The importance of dialogue between constitutional actors - a comparative view

Research Article

‘[D]ialogue is not a theory. It is a metaphor in search of a theory.[1]’ This essay argues that in theory, the dialogic model, as a middle ground, ameliorates the extreme and implausible claims of legal and political constitutionalism. Dialogue conduces for increased communication between constitutional actors in judicial review and increased possibility of rights protection, engendering legislative accountability.[2] However, while dialogue is a good starting point, its quality hinges on legislative receptibility to the judiciary’s views.[3] The allure of finding a ‘middle ground’ must be avoided.[4] Further, the term ‘dialogue’ excludes citizens who contribute to the constitutional discourse. Building on Kavanagh’s reasoning and referencing from the United States, United Kingdom and New Zealand, this essay argues the better approach is to examine the institutional problems in context.

1. Claims of Legal and Political Constitutionalism

Griffith, a political constitutionalist, argues that:-

i. law remains a political act[5] for society is ‘endemically in a state of conflict[6]’ between interests without any ‘unifying principles sufficiently precise[7]’ to form the basis of formulating laws.[8]

ii. politicians should make law because they are removable compared to judges, who are not and are therefore accountable.[9] This is illustrated in the UK Parliament having the ability to make and unmake laws.[10]

iii. These basic facts must be recognised before improving the constitution.

Legal constitutionalists, in turn argue:-

i. Laws should be policed by independent judiciaries to prevent arbitrary government action, in ensuring accountability.[11]

ii. Courts can strike down legislation if deemed incompatible during judicial review.[12] For example, in the United States, Article III of the Constitution vests authority in the Supreme Court.[13] Per Marbury v Madison,[14] American courts have the power to strike down unconstitutional laws and some government actions.[15]

iii. judicial review therefore ensures rights protection.[16]

For the first strand, both camps posit that laws are constructed by one branch of power. Taking their beliefs at their highest, the dichotomous outcome that only one branch of power can make and unmake laws, categorically ignores the dynamic relationships between legislative bodies and the judiciaries in practice.[17] For example in the UK, prior to the House of Lords reform in 2009, there was a distinct overlap in the House of Lords where judges were also potentially members of parliament.[18] Even in America, often categorically labelled a ‘legal’ constitution,[19] the written Constitution itself, which is applied by the Supreme Court as cardinal authority in constitutional law, was first drafted by James Madison, Alexander Hamilton and his fellow congressmen.[20] In practice, the Supreme Court in engaging with the Constitution, does not rule in vacuums but contemplate policy considerations.[21]

Regarding allocation of power, both camps take extreme positions. Applying the tenets of political constitutionalism, tyranny of majority may occur. For example, a political constitution would tolerate Boris Johnson’s proroguing of parliament. Yet, in R(on the application of Miller) v The Prime Minister,[22] the Supreme Court declared that Boris Johnson’s decision to prorogue Parliament was unlawful given its effects of frustrating and preventing within legal limits,[23] without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature.[24] In fact, the Supreme Court in going further and declaring parliament was not prorogued by the Prime Minister,[25] debunks Griffiths’ view that the UK is a political constitution, although Griffiths’ views were formed in an era characterised by a political constitution.[26]

Conversely, applying the tenets of legal constitutionalism, one questions the democratic accountability of judges in two respects: i. their election into power without citizens voting[27] ii. their basis for tenure[28] as compared to democratically elected politicians (“the counter-majoritarian difficulty[29]”), in particular, the American Supreme Court judges.[30] An example is Brett Kavanaugh’s appointment by Donald Trump despite scandal,[31] which is indicative of two things. Firstly, that the American Supreme Court is not devoid of politics[32] and secondly, if politicians are responsible for a judge’s tenure,[33] then the premise of legal constitutionalism fails because politicians dictate to a certain extent, the tenor of Supreme Court judgments.[34] Therefore, the extremities of both camps are accentuated when neither model accurately represents the nuances of each constitution. This justifies dialogue as a solution.

2. Dialogue as a solution

Hogg and Bushell define dialogue as a middle ground. Its principles lie in two strands. Firstly, it exists where judgements are open to ‘legislative reversal, modification, or avoidance’.[35] This process takes place via ‘weak-form’ judicial review — legislatures must consider the expertise of judges and validity of judgments.[36] Gardbaum, in his instructive work, identifies three other indicators of this ‘New Commonwealth Model’[37]:-

a. codified bill of constitutional rights

b. pre-enactment political rights review

c. formal legal power of legislative reconsideration over most rights questions

Secondly, often overlooked but implicit in the first, is a continuing obligation on the legislature to engage with the dialogue.[38]

