Abstract: This article addresses the vexed question of who should have the “last word” in saying what a democratic constitution means in controversies between the Judiciary and the other Branches of government. The aim is to contribute to debates in post-Communist Central and Eastern Europe (CEE), which to date have been dominated by the paradigm of a Constitutional Court (CC) with monopoly power to expound the constitution. This institutional configuration sits uneasily with the separation of powers and checks and balances – shibboleths which are nonetheless poorly understood in CEE. It is believed that the American Founders, who invented these practical mechanisms in their modern and now universally accepted forms, may offer particularly fruitful insights which constitutional designers everywhere could learn from.
A singular post-World War II trend in the Western world, identified and analysed by political scientists and socio-legal scholars, stands out for its ubiquity: the expansion of both domestic and supranational judicial power. Buoyed by a paradigm that, whether rightly or wrongly, taxes Parliamentary democracy for the horrors of World War II, constitutional reformers have come to see the empowerment of the judiciary over politics as an essential check on untrammelled democracy. In one jurisdiction after another, even in the most conservative and authoritarian civil law traditions like China , supranational courts as well as Constitutional or Supreme Courts have been empowered, or have empowered themselves to “strike down” with finality statutes of Parliament on grounds of unconstitutionality.
Such developments which go well beyond judicial review in the classical sense have inspired the claim that the classical paradigm of parliamentary supremacy is now dead, having been supplanted by what has been termed “judicial supremacy” or even “juristocracy” . Ordinary courts, too, have not remained immune to these trends. Over the last twenty years, judiciary revisions to insulate the judiciary from politics via Judiciary Councils that began in post-Communist CEE over genuine concerns over judicial independence and the rule of law have spread to Western European countries that have never had any problems with the rule of law or judiciary independence. Such developments raise concerns in some quarters about the creation of a self-governing branch of government, effectively a “state within a state”, that sits out of the mutual checks and balances that in a democracy ought to be exercised by the other branches of government.
Although comparative works on the evolution of judiciaries in CEE remain scarce in comparison to accounts about developments in the USA and Western Europe, they show, beyond doubt, that CEE countries have too, formally if not yet in spirit, joined the global trend toward this “judicialization of politics”. Institutional designs that enable it have followed a transnational template originating in the policy consensus of the transnational legal professional community that orbits the CoE and that has driven European integration from its inception. The template is founded on the following core beliefs: that judges ought to be and can be insulated from politics; that laws and constitutions are “living documents” whose meaning only judges can discover; that judge-made public policy is at least as democratically legitimate as that of the elected representatives; and in general that judicial empowerment over politics effectively is the rule of law. In practice, the template entails transferring more rather than less power to courts and restricting rather than expanding political representation in judiciary governance and constitutional interpretation.
The template as implemented in CEE has consisted of a three-prong institutional designs: a majority-magistrate Constitutional Court (CC) comprising a majority of jurists with final authority over the meaning of the Constitution; a Judiciary Council modelled on the Italian model to autonomously self-govern the judiciary branch; and a specialist Training Academy monopolising the education of magistrates. The upshot of all this is that ample scope for policy-making discretion has been ceded to judges, whether they have taken this opportunity or not. The bulk of this judicialization of politics might have been most prominent at the level of the Constitutional rather than the ordinary courts. This might be a misleading picture, however, contingent upon the dearth of evidence and research on the ordinary judiciary’s activism. In any case, it is only a matter of time, a question of generational change, before ordinary courts too will make inroads into public policy making. This has actually happened even in Western countries with a strong tradition of judicial deference to parliament.
This brings us to the central concern of this article: to explore institutional designs alternative to judicial supremacy. This means alternatives to constitutional interpretation by CCs, which is the most conspicuous form of public policy-making by apex courts, and even alternatives which exclude CCs altogether. Judicial supremacy is defined as
the ability of the Supreme [or Constitutional] Court to erase the distinction between its own opinions interpreting the Constitution and the actual Constitution itself. The Court claims authority not only to look into the meaning of the Constitution as a guide to the justices’ own actions, but also and more importantly to say what the Constitution means, for themselves and for everyone else.
