Abstract
This chapter takes up the debate that is going on in contemporary legal and political philosophy under the rubric of dialogic constitutionalism, dialogic justice or dialogic judicial review. These issues are studied with special emphasis on historical considerations about the separation of powers and the contemporary context of Latin American Constitutions. In the same spirit of some of my previous writings, including a larger version of this paper, I maintain that, beside the genuine reasons we have to celebrate the coming of dialogic constitutionalism, we also have reasons for concern, particularly if we are not willing to modify the basic structure of the system of checks and balances on which it is usually based.
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Notes
- 1.
Mark Tushnet stated: “I take dialogic judicial review to have been invented in the Canadian Charter of Rights in 1982” (Tushnet 2009, 205).
- 2.
According to C. Young, “[s]o far, constitutional practice in Canada is the source of the most sustained study of dialogue between courts and legislatures…This style appears apt for…systems that, like Canada (and South Africa) combine a historical commitment to parliamentary sovereignty with a present-day constitutionalism ” (Young 2012, 148). Similarly, for Luc Tremblay, the adoption of that clause originated the “theory of institutional dialogue,” which – he believes- “may be seen as a Canadian contribution to the debate over the democratic legitimacy of judicial review ” (Tremblay 2005, 1).
- 3.
2001 (1) SA 46 (CC).
- 4.
2008 (3) SA 208 (CC).
- 5.
In most cases, the introduction of these changes has implied two main institutional innovations. On the hand, legislative powers have been required to get involved in reviewing the constitutionality of norms, before they get enacted (a “mandatory pre-enactment political rights review”). On the other hand, “weak” forms of judicial review have been introduced, which means that the judicial branch has kept its powers of constitutional review, although the practice of “judicial supremacy ” has become diluted. It is not anymore obvious that the decisions of courts are unreviewable by ordinary legislative majority (Tushnet 2008; Gardbaum 2013, 25–27).
- 6.
For example, in 1997, the Colombian Constitutional Court engaged into an argument related to the importance of having proper legislative debates. It maintained that the voting process required a previous “deliberation ”, which the tribunal considered an “indispensable” condition for the validity of the law. See Corte Constitucional [C.C.] [Constitutional Court], Sentencia C-222, 1997.
- 7.
See, for example, a decision by the Brazilian Supreme Court, May 29th, 2008, concerning the Biosafety Law.
- 8.
See, for example, a decision by Colombian Constitutional Court in Corte Constitucional, January 22, 2004, Sentencia T-025/04.
- 9.
See, for example, a decision by the Argentinean Supreme Court in Corte Suprema de Justicia de la Nación, 8/8/2006. “Badaro, Alfonso Valentín, c/ANSES s/reajustes varios.”
- 10.
Ibid.
- 11.
- 12.
See, for example, a decision by Colombian Constitutional Court in Corte Constitucional, Sentencia C- 740/13. Of particular interest, for the purposes of this paper, is the right to “meaningful engagement,” in the way it was developed by the South African Constitutional Court. See, for example, Liebenberg 2012, 2014.
- 13.
Examining the U.S. legal system, Ronald Krotoszynski mentions other innovative initiatives promoted by courts, including the decision to call for an “open dialogue”; to propose “constitutional remands;” to “warn” Congress that failing to consider constitutionally relevant evidence, may transform the statute it is elaborating, invalid one; etc. See Krotoszynski (1998, 4–6).
- 14.
I will do so, even though – I believe- it should also be possible to develop or share most of my criticisms by simply relying on reasons that are internal to the same dialogic practice.
- 15.
Similarly, G. Dor describes (legal) dialogue as “an open and frank interchange, exchange and discussion of ideas and opinions in the seeking of mutual harmony” (Dor 2000, 17–18).
- 16.
See also Mauwese and Snel (2013), 125–6.
- 17.
See also, for example, Fishkin 2011, 242.
- 18.
The “inclusive” character of the conversation obviously encompasses the three branches of power (see, for example Young, stating: “In conversational review, all three branches assume a shared interpretive role over the right at issue” Young 2012, 147). However, it must be noted, the idea of “inclusiveness” is supposed to go beyond the three branches: it aims at including the people at large.
- 19.
- 20.
There are numerous reasons for explaining this restriction. Mainly, the idea is that the “epistemic” virtues associated with collective discussion disappear when we are dealing with issues of personal or private morality: each person is here assumed to be the best judge of his own affairs (Mill 1859; Nino 1991).
- 21.
- 22.