The first strand ameliorates the extremities of legal and political constitutionalism by virtue of increased communication between constitutional actors.[39] Gardbaum argues that the unique feature of dialogic models is the granting of the final word, but not the duty, to the legislature.[40] This prevents judicial supremacy while ensuring a ‘gap[41]’ between court judgements and whether legislative change is implemented. This ‘gap’ in turn gives courts an opportunity to press for legislative change in rights protection.[42] In the United Kingdom, one points to the healthy number of Declarations of Incompatibility (‘DOI’) issued — in 2013, 28 were made and 20 were still standing.[43] The success of dialogue plays out slightly differently in New Zealand despite having similar powers to declare DOIs, acknowledged to be the Courts’ newfound ‘weapon[44]’ of interpreting statutes in compatibility with rights. This is because the New Zealand Bill of Rights, per Section 4, expressly denies judicial power to strike down or deny effect to any incompatible legislation.[45] Nevertheless, the interpretative powers have allowed for veritable dialogue.[46]

The second strand ameliorates the extremities of legal and political constitutionalism when in legislative sequels, continued legislative receptivity engenders actual change. For example, in America, Green v County Sch Bd[47] was a success as the Courts ruled that desegregation must be completed ‘with all deliberate speed[48]’ and the policies actually changed — the school was differentiated by grade instead of by race.[49] Further, Allen illuminates that this decision actually culminated in racial integration of all American public schools.[50]

Yet this argument presumes dialogue necessarily took place. Manfredi counter-argues that the legislature simply complied, therefore no genuine dialogue occurred.[51] This argument is valid insofar as the legislature could be said to overwrite the judiciary’s erroneous decision in Plessy v Ferguson[52] which upheld white supremacy.

3. Limits of dialogue

Evidently, dialogue has limits where legislative inertia undermines judicial interlocution, but for different reasons shaped by respective constitutions.

In New Zealand, legislative inertia is constitutionally entrenched. Despite the introduction of the Bill of Rights, the judgment in R v Poumako,[53] where the provision imposing excessive periods of imprisonment was deemed incompatible was criticised by the law commission as going too far.[54] However, in the UK, the constitutional fabric is slightly different — there is equal tension between parliament and the judiciary. In particular, the issuance of DOIs pressures for legislative change.[55] In Nicklinson,[56] the majority deferred to Parliament on whether criminalizing assisted suicide was necessary and proportionate.[57] However, Lords Neuberger, Mance and Wilson safeguarded against the possibility of Parliament not responding to dialogue by ruling that a DOI will be appropriate should Parliament fail to reconsider the questions raised.[58]

Conversely, in America, Green[59] and Milliken v. Bradley[60] reflect the possibility of overcoming legislative inertia in combating racial discrimination. However, this success was due to a combination of an active judiciary, receptive legislative bodies and most importantly, the strong civil rights movement gaining traction at that time.[61]

4. Dialogue as a starting point for wider array of constitutional actors

Despite the limits of dialogue, it remains a good starting point for interaction between constitutional actors.[62] However, as Friedman argues,[63] people themselves are also important. Scholars, activists and historians also contribute to this discourse.[64] In fact, Madison perspicaciously cautioned against dialogue lapsing into discourse between elites.[65] Therefore, Kavanagh’s caveat that dialogue is a metaphor holds true to this extent.[66] Further, her preposition to confront institutional problems in the context of each constitution, is sound. Constitutional problems stemming from a plurality of sources can only benefit from the interlocution of the very people experiencing them.[67]

5. Conclusion

The extremities of legal and political constitutionalism are largely ameliorated by dialogue. Yet, its success hinges on legislative receptibility to implementing change. Nevertheless, dialogue is a good start for the legislative and judiciary to hear each other out. Moving forward, in the spirit of avoiding metaphors, citizens should also have access to this discourse. In the words of Thomas Paine, “individuals themselves (emphasis added), each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise..[68]

Writer: Edwin Teong

Footnotes

[1] Aileen Kavanagh, The lure and limits of dialogue, University of Toronto Law Journal, Volume 66, Number 1, Winter 2016, pp. 83–120 at pp. 120

[2] Stephen Gardbaum, ‘Reassessing the New Commonwealth Model of Constitutionalism’ (2010) International Journal of Constitutional Law, pp. 167–206 at p.198

[3] Dixon (n.2); Rosalind Dixon, The Supreme Court of Canada, Charter Dialogue and Deference, University of Chicago, Public Law and Working Theory Paper №284 at p. 38; Jamie Cameron, Collateral Thoughts on Dialogue ‘s Legacy as Metaphor and Theory: A Favourite from Canada, Osgoode Legal Studies Research Paper №66, Vol. 12, Issue. 14, 2016, pp.157–169

[4] Luc B. Tremblay, The Legitimacy of Judicial Review: The Limits of Dialogue between Courts and Legislatures, International Journal of Constitutional Law, Volume 3, Number 4, 2005, pp. 617–648 at pp.619; see also Ming-Sung Kuo, Discovering Sovereignty in Dialogue: Is Judicial Dialogue the Answer to Constitutional Conflict in the Pluralist Legal Landscape?, Canadian Journal of Law and Jurisprudence, Vol. XXVI, №2 (July 2013), pp.341–376 at pp.344; Rosalind Dixon, “Constitutional ‘Dialogue’ and Deference” in Geoffrey Sigalet, Grégoire Webber and Rosalind Dixon (eds), Constitutional Dialogue: Rights, Democracy, Institutions (Cambridge University Press 2019) at p.168

[5] J.A.G. Griffiths, The Political Constitution, Modern Law Review, January 197, Volume 42, Issue 1, pp.1–21, at p.19

[6] Griffith (n.4)

[7] Ibid.