Judicial supremacy is to be distinguished from judicial review proper, with which it is too often confounded, even by some of the most renowned contemporary political scientists and jurists: “The ‘Jeffersonian’ concept [judicial review proper as discussed below] is easily mistaken and misstated. It does not contemplate defiance of judicial orders, or disregard of the principle of res judicata; thus it cannot be fairly characterized as ‘arbitrary review’”. Plain judicial review without more, which existed in the United States even before Marbury, is the proper right of judges to find innocent, unilaterally without recourse, persons subordinate to State power in jeopardy of losing life, liberty or property to State action. This constitutes the Judiciary’s core check-and-balancing function, and may or may not entail a power to “strike down” the very acts of parliament in order to maintain the defendant’s innocence. Either way, it is one of the chief guaranties of the rule of law, and some of the world’s oldest democracies, like Britain and the United States, have had it for centuries.
Judicial supremacy sits very uneasily in a democratic polity, or with the rule of law, inasmuch as:
(1) interpretation is too important to be left to a single branch, and therefore judicial supremacy is procedurally deficient; (2) a single branch interpretation produces inadequate substantive results – there is a need for more voices to yield the best results; (3) other branches need to carry out their responsibilities [which includes constitutional interpretation]; (4) judicial supremacy contravenes … substantive principles or commitments, like democracy or equality; and (5) judicial supremacy squashes broad-based awareness of, and commitment to, constitutional principles.
By contrast, plain judicial review is essential to the harmonious co-existence of democracy and the rights of individuals.
Why the need for alternatives to judicial supremacy?
The relatively smooth creation of CCs in the early 1990s and the relatively unchallenged consolidation of their authority ever since appear to make constitutional interpretation by CCs the most settled question of judiciary design in CEE. But although it might be supposed that CEE Europeans simply prefer this aspect of judicial supremacy, and have chosen CCs accordingly, this rationalist stereotype does not in fact reflect the realities of CEE. PostCommunist constitutions were adopted in haste in many countries, as in Romania, the Czech Republic, and Moldova, and the drafters did not avail themselves of a broad range of expertise on constitutional law. Generally there was little input from even the political elite, let alone society at large, about the relationship between the judiciary and the elected branches. East Europeans relied on models promoted by transnational legal professional elites acting through the CoE and later the European Commission, assuming them archetypically superior Western arrangements.
But the adoption of new constitutions directly after the fall of Communism marked only the beginning of the process by which CEE political institutions have been taking shape. Recent controversies in Hungary and Romania over the curtailment of the powers of CCs and/or the autonomy of the Judiciary Council suggest that CEE political actors have realised through experience that the new judicial institutions are constraining them in ways that they did not foresee. These recent examples illustrate the fact that twenty years after the fall of Communism the question of the appropriate institutional designs of the relationship between courts and democratically elected branches of government has not been settled once for ever.
Indeed, in Romania, for example, there continues to be dissatisfaction with the functioning of the CC as witness that the powers of the CC are again an item on the current, 2013 constitutional revision agenda. Indeed one of the Theses on the Constitutional Revision state that the aim of the new Constitution is to “strengthen the credibility, and independence and efficiency of the CC”. Proposals range from the “strengthening the role and competences” to “establishing the procedure for nominating judges of the Constitutional Court and its competences” to “nominating CC judges from among Supreme Court justices”. The fact that the CC is again on the constitutional revision agenda illustrates a clear point: more than twenty years after the CC was created conflict over its role and powers continues to persist.
Romanian constitutional designers are still struggling with the question of how much power the court should have, or in the words of a recent report on a model Constitution: “What competences should the CC have and exercise that does not create the danger that it would monopolise the position of arbiter of political life becoming a final decision-maker on institutional-political matters”. Apparently some would like to go as far as to reintroduce the provision that Parliament can overturn a decision of a CC, a provision that existed in the 1991 Romanian Constitution. Others are very critical of any limits placed on CC power: why have a CC at all if its decisions are not going to be obeyed all the time?
What follows speaks exactly to this question, but from a perspective that seeks to stand outside the straitjacket of the CC paradigm. The focus herein is on the practical workings of alternative institutional mechanisms of constitutional interpretation. Practical examples are drawn from American legal history, primarily before the Civil War. Looking back to the days of democracy in America as witnessed by de Tocqueville serves a twofold purpose. The first is to investigate how constitutional interpretation was understood in both theory and practice by the Framers of the world’s first fully articulated separation of powers, the plan that serves as master template for all constitutional architecture in modern times, including Romania’s.
