Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law

By Mark Tushnet | Go to book overview

CHAPTER 4
Why and How to Evaluate Constitutional
Performance

WEAK-FORM review clearly should enhance the role legislatures and executive officials play in constitutional interpretation and development. One of its premises is the recognition that people can reasonably disagree over the proper interpretation of a constitution's relatively abstract provisions. It follows from that premise that reasonable judicial interpretations have no intrinsic superiority to reasonable legislative and executive interpretations. And, it follows from that that weak-form systems are designed to give legislatures and executive officials an open role in constitutional interpretation. They can engage in “dialogue” with the courts, responding to—and, in some versions, even replacing—the courts' interpretations with their own. Or they can consider constitutional questions from the start, thereby diminishing the scrutiny the courts will give to the statutes that end up being enacted.

Those familiar only with strong-form judicial review, and particularly U.S. scholars of constitutional law, frequently express deep skepticism about the ability of legislatures to perform the task of constitutional interpretation well.1 This chapter and the next examine whether legislatures are competent at constitutional interpretation. After explaining why some of the most common objections to legislative constitutional interpretation are mistaken, I develop what I call a constitution-based criterion for evaluating legislative performance. That criterion is quite generous in its toleration of a wide range of alternative and inconsistent interpretations of a single constitution, but, I argue, generosity of that sort is not only appropriate but necessary if we are to honor the commitments of constitutionalism itself. Chapter 5 then provides a number of case studies of legislative performance, most from the United States but with some glances toward Canada and Great Britain. I conclude that, applying the constitution-based standard as we should, we will find a fair degree of constitutional responsibility in legislatures, although not complete responsibility. But, I emphasize, the task is comparative, so that we must also ask whether constitutional courts are constitutionally responsible

1 Because legislatures tend to be the focus of these discussions, not executive officials, and be-
cause repeatedly writing legislators and executive officials or non-judicial officials would become sty-
listically tiresome, I usually refer only to legislators and legislatures in this chapter. The analytic
points, though, apply to executive officials as well, and some of the case studies in the next chap-
ter deal with constitutional interpretation by such officials.

-79-

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