Part II." Journal of Theoretical Politics 12: 33-65
Total Page：16
File Type：pdf, Size：1020Kb
THE LIMITS TO JUDICIALIZATION: LEGISLATIVE POLITICS AND CONSTITUTIONAL REVIEW IN THE IBERIAN DEMOCRACIES DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Pedro C. Magalhães ***** The Ohio State University 2003 Dissertation Committee: Professor Richard Gunther, Adviser Approved by Professor Lawrence Baum Professor Gregory Caldeira ————————————————— Professor Anthony Mughan Adviser Political Science Graduate Program ABSTRACT A growing body of literature has suggested that courts are becoming increasingly powerful political actors in many contemporary democracies. This trend is supposed to be stronger where constitutional courts perform a so-called “abstract review” of legislation. Such courts are the potential recipients of litigation by opposition parties against legislation passed by parliamentary majorities, and enjoy the power to veto it if they find unconstitutional provisions. Since oppositions have unrestrained incentives to contribute to the expansion of these courts’ jurisdiction and the latter are unconstrained by majority will, the inevitable result should be an important and systematic reduction of the discretion enjoyed by legislative majorities. Focusing on the cases of Spain and Portugal, where constitutional courts have been in place for about two decades, this study challenges such understanding of the consequences of abstract review of legislation. Its first part deals with the institutional design of constitutional courts in both countries, including the rules of appointment and retention of judges frequently neglected by the extant literature. It shows that, unless conditions are such that presently dominant political actors can shape judicial institutions as insurance mechanisms against their future displacement from power, the resulting rules are likely to prevent the conversion of courts into full-fledged countermajoritarian actors, and may even allow for their congruence with and responsiveness to the ii preferences of both present and future majorities. The second part of this study discusses how, in the last two decades, those institutional rules have actually shaped the incentives and constraints faced by majorities, oppositions, and judges. On the one hand, the possibility that strategic oppositions experience policy and electoral costs from litigation has contributed, most of the time, to keep the jurisdiction of constitutional courts over legislative processes under relatively strict boundaries. On the other hand, strategic judges have reacted to institutional constraints, remaining responsive to the parties that appointed them and displaying deference towards contemporary majorities. Thus, the pressures towards the judicialization of politics resulting from the creation of abstract review institutions in Spain and Portugal have been effectively contained, preventing an inexorable trend towards a government of judges. iii To Rosy, Clara, and Joaquim iv ACKNOWLEDGMENTS I would have been impossible for me to complete this work without the precious help of many people. Cristina Leston-Bandeira was my first accomplice in the study of legislative politics in Portugal, and whatever I know about the subject owes a lot to her work. Miguel Lobo Antunes and António Vitorino are responsible, for better or for worse, for pushing me in the direction of the study of judicial politics. In my very first efforts in this field, I collaborated with Carlo Guarnieri, to whom I am grateful for having shared his insights about why political scientists everywhere should care about studying the judicial branch. I am also very fortunate to have been able to collaborate in the study of Portuguese judicial politics with António de Araújo. He has been willing to share with me some of his encyclopedic knowledge in these matters and has been patient enough to read numerous drafts of almost everything I have ever written. But most of all, I am fortunate to have been able to count with his friendship. During the two and a half years of doctoral program at The Ohio State University I was supported by grants from the Calouste Gulbenkian Foundation and the Fulbright Foundation, to whom I am extremely grateful. I thank Rita Bacelar and Paulo Zagalo e Melo for their relentless efforts in getting me safe and sound to Columbus. Felipe Agüero, David Bearce, Stefanie Chambers, Laurel Elder, Krista Karickhoff, Joe McGarvey, Jason Pigg, Alison Rimsky, Sara Schiavoni, and Chris Scholl made v Columbus a home away from home for me. They will be forever in my thoughts. I am grateful to Timothy Frye, William Liddle, Goldie Shabad, and most especially to Lawrence Baum, Gregory Caldeira, and Anthony Mughan for their invaluable guidance and help then