Judicial Review and Constitutional Stability: a Sociology of the U.S

Hastings International and Comparative Law Review Volume 21 Article 2 Number 1 Fall 1997 1-1-1997 Judicial Review and Constitutional Stability: A Sociology of the U.S. Model and its Collapse in Argentina Jonathan Miller Follow this and additional works at: https://repository.uchastings.edu/ hastings_international_comparative_law_review Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Jonathan Miller, Judicial Review and Constitutional Stability: A Sociology of the U.S. Model and its Collapse in Argentina, 21 Hastings Int'l & Comp. L. Rev. 77 (1997). Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol21/iss1/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings International and Comparative Law Review by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Judicial Review and Constitutional Stability: A Sociology of the U.S. Model and its Collapse in Argentina By JONATHAN MILLER* I. Introduction Constitutional trends in the world today reveal a strong movement among new democracies to provide for judicial review.' The precise model may vary from that of the United States, with many countries prefer- ring to send all constitutional issues to a single court and some providing for review before a law takes effect.3 However, no one can doubt the basic trend toward review exercised by a judicial or quasi-judicial organ. Given the fractious nature of political competition, the most obvious reason for the rise of judicial review is that pluralist societies require a respected institution or institutions to resolve disputes over the interpretation and ap- * Professor of Law, Southwestern University School of Law. This article was taken from a larger work that was successfully defended as a J.S.D. dissertation at Co- lumbia Umversity School of Law. The author would like to thank the members of his dissertation committee, Professors Martha Fineman, Alejandro Garro and R. Kent Gre- enawalt, his Argentine colleagues Professors Julio C. Cueto-Rda and Hernmn Gullco, and the many faculty members at Southwestern University School of Law who offered valu- able comments. The author would also like to thank Jerome Feldman and Fang-Lian Liao for their research assistance, and the Buenos Aires law firms of Bianchi, Mijura & Galarce, Marval, O'Farrell & Mairal, and de la Rila & Diaz Cant6n for the use of their offices and libraries. Carol Weiner and David McFadden of the Southwestern Umversity School of Law Library and Ana Marfa Agilero and Mariana del Carril of the Argentine Supreme Court Library provided invaluable reference assistance. Finally, the most con- stant, detailed editorial advice was provided by Carina Judith Miller, the author's wife. 1. See, e.g., BuLG. CoNST. arts. 149-50; CZECH REP. CoNsr. arts. 83, 87, 95(2); EsT. CONST. art. 149; Lrni CONST. arts., 102, 110; SLOvW. CONSr. arts. 158, 160-61; UKR. CONST. art. 147. Translations of all of these Constitutions may be found in CONSTITUTIONS OF THE COUNTRIES OF THE WORM (Albert P Blaustem & Gisbert H. Flanz eds., 1997). 2. See, e.g., ITALY CONST. art. 134; F.R.G. Basic Law arts. 93, 100; Constitutions of Bulgaria, Czech Republic, Estonia, Lithuania and Slovenia, supra note 1. 3. See, e.g., FR. CONST. arts. 61-62; ALG. CONST. arts. 153, 155; Russ. CoNsr. art. 125(2). Hastings Int'l & Comp. L. Rev. [Vol121:77 plication of the rules binding them together. Further, absence of a judicial arbiter risks the transformation of reasonable constitutional disagreements into festering political disputes which threaten the legitimacy of those in power.' Without a constitutional arbiter independent of the ruling legisla- tive or executive body, political leaders not only face few institutional constraints on their exercise of power, but may also suffer a loss in terms of public perception of the legitimacy of their authority Moreover, some- times societies require reinterpretation of constitutional rules to accommo- date new social needs, and courts may legitimize modification of the rules. Pluralist societies require organs able to legitimate or disapprove fundamental change when faced with groups prejudiced by the changes.5 Although scholarship on judicial review is practically endless, little attention has been given to its sociological foundation. That is unfortu- nate, because the actions and success of any political institution depend on the authority that it commands, and the source of authority wielded by an institution may vary enormously even when countries have identical political systems. The actions, concerns and weaknesses of a judiciary that sees itself as the rational interpreter of a text will be completely different from one that sees itself as a charismatic authority free of textual restraints, which m turn will be different from a court that sees itself as restating timeless traditions, or a court that sees itself as dependent on a foreign model for authority Moreover, the type of authority exercised by a court must match the expectations of the most politically significant groups in society, or the court will find its own legitimacy in danger. Discussion of the "countermajoritanan difficulty" in the United States, concerning the propriety of allowing unelected judges to second-guess decisions of elected officials, skirts on the edges of this problem but does not quite touch it. The fundamental sociological problem is not whether one approach toward constitutional interpretation is superior to another in terms of participatory democracy, but the social legitimacy of what is taking place in the eyes of all those who have political relevance in the society 6 4. CHARLES L. BLACK, JR., THE PEOPLE AND THE COURT 36, 38 (1960). 