Many of those who had taken a hand in forging the new government became the American Republic’s first and greatest politicians. How did they view and how did they play their role as political office-holders in determining the Constitution’s meaning? It is critical to focus the analysis on elected politicians, as in CEE constitutional and statutory reforms pertaining to judiciary power have almost invariably been shaped by legal professionals with a self-interest in augmenting “their” power; meaning not just their individual power (although that is served too by the power to conceive and draft the basic law) but also that of the legal professional peer-group they identify with. A tendency to unconscious self-empowerment may mislead the elite to neglect adequately considering how a government of divided powers and checks and balances functions best as a whole.
Three modes of constitutional interpretation alternative to judicial supremacy can be found in the contemporary constitutional-legal literature: executive supremacy; legislative supremacy or primacy; and co-equality (aka departmentalism). The first two are interesting but in their pure type are unstable equilibria that fail to constitute a viable scheme of government based on mutual checks and balances. Co-equality is the most promising, yet also perhaps the most deficient in what is the most important aspect of that theory: on the basis of what criterion should one branch of government or the other have the final word over what the constitution means? As Gant (1997: 405) puts it, departmentalists “refuse to acknowledge the havoc wrought by departmentalism, or explain sufficiently how such chaos is to be avoided”, the chaos in question being the result of confusion over who shall have the final word. A solution is proposed herein to try and supply this deficiency.
Separation of powers, checks and balances and Ground Due Process
America’s Framers understood constitutional interpretation as a particularist process arising from settling “cases” or contests over issues of right or of policy. This stands in contrast with the widespread (but not universal) European practice of abstract constitutional interpretation. James Madison, the US Constitution’s chief Framer, could thus write, “the meaning of … a Constitution, so far as it depends on Judicial interpretation, was to result from a course of particular decisions, and not … from a previous and abstract comment on the subject”. Because interpretation was always concrete and never abstract, the solution to a constitutional controversy could spring from any quarter, not only from some grand, central oracle, and not even necessarily from the Judiciary at all. This is highly relevant to countries with a CC and centralised judicial review such as Romania for it presents an alternative that is almost never considered.
The Framers conceived cases of constitutional interpretation as divided into two distinct classes: (1) cases of a judiciary nature (the “judiciary class”), and (2) all other cases (the “residual class”). As the labelling suggests, this distinction is pivotal for understanding the role of the Judiciary. Such a division was already firmly established in men’s minds before the 1787 Constitutional Convention was held and proved uncontroversial within it, as witness the following brief but revealing excerpt from Madison’s Notes of Debates concerning the extent of the Supreme Court’s jurisdiction:
Doc[to]r. JOHNSON moved to insert the words “this Constitution and the” before the word “laws” [thus: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; etc.”]
Mr. MADISON doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.
The motion of Docr. Johnson was agreed to nem[ine] con[tradicente i.e. unanimously] it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.
The logical structure of Madison’s reservation to give the Judiciary power to decide all constitutional matters should be noted first of all: assuming only that the whole Convention could not be so stupid as to take away power with one hand and give it right back with the left, it follows that they could not have intended the Court to determine its own constitutional jurisdiction; otherwise, nothing would prevent it from giving itself a jurisdiction that swept-in anything whatever that the Founders may have considered off limits. This means the judicial doctrine of justiciability (i.e. the Supreme Court’s theory of its own jurisdictional limits) must be precluded as dispositive. The Framers appear to have believed they have settled once for ever the jurisdisction of the Court, precluding the Court deciding what its jurisdiction is. The Court may propose its jurisdiction, but the other two Branches dispose, else the Court could take all the power it chose to.
Next, common sense suggests that a constitutional interpretation partakes of a “judiciary nature” if it requires done, what judges do: – determine the guilt or innocence of defendants prosecuted by the Federal authorities. Where guilt or innocence is not the issue, the Judiciary as a whole has no jurisdiction. Finally, note the spontaneous unanimity of the Framers. The author was able to find no other instance of unanimity on a substantive issue on record. Not even Doctor Johnson objected to Madison’s reservation; they seemed to shrug as if it were self-evident. It cannot be said, then, that the Convention left the matter of the Supreme Court’s jurisdictional limitations unsettled; and if the Court’s opinion in Marbury v. Madison trespasses beyond those limitations, then it must be judged unconstitutional.