Trying to reconcile theories favouring the judicial’s “last word” and dialogic theories, see, for instance, Hübner Mendes (2013).
- 23.
For this reason, judges are assumed to be in an exceptional position to give due weight to the interests of those unjustly excluded from the ordinary democratic political arena (see Liebenberg 2012).
- 24.
In United States v. Then (56 F.3rd 464, 2d Cir. 1995), and acting as a Judge, Calabresi suggested a different relationship between the judiciary and Congress, where judges (“fire a…Constitutional flare”), warn Congress that “if it fails to consider carefully a particular matter in light of evidence [considered to be] constitutionally relevant, the federal courts are likely to enforce constitutionally-mandated constraints on congressional policy-making choices” (Krotoszynski 1998, 7).
- 25.
When I say “our” I am thinking about the constitutional system that prevails in the Americas since the creation of the American Constitution in 1787, although it is probably the case that what I say about these cases also apply beyond the American continent.
- 26.
Before turning to the study of the structural problems of dialogic constitutionalism , I want to say a few words about one repeated and significant critique to extrajudicial forms of review, like dialogic review, which I do not share, but that became quite popular among legal doctrinaires. I am referring to objections related to the uncertainty created by dialogic-type of mechanisms. This critique, which has most famously been advanced by Larry Alexander, goes like this: all these new alternatives to traditional judicial review are finally unattractive because they introduce improper degrees of uncertainty and instability into situations of conflict. By contrast, the traditional system avoids these problems, and ensures that conflicts are settled through the intervention of authoritative bodies (Alexander and Schauer 1997, 2000; Alexander and Solum 2005). Keith Whittington, for example, has presented Alexander’s settlement-objection as “the most prominent recent objection to extrajudicial constitutional interpretation ” (Whittington 2002, 786). Now, there are numerous things to say about this view, but at this point I will limit myself to simply mention why I do not find it particularly attractive. The practice of dialogic constitutionalism has been developed during more than 30 years already, both in legally advanced countries and in fragile legal communities. It can be subjected to different criticisms – and we just examined some of them – but critiques such as the ones mentioned by Alexander have not acquired particular relevance in actual practice. Rather than legal chaos and uncertainty, the practice of dialogic constitutionalism has generated great expectations in those places where it took place. Moreover, it has insufflated life to unappealing, old-style, eroded and bad-functioning legal systems. As Whittington has put it, Alexander and others’ objection “overstates the value of constitutional stability, while simultaneously overestimating the ability of the judiciary to impose constitutional settlements and underestimating the capacity of nonjudicial actors to settle constitutional disputes effectively…Moreover, the question of how constitutional meaning can be resolved most effectively is an empirical one” (Whittington 2002, 788–9). Similarly, Mark Tushnet claimed that critics of dialogic constitutionalism have still to demonstrate that non-judicial constitutional review introduced “more instability than they eliminate.. The empirical case against non-judicial constitutional review remains to be established” (Tushnet 2003, 490, also see Tushnet 1997, 2006).
- 27.
I explore the influence of the U.S. constitutional model of checks and balance s in the drafting of Latin American constitutions in Gargarella 2010 and 2013a. Concerning Europe, I am thinking about the growing importance of judicial review , through a concentrated and “final” jurisdiction by an European Court.
- 28.
On the need to connect discussions about interbranch dialogue and normative democratic theory see, for example, Tushnet (2001).
- 29.
This is, for example, what Katie Young seems to assume in her excellent book on social and economic rights. For her, the adoption of the Charter would have created in Canada the conditions for a dialogic type of constitutionalism . Compare with Goldsworthy, who states: “the Canadian debate suggests that if Parliament never dared to exercise that power, this arrangement might still be vulnerable to objections based on majoritarian conceptions of democracy ” (Goldsworthy 2010, 205).
- 30.
In this respect, Madison was basically following David Hume’s understanding of human motivations (White 1987).
- 31.
For M. Vile, during the era of “radical constitution alism,” all the authors “adhered to the doctrine of the separation of power s , while they rejected, to a greater or lesser degree, the concept of check and balances” (Vile 1967, 133).
- 32.
Madison defined the concept of factions in Federalist paper 10. “By a faction” – he claimed- “I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community”.
- 33.
This point also in Dahl 1956.
- 34.
It has also been noted how Madison played with the ambiguous notion of “chosen”: “chosen” could refer both to those who had been selected by the people, and/or something more in the line of the “selected few” (Manin 1997).
- 35.
By which he means “a theory that attempts to combine deliberation by the people themselves with an equal consideration of the views that result”, Fishkin 2011, 247.
