Policy distortion and democratic debilitation: comparative illumination of the countermajoritarian difficulty.

• Author: Tushnet, Mark V.

Mark Tushnet(*)

James Bradley Thayer set the terms of the past century's discussion of judicial review in The Origin and Scope of the American Doctrine of Constitutional Law.(1) Thayer was concerned with what Alexander Bickel labeled the "countermajoritarian difficulty" with judicial review,(2) that judicial review displaces decisions made by near-contemporaneous political majorities and therefore is open to the charge that it is undemocratic. Thayer attempted to minimize the displacement of political majorities through his "clear error" rule, according to which courts should not overturn legislation unless "those who have the right to make laws have not merely made a mistake, but have made a very clear one, - so clear that it is not open to rational question."(3) The generations that succeeded Thayer found that solution unpalatable.(4)

Instead of reducing judicial review to Thayer's minimal level,(5) scholars have attempted to work around the countermajoritarian difficulty by identifying a domain in which more-than-minimal judicial review is compatible with democratic theory. Some originalists conclude from their examination of the relevant materials that more-than-minimal judicial review is sometimes justified because judicial enforcement of the Constitution's original meaning carries out the only agreement binding the people's representatives.(6) Process-oriented theorists argue that such review is justified when the majoritarian deficit associated with judicial review is smaller than the majoritarian deficit associated with other decisional processes.(7) The variations on these themes have preoccupied constitutional theorists in the United States for generations.(8) Even Bickel's emphasis on justiciability doctrines as a way of reducing the occasions for judicial review was designed to ensure the effectiveness of the Court's actions when it did exercise more-than-minimal review.

Perhaps democratic theory does allow for some displacement of near-contemporary majority views. Both Thayer and Bickel, however, were concerned with other costs associated with more-than-minimal judicial review. Judicial review, according to Thayer, "has had a tendency to drive out questions of justice and right, and to fill the mind[s] of legislators with thoughts of mere legality .... And moreover, even in the matter of legality, they Pave felt little responsibility; if we are wrong, they say, the courts will correct it."(9) Not only would judicial review displace majoritarian decisionmaking; it might also distort and debilitate it. First, judicial review might distort decisionmaking by injecting too many constitutional norms into the lawmaking process, supplanting legislative consideration of other arguably more important matters. Second, judicial review might debilitate decisionmaking by leading legislatures to enact laws without regard to constitutional considerations, counting on the courts to strike from the statute books those laws that violate the Constitution, leading to the problem of debilitation.

Looked at from one point of view, these problems are in some tension. The problem of policy distortion arises when legislators take what the courts say about the Constitution's meaning too seriously, and the problem of democratic debilitation arises when legislators and their constituents do not take the Constitution's meaning - or more precisely, their own views about that meaning - seriously enough. "The problems would be troublesome if one occurred with respect to some issues and the other with respect to other issues or at other times. A legislator may fail to give enough weight to constitutional concerns about welfare reform but may give too much weight to the Supreme Court's constitutional pronouncements when considering whether to enact a statute about the distribution of sexually explicit materials over the information superhighway. But, precisely because legislative views about the Constitution's meaning may differ from the courts', the problems of distortion and debilitation may sometimes occur simultaneously.(10)

For Thayer, distortion and debilitation were independent arguments against more-than-minimal judicial review. Even if such review did not pose a problem of democratic displacement, the problems of policy distortion and democratic debilitation resulting from more-than-minimal review might still be so severe that the nation's constitutional order would be better without such review than with it.

Thayer believed that his minimalist theory of judicial review addressed all three problems. By eliminating the problem of displacement of democratic decisions, it would eliminate the problem of distortion because there would be no judicially articulated constitutional norms to intrude into legislative deliberations. Moreover, if all worked well, it would simultaneously eliminate the problem of debilitation by inducing the public to insist that their representatives take constitutional considerations into account because no one else would.

If Thayer was right,(11) proponents of more-than-minimal judicial review in any of its versions must deal with the problems of policy distortion and democratic debilitation.(12) Thayer did little to elucidate those problems. With the spread of constitutional review throughout the world, we now have a larger base of information on which to rest judgments about the nature and scope of those problems.(13) For example, what exactly is the problem of policy distortion, and does minimal judicial review eliminate it? If more-than-minimal judicial review is both required by democratic theory and associated with the problem of democratic debilitation, are there additional institutional arrangements that can reduce democratic debilitation?(14)

In this article, I explore these questions by relying on recent constitutional experience in France and Canada. Their experience helps illuminate the problems of U.S. constitutional law that Thayer and Bickel posed for us. Part I uses a recent study of the French Constitutional Council to examine the problem of policy distortion. Most of Part I is concerned with identifying the problem of policy distortion more precisely than Thayer did. It concludes with a brief suggestion that minimal judicial review might not be a full solution to that problem. Part 11 turns to the Canadian experience with section 33 of the Canadian Charter of Rights and Freedoms, the so-called notwithstanding clause. U.S. scholars have suggested that the notwithstanding clause is an ingenious institutional arrangement that allows more-than-minimal judicial review to coexist with a vigorous majoritarian politics. Closer examination of the Canadian experience suggests that it is not. Part II goes on to explore the reasons for section 33's failure and speculates on the practicability of the Canadian approach to this problem of democratic debilitation generally. In conclusion, I suggest that, even as specified, the problems of policy distortion and democratic debilitation may be serious enough to confirm Thayer's initial sense that more-than-minimal judicial review poses difficult problems for the operation of a stable and vigorous constitutional democracy.

1. THE FRENCH CONSTITUTIONAL COUNCIL AND THE PROBLEM

   OF POLICY DISTORTION

   Policy distortion occurs when, due to judicial review, legislators choose policies that are less effective but more easily defensible than other constitutionally acceptable alternatives. Political scientist Alec Stone's analysis of the French Constitutional Council focuses on this problem.(15) According to Stone, the Council's power to articulate constitutional norms "alter[s] legislative outcomes" through its "pedagogical authority" and "the threat of future Council censure."(16) Legislators sacrifice their policy goals "to insulate a bill from possible future Council censure."(17) Stone is not particularly concerned about the normative implications of this effect, which he calls "juridicization."(18) Others, following Thayer's lead, may think that juridicization is indeed a problem because the society is regulated by rules that its legislators would in some sense prefer to be otherwise. Specifying that sense, however, is quite difficult. My aim in this Part is primarily to clarify the notion of policy distortion and, by identifying a set of categories that might be helpful for those who wish to address the problem of policy distortion, to examine when it might occur and whether and why it might be troublesome.

   Section A lays out the basic structure of the French system of constitutional review and provides two examples in which policy distortion might have occurred as a result of that system. Section B addresses the problem raised by the examples in section A: What is the difference between policy distortion resulting from judicial review and proper enforcement by the courts of proper constitutional limits? By looking at the general role-allocation regime in which legislators have no role in articulating constitutional norms and the limited role-allocation regime in which legislators do not have to observe substantive constitutional limits within limited domains, this section concludes that in order for policy distortion to occur, legislators must be allowed to articulate constitutional norms that differ from those identified by the courts. Section C then goes on to explore when and how policy distortions might occur and analyzes approaches to the problem other than minimal judicial review.

   1. 7he Structure of Constitutional Review in France

      The French Constitutional Council was created in the Gaullist constitution of 1958. Designed primarily to ensure that Parliament would not trench on the important powers the 1958 constitution gave the President, the Council is an expressly political body. It has nine members who serve nine-year nonrenewable terms. The President of France, the President of the Senate, and the President of the National...