and since. I would also like to thank the Social Sciences Institute of the University of Lisbon and their presidents João de Pina Cabral and Maria Eduarda Cruzeiro for providing me with a safe haven upon my return to Lisbon, as well as with the kind of resources to pursue my research that I am quite sure I would find nowhere else in Portugal. That research was also greatly aided by the staff of the Library of the Constitutional Court and the Center of Documentation of the Presidency of the Republic. In the first half of 2001, I was a visiting student at the Center for Advanced Social Studies of the Juan March Foundation in Madrid. I am very grateful to José Maria Maravall and José Ramón Montero for so kindly receiving me there, and to Belén Barreiro, Braulio Gomez, Pablo Gonzalez Alvarez, and Ignacio Sánchez-Cuenca for their support. I benefited enormously from comments to early versions of this work made not only by the members of my dissertation committee, but also by António Araújo, Belén Barreiro, and Cristina Leston- Bandeira. They prevented me from making many errors, and all that remain are my responsibility. Finally, I would like to express my profound gratitude to three people in particular: Manuel Braga da Cruz, Richard Gunther, and António Barreto. In several points in my academic career, including the research that led to this dissertation, their guidance, encouragement, and relentless trust made all the difference. I can only hope to remain worthy of them. vi VITA July 3, 1970…………………………..Born - Lisbon, Portugal 1993…………………………………...Licenciatura, Sociology, Instituto Superior de Ciências do Trabalho e da Empresa, Lisbon, Portugal 1993 - 1995…………………………..Teaching assistant, Portuguese Catholic University, Lisbon, Portugal 1995 - 1998…………………………..Graduate Student, Department of Political Science, The Ohio State University, Columbus, Ohio, U.S.A. 1998 - present………………………...Junior Associate Researcher, Instituto de Ciências Sociais da Universidade de Lisboa and Assistant Professor, Portuguese Catholic University PUBLICATIONS 1. Freire, André, António de Araújo, Cristina Leston-Bandeira, Marina Costa Lobo, and Pedro Magalhães. 2002. O Parlamento português: uma reforma necessária. Lisbon: ICS. 2. Freire, André and Pedro Magalhães. 2002. A abstenção eleitoral em Portugal. Lisbon: ICS. vii 3. Magalhães, Pedro C. 2001. "As armas dos fracos: o veto político e a litigância constitucional do Presidente da República." In A Reforma do Estado em Portugal: Problemas e Perspectivas. Actas do I Encontro Nacional de Ciência Política. Lisbon: Editorial Bizâncio. 4. Lobo, Marina Costa, and Pedro C. Magalhães. 2001. "Da Terceira Vaga à Terceira Via: A Europa e os socialistas portugueses (1974-1999)." Política Internacional 3: 53-66 [translation of 9.] 5. Magalhães, Pedro C. 2001. "Desigualdade, desinteresse e desconfiança: a abstenção nas eleições legislativas de 1999." Análise Social 35: 1079-1093. 6. Lobo, Marina Costa, and Pedro C. Magalhães. 2001. "From the 'Third Wave' to the 'Third Way': Europe and the Portuguese Socialists (1975-1999)." Journal of Southern Europe and the Balkans 3: 25-35. 7. Araújo, António de, and Pedro Coutinho Magalhães. 2001. "A justiça constitucional: uma instituição contra as maiorias?" Análise Social 35: 207-246. 8. Magalhães, Pedro Coutinho. 2000. "O sistema judicial português: ineficácia e ilegitimidade." In António Barreto, ed., Justiça em Crise? Crises da Justiça. Lisbon: D. Quixote. 9. Magalhães, Pedro Coutinho, and Juan António Doncel Luengo. 1999. "Informe sobre la actividad político-constitucional portuguesa durante 1997." In Pablo Pérez Tremps, ed., Jornadas Luso-Españolas de Derecho Constitucional. Mérida: Editora Regional de Extremadura. 10. Magalhães, Pedro C. 1999. "The Politics of Judicial Reform in Eastern Europe." Comparative Politics 32: 43-62. 11. Guarnieri, Carlo, and Pedro Coutinho Magalhães. 1999. "O activismo judicial na Europa do Sul", Sub judice 14: 7-14. 12. Magalhães, Pedro Coutinho. 1999. "Corporativismo, judicialização da política e a 'crise da justiça' em Portugal." Revista do Ministério Público 79: 11-27. 13. Magalhães, Pedro Coutinho, and António de Araújo. 1998 "Os juízes constitucionais entre o direito e a política: o comportamento judicial no Tribunal Constitucional português," Análise Social 33: 7-53. 14. Magalhães, Pedro Coutinho. 1995. "A actividade legislativa da Assembleia da República e o seu papel no sistema político." Legislação 12: 87-119. 15. Magalhães, Pedro Coutinho. 1995. "Democratização e independência judicial em Portugal." Análise Social 30: 51-90. viii FIELDS OF STUDY Major Field: Political Science ix TABLE OF CONTENTS Page Abstract……………………………………………………………………………………ii Dedication………………………………………………………………………………...iv Acknowledgments…………………………………………………………………………v