- 36.
As Philipp Pettit stated: “No matter how powerful a system of popular influence, it will not support republican democracy unless it serves to impose a popular direction on government” (Pettit 2012, 306).
- 37.
The idea, like in the British model of constitutionalism , was based on numerous fundamental assumptions, like the following: (i) society was divided into a few, different sections; (ii) these sections had opposed interests; (iii) that these sections were internally homogeneous; (iv) members of these sections were fundamentally motivated by self-interest; (v) there existed institutional means that were apt to guarantee each of them a certain amount of institutional power (i.e., large districts and indirect elections for the selection of defenders of the interests of the landowners); and that (vi) these powers had to be substantially equal, so as to prevent mutual oppressions.
- 38.
Needless to say, this peculiar approach to democracy – and also to judicial review - has also very little in common with a deliberative conception of democracy. One early, lucid advocate of deliberative democracy , namely Carlos Nino, criticized the elitist view as a merely “negative” understanding of democracy: democracy would thus have “only a negative value, one that…does not explain the special value of democracy (Nino 1996, 81). He then wondered “whether this view of democracy is nothing more than a legitimization of the crude confrontation of interests constituting the status quo” (ibid., 82).
- 39.
Presently, it is difficult to think about democracy without making reference, first, to “the rule of the many” (Christiano 1996). Of course, “the rule of the many” may include controls, limits, checks, mutual supervisions, but it cannot simply dismiss the core idea that is that “the many” have to have the crucial say in government. Instead, in the model of the mixed constitution, the different sections of society (no matter the number of people that composes them) had to have a symmetrical power, which implied giving an extraordinary capacity, a day-to-day veto power, to minority interests.
- 40.
- 41.
The legal scholar Juan Bautista Alberdi – one of the great constitutional minds of his time- defended this convergence between conservative and liberal ideas, and proposed a peculiar system of checks and balance s , which mixed the rather liberal U.S. Constitution with the conservative features that characterized the Chilean Constitution of 1833 (Alberdi 1852, chapter 25).
- 42.
Jeffrey Tulis has been one of the first authors in highlighting the lack of academic attention to the possible connections between the system of separation of power s and public deliberation (Tulis 2003, 200).
- 43.
Hübner Mendes maintains that the system (he is actually referring to the system of separation of power s ) was created as “an institutional tool for (i) countervailing power with power and for (ii) distributing functions across diverse bodies”, and he suggests – acknowledging that the system was not originally designed for this purpose- a “potential third virtue”, which could be to use the system as a “deliberative apparatus, a mechanism for sparking inter-institutional exchange of reasons ” (Hübner Mendes 2011, 1). He also admits that “[t]heories about the role of deliberation in democracy do not usually dedicate too much attention to the separation of powers and vice versa. This would be a counter-intuitive relation: branches do not deliberate among themselves, but rather control each other” (ibid., 7).
- 44.
Exploring the connections that exist between judicial intervention and institutional settings (with a particular focus on the cases of Mexico and Brazil), see Rios-Figueroa and Taylor (2002).
- 45.
Mark Tushnet announces another, different but still related, stability problem of new dialogic solutions in the context of well-established system of checks and balance s . The problem he is thinking about is the difficulty of these (intermediate) weak forms of judicial review not to work either as a system of parliamentary sovereignty , or as a traditional system of judicial supremacy . In his words: “The question of stability is this: Can weak-form review be sustained over a long term, or will it become such a weak institution that the constitutional system is, for all practical purposes, indistinguishable from a system of parliamentary supremacy or such a strong institution that the courts’ decisions will be taken as conclusive and effectively coercive on the legislature? Experience with weak-form systems is, as I have indicated, thin, but I think there is some evidence, mostly from Canada but some from New Zealand, that weak-form systems do become strong-form ones. The evidence, such as it is, is that judicial interpretation s generally ‘stick’” (Tushnet 2004, 17).
- 46.
C.C., July 31th, 2008, Sentencia T-760/08 (slip op. at 200–03), available at http://www.corteconstitucional.gov.co/relatoria/2008/T-760-08.htm
- 47.
C.C., April 28th, 1998, Sentencia T-153/98 (slip op.), available at http://www.corteconstitucional.gov.co/relatoria/1998/T-153-98.htm
- 48.
Similar problems explain also why the interesting public audiences that the Brazilian Supreme Court convened, related to the right to health; or the significant public audiences summoned by the Argentinean Court, concerning the right to freedom of expression, ended up in classic instances of judicial imposition.
