Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Lawby Mark Tushnet
Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. This is in part because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially
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Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. This is in part because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced-not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law.
"Tushnet explores two prominent questions that constitutional drafters must ask: What powers of judicial review should courts have? and What rights should be enumerated? . . . Tushnet's ambitious agenda in Weak Courts, Strong Rights is equally important for political scientists and comparative legal scholars."Theresa J. Squatrito, Comparative Political Studies
"Mark Tushnet has written an important book, featuring mastery of pertinent comparative constitutional law literature and an incredible ideas-per-ink ratio. . . . Any serious scholar of comparative constitutional law cannot afford to skip this book."Ran Hirschl, Ottawa Law Review
Theresa J. Squatrito
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Weak Courts, Strong Rights Judicial Review and Social Welfare Rights in Comparative Constitutional Law
By Mark Tushnet Princeton University Press
Copyright © 2007 Princeton University Press
All right reserved.
Chapter One Why Comparative Constitutional Law?
Recent Supreme Court opinions mentioning constitutional decisions by courts outside the United States have generated a strong-and grossly overstated-critique by conservative commentators. The thrust of the critique is that these opinions portend inroads on the sovereign ability of the American people to govern ourselves, and the embedding in the U.S. Constitution-through judicial interpretation-of the values of a cosmopolitan elite that could not persuade the American people to adopt those values through purely domestic legal processes.
Only a brief comment on these "arguments" is appropriate here. First, Supreme Court mention of decisions by courts outside the United States is no recent development, but at most a revival of an earlier tradition that had been submerged for perhaps a decade or two. Second, mention is the right word. Only one recent opinion relies on the substance of a decision by a non-U.S. court to support a proposition that played some role in the Court's reasoning. Other references to such decisions have been in the form of factual observations about what other courts have done. Third, the idea that references to non-U.S. decisions might somehow produce decisions that would not be reachedby using other materials for interpreting the Constitution is quite implausible. It seems to require that some justice who would not otherwise be persuaded by those other materials would nonetheless change his or her mind when confronted with the non-U.S. materials. That might happen, someday, for one justice perhaps, but surely not on a large enough scale for anyone to care about. Fourth, the concern about sovereignty seems equally misplaced. The U.S. Supreme Court is, after all, a domestic lawmaker no less than is, for example, the U.S. Senate, which ratifies treaties limiting what the U.S. government as a whole can do. That is, a domestic institution would impose any restrictions on U.S. lawmaking by references to non-U.S. court decisions. There is no impairment of sovereignty in that. And, finally, the concerns about self-government expressed by critics of these Supreme Court decisions are valid ones-when made about judicial review itself. There is nothing, though, that distinguishes non-U.S. decisions from anything else the Court might rely on to limit self-government through judicial review.
This recent tempest in a teapot has placed the question of the value of comparative constitutional study on the table. Why study comparative constitutional law? For a scholar, of course, the value seems obvious: more knowledge is generally better than less. Others have a more instrumental interest. They might want to know whether studying comparative constitutional law might improve our ability to make domestic constitutional law. Responding to that inquiry requires some examination of how we can actually do comparative constitutional law. I confine my attention to questions implicated in doing comparative constitutional law as law. There is, of course, a large field of comparative studies of governmental organization, conducted by political scientists as well as lawyers, and some of that field overlaps with the field of comparative constitutional law. There is, though, one large difference between the fields. Comparative constitutional law involves doing law. And, as I have learned, it is quite difficult to be comfortable in doing law in more than one legal system. Even when language barriers do not intervene, legal cultures do. For example, I have been persuaded-despite my initial skepticism-that Australian constitutional culture is far more formalist than U.S. constitutional culture. It is less open to what seem to me the inevitable intellectual challenges from those influenced by American legal realism and its legacy. As a result, constitutional doctrines in Australia, such as those dealing with the allocation of authority between the national and the state governments, are more stable than similar doctrines in the United States, even doctrines framed in language that seems parallel to that used in the Australian cases. These and other differences in constitutional cultures complicate the task of doing comparative constitutional law, perhaps to the point where the payoff in any terms other than the increase of knowledge is small.
