DOCSLIB.ORG

Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2006 Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication Suzanne B. Goldberg Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, and the Constitutional Law Commons Recommended Citation Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication, 106 COLUM. L. REV 1955 (2006). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/65 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL. 106 DECEMBER 2006 NO. 8 ARTICLES CONSTITUTIONAL TIPPING POINTS: CIVIL RIGHTS, SOCIAL CHANGE, AND FACT-BASED ADJUDICATION Suzanne B. Goldberg* This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one under- standing of a social group and its constitutional claims to another. Adjudi- cation of equal protection and due process claims, in particular,requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardationon group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg criti- ques this approachfor its flawed premise that restrictions on social groups can be evaluated based on facts alone and its role in obscuring judicial involvement in selecting among competing norms. The Article also observes that because fact-based adjudication enables courts to leave norms unacknowledged, it does serve the judiciary's institu- tional interests by maximizingflexibility forfuture decisionmakingregarding restrictions on group members' rights. At the same time, however, this ap- proachfacilitates inconsistency in theory and outcome by enabling courts to variously embrace and reject traditional rationales for restricting social groups without having to justify the inconsistent treatment of group-related norms. As a possible remedy for these flaws, the Article considers the costs and benefits of greaterjudicial candor regarding the normative underpin- * Clinical Professor of Law, Columbia University School of Law. I am especially grateful to Henry Monaghan for ongoing conversation about the issues in this Article as well as to Michelle Adams, Mary Anne Case, Ariela Dubler, William Eskridge, Richard Fallon, Gary Francione, Charles Fried, Richard Goldberg, Lani Guinier, Philip Hamburger, Ian Haney-Lopez, Edward Hartnett, Nan Hunter, Pamela Karlan, Michael Klarman, John Leubsdorf, James Liebman, Tamara Lothian, Michael McConnell, Gillian Metzger, Martha Minow, Rachel Moran, James Gray Pope, Richard Primus, Catherine Sharkey, Peter Strauss, Susan Sturm, Kendall Thomas, Jeremy Waldron, Mark Weiner, and Robin West, and to the participants in the Harvard Constitutional Law Workshop, the faculty workshops at Columbia, Fordham, Brooklyn, Hofstra, and Rutgers-Newark Law Schools, and the LGBT Law Faculty Workshop of Greater New York. My thanks, as well, to Todd Anten and Wilson Meeks for outstanding research assistance, to Rachel Rubenson of the Columbia Law Review for editorial suggestions, and to the Dean's Research Fund of Rutgers-Newark Law School for financial support. 1955 1956 COLUMBIA LAW REVIEW [Vol. 106:1955 ning of decisions. Although Professor Goldberg ultimately advocates only a limited modification to the currentfact-based adjudication regime, she con- cludes that our theories of judicial review will improve, both with respect to descriptive accuracy and normative bite, to the extent they recognize the inevi- table judicial involvement in making normative judgments about social groups. INTRODUCTION .................................................. 1957 I. THE PERVASIVE PRACTICE OF FACT-BASED ADJUDICATION .... 1964 A. "Thick" Facts and the Merger of Norm into "Fact".... 1965 B. "Thin" Facts and Unstated Norms .................... 1970 II. FACT-BASED INTERVENTIONS IN CONTESTED NORMATIVE T ERRAIN ................................................. 1974 A. A Prelude to Tipping ................................ 1975 B. Intervention via "New" Facts ......................... 1976 C. Fact-Based Decisions as the Groundwork for Norm D eclarations ......................................... 1980 III. THE RHETORIC OF FACT-BASED ADJUDICATION AND THE MISLEADING APPEARANCE OF NEUTRALITY .................. 1984 IV. THE INFLUENCE OF SOCIAL SCIENCE AND SOCIAL MOVEMENTS ON JUDICIAL INCORPORATION OF SOCIAL CHANGE-SOME INSIGHTS FROM FACT-BASED ADJUDICATION ................. 1988 A. Social Scientists and "Thick" Facts .................... 1989 B. Social Movements and "Thick" Facts .................. 1990 C. Extrajudicial Actors and "Thin" Facts ................. 1992 V. THEORIZING JUDICIAL NORM AVOIDANCE ................... 1994 A. Fact-Based Adjudication and Theories of Judicial Review and Decisionmaking .......................... 1994 1. Legal Process-Based Explanations ................. 1995 2. Explanations from Legal Realism ................. 2000 3. Social Psychology and Cognitive Science .......... 2001 B. Fact-Based Adjudication in the Service of Institutional Interest: A Methodology That Preserves Judicial Flexibility ............................................ 2003 VI. ALTERNATIVES TO FACT-BASED ADJUDICATION ............... 2007 A. The Costs and Benefits of Candor .................... 2008 B. Candid Fact-Based Adjudication as a Decisionmaking M odel ............................................... 2014 1. The Contours of Candid Fact-Based Adjudication. 