an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This Friday I attended a workshop at Yale Law School on Sam Issacharoff's forthcoming book, Fragile Democracies: Constitutional Courts in the Breach, organized by my colleague Heather Gerken, Guy Charles of Duke and Michael Kang of Emory.
Issacharoff's argument is that constitutional courts offer stability in emerging democracies--what he calls "fragile democracies." At their best, constitutional courts can help regimes keep on track in their quest to become and remain democratic, even if the powers and influence of constitutional courts always remain limited. Although courts cannot do everything, and are often quite vulnerable, they can help ensure political competition and the ability of successive elections to discipline politicians.
We might juxtapose Issacharoff's argument with that of critics of judicial review like Jeremy Waldron, who argue that judicial review is not necessary in well-functioning democracies. Issacharoff responds that emerging democracies are not yet well-functioning; in these situations constitutional courts can and do play an important role in shoring up democracy when it is most vulnerable.
I would add that if judicial review proves important or even necessary for fledgling democracies, it is unlikely to wither away (like the state in Marx's theory of history) once democracy becomes more established. Instead, multiple institutions will increasingly rely on constitutional courts for multiple functions. If you employ constitutional courts at the beginning of your democratic enterprise, you are likely to keep them.
Waldron is not insensitive to this point; rather his assumption is that well-functioning democracies can and do emerge without constitutional courts-- Great Britain and New Zealand provide examples of how this happened. But in the contemporary context -- of many different kinds of societies divided by religion, ethnicity, and language, and with only limited experience in maintaining free institutions -- you may not be able to get good results in fledgling democracies without constitutional courts. And once you have constitutional courts, they will tend to be baked into the constitutional and political structure. They will be difficult to replace because so many different actors depend on them to perform various functions within a democracy and to help keep democracy running.
Issacharoff's thesis about the role of constitutional courts in fragile democracies led to two questions, both ably presented by my colleague Dan Markovits. First, why do we care about achieving stable democracy in new regimes rather than political stability in general? Why shouldn't we settle for Singaporean-style political stability rather than putting our hopes on a distinctively democratic form of stability with genuine political competition and rotation in office? Second, why should we focus on courts as a crucial ingredient in providing democratic stability? After all, there are many different institutions that can help stabilize democracy in a country. For example, the military, capital, landowners, religious institutions, and civil society can all work to preserve political stability and support democratic government.
The answer to both questions is legitimacy.
First, at an earlier point in history, people might not have thought that achieving *democratic* legitimacy was especially important. Many people might have been content with a stable order that did not violate peoples' rights too much or too often. But by the beginning of the twenty-first century, political legitimacy is increasingly democratic legitimacy. Even countries that are not democratic (and do not intend to be) like to pretend that they are democratic, by pointing to elections, plebiscites, or other features of popular participation to show that they are responsive to popular will. Their hypocrisy is the compliment that vice pays to virtue. So we rightly care about whether constitutional courts can help promote democratic legitimacy and stability, not just legitimacy and stability in general.
Second, it is true that many different institutions can help fragile democracies achieve and maintain democratic practices. But given their composition and nature, each of them can only do certain things. The military can maintain order by threatening to shoot people and otherwise use force. The church can use its moral authority and threaten excommunication or moral condemnation. Capital (and wealth more generally) can work to preserve economic stability and avoid crises that would harm democracy (as J.P. Morgan and his colleagues did at the beginning of the 20th century to prevent a panic and a run on banks). Civil society organizations can mobilize to show popular support for a regime.
Nor should we forget forms of influence from outside a nation's borders. International public opinion and international political and legal institutions can pressure politicians to behave; international organizations like the World Bank and the IMF can put economic pressure on politicians to maintain the rule of law and democratic practices; other countries, working either individually or collectively, can threaten sanctions or withhold benefits; or they can offer assistance in return for pro-democratic reforms, and so on.
All of these institutions can help support fledgling democracies in valuable ways. Of course, they can also work against democracy, too. (Think of military coups as an example).
But courts-- and especially constitutional courts-- offer something that these other institutions cannot. They can offer legitimacy based on the rule of law. What courts can do is issue opinions that say that something is legal or not legal. In so doing, they legitimate the work of the political branches. They offer legitimation when they declare laws and practices unconstitutional or illegal and, equally important, when they uphold the constitutionality and legality of certain laws and practices. The authority of the court to legitimate-- to say yes-- depends on its potential power to say no-- to withhold legitimation. Through the power to legitimate according to opinions that purport to be grounded in law and legal reasons, constitutional courts offer a form of legitimation that no other players-- whether church, army, or capital-- can offer.
The importance of the role of courts in political legitimation emerged only gradually. If we go back far enough in history, the blessing of the Catholic Church might have been a far greater and more desirable source of legitimation for a monarch. Going back still further in time, military power-- for example the force of the Imperial Roman army-- might have been the best guarantee of stability in an outlying province.
But in our age, democracy based on the rule of law is the gold standard of political legitimacy. From the perspective of that standard, the blessing of courts is particularly important. Courts represent the rule of law, and therefore offer a special kind of stability and legitimacy that the military and the church cannot. Even popular support cannot guarantee that politicians act according to law-- indeed, mass support may tempt them to abandon legal norms.
But one should not confuse the idea that courts can bestow legitimacy and stabilize democracy with the idea that they can do so by themselves. They also need support from at least some of the other institutions and practices I have just mentioned-- the military, the church, capital, civil society, and international organizations and institutions. If courts do not have support from at least some of these institutions, they will not be able to stand up to politicians, who will roughly push aside the work of judges aside, ignore judges or replace them with judges who are far more tractable.
Institutions like the military, the church, or capital--or international influences--often prove to be necessary supports for judicial legitimation, which is not the same thing as saying that they can bestow judicial legitimation themselves. Indeed, they may need the legitimating function of courts as much as courts need their support to shore up a fledgling democracy. Owners of capital and landowners in particular have long seen courts as an important bulwark against despotism; Alexander Hamilton's famous justification of judicial review in The Federalist is an example.
This explanation shows why constitutional courts sometimes find it very difficult to preserve democracy in states that become dominated by a single party-- often the original revolutionary party that established the new regime. In one-party states, the dominant party may have successfully co-opted all of the other institutions-- including capital, the military, and the church. If this happens, courts have nothing to fall back on. They can try to stand up to politicians who undermine democratic institutions, but they are unlikely to get very far. Instead, they may find that they may have to let the dominant party get most of what it wants, temporize and find ways to preserve their institutional status for a later time.
This thesis suggests that judicial review by constitutional courts can grow stronger over time if parties and institutions see courts as an effective ally when they do not control the reins of power. That is, judicial review tends to become more established and more powerful when there is genuine political competition and regular rotation in office, so that all parties have reason to treat the courts as a potential ally. In a hostile political environment, the judiciary may be an important support for an out-of-power party or faction. Moreover, as Mark Graber and Keith Whittington have pointed out in the American context, the political branches may increasingly rely on courts to decide questions that they cannot or do not want to decide.
In a mature democracy like the United States, this cumulative process of employing and depending on courts to provide stability and legitimation has proceeded so far that the U.S. Supreme Court was actually able to resolve a disputed presidential election in 2000. But that sort of interdependence takes a great deal of time to establish. The challenge for constitutional courts in emerging democracies is to help establish the conditions of political competition, that, in the long run, will help establish courts' own authority.