- 49.
Through this concept, I will be referring to those extreme situations where people can no longer identify with the law, which they neither created nor could reasonably challenge – a situation where they can only be described as victims of the law. This is to say, the notion of legal alienation will refer to those situations where the law begins to serve purposes contrary to those that, in the end, justify its existence. This notion of alienation – a notion of alienation that is objective rather than subjective- is related to the one defended by Karl Marx, for example, in his analysis of work and its products. According to Marx, “the object that labour produces, its product, confronts it as an alien being, as a power independent of the producer…[the] externalization of the worker in his product implies not only that his labour becomes an object, an exterior existence but also that it exists outside him, independent and alien, and becomes a self-sufficient power opposite him, that the life that he has lent to the object affronts him, hostile and alien…the worker becomes a slave to his object” (Marx 1978: 86–7).
- 50.
- 51.
For Mark Tushnet through “dialogic judicial review ,” we “advance the value of democratic self-governance by leaving the final decision to the legislature” (Tushnet 2009, 212, emphasis added).
- 52.
To state this does not mean to say that Waldron or Tushnet refer to legislatures and to the people indistinctly (see, for example, Waldron 2012). But I do think that in part of their work this distinction is not sufficiently stressed, which may create confusions regarding the actual attractiveness of the alternatives they propose.
- 53.
In Gargarella 2010 I have explored other structural problems, including the fact that the system of checks and balance s was designed for a (assumedly) simpler society; composed of few and internally homogeneous groups; which could all become (assumedly) incorporated into the institutional system (i.e., through direct and indirect elections). Modern societies, characterized by the “fact of pluralism” seem to differ substantially from that old picture, which suggests that even a Congress under its best light would be unable to represent the diversity of viewpoints existing in society (Rawls 1991).
- 54.
For him, “In democracy , the constitution, the law, the state itself, insofar as it is a political constitution, is only the self-determination of the people, and a particular content of the people” (see Marx 1843, 21 of his “Contribution to the Critique of Hegel’s Philosophy of Right,”).
- 55.
A well-supported and very pessimist approach to the Brazilian case, in Ferraz 2011.
- 56.
These include Verbitsky, Horacio s/ habeas corpus, decided by Argentina’s Supreme Court (2005) (concerning prisoners’ rights); and many decisions of the Constitutional Court of Colombia including Sentencia T-847 (2000) (prisoners’ rights); Sentencia T-590 (1998) (concerning state-protection of human rights advocates under threat); and Sentencia T-025 (2004) (concerning the situation of internally displaced persons). See Courtis (2005).
- 57.
A more optimistic approach in Bergallo (2005).
- 58.
For example, in 2008, the Court designated Judge Armella to monitor the clean-up process. According to an Auditor General’s Office report, the judge sought to benefit members of his own family through the project. He contrived to hire by direct recruitment (by-passing competitive bidding) certain companies to do sanitation work that were owned by his relatives. Those companies are now also under investigation, and the Court removed and replaced Judge Armella.
- 59.
The situation does not look different if we focus our attention on other crucial cases of dialogic constitutionalism . Think, for example, about the Badaro case, in Argentina. Badaro concerned retired people in Argentina, whose pensions were not being adjusted in the manner provided in the constitution as a consequence of austerity programs launched by the government at the behest of the economic elite. Resorting to dialogic devices, the Court exhorted the political authorities to correct their policy so as to comport with the demands of the constitution. Thus, the Court forced Congress to act, but allowed Congress to craft its own response. Unfortunately, congress reacted poorly to the Court’s demands. So, in a new pronouncement, the Court condemned the “legislative omission” regarding pensions. Unfortunately, after many years from the Court’s initial decision (2006), the situation remains fundamentally the same. Again: what is the surprise with this depressing outcome, when the Executive is so extremely powerful, as it is normally the case in Latin America? Why should one be surprised to find that the Executive power acts discretionally? Why should one be surprised to find that the Executive, acting exclusively according to his own will, rather than the people at large decides whether to enforce or not the rights of the most disadvantaged?
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Acknowledgment
This is a revised and substantively shortened version of my article “We the People Outside of the Constitution,” which I published in Current Legal Problems, vol. 67, n.1, 1–47.
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Gargarella, R. (2016). Scope and Limits of Dialogic Constitutionalism. In: Bustamante, T., Gonçalves Fernandes, B. (eds) Democratizing Constitutional Law. Law and Philosophy Library, vol 113. Springer, Cham. https://doi.org/10.1007/978-3-319-28371-5_6
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