Vol. 17 No. 1 (January, 2007) pp.61-65


THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE, by Richard W. Bauman and Tsvi Kahana (eds). New York: Cambridge University Press, 2006. 614pp. Hardback. $110.00/£70.00. ISBN: 0521859549 Paperback. $55.00/£30.00. ISBN: 0521676827.  e-book format. $44.00.  ISBN: 0511247877.


Reviewed by Thomas M.J. Bateman, Department of Political Science, St. Thomas University, Fredericton, New Brunswick, Canada. Email.bateman [at] stu.ca.


A cynical reason for the appearance of this collection, edited by by Richard W. Bauman and Tsvi Kahana is as follows. North American courts were once at the vanguard of progressive social change, invalidating segregationist, sexist, and otherwise repressive laws in favour of constitutional values of equality and human dignity. They read the Constitution through rose-coloured glasses. Members of the legal academy were mostly happy: they, the legal practitioners, and the judges were on the side of the democratic angels. Such judicial “activism” increasingly attracted attention and criticism. Conservative political forces responded first by attacking activist judges. Then they caught on to the game and decided to join, appointing conservative judges who would in their turn read the constitution through blue-coloured glasses.


The reaction of the legal academy to this turn of events? To distance itself from judicial supremacy as the pillar of constitutional democracy and instead explore the possibilities of legislative constitutionalism as a means of protecting and advancing the progressive legacy. Such a turn would not only adjust to new partisan and ideological configurations in the judicial and legislative branches of government; it would also address a nagging, even embarrassing, feature of judicial supremacy – that it is not a very democratic way to protect and advance democracy.


Whatever the merits of the cynical interpretation, the advent of “legislative constitutionalism” as an academic movement is worth examining in some depth. It is not wholly or necessarily a critique of courts’ primacy in the stewardship of the constitution, but it is a recognition that the constitution and constitutionalism are much more than what the courts say they are.


This is a collection of 28 scholarly essays emanating primarily from a 2004 conference in Banff, Alberta. The essays are written mostly by North American law professors, but a few social scientists’ efforts also appear. Generally speaking the essays all address the division of labour that does and ought to exist between the courts and the legislature in matters constitutional. Critical to a proper understanding of this division of labour is a proper view of the constitution. The essays militate against the facile assumption that the constitution is what the courts say it is. According to Daniel Farber, “There is an unfortunate element of circularity in first defining constitutional law to be composed of the kinds of issues decided [*62] by courts and then concluding that courts are the be-all-and-end-all of constitutional law. Yet that is the general impulse of American constitutional lawyers, who tend to identify constitutional law with the kind of work done by courts” (p.449).


The constitution includes both constitutional provisions enforceable by courts, but it includes conventions (unwritten customary, politically binding rules) that give shape and substance to the constitutional order. These constrain political actors as much as any judicial ruling might. Indeed, it is a convention of the constitution that judicial decisions themselves are to be complied with. Aside from “organic” statutes that are constitutive of central processes and institutions of constitutional government, William Eskridge and John Ferrejohn argue that some “super-statutes” have attained constitutional status despite their having merely been passed by Congress. This “super” status stems from the fundamental principles embodied in the substance of the legislation and also by the wide support such legislation commands. Canadians recognize some of these ‘super-statues” as “quasi-constitutional” laws, to be given “large and liberal interpretations” as if they were entrenched documents (CANADA (ATTORNEY GENERAL) v. MOSSOP).


Judicial supremacy is premised in part on the notion that constitutions are about limiting power. This is only one constitutional function. Constitutions also establish political institutions and enable them to operate for the common good. As Jeremy Webber argues, constitutions define or fashion the public voice, converting amorphous, unstructured, fragmented, and incoherent public opinion into an institutional form that can be engaged in the political process. And limitation of power is not itself a judicial monopoly. Referring to the America setting, two essays consider the judicial “nondelegation doctrine” that served to limit political power by enforcing the separation of powers between the legislative and executive branches. In fact, argues Cass Sunstein, the judicial doctrine was extremely short-lived, but the principle of nondelegation carries on in a variety of contexts, many of them having little to do with the courts.


One of the most piercing arguments in favour of legislative constitutionalism stems from the fact of disagreement in democratic societies. Legislative assemblies are structured to recognize and to extract the benefits of disagreement. In a poignant and thoughtful essay, Jeremy Waldron argues that the forms and rules of legislatures are about advancing citizenship. Further, the rules of procedures are made for people who are strangers to one another, thereby taking full account of the depth of diversity in a polity. Courts, by contrast are not representative, and from a democratic point of view this is, prima facie, a problem. But the relevance of disagreement goes beyond this. People disagree with judicial decisions not just because their interests may have been ignored. They disagree – reasonably – about the meaning of rights and about the way to interpret the constitution. Why should courts have a monopoly [*62] on constitutional interpretation in the face of such reasonable disagreement? And why should they have a monopoly when the disagreement arises within the walls of the courts and within their decisions? At the end of the day, it is a majority vote in the appeal court as it is in the legislative assembly. Legislative constitutionalism has its attractions when we take disagreement seriously.


