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- David W. Tyler, Clarifying Departmentalism: How the Framers' Vision of Judicial and Presidential Review Makes the Case for Deductive Judicial Supremacy.Few constitutional scholars would dispute the proposition that the Supreme Court and the president each possess the legal authority to exercise meaningful constitutional review. This idea is uncontroversial, in part, because constitutional review makes pragmatic sense in a nation that stresses systematic, structural restraints on government power. It is also uncontroversial because the Framers clearly planted the seeds of departmental constitutional review throughout the Founding documents. Despite their strong support for this sort of constitutional review, however, the Framers failed to articulate the manner in which each "department" (or "branch") should exercise its interpretive powers in relation to other branches. Rather than identify which branch's interpretations should receive the most constitutional deference, the Framers appeared to have permitted some degree of interpretive chaos, in which multiple branches could exercise the power of constitutional review, but no branch was formally or *informally* bound by the interpretations of others. To decipher the way in which the Framers believed that each department's interpretive powers would interrelate, this Note reexamines the indicia of constitutional review present within many Founding documents. It then argues that even though the Framers intended to establish a departmental interpretive system, they *also* intended to create an interpretive system that approximates the modern paradigm of deductive judicial supremacy. Though scholars often view judicial supremacy and departmentalism on mutually exclusive grounds, this Note argues that departmentalism that is filtered through an admittedly *soft* deductive judicial supremacy model best characterizes the Framers' conception of constitutional interpretation. In other words, not only are departmentalism and judicial supremacy intellectually compatible, but the Framers specifically intended to create a system that built upon both. In advocating an originalist defense of judicial supremacy, this Note aims to succeed where previous scholars have failed -- though, of course, it does so by advocating a softer form of judicial supremacy than many scholars ordinarily defend. To help explain its deductive model, in which Supreme Court decisions provide the most appropriate -- though not the only -- barometer of statutes' constitutionality, this Note also proposes a unique interpretive framework that approximates how the Framers believed a multi-layered system of heirarchical constitutional review should realistically apply.
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In this essay, the author argues that, despite the adoption of new rights-friendly constitutions in Africa's emerging democracies, an old "jurisprudence of executive supremacy," fashioned during the era of authoritarianism (colonial and postcolonial) and characterized by a high degree of deference to state (executive) power and a general skepticism about individual rights, remains highly influential within Africa's common-law judiciaries. There is thus a danger that judicial review and constitutional interpretation would retard, instead of facilitate, progress towards constitutional liberalism in Africa's new democracies.
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| | Scholar | More options ... This article criticizes the "cardinal rule" of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings that do not fairly reflect the legislative bargains struck in Congress. The article continues by arguing that the avoidance canon also impinges on the role of the Executive by disregarding its best judgment as to statutory meaning, arrived in the course of discharging the constitutional function of executing the law, because that judgment might be unconstitutional. Of course, if a statute passed by Congress, or a statutory interpretation proffered by the Executive, is actually - as opposed to possibly - unconstitutional, a court should not hesitate to say so in the course of deciding a case. On the whole, however, the article concludes that the separation of powers would be better served by the Supreme Court‘s recognizing that there is as much danger of judicial usurpation from avoiding constitutional questions as deciding them.
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| | Other links: dx.doi.org | Scholar | At my library | More options ... The critic of judicial review has to acknowledge that the rejection of judicial review creates a risk that some injustices may go uncorrected. However, judicial review poses its own set of problems, which can also be described as forms of injustice. In A Common Law Theory of Judicial Review, W.J. Waluchow concedes much of the argument against judicial review (at least from the objection of democratic principle), and sets out to articulate and defend a common law conception of bills of rights and judicial review that will satisfy what he concedes to be the legitimate concerns of critics. In this review essay, I provide a brief overview of Waluchow's central argument that judicial review enhances democracy, before turning to three immediate challenges to Waluchow's common law theory: (1) whether Waluchow's conception of community constitutional morality can guide judicial deliberation to the degree required by the theory; (2) whether the theory provides any guidance in circumstances of radical disagreement; and (3) whether Waluchow's case for the necessity of judicial review from what he terms the circumstances of rule-making is sound.
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| | Scholar | More options ... The dominant strain of constitutional interpretation in Canada holds both that originalist theories of constitutional interpretation are not a part of Canadian constitutional doctrine, and that this is a very good thing. The Canadian courts (and academy) fully subscribe to a theory of living constitutional interpretation. While living constitutional interpretation in Canada is most often defined in terms of its incompatibility with originalist interpretation, there has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 (and periodically reaffirmed thereafter), is not the New Originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada's rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of either theory.This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court's attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.