The Judiciary Branch plays a role – though not necessarily a decisive one – in the disposition of judiciary-class interpretations only; it is denied jurisdiction in residual-class cases, except insofar as it defends its own powers, against the other Branches’ encroachments. On the other hand, all three Branches, not only the Judiciary, play a role in the “judiciary” class, each through its own processes, parliamentary, administrative or judicial.
It is commonly supposed that judicial process is “adjudication”, while parliamentary process concerns “public policy”. This dichotomy, however, is academic; the two abstract categories broadly overlap in reality, and this intersection is the most important and contested domain of official decision-making:
In one way of looking at it, adjudication is what courts do and legislation is what legislatures do … It is much more common, however, to see the two as methods of decision that might or might not characterise any given activity of a court or a legislature. In the oldest and simplest version of this view, though not in the current understanding of lawyers, what legislatures do when they legislate is make law, and what courts do when they adjudicate is apply law to facts. But it is perfectly possible for a legislature to adjudicate and for a court to legislate.
Not every parliamentary or administrative proceeding determines guilt or innocence, but very many do; and each Branch has its own characteristic role in the entire concatenation of due processes that constitute adjudication from start to finish. To clarify:
- the Legislative Branch enacting (not voting down) prohibitions of personal behaviour is finding violators guilty prospectively – i.e. without proceeding to detection, prosecution, trial or punishment.
- Whom the Executive detect and prosecute (and he does not pardon) are found guilty presumptively – officers of the Executive have evidence that named persons have violated the prohibition, but this is subject to judicial override.
- Judicial condemnation determines guilt finally.
- Post-trial or retrospective findings of guilt (but not of innocence) are precluded.
Each one of these steps is necessary to Ground Due Process, which will be discussed below. Any judicial proceeding that circumvents any one of them is therefore constitutionally a nullity. It is also explained more fully below how parliamentary and administrative findings of innocence override judicial findings to the contrary.
Note that extra-judicial processes contribute decisively to the disposition of cases of the “judiciary” class, so-called not because only the Judiciary is entitled to partake in them, but because they are the only cases of constitutional interpretation that the Judiciary is entitled to partake in! By the same token, judicial processes even if confined to adjudication of guilt and innocence may equally have far-reaching public-policy repercussions: “Adjudication is a very important ingredient in the policy process, both as carried out by courts and administrative agencies. It is often through the settlement of individual cases and controversies that policies are clarified and given concrete meaning for individuals”.
The final analysis must yield the conclusion that the continued possession of life, liberty or property depends absolutely on continuation of a status of innocent. One must not think of innocence and guilt as just a commonplace binary opposition; it is a fork of destiny which is asymmetrical in every sense – legal, moral and political. The guilty man is legally liable for penal sanctions and compensatory damages; morally he is disgraced before his peers, who are far more apt to shun than aid him; politically he is exposed defenceless to State power. The man found innocent is immune from these catastrophic consequences.
The American Framers envisioned the determination of guilt and innocence as occurring in the context of separation of powers. They conceived separation of powers as an expedient to render the determination process asymmetrical such that innocence is structurally easier to find than guilt:
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own … the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. … Ambition must be made to counteract ambition. … It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what 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.
By contrast, the contemporary understanding of the end-purpose of separation of powers, and especially how it might be achieved, suffers from lack of clarity. It has been this author’s observation that constitutional designers in CEE do indeed take for granted the “tautological justifications of 17th and 18th century political theorists such as Montesquieu”. In postCommunist CEE the separation of powers, without being understood, quickly acquired unquestionable status and has been misapplied to justify Judiciary institutional autonomy and the abolition of all checks and balances upon it by the other Branches.
This misconception has become a transnational trend affecting Judiciaries even in countries with the tradition of Great Britain, as witness 2005 constitutional reforms abolishing the Lord Chancellor’s power to appoint judges, even though the English Judiciary has been indisputably independent and impartial for centuries. CCs may have been less tainted than ordinary judiciaries by this trend, although calls to staff them with “apolitical” and “professional” experts instead of politically experienced and previously elected representatives suggest that similar ambitions are waiting for the right political opportunity.