2014 2. Implications of a Fact-Based Candor Requirem ent ..................................... 2015 C. Candid Fact-Based Adjudication and Institutional D esign ............................................... 2018 CONCLUSION ...................................................... 2021 2006] CONSTITUTIONAL TIPPING POINTS 1957 "Courts ... do not sit or act in a social vacuum.... [W] hat once was a "natural" and "self-evident" ordering later comes to be seen as an artificial and invidious constraint on human po- tential and freedom."' -Justice Thurgood Marshall "Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citi- zen, legitimate and illegitimate; for too much of our history there was the same inertia in distinguishing between black and 2 white." - Justice John Paul Stevens INTRODUCTION To paraphrase Alexis de Tocqueville, there is hardly a social conflict in the United States that does not eventually land in court.3 Conse- quently, there is hardly a court that can avoid shaping social conflicts. Equal protection and due process claims, in particular, directly solicit ju- dicial intervention in disputes regarding the status of social groups.4 Judges faced with these claims must then determine what, if anything, justifies singling out group members for legal burdens. To make this determination, courts evaluate prevailing normative judgments regarding group members' status or capacity. When the norms are largely settled, this aspect of the judicial role tends to go unno- ticed. But where longstanding judgments regarding a group have be- come destabilized and new norms have yet to be settled, courts' involve- ment in selecting between "old" and "new" norms produces anxieties regarding the judicial role in responding to societal change. At this moment, these anxieties manifest most prominently in litiga- tion by lesbian and gay couples seeking to marry. The lawsuits maintain that, as a result of societal change, negative views of gay people that once justified discriminatory government action must now be rejected as im- permissible and hostility-laden. States defending the exclusion of gay couples from marriage contend, conversely, that the traditional rationales remain valid. Unavoidably, then, courts must revisit longstanding norms regarding same-sex couples to render their decisions.5 1. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 466 (1985) (Marshall, J., concurring in part and dissenting in part). 2. Mathews v. Lucas, 427 U.S. 495, 520 (1976) (Stevens, J., dissenting). 3. 1 Alexis de Tocqueville, Democracy in America 280 (Phillips Bradley & Francis Bowen eds., Henry Reeve trans., Vintage Books 1990) (1835). 4. See infra note 6 for discussion of the use of the term "social group" here. 5. Some of these judges have found it "eminently rational for the Legislature to postpone making fundamental changes to [the different-sex couple requirement for marriage] until such time as there is unanimous scientific evidence, or popular consensus, or both, that such changes can safely be made." Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 1003 (Mass. 2003) (Cordy, J., dissenting); see also Lewis v. Harris, 875 A.2d 259, 266-67 (N.J. Super. Ct. App. Div. 2005) (citing cases from numerous states to 1958 COLUMBIA LAW REVIEW [Vol. 106:1955 Yet, as this Article will show, when views about a social group are in flux, as is the case for lesbians and gay men today,
Load more

Recommended publications
  • 1 Different Models for Protection of Constitutionality, Legality And
    Prof. Tanja Karakamisheva-Jovanovska, Ph.D 1 Different Models for Protection of Constitutionality, Legality and Independence of Constitutional Court of the Republic of Macedonia 1. About the different models of protection of constitutionality and legality The Constitutional Court is a separate body that serves as a watchdog of the constitution in a given country, and as a protector of the constitutionality, legality, and the citizens' freedoms and rights within the national legal system. From an organisational point of view, there are several models of constitutionality that can be determined, as follows: 1. American model based on the Marbery vs. Madison case (Marbery vs. Madison, 1803) , and, in accordance with the John Marshal doctrine, according to whom the constitutional issues are subject of interest and resolution of all courts that are under the scope of the regular judiciary (in an environment of decentralised, widespread of dispersed control procedure), and based on organisational procedure that is typical for the regular judiciary (incidenter). And while the American model with widespread system of protection of constitutionality gives the authority to all courts to assess the constitutionality of the laws, the European model concentrates all the power for the assessment of the constitutionality on one body. In Europe, there are number of countries that have accepted the American model, such as Denmark, Estonia, Ireland, Norway, Sweden, and in North America, besides the U.S., this model is also applied in Canada, as well as, on the African continent, in Botswana, Gambia, Ghana, Guinea, Kenya and other countries. 2 1 Associate Professor for Constitutional Law and Political System at the University "Sc.