AN OVERVIEW OF METHODS IN COMPARATIVE CONSTITUTIONAL LAW
I think it useful to identify two ways of doing comparative constitutional law, as a preliminary to criticizing and deepening them to suggest a third method. Without insisting that they are sharply different, I call the first two methods normative universalism and functionalism. These two methods involve efforts to see how constitutional ideas developed in one system might be related to those in another, either because the ideas attempt to capture the same normative value or because they attempt to organize a government to carry out the same tasks. I call the third method contextualism. This method comes in two variants, which I call simple contextualism and expressivism. Simple contextualism insists that constitutional ideas can be understood only in the full institutional and doctrinal context within which they are placed. Expressivism takes constitutional ideas to be expressions of a particular nation's self-understanding. Both methods raise questions about the coherence of the idea that constitutional ideas can migrate (without substantial modification) from one system to another.
UNIVERSALISM AND FUNCTIONALISM
Normative universalism emerges primarily from the dialogue between those who study comparative constitutional law and those who study international human rights. The idea is simple: constitutionalism itself entails-everywhere-some fundamental principles. Some of those principles involve human rights: the protection of some universal human rights, such as rights to political participation, to equal treatment under the law, to freedom of conscience and expression, and, for many human rights advocates, much more. Others involve structures of government. Here the list is typically shorter: independent courts for sure, perhaps some version of the separation between law enactment and law execution (another aspect of the separation of powers), and probably little more.
Universalists study comparative constitutional law to identify how particular constitutions instantiate those universal principles. By comparing different versions, we can better understand the principles themselves. Then we might be able to improve a domestic system's version of one or another principle by using that enhanced understanding to modify it.
Three examples from free speech law, two controversial, the other not, illustrate the universalist method in comparative constitutional law. The uncontroversial one is the law of sedition, a criminal offense consisting of criticism of existing government policies. Over the past century, the United States Supreme Court has grappled with the problem of reconciling the law of sedition with the First Amendment's protection of free expression. Its sustained attention to the problem has yielded two conclusions. The first is widely accepted. Government efforts to suppress speech critical of its policies must be treated with extreme skepticism, captured variously in formulations like "clear and present danger" or "intended to and likely to cause imminent lawless conduct." The latter formulation indicates the second conclusion we can draw from the U.S. sedition cases. The problem of seditious speech, analysis has shown, is only one aspect of a broader problem-how can governments regulate speech that, they fear, will cause people to break the law?
Governments around the world have confronted the problem of seditious speech, and all governments must deal with the problem of speech that increases the risk that laws will be broken. Comparative constitutional study allows us to examine the different ways in which they deal with the problem. And, most scholars and many constitutional courts believe, something like the U.S. approach is the best one available. The European Court of Human Rights, for example, has dealt with cases arising out of Turkey's often violent confrontation with the Kurdish separatist movement there. One, decided in 2000, involved a newspaper article by the president of a major labor union, in which the author said that "not only the Kurdish people but the whole of our proletariat must stand up against" the nation's anti-Kurdish laws and policies. The Court wrote that "there is little scope [in the applicable international human rights law] for restrictions on political speech," but that governments could limit free expression when a speech "incites to violence against an individual, a public official or a sector of the population." The law of personal libel provides a second example. Here the United States has adopted a notably stringent rule restricting the circumstances under which a person the Supreme Court calls a public figure can recover damages for the publication of a false statement that injures his or her reputation. The category of public figures is a large one in the United States, including leaders of large private corporations and prominent football coaches and celebrities as well as politicians. Public figures can win only actual damages, which are usually relatively small, and even then only if they show that the false statements were made by someone who knew they were false or at least made a conscious decision to forgo any effort to find out whether they were true or false. Not surprisingly, other constitutional courts regularly confront libel cases brought by public figures. They have reached a range of conclusions, but none is nearly as restrictive of recovery as is the United States. For example, Australia uses a test of reasonableness. One major formulation was offered in a case brought there by a member of New Zealand's parliament who had been that nation's prime minister:
[A] defendant's conduct ... will not be reasonable unless the defendant had reasonable grounds for believing that the imputation [of something that damages reputation] was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response (if any) made except in cases where the seeking or publication of a response was not practicable.