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| | Scholar | More options ... One of the most basic principles of American constitutionalism is that Congress cannot statutorily overturn the Supreme Court's constitutional decisions. Although it can reverse statutory decisions, Congress is not able to supersede the Court's constitutional rules because it cannot change the source of law being interpreted - the Constitution - outside of the amendment process of Article V. Given the problems with judicial supremacy for many constitutional theorists, there has been a noticeable gap in the literature on the ways in which Congress can, in fact, successfully challenge the Court's reading of the Constitution. Few scholars provide any account of how other governmental institutions or even the constitutional culture at large can directly confront and overturn a given constitutional rule. This Article seeks to address this gap in the scholarship by highlighting three areas - three lacunae - where Congress has the ability to displace constitutional rules by statute. Congress has the power to overturn constitutional decisions in three specific areas within the federalism realm: state sovereign immunity under the Eleventh Amendment, intergovernmental tax immunity for both state and federal governments, and the Dormant Commerce Clause. This Article will demonstrate that judicial decisions on these subjects create true constitutional rules and that the acceptance of Congress's power to overturn these decisions tells us something important about our Constitution and our federalism. The existence of these three anomalies suggests that adaptability and accommodation often take constitutional precedence over theoretical purity, especially when issues of federalism are involved.
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| | Scholar | More options ... The Aretaic Turn in Constitutional Theory argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions. Part II, Institutionalism and Constitutional Interpretation, engages Cass Sunstein and Adrian Vermeule's recent essay, "Interpretation and Institutions." Sunstein and Vermeule contend that theories of constitutional interpretation are most fundamentally flawed because of their failure to take an institutional turn, but their supporting arguments lead to a related but quite distinct conclusion. Only a theory of judicial character can supply the diagnosis for the ills that Sunstein and Vermeule identify: constitutional theory must take an aretaic turn. Part III, Making the Aretaic Turn in Constitutional Theory, sketches an alternative approach to judicial review and constitutional interpretation that is rooted in contemporary virtue ethics. In Part IV, Constitutional Virtues and Vices, this sketch is given flesh and bones in the form of a theory of constitutional virtue and vice. Excellence in constitutional adjudication requires the virtues of judicial courage, judicial temperament, judicial temperance, judicial intelligence, and judicial wisdom (or phronesis). Most importantly, a virtuous constitutional interpreter must have the virtue of justice, which includes as components impartiality, lawfulness, and legal vision. Part V, The Aretaic Reconstruction of the Institutional Critique, returns to institutionalism as an approach to the theory of constitutional interpretation and argues that institutionalists cannot coherently refrain from making the aretaic turn. The article ends with speculation about the possibility of a path to the restoration of judicial virtue.
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| | Scholar | At my library | More options ... It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.
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| | Other links: jstor.org | Scholar | At my library | More options ... This chapter continues the institutional design process started in the previous, turning to four different types of modification in the system of constitutional review. I consider, in turn, the establishment of self-review panels in the legislative and executive branches of national governments (A), various mechanisms for inter-branch debate and decisional dispersal concerning constitutional elaboration (B), easing constitutional amendability requirements in overly obdurate systems (C), and finally establishing civic constitutional fora as replacements of traditional amendment procedures (D). In each case the proposals are motivated by the problems of judicial review I identified in the previous chapter, and their design is oriented to the fullest realization of the six assessment values I specified there. I assume throughout that some form of judicial review is extant in the political system, and for the most part I assume the concentrated system with specialized constitutional courts that I argued for there. Where something important hangs on the difference between a concentrated and diffuse system of constitutional courts for the design of these other mechanisms for constitutional elaboration, I take that up in the discussion.
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| | Scholar | More options ... Since former President Soeharto was forced to resign in 1998, the Indonesian judiciary has been significantly reformed. A Judicial Commission was established to monitor its performance. A Constitutional Court was also created; one of its tasks is to decide disputes between state institutions and to review the constitutionality of statutes. This paper discusses the Constitutional Court case in which several Supreme Court judges alleged that the Constitution’s guarantee of judicial independence precluded the Judicial Commission from supervising the Supreme Court’s performance by critically analysing its decisions. The Constitutional Court accepted this argument, declaring that the Indonesian Constitution prohibited the Judicial Commission from performing this function. This paper discusses this case and its potential ramifications.
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| | Scholar | More options ... Discussion of David W. Tyler, Clarifying departmentalism: How the framers' vision of judicial and presidential review makes the case for deductive judicial supremacy
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