Written constitutions, democracy and judicial interpretation: the hobgoblin of judicial activism.

• Author: Edelman, Martin
• Position: Issues Facing the Judiciary

The world has become more democratic. With the collapse of the Soviet Union and the end of the Cold War, ostensibly democratic states have emerged throughout the areas formerly designated as the Second and Third Worlds. The establishment of these new regimes has usually been accompanied by the promulgation of written constitutions that provide for some form of judicial review. Because significant constitutional clauses are not self-defining, the justices on the constitutional court must fall back upon extraconstitutional ideas to aid their interpretations.

In the contemporary period, these extra-constitutional ideas have invariably been democratic. The justices share the basic consensus of their societies about the value of democracy. Moreover, in justifying their decisions, the invocation of democratic norms is an invaluable asset. Yet, there is considerable disagreement about what democracy means and implies. Variety, not unanimity, characterizes discussions about the nature of democracy. Stressing different ideas, each democratic theory leads to a different constellation of concepts for evaluating important political questions. Since no one has ever devised a litmus test for separating judicial from political issues, each democratic theory leads to a distinct judicial interpretation.

It is not surprising, therefore, that differences about the meaning of democracy are found in the opinions of justices sitting on constitutional courts. It is the argument of this paper that we can better understand judicial doctrines when we view them as exemplars of widely-held theories of democracy than as products of campaign labels such as judicial activism/self-restraint or loose/strict constructivism.

I.

The end of the Cold War had political repercussions that went far beyond international relations. With the collapse of Russian communism, nations within the former Soviet bloc established new regimes, and Russia itself moved toward democracy. Democratic structures seemed the only way to mobilize internal support and held out the promise of international recognition. A corresponding reaction occurred within the American-led bloc. The United States no longer had an interest in supporting regimes solely on the basis of their anti-communist credentials. Non-democratic regimes within the American sphere of influence felt increasing pressure to democratize, both to retain U.S. support and, perhaps, to obtain internal legitimacy. Similarly, many "non-aligned" countries could no longer benefit by playing Moscow off against Washington. As U.S. President George H. W. Bush proclaimed in the wake of the first Gulf War, there is indeed a "new world order."

The United Nations now has 191 member states. (1) Thirty-four have entered since 1991. (2) Not surprisingly, virtually all of the new regimes have drafted new constitutions, since such documents have become part of what it means to be an independent nation in the contemporary world.

Modern constitutionalism was born in the United States. The founders of the American Republic believed that a written constitution would be their lasting contribution to the science of politics. (3) Time has proven them right. Since 1787, with few exceptions, the establishment of new political regimes all around the world has been accompanied by the promulgation of a written constitution. Only five member states of the United Nations have never promulgated a formal, integrated written constitution. (4)

The appeal of written constitutions is not simply a trendy convention. It is grounded on historical experience. We have come to accept the basic logic of Hobbes' analysis. (5) If human beings are by nature both self-serving and social animals, there is a need for an umpire, the State, to guarantee the essentials of human existence--the respect for life, the respect for mutual obligations, etc. Every society needs stable, ordered behavioral patterns that only a State can uphold. We have also come to recognize the need to protect against the State itself becoming the chief violator of the vital human concerns for which it was created. In the classic formulation by James Madison:

[W]hat is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. (6) Constitutions are, in Madison's language, a principal auxiliary precaution. A constitution is the most expedient way to regulate the State. It addresses a number of issues. How are the people in a country to inform the rulers of the State about their interest? How are the rulers to regulate the organs of the State so that policies are implemented? A constitution identifies the "common objectives" of the people and their rulers, what procedures the organs of the State (the government) may use to enact and implement policies, and what "activities [the government] may never undertake." (7) Historically, a written constitution is the capstone of the age-long struggle to establish the rule of law and thereby limit arbitrary governmental action. The rule of law "means that government in all its actions is bound by rules fixed and announced beforehand--rules which make it possible to foresee with fair certainty how [State] authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge." (8)

A nation's fundamental charter is intended to establish a Rechtsstaat--a State legitimized by fundamental law that acts only through specified legal procedures. (9) From a rule of law perspective, an independent judiciary is necessary to ensure adherence to the ancient Roman maxims that define that understanding: no law, no crime; no crime, no punishment. (10) So, if a written constitution is a law designed to keep the government to its assigned tasks, "[i]t is emphatically the province and duty of the judicial department to say what law is." (11) Hence, judicial review enlists the power of an independent judiciary to authorize or limit governmental action by virtue of its authority to interpret the fundamental law of the land.

Democracy, as well as the rule of law, is a political concept which is highly supportive of a written constitution. Democracy is premised on the idea that the State is the agent of the people. The various mechanisms and procedures of democracy are designed to ensure...