    [Show full text]
  • The Constitutionality of Statutes of Repose: Federalism Reigns
    Vanderbilt Law Review Volume 38 Issue 3 Issue 3 - April 1985 Article 8 4-1985 The Constitutionality of Statutes of Repose: Federalism Reigns Josephine H. Hicks Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Constitutional Law Commons, and the Torts Commons Recommended Citation Josephine H. Hicks, The Constitutionality of Statutes of Repose: Federalism Reigns, 38 Vanderbilt Law Review 627 (1985) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol38/iss3/8 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Constitutionality of Statutes of Repose: Federalism Reigns I. INTRODUCTION ...................................... 627 II. STATUTES OF REPOSE ............................. 628 A. Defining "Statute of Repose" ............... 628 B. Arguments For and Against Statutes of Re- p ose ...................................... 632 III. CONSTITUTIONAL ISSUES .............................. 635 A. Equal Protection .......................... 635 B. Due Process ............................... 642 C. Open Courts, Access to Courts, and Remedy. 644 IV. ANALYSIS .......................................... 648 A. Effect of State Constitutional Law .......... 648 B. Future Direction .......................... 652 C. Arguments For and Against National Legisla- tion .....................................
    [Show full text]
  • Badges of Slavery : the Struggle Between Civil Rights and Federalism During Reconstruction
    University of Louisville ThinkIR: The University of Louisville's Institutional Repository Electronic Theses and Dissertations 5-2013 Badges of slavery : the struggle between civil rights and federalism during reconstruction. Vanessa Hahn Lierley 1981- University of Louisville Follow this and additional works at: https://ir.library.louisville.edu/etd Recommended Citation Lierley, Vanessa Hahn 1981-, "Badges of slavery : the struggle between civil rights and federalism during reconstruction." (2013). Electronic Theses and Dissertations. Paper 831. https://doi.org/10.18297/etd/831 This Master's Thesis is brought to you for free and open access by ThinkIR: The University of Louisville's Institutional Repository. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of ThinkIR: The University of Louisville's Institutional Repository. This title appears here courtesy of the author, who has retained all other copyrights. For more information, please contact [email protected]. BADGES OF SLAVERY: THE STRUGGLE BETWEEN CIVIL RIGHTS AND FEDERALISM DURING RECONSTRUCTION By Vanessa Hahn Liedey B.A., University of Kentucky, 2004 A Thesis Submitted to the Faculty of the College of Arts and Sciences of the University of Louisville in Partial Fulfillment of the Requirements for the Degree of Master of Arts Department of History University of Louisville Louisville, KY May 2013 BADGES OF SLAVERY: THE STRUGGLE BETWEEN CIVIL RIGHTS AND FEDERALISM DURING RECONSTRUCTION By Vanessa Hahn Lierley B.A., University of Kentucky, 2004 A Thesis Approved on April 19, 2013 by the following Thesis Committee: Thomas C. Mackey, Thesis Director Benjamin Harrison Jasmine Farrier ii DEDICATION This thesis is dedicated to my husband Pete Lierley who always showed me support throughout the pursuit of my Master's degree.