Yet the purpose of separation of powers is not to create exclusive preserves of action for each Branch of government, like a misconceived scheme to deregulate a national State monopoly by dividing it into several regional monopolies. Madison specifically warned against this sort of “mere taxonomy”, a conception of the separation of powers that would create autonomous spheres of influence due to a too-absolute separation:
The concentrating [of the respective powers] … in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one.
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. … In order to form correct ideas on [the separation of powers], it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle … on this subject is the celebrated Montesquieu … [who] has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavour … to ascertain his meaning on this point. … From these facts [here omitted] … it may clearly be inferred that, in saying “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers,” [Montesquieu] did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import … can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.
And, in Federalist No. 48:
It was shown in [No. 47] that the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other. … unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.
The purpose of separation of powers is to require multiple assents to the exertion of state power on individuals from the several separate Branches. This requirement has been called a rule of “Unanimous Concurrence” and compared to common law jury practice. As a jury verdict to convict must be unanimous, so on a larger scale, all three Branches must concur in finding the Federal defendant guilty in every judiciary-class determination. Failing this, the defendant is innocent. Herein lies the asymmetry: lack of unanimity determines innocence, i.e. just one branch finding innocent (failing to find guilty) overrides both of the others’ determinations to the contrary. The power to withhold concurrence constitutes each Branch’s most important check and balance on the others.
This then is the sole purpose of separation of powers: to provide the [Federal] defendant multiple chances of being found innocent. The American Constitution gives at least three chances – or more if one counts checks and balances between as well as within the several branches, like the division of Congress into two Houses, or the right of juries to adjudicate independently of judges. Separation of powers potentiate mutual checks and balances between government “departments” so that “no one could transcend their legal limits, without being effectually checked and restrained by the others”, forestalling arbitrary government in which the people’s liberty might be abused.
This conception of the separation of powers as purposing the provision of multiple chances of being found innocent may be a new insight into the theory of constitutional design, but it is contended that in ages past it was instinct in the practice of constitutional government. By its discoverer it is termed “Ground Due Process”. It posits that the “last word” in saying what the US Constitution means in judiciary-class controversies accrues to whichever branch finds the Federal defendant in jeopardy innocent. It denotes the ground of constitutional legitimacy for all other adjudicative proceedings, such as Notice and a Hearing, Ground Due Process is prior to such secondary due processes in its obligatoriness on government bodies, and is ultimately the procedural essence of the rule of law. If Ground Due Process is denied, then justice risks miscarrying and the proceedings risk being illegitimate, even if the other processes have been duly observed.
This theory sheds new light on the meaning of checks and balances. To check and balance the judiciary to the extent of finding persons innocent (retrospectively if necessary) is a competence of democratically elected powers of government to correct particular errors even in final judicial decisions of apex courts. (Taking into account both classes of constitutional interpretation, redress may entail correcting the decision in detail, nullifying it, or ignoring it, as appropriate.) This is important insofar as checks and balances are poorly understood by constitution framers in CEE, who tend to confound it with accountability procedures like the appointments process which, however, allow no retrospective correction of unjust decisions – what checks and balances are useful for. Impeachment, though a possible remedy in cases of misappointment, is nonetheless a “blunt instrument” the high transaction costs of which have dis-incentivised regular attempt. Moreover, impeachment can be abused to threaten judges’ decisional independence.
The theory also has implications for our understanding of the role of judges in a democracy and the proper limit of their jurisdiction. An argument often heard that when legislatures fail to act to regulate an area of life, this justifies judges intervening to regulate it themselves. It is crucial to understand that Legislative inaction may never be counted a “failure” by other Branches of government without damage to Ground Due Process and everything that rides on it. Inaction means something and, regardless of the motives for it, it constitutes a finding of innocence in a divided government. When courts “step into” a vacuum of legislation, using it as a pretext, they are vesting themselves with an “extra-jurisdiction” by which they purport to find persons guilty (not innocent!) unilaterally and without recourse. It is in fact a violation of separation of powers, and other Branches have a right and indeed a duty to check and balance it.
The unilateral property restitutions in Romania vividly illustrate the point. Certain Romanian courts began restituting to their original owners property confiscated half a century before by the Communist State and