Many in the United States find our domestic law of libel unsatisfactory. Universalist scholars of comparative constitutional law suggest that looking at the solutions that other constitutional democracies have come up with would help us develop a better law of libel.
The most controversial example involves the regulation of hate speech. Proponents of more extensive regulation of hate speech in the United States often refer to transnational constitutional norms-the existence of hate speech regulation in Canada, the existence in some international human rights treaties of a duty to regulate hate speech-in defending the proposition that hate speech regulation should not be treated as unconstitutional under the First Amendment to the U.S. Constitution. They argue, quite rightly, that the fact that modern liberal democracies do in fact regulate hate speech without descending into totalitarian tyrannies where the government engages in extensive thought control shows that hate speech regulation in itself is compatible with a system that respects general norms of free expression. They conclude that hate speech regulation in the United States could be adopted without risking anything other than making the United States more like Canada-not, in their view, an obviously bad thing.
Again, this exemplifies the universalist use of comparative constitutional law. According to universalists, general principles of free expression and human dignity come into play when someone makes a speech castigating a racial, religious, or national group. Examining how a number of nations have worked out accommodations between those principles might be useful in developing the contours of any nation's domestic law dealing with hate speech.
The functionalist approach to comparative constitutional law is similar to the universalist one to the extent that it tries to identify things that happen in every constitutional system that is the object of study. So, for example, every democratic nation has to have a mechanism in place for going to war or for dealing with domestic emergencies that threaten the nation's continuing existence. But, the functionalist analysis goes, democratic nations should be careful about going to war, and about determining that a truly grave emergency exists. Functionalists believe that examining the different ways in which democratic nations organize the processes of going to war and declaring emergencies can help us determine which are better and which are worse processes.
As the example of war-making and emergencies suggests, functionalists tend to focus on issues of government structure. With respect to federalism, for example, a functionalist might ask: What forms of federalism best accommodate the diversity in a nation's regions? Can federalism be adapted to deal with diversities that are not tied closely to geography? Belgium's experiment with an incredibly complex set of federalist institutions-some geographic, some linguistic-layered on to each other might provide some insights into these questions. Drawing on work by political scientists, functionalists consider whether presidential or parliamentary systems are better vehicles for achieving the goals a nation's people set for themselves. Both the universalist and functionalist methods are flawed, though. Put most generally, their difficulty is that they operate on too high a level of abstraction. We can assume that there are universal principles of liberty and justice, for example, but we can be reasonably confident that such principles are not fully captured in general terms such as free speech or equality. The free speech principle, whatever it is, is likely to be extremely complex, sensitive to the circumstances presented by particular problems. The law of freedom of expression must deal with forms of expression that involve words alone, words coupled with symbols, symbols alone, and actions whose social meaning is understood to be communicative. It must deal with expression that is thought to cause harm by persuading listeners of the rightness of the claims made, by structuring the environment in which listeners evaluate other claims, or by triggering responses without engaging a listener's cognitive capacities. It must deal with harms ranging from assaults on dignity to threats to national survival. And, of course, it must deal with political speech, commercial speech, sexually explicit speech, and many other varieties of expression. With so many variables going into the structure of the free speech principle, it may well be that a nation's experience with the cases thrown up in its own history will be substantially more illuminating of the underlying principle than other nations' experiences with their histories.
A parallel point holds for issues of government structure. Consider, for example, the question of going to war. Separation-of-powers systems might be leery of giving a president the power to initiate substantial military engagements, because, as William Treanor has pointed out (drawing on the views held by the framers of the U.S. Constitution), a single person may be reckless in seeking to obtain honor in military operations. Members of the legislature, in contrast, gain little individually from authorizing military operations, and so may be more cautious than a president. Clearly, though, this argument depends on the precise structure of a nation's separation-of-powers system, and in particular on the relation between the president as party leader and the president as commander in chief.
Excerpted from Weak Courts, Strong Rights by Mark Tushnet
Copyright © 2007 by Princeton University Press. Excerpted by permission.
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Meet the Author
Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School. His many books include "The New Constitutional Order" and "Taking the Constitution Away from the Courts" (both Princeton). He is a fellow of the American Academy of Arts and Sciences.
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