    [Show full text]
  • Classifying Systems of Constitutional Review: a Context-Specific Analysis
    Indiana Journal of Constitutional Design Volume 5 Article 1 4-13-2020 Classifying Systems of Constitutional Review: A Context-Specific Analysis Samantha Lalisan Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/ijcd Part of the Common Law Commons, Comparative and Foreign Law Commons, Conflict of Laws Commons, Constitutional Law Commons, Courts Commons, Dispute Resolution and Arbitration Commons, Jurisdiction Commons, Jurisprudence Commons, Law and Politics Commons, and the Supreme Court of the United States Commons Recommended Citation Lalisan, Samantha (2020) "Classifying Systems of Constitutional Review: A Context-Specific Analysis," Indiana Journal of Constitutional Design: Vol. 5 , Article 1. Available at: https://www.repository.law.indiana.edu/ijcd/vol5/iss1/1 This Article is brought to you for free and open access by Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Journal of Constitutional Design by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Classifying Systems of Constitutional Review: A Context-Specific Analysis SAMANTHA LALISAN* “Access to the court is perhaps the most important ingredient in judicial power, because a party seeking to utilize judicial review as political insurance will only be able to do so if it can bring a case to court.”1 INTRODUCTION Europe’s experience with democratically elected fascist regimes leading to World War II is perhaps one of the most important developments for the establishment of new constitutional democracies. Post-war constitutional drafters sought to establish fundamental constitutional rights and to protect those rights through specialized constitutional courts.2 Many of these new democracies entrenched first-, second-, and third-generation rights into the constitution and included provisions to allow individuals access, direct or indirect, to the constitutional court to protect their rights through adjudication.
    [Show full text]
  • 1 This Memo Addresses the Constitutionality of the Democracy
    LEGAL ANALYSIS OF CONGRESS’ CONSTITUTIONAL AUTHORITY TO RESTORE VOTING RIGHTS TO PEOPLE WITH CRIMINAL HISTORIES This memo addresses the constitutionality of the Democracy Restoration Act (DRA), Title I, subtitle E of the For the People Act, which would permit all individuals who are not incarcerated to vote in federal elections, regardless of whether they have a criminal record that makes them ineligible to vote in state elections. The Brennan Center for Justice at NYU School of Law believes that such legislation is constitutional and that there are two sources for Congress’ authority to enact subtitle E: (1) the Election Clause of Article I, section 4; and (2) Congress’ enforcement powers under the Fourteenth and Fifteenth Amendments. I. The Election Clause and Congress’ Inherent Authority to Regulate Federal Elections Congress has very broad powers to regulate federal elections under the Election Clause of Article I, section 4. This clause provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as the Places of chusing Senators.” Indeed, the Clause was drafted with the intent of giving Congress great power to check the abuses of the States in regulating elections. Madison explained that without providing Congress this power, “[w]henever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” James Madison, Notes of Debates in the Federal Convention of 1787 423-24 (Athens: Ohio Univ.
    [Show full text]
  • Constitutional Review by the Judiciary in the Netherlands a Matter of Politics, Democracy Or Compensating Strategy?
    Constitutional Review by the Judiciary in the Netherlands A Matter of Politics, Democracy or Compensating Strategy? Maurice Adams*/Gerhard van der Schyff** Introduction Constitutional review by the judiciary has become a firm feature of many legal systems since the watershed decision by the United States Supreme Court in Mar- bury v. Madison in 1803.1 Courts across the globe are now regularly called upon to decide the constitutionality, and therefore the applicability or validity, of legisla- tion. Constitutional review is clearly no longer the sole preserve of legislatures. As a matter of fact, many constitutions, especially since the Second World War, con- tain express provisions that empower the judiciary to effect such review as a safe- guard against constitutional neglect or abuse by the legislature. It is then interest- ing to note that the Netherlands, a jurisdiction that is renowned for its human rights culture, is one of the last remaining European countries to still contain a constitutional provision that bars the judiciary from exercising constitutional re- view in respect of statutes (by which we mean acts of parliament). This somewhat controversial position raises important questions and is at pre- sent being reconsidered by the Dutch legislature after the tabling in 2002 of a pro- posal to amend the Dutch Constitution. It is consequently the purpose of this con- tribution to evaluate the Dutch position in respect of constitutional review. This is done by first explaining the current system of constitutional review in the Nether- lands, as well as the proposal to amend the Constitution together with the princi- pal arguments usually advanced against allowing the judiciary to review the consti- tutionality of statutes.