Disagreement stems from the diversity democratic polities embody. It also comes from constitutional ambiguity. Chantal Thomas examines the ambiguous constitutional status of fast-track laws according to which Congress grants the executive significant authority to negotiate legal instruments to be approved or rejected in toto by Congress. Patricia Hughes refers primarily to Canadian constitutionalism in her discussion of “constitutional agnosticism” – “a willingness, under certain circumstances, to suspend the need to act on one’s concerns that the constitution is, for some reason, not legitimate or about which there is serious dissension.” It is a “toleration for constitutional deviation.” Quebec separatism and the province’s use of the s. 33 notwithstanding clause to insulate the province’s laws from the application of significant part of the Canadian Charter are evidence of such agnosticism. Hughes largely rehearses the argument more forcefully made years ago in Michael Foley’s SILENCE OF CONSTITUTIONS (1989).


Sujit Choudhry’s essay addresses Hughes’s concerns differently. He examines the possibilities and limits of judicial power in circumstances in which the toleration for deviation breaks down and the constitution is hurled into crisis. When fundamental disagreement concerns the whole of the polity and its institutions, one cannot expect courts to prevail against protagonists. Can courts do anything to stop the slide into popular revolution when their own legitimacy is in question? Choudhry examines the Quebec secession drama of the mid-1990s which produced a fascinating reference opinion of the Supreme Court of Canada. The Court in REFERENCE RE SECESSION OF QUEBEC invented constitutional rules whereby a clear majority endorsement in a referendum of a clear question on secession would trigger a constitutional obligation on other partners in Confederation to negotiate (not necessarily grant) secession. The Court explicitly warned that courts were not to be called upon to define “clear question” and “clear majority” in future. This was to be left to the political actors. The formula has enjoyed broad endorsement in Canada outside of Quebec and at least grudging acquiescence among Quebec separatists who do not want an independent Quebec to be born in defiance of the rule of law. Choudhry agues that the Supreme Court reference opinion is a brilliant case of a court resorting to popular constitutionalism to avoid popular revolution.


In a closely argued (perhaps poorly edited) essay, Adrian Vermeule suggests that on the management of constitutional change, formal amendment is as important as judicial interpretation. At the least, arguments against the merits of formal amendment have usually been premised on “nirvana” counterfactual [*64] assumptions that in the absence of formal amendment, the constitution and the polity would have been just fine, thank you very much. In the absence of formal amendment, we would have imperfect, unpredictable constitutional common law. He also attempts to dispel the reverence often attached to the original constitution by arguing that the original constitution is just a package of amendments passed at once and subsequent amendments are merely modifications of that initial set (p.240). Against the argument that most proposed amendments are basically stupid acts of grandstanding, Vermeule suggests that these exist because of the prominence of judicial review and ‘amendment by interpretation’ in American government.


This collection helpfully contains pieces from authors who dissent from the chorus of approval of legislative constitutionalism. The arguments are of two general kinds. The first, represented by Owen Fiss, sees in some strands of legislative constitutionalism an unreasonable allegation that courts are undemocratic:


. . . I am as firm in my commitment to democracy as the next person. Yet, when used to provide the basis for legislative constitutionalism in its strong form, this invocation of democracy seems entirely overblown. The democratic ideal should be applied to the political system as a whole and should not be used to ascertain the legitimacy of each component within the system. As a test of the system, democracy requires only that each component be linked to public officials and institutions that are responsive to popular sentiment. Thus, although the judiciary may not be directly responsive to the people, as the legislature is, it is sufficiently embedded within a larger system of democratic governance to meet the objection that judicial review is undemocratic. (462)


Legislative constitutionalists may overlook, as Frederick Schauer reminds us, one of the principal virtues courts have in constitutional regimes: their “externality,” their independence from the politics of the day. Andree Lajoie and her collaborators ask what the fuss is all about: courts overturn a minuscule percentage of all laws passed by legislatures.


Andrew Petter represents the second line of attack. Many legislative constitutionalists in his opinion are Johnny-come-latelys without any critical sense of the undemocratic character of the democratic institutions on which they pin their hopes as a remedy for judicial constitutionalism.


A common failing of edited collections is the unevenness of the contributions. This collection largely avoids this problem. Students of constitutionalism will miss thorough treatments of the subject in truly comparative context; North America really does get all the attention. But the book captures an important element in the evolution of the scholarship on constitutionalism. I recommend this book for law and social science libraries, and to advanced students of constitutions in law schools and political science departments.



Foley Michael. (1989)  The Silence of Constitutions : Gaps, "Abeyances," and Political Temperament in the Maintenance of Government. London, New York : Routledge, 1989. [*65]







© 2007 by the author, Thomas M.J. Bateman.