but are very diffuse. They can be amended and partially neutralised by a more transparent legislative process and by the role of courts and the scrutiny of constitutionality. It arises, therefore, in this framework, the idea of a constitutional scrutiny of statutes by the courts.

A recent trend in thought (the so-called "public choice" doctrine), making use of the paradox of cyclic majorities, already explained by Condorçet (see, e. g. K.J. Arrow, 1983; D. Black, 1958), supposes the entire political process to be inherently suspect and then encourages a general strict scrutiny (as opposed to a deferential review) of legislation (W.H. Riker - B.R. Weingast, 1986). This trend in thought originated in response to the economists' doctrines of so-called market failures (theory of externalities etc.). If the market sometimes fails to assure economic rationality and the maximum of welfare, so also the political process fails to assure a sufficient standard of rationality, and then an intensive judicial activism and scrutiny is necessary. The paradox of cyclic majorities is, indeed, inescapable. The political process, however, helps not only to quantify but also to ameliorate the preference (C.R. Sunstein, 1993) and the rules of a majority and not only of a plurality system partially neutralise that paradox's effects, conveying them into an unfailing benefit for thestatus quo (A. Cerri, 1991, 1993; R. Hardin, 1993). That is not, perhaps, entirely justifiable, but it is tolerable.

Judicial scrutiny of the constitutionality of statutes presupposes a trust in the courts, sometimes supported by their nature, because they are the "least dangerous branch ... purposeless and swordless" (Hamilton, in The Federalist, n. 78; see also n. 79, 80, 81). This trust must be historically justified; it was not so, e. g., in the French vicissitude when the aristocratic courts (parliaments) during the eighteenth century hindered an attempt for reform by the sovereign (see Soboul, 1962, chap. III). It was justified in American history.

This trust is vigorously underlined in an approach that emphasizes the value of wisdom in a democratic republic (Machiavelli N., Discorsi sopra la prima deca di Tito Livio, I, XI); the idea appears of a foreseeing and predicting role of a constitutional court (A. Bickel 1970) and also the idea of a constitutional culture and pedagogy that is developed by a supreme court in an open society of constitutional interpreters (A. Bickel, 1975; P. Haeberle, 1998. Also somewhat close to this approach is that of an advisory role (R.H. Fallon, 1993) of the courts, or rather a role of social mediation in the whole process of government (C. Mezzanotte). More articulated is the idea of a public use of reason by the courts and the parties in the trials (Michelman) that is close to Kelsen's idea of a homology between the proceeding before a court and democracy (1930-31).

5. The limits of a role for the courts in a democratic government and the problem of its effectiveness.

The problem of excessively wide discretion in interpreting constitutional law and of the legitimacy of a court (C. Schmitt, 1931), the problem of effectiveness of such a guarantee, in a context of social and ideological distrust (C. Schmitt, 1931; O.H. Kirchheimer, 1928), are connected to and a component of the second question.

It is true, however, that an indefinite expansion of the role of a court, beyond the limits of legal reasoning, can introduce drawbacks, much earlier than the court cut in the fundamental decisions of constitutional nature, that alone, according to a qualified opinion, would be reserved to the political process (B. Ackerman, 1984, 1991) especially when it allows political choice by a court without political responsibility (see, e. g., C. Schmitt). The prudence of the courts, indeed, is inclined to eliminate or reduce this inconvenience not only by observing the limits and constraints of legal reasoning, but by privileging the parliamentary interpretation of a constitution and, sometimes, by introducing a sort of hermeneutic circle, by which the same legislative outcomes colour the understanding of constitutional principles and vice-versa (F. Modugno, 2000, 55 et seq.)

The problem of effectiveness of a judicial review of legislation must be seen from a relative point of view. A court (because, as said, unarmed) cannot, in the long run, oppose itself to a large and compact majority (R. Dahl, 24); but a court must be valued for what it does in normal times, for the constitutional culture that it encourages and the removal of wrongs.

The political process is somewhat similar to a succession of experiments that slowly forms a consensus incomparably greater than before the beginning of such experiments. The majority principle, as well as the entire constitutional framework, preserved by the courts, is, therefore, a rule of legitimacy to be verified.

A court, moreover, like all the judicial guaranties in the general social and political process corresponds, perhaps, to something like friction in physics. It is not insuperable and is of a measurable and limited force, but it is also not insignificant and without it human motion would become random and chaotic.


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