    [Show full text]
  • The Constitutionality of Legislative Supermajority Requirements: a Defense
    The Constitutionality of Legislative Supermajority Requirements: A Defense John 0. McGinnist and Michael B. Rappaporttt INTRODUCTION On the first day of the 104th Congress, the House of Representatives adopted a rule that requires a three-fifths majority of those voting to pass an increase in income tax rates.' This three-fifths rule had been publicized during the 1994 congressional elections as part of the House Republicans' Contract with America. In a recent Open Letter to Congressman Gingrich, seventeen well-known law professors assert that the rule is unconstitutional.3 They argue that requiring a legislative supermajority to enact bills conflicts with the intent of the Framers. They also contend that the rule conflicts with the Constitution's text, because they believe that the Constitution's specific supermajority requirements, such as the requirement for approval of treaties, indicate that simple majority voting is required for the passage of ordinary legislation.4 t Professor of Law, Benjamin N. Cardozo Law School. tt Professor of Law, University of San Diego School of Law. The authors would like to thank Larry Alexander, Akhil Amar, Carl Auerbach, Jay Bybee, David Gray Carlson, Lawrence Cunningham, Neal Devins, John Harrison, Michael Herz, Arthur Jacobson, Gary Lawson, Nelson Lund, Erela Katz Rappaport, Paul Shupack, Stewart Sterk, Eugene Volokh, and Fred Zacharias for their comments and assistance. 1. See RULES OF THE HOUSE OF REPRESENTATIVES, EFFECTIVE FOR ONE HUNDRED FOURTH CONGRESS (Jan. 4, 1995) [hereinafter RULES] (House Rule XXI(5)(c)); see also id. House Rule XXI(5)(d) (barring retroactive tax increases). 2. The rule publicized in the Contract with America was actually broader than the one the House enacted.
    [Show full text]
  • Sub-National Constitutionalism in Argentina. an Overview by Ricardo Ramírez Calvo ∗
    ISSN: 2036-5438 Sub-National Constitutionalism in Argentina. An Overview by Ricardo Ramírez Calvo ∗ Perspectives on Federalism, Vol. 4, issue 2, 2012 Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E - 59 Abstract Argentine federalism and sub-national constitutionalism is a very interesting case study for anybody trying to establish a federal system in any country around the world. Not because of its success, but precisely because of its failure. A federation on paper, Argentina is a highly centralized country, in which economic dependence of the Provinces from the central government has destroyed any kind of autonomy of the sub-national entities. This articles aims to investigate the most important features and contradictions of the Argentinean federalism Key-words Argentina, federalism, subnational constitutionalism Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E - 60 1. Historical Background Argentina has one of the oldest federal systems in the world. The original framework was established in the Constitution in 1853. Although the Constitution has been amended 5 times I, the basic structure adopted in the original Constitution remains unaltered. It was created as a sort of compromise between two opposing forces that had fought a long civil war: the centralists or unitarios and the federalists or federales . The tension between both forces surfaced almost at the very beginning of our independent life, when the country cut its ties with Spain on May 25, 1810 II . The old Spanish colonial administration was highly centralized.
    [Show full text]
  • Establishing Judicial Review: Marbury and the Judicial Act of 1789
    Tulsa Law Review Volume 38 Issue 4 The Scholarship of Sanford Levinson Summer 2003 Establishing Judicial Review: Marbury and the Judicial Act of 1789 Mark A. Graber Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Mark A. Graber, Establishing Judicial Review: Marbury and the Judicial Act of 1789, 38 Tulsa L. Rev. 609 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol38/iss4/4 This Supreme Court Review Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Graber: Establishing Judicial Review: Marbury and the Judicial Act of 178 ESTABLISHING JUDICIAL REVIEW: MARBURY AND THE JUDICIAL ACT OF 1789* Mark A. Graber** Marbury v. Madison1 occupies a place of pride in American constitutional law. Constitutional commentators regard that 1803 decision as a judicial landmark, one of the most important cases decided by any court in any country. Marbury's declaration that a provision in the Judiciary Act of 1789 was unconstitutional, scholars of all constitutional persuasions and professional affiliations agree, provided the necessary and sufficient foundations for judicial review in the United States. Such claims as "John Marshall's famous opinion in Marbury... established the Court as the final arbiter of the meaning of the Constitution, 3 litter the scholarly literature on constitutional law, theory, politics, and history. American constitutional law, in the received pedagogical canon, is largely a footnote to Marbury.
