The exceptional role of courts in the constitutional order.

Author:Barber, N.W.


In constitutional terms, the life of the judge is normally fairly unexciting. Most judges spend most of their time resolving disputes over facts and, having resolved the dispute to their own satisfaction, applying the law to the case. More rarely, judges have a lawmaking role, clarifying legal rules, filling in legal gaps, and--sometimes--modifying the law where necessary. The lawmaking task of the judge becomes more pronounced at higher levels of the judicial hierarchy, but even in the highest courts the latitude accorded the judge is grounded in the constitution and shaped by the law. The legal order, contained within the constitution, establishes the institution of the court and the office of the judge. It empowers the judge to make decisions that bind others in the system, determining the legal standing of her judgments. And, more generally, the legal order sets the broad principles of law that guide the judge when exercising her discretion. Even if the pre-existing law is not determinative of the decision, it can still shape the way the judge reasons towards her decision and limit the range of her discretion.

This Article looks at a rare, and in some ways more exciting, part of the judicial role: those exceptional cases when the judge is called upon to pass judgment on the constitution itself. This arises in three groups of cases, roughly speaking. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. The court is asked to rule on the legitimacy of the constitution and, by derivation, on the standing of the court and the legal authority of the judge. The case requires the judge to pull herself up by her own bootstraps: she is ruling on the basis of her own legitimacy, and on the constitutional jurisdiction both of the courts and other institutions.

Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. This can occur in the aftermath of a revolution, or when the state is acceding to a new constitutional order. On these occasions the existing constitutional order may seek to regulate the change, but the very challenge presented by the dispute involves the incapacity of the outgoing constitution to bind its successors.

Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law. The judge must act contrary to the rules of the legal order, precisely in order to preserve the health of the legal order. The judge must, in other words, act in a way she is not legally empowered to do.

These three groups of cases raise many different issues, but they are all instances of the judge's exceptional constitutional role: situations in which the judge may properly decide the case in a manner that transcends, or even runs contrary to, the rules of the existing legal order. This Article surveys these situations, and reflects 011 the principles and processes judges have used, and should use, to guide their reasoning. Even if the positive rules of the legal order are unable to resolve the dispute, there are still underlying principles of constitutionalism the judge can call upon to guide and legitimate her decision. Furthermore, given the profound, even radical, implications of these types of decisions, the process by which the court reaches its decision may need to be modified; the judge may need to allow a broader range of interested parties and institutions to participate in the decision than would normally occur. Most broadly, we claim that constitutional decisionism is inevitable in such cases. Courts sometimes have no option but to take it upon themselves to rule upon, and indeed to participate in constituting, the validity of the very constitutional order that gives them their authority, in a kind of bootstrapping.

We take up our three categories of cases in order. In Part I, we examine cases in which courts determine constitutional competence, either of themselves (Section A) or of other actors (Section B). We presume two background conditions: (1) there exists a well-defined constitutional polity, in which the locus of sovereignty is clearly defined; (2) there is no immediate or urgent threat to the stability of that polity. In subsequent Parts we will relax these two conditions in turn. Part II examines constitutional transitions (relaxing condition (1)), whilst Part III examines constitutional crises (relaxing condition (2)).

Part IV distills our conclusions by focusing on the problem of bootstrapping. How can courts act in an authoritative way when exceptional circumstances challenge the very foundations of their authority in the first place? There is no general answer; courts have approached the resulting dilemma in various ways, depending upon circumstances. That there is no theoretically compelling answer does not, however, entail that there is no answer at all. Rather, courts necessarily engage in constitutional decisionism--they make decisions without fully worked-out theoretical foundations, based on a mix of constitutional principles and pragmatic judgments. In this way courts offer a forum for politically relevant actors and interests to hash out their differences by a mix of arguing and bargaining.

Our aims are both taxonomic and analytical, on the one hand, and prescriptive on the other. On the taxonomic and analytical side, we adopt the standpoint of the analyst, attempting to identify recurring patterns of exceptional circumstances that confront judges, and attempting to understand both the dilemmas courts face in such circumstances, and the means they use to cope with them. There is nothing oxymoronic about this enterprise, because exceptional circumstances within any given constitutional order sometimes fall into recurring patterns when viewed in the aggregate across constitutional orders. (1) Given enough cases, even the mutation becomes a species. And as we hope to show, comparative constitutional adjudication contains identifiable species of exceptional cases.

On the prescriptive side, we offer normative advice but only nonideal advice, subject to constraints. We do not pretend to offer a comprehensive theory of political morality to guide judges in cases calling for constitutional decisionism. In the nature of these cases, real dilemmas and tradeoffs, true conflicts of principle and of value, and uncertain pragmatic judgments are unavoidable. Yet we indicate a number of lower-level principles, both procedural and substantive, to help courts avoid hubristic or ill-informed decisionmaking and disastrous outcomes--perhaps the most that can be hoped for when circumstances yield extraordinary situations.

  1. Determining, or Setting, the Constitutional Base of the State

    A. Courts Judging Their Own Constitutional Authority

    We begin with a category of cases in which courts rule on the scope and limits of their own authority. From one perspective, such cases are extremely rare. In the mine-run of litigation, civil and even criminal parties (including defendants) unquestioningly accept the authority of the court. The parties will offer arguments within the system, confining themselves to contesting their own liability or attempting to impose liability on others.

    In some fraction of these ordinary cases, there may be technical questions about whether jurisdiction and venue should lie in this or that court within the overall judicial system, but these questions are ordinary as well. In some even smaller fraction of the cases, there may even be questions about "reviewability" or "justiciability," such that parties argue that no court should take cognizance of the case. But even then, the parties will unquestioningly accept that the court (or at least some other court in the legal system) has competence to make that determination--they will accept, in other words, the maxim that courts always have "jurisdiction to determine [their own] jurisdiction."

    In the rarest cases, however, actors brought before the court offer a more fundamental challenge to the court's authority. These actors not only deny the authority of the court to impose sanctions upon them, but deny the court's very authority to determine that question--they deny the court's jurisdiction to determine jurisdiction. There is a superficial irony to these situations: the court appears to be asked to use legal reasoning to determine if it has the capacity to apply the law. In these cases it would therefore beg the question to call these actors "parties." That is precisely what they deny being, insofar as they challenge the very authority of the court to determine its own jurisdiction over them. Frequently, such cases arise when one of the actors has been compelled to appear before the tribunal. Charles I, majestic and contemptuous in defeat, utterly denied that his "pretended Judges" had any legal status different than "thieves and robbers by the highways." (2) But if we admire that example, what are we to think of other political trials in which defendants hurl defiance at their pretended judges--defendants such as accused terrorists who refuse to acknowledge the authority of the tribunal (3) or, less alarmingly, cranks who possess strong, but strange, beliefs about the legal limitations of the courts? (4)

    A different subcategory of cases involves not political trials, but fundamental political issues arising in the course of otherwise ordinary disputes. These cases are "political" insofar as they call into question the foundations of the constitutional order somehow defined, necessarily including the scope and limits of judicial authority. Here judges decide whether they possess the power to review legislation for conformity with some hierarchically superior source of law, such as a written constitution, an enforceable treaty, or an entrenched previous statute of the legislature itself that is taken to...

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