Constitutional Decision Making Outside the Courts
THE PREVIOUS chapter identified the criteria to use in evaluating constitutional decision making outside the courts. Studies using appropriate criteria to evaluate such decision making are rare. Here I offer several relatively informal case studies, with the hope of providing some information that will be useful in considering whether weak-form review's confidence in nonjudicial constitutional decision making is justified. I do not contend, of course, that these case studies establish that we should repose our confidence in such decision making. For one thing, I offer only a few case studies, whereas weak-form review implicates the entire range of constitutionally significant decisions that legislatures and executive officials might make. The case studies do go beyond the merely anecdotal accounts I criticized in the previous chapter. I believe that they are sufficient to place some burden on critics of the capacity of nonjudicial decision makers to engage in good constitutional decision making—a burden of providing similar case studies showing that such decision makers do the job badly.1
In my judgment, the case studies show that broad-brush skepticism about nonjudicial decision makers is unwarranted. As we will see, there are some specific reasons to be skeptical about certain decision makers with respect to some decisions. For example, lawyers for executive officials might sometimes be overly protective of the executive's prerogatives. Still, the discrete skepticisms that might arise do not, I believe, seriously undermine the confidence in nonjudicial decision makers that weak-form review calls for. To that extent, they bolster the case for weak-form review.
The chapter begins by examining constitutional decision making in the U.S. Congress, and then turns to the U.S. executive branch. The chapter concludes with some examination of the way in which Canadian and British ministries, and their parliaments, have responded to the creation of weakform review in those nations.
1 In the interest of readability, I have eliminated much of the material identifying specific
sources for many of my assertions. Full documentation, including some qualifications on the argu-
ments not relevant here, can be found in Mark Tushnet, “Evaluating Congressional Constitu-
tional Interpretation: Some Criteria and Two Informal Case Studies,” 50 Duke L. J. 1395 (2001),
and Mark Tushnet, “Non-Judicial Review,” 40 Harv. J. on Legis. 453 (2003).