    [Show full text]
  • Judicial Review in Latin America
    JUDICIAL REVIEW INLATIN AMERICA KEITH S. ROSENN* A region of chronic political instability1 and short-lived constitutions2 with a civil law tradition3 would appear most infertile soil for the seeds of Marbury v. Aadison4 to take root. Yet all of the Latin American re- publics,5 with the exception of the Dominican Republic,' provide for some form of judicial review. To be sure, in some Latin American countries * Professor of Law, The Ohio State University. The author wishes to thank Ms. Maria Codinach, a second year student at the Ohio State University College of Law, for her assistance with the notes to this article. 1 In the last forty-five years alone Latin American nations have had more than 100 successful coups d'itat, as well as several times as many unsuccessful coups. The chronology and fre- quency of the successful ones are depicted in K. KARST & K. ROSENN, LAW AND DEVELOP- MENT IN LATIN AMERICA, Chap. II, Table I (in press). 2 Calculating the number of constitutions which have been in force in Latin America is a perplexing task, for it is often difficult to tell whether a particular constitution was ever in force, or whether a constitution should be regarded merely as an amendment or as a new con- stitution. Moreover, previously abrogated constitutions are occasionally resuscitated. Pro- fessor Russell Fitzgibbon's latest count of constitutions which have been in force in the twenty Latin American republics totals 247, an average of more than twelve per country. R. FrTZ- GIBBON, LATIN AMERICAN CONSTITUTIONS: TEXTUAL CITATIONS 3 (1974). 3 See generally J.
    [Show full text]
  • The Role of Constitutional Review Bodies in Ensuring the Rule of Law in Rule-Making and Law-Enforcement”
    Strasbourg, 30 August 2017 CDL-JU (2017)012 English only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) in co-operation with THE CONSTITUTIONAL COURT OF BELARUS INTERNATIONAL CONFERENCE “THE ROLE OF CONSTITUTIONAL REVIEW BODIES IN ENSURING THE RULE OF LAW IN RULE-MAKING AND LAW-ENFORCEMENT” Minsk, Belarus 27-28 April 2017 REPORT “THE ROLE OF THE CONSTITUTIONAL COURT AND CONSTITUTIONAL RIGHT TO APPEAL” By Ms Mirjana LAZAROVA TRAJKOVSKA Former Judge, European Court of Human Rights Former member, “Former Yugoslav Republic of Macedonia” This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-JU(2017)012 - 2 - Introduction1 At the beginning of the 21st century a modern democratic state is based on human rights as the highest value of the rule of law. Human rights are protected in different ways in different legal systems: mostly through judicial control, through proceedings aimed at assessing the constitutionality and legality of different legal regulations, through constitutional action, through the work of the Ombudsman, through law practice, and through other forms of legal assistance. It is difficult to imagine a legal system of the continental type – with a written Constitution – without constitutional and judicial protection and without control of the constitutionality and legality of the legal system. A famous German philosopher on law Gustav Radbruch, put it this way: “The function of a judge is a daily portion of bread, water to drink and air to breathe to every court, law and justice which lie beneath the vault of the rule of law and a state based on the rule of law; and therefore the question of the independence of judges is not only a legal issue, it is also an issue of the general culture of a community.” Of all the above-mentioned methods and forms of protection of human rights, here we are particularly interested in the protection that can be provided by constitutional courts in this field.
    [Show full text]
  • Rethinking the Presumption of Constitutionality
    \\server05\productn\N\NDL\85-4\NDL403.txt unknown Seq: 1 15-JUL-10 7:36 RETHINKING THE PRESUMPTION OF CONSTITUTIONALITY F. Andrew Hessick* One of the judiciary’s self-imposed limits on the power of judicial review is the presumption of constitutionality. Under that presumption, courts sup- ply any conceivable facts necessary to satisfy judicially created constitutional tests. The Supreme Court has given three reasons for the presumption: to show due respect to legislative conclusions that their enactments are constitu- tional, to promote republican principles by preventing courts from interfering with legislative decisions, and to recognize the legislature’s institutional superiority over the courts at making factual determinations. This Article argues that the presumption does not sensibly implement these reasons. It further argues that these reasons equally, if not more strongly, support judi- cial deference to legislative interpretations of the Constitution, and conse- quently that courts should revisit their refusal to defer to such interpretations. INTRODUCTION .................................................. 1448 R I. THE DEFERENTIAL FORMS OF JUDICIAL REVIEW .............. 1451 R A. Factual Deference ...................................... 1452 R B. Legal Deference ........................................ 1455 R II. REASONS FOR THE PRESUMPTION ........................... 1461 R A. The Due Respect Rationale for the Presumption ............ 1462 R 2010 F. Andrew Hessick. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Associate Professor of Law, Sandra Day O’Connor College of Law, Arizona State University. J.D., Yale Law School; B.A., Dartmouth College.
    [Show full text]