5. See id at 52, 65. 6. Some critics of constitutional interpretation that frees itself from the restraints of a rigid reading of the text or original intent have expressed concern for maintaining the judiciary's institutional legitimacy, but arguments that a restrictive reading of the Con- stitution is necessary to maintain judicial legitimacy never move beyond the level of mere assertions. ERwiN CHEMERINSKI, INTERPRETING THE CONSTrrUTION 133-34 (1987). None of the critics or proponents of open-ended constitutional interpretation have offered either a model or empincal evidence to back up their claims. 19971 Judicial Review and Consitutional Stability Tins article will use Max Weber's Sociology of Law as a starting point for developing a sociology of judicial review. The model will note that while constitutional courts may initially rely upon various sources of legitimizing authority, over time, changing societal needs and political bal- ances force courts to look beyond such foundations as constitutional text and the framers' intent if they are to perform a significant role in keeping the social peace. The trick, however, is acquiring this capacity without losing either legitimacy or independence, and that trick may prove very difficult in many societies that use a model based on U.S. judicial review. While judges may comply with societal demands and reinterpret the constitution to suit current conditions, once they move beyond textually based interpretation they may also find themselves lacking alternative sources of authority to place constraints on a popular Executive. In most societies courts enjoy less charisma than an elected Executive, and hence will find themselves on the losing side in any battle with the Executive where the Court cannot point to clearly established rules. Once the model is established, it will be applied to Argentina in order to show how judicial review may lose its effectiveness over the long term. Argentina presents one of the longest traditions of judicial review in the world, dating back to the 1860s. Judicial review enjoyed enormous initial success, with many important decisions curbing conduct by the ExecutiveZ Moreover, until the 1930s, the Argentine Supreme Court derived its authority from interpretation of the constitutional text and from U.S. precedent. A focus on the language of the Constitution enabled the Court to develop extraordinarily consistent caselaw in key areas such as freedom of the press, freedom to engage in commercial activity, and property rights. During most of this period, the Court applied itself to the rigid protection of a clearly established set of rules. This changed in the 1930s, and the Court adopted a judicial philoso- phy roughly comparable to legal realism. However, once the Court started down that path, it gradually lost the ability to say "no" to the Executive in an authoritative fashion, and it never developed the authority to design new constitutional restrictions on executive authority. By the mid-1940s, Ar- gentine society could no longer live with its old constitutional bargain and there was broad support for the Executive and Congress to address eco- 7 See generally Jonathan M. Miller, Courts and the Creation of A "Spiritof Mod- eration" Judictal Protection of Revolutionaries in Argentina, 1863-1929, 20 HASTiNGs INT'L & CoMP. L. REv. 231 (1997) (analyzing the Supreme Court's insistence on fair treatment of revolutionaries and the political opposition). Hastings Int'l & Comp. L. Rev. [Vol 21:77 normc and social problems through what were previously regarded as un- constitutional methods. At the same time, while the Argentine Supreme Court had already begun to respond to social pressures to move beyond the constitutional text on important issues, in practice its flexibility also un- dercut its authority The Court gradually lost its ability to insist on textual interpretation because social needs had vaned too much from the imposi- tions of the text and the intent of its framers. Yet it also became much more difficult for the Supreme Court to assert itself, because politicians were aware that any restrictions imposed by the Court were of the Court's own making and doctrinally groundless.

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