[8] Ibid.

[9] J.A.G. Griffiths, The Political Constitution, Modern Law Review, January 197, Volume 42, Issue 1, pp.1–21, at p.16; Adam Tomkins, In Defence of the Political Constitution, Oxford Journal of Legal Studies, 2002, Volume 22, Issue 1, pp.157–175 at pp.171; Martin Loughlin, The Political Constitution revisited, London School of Economics and Political Science Working Paper 18/2017 at p.4

[10] J.A.G. Griffiths, The Political Constitution, Modern Law Review, January 197, Volume 42, Issue 1, pp.1–21, at p. 5

[11] Andras Sajo and Renata Uitz, The Constitution of Freedom: An Introduction to Legal Constitutionalism, OUP 2017, at p.322; Tom R. Hickman, In Defence of the Legal Constitution, The University of Toronto Law Journal, Vol 55., №4, (Autmn 2005), pp.981–1022, at p.982

[12] Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press 2008) at p.18

[13] The Constitution of the United States of America, Article III (1)

[14] Marbury v Madison 5 US 137 (1803)

[15] Ibid. at 177

[16] Tom R. Hickman, In Defence of the Legal Constitution, The University of Toronto Law Journal, Vol 55., №4, (Autmn 2005), pp.981–1022, at p.982

[17] Select Committee Report on the Constitution, Relations between the executive, the judiciary and Parliament, House of Lords, 6th Report of Session 2006–07 at p. 68; Daniel M Brinks and Abby Blass, Rethinking judicial empowerment: The new foundations of constitutional justice, International Journal of Constitutional Law, Volume 15, Issue 2, April 2017, pp. 296–331 at pp. 300

[18] Select Committee Report on the Constitution, Relations between the executive, the judiciary and Parliament, House of Lords, 6th Report of Session 2006–07 at p. 60

[19] Michel Rosenfeld, Constitutional adjudication in Europe and the United States: paradoxes and contrasts, International Journal of Constitutional Law, 2004, Volume 2, Issue 4, pp.633–668 at p.634

[20] Margaret Banks, Drafting the American Constitution — Attitudes in the Philadelphia Convention Towards the British System of Government, (1966) 10 Am J Legal Hist 15, pp.15–33 at pp.26

[21] Ryan C. Black and Ryan J. Owens, [TITLE???] The Journal of Politics, Vol. 71, №3 (Jul., 2009), pp. 1062–1075, at p.1064

[22] R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41

[23] Emphasis added

[24] R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41 at [56]

[25] R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41 at [69]-[70] [USE CROSS-REFERENCING HERE, ibid etc]

[26] Martin Loughlin, The Political Constitution revisited, London School of Economics and Political Science Working Paper 18/2017 at p.3; J.A.G Griffith, The Place of Parliament in the Legislative Process — Part II, Modern Law Review 1951, Vol 14, Issue 4, pp.425–436 at pp.427; J.A.G Griffith, The Place of Parliament in the Legislative Process — Part I, Modern Law Review 1951, Vol 14, Issue 3, pp.279–296, at pp.280

[27] David C. Brody, The use of judicial performance evaluation to enhance judicial accountability, judicial independence, and public trust, Denver University Law Review 2008, Vol 86, Issue 1, pp.1–42, at pp.3; Samuel Freeman, Constitutional Democracy and the legitimacy of judicial review, Law and Philosophy, Vol. 9, №4 (1990–1991), pp. 327–370, at p.333; John Hart Ely, Democracy and distrust: a theory of judicial review, Harvard University Press 1980, at p.4

[28] Samuel Freeman, Constitutional Democracy and the legitimacy of judicial review, Law and Philosophy, Vol. 9, №4 (1990–1991), pp. 327–370, at p.333

[29] Alexander Bickel, The Least Dangerous Branch, The Supreme Court at the Bar of Politics. Indianapolis. Bob Merills 1962, at p. 16; Hamilton, Federalist Paper №78; Jeremy Waldron, The Core of the Case Against Judicial Review, Yale Law Journal 2006, Volume 115, Issue 6, Article 3, pp. 1346–1406 at pp.1353; Or Bassok and Yoav Dotan, Solving the countermajoritarian difficulty, International Journal of Constitutional Law, 2013, Vol 11, No 1, pp. 13–33, at pp. 14; Michael C. Dorf, Majoritarian Difficulty and the Constitutional Decision Making, Cornell Law Faculty Publications 2010, Paper 441, pp. 283–304 at p. 288

[30] Bruce Ackerman, Op-Ed: Trust in the justices of the Supreme Court is waning, here are three ways to fortify the court, Los Angeles Times, 20 Dec 2018, < https://www.latimes.com/opinion/op-ed/la-oe-ackerman-supreme-court-reconstruction-20181220-story.html/> Accessed 19 Nov 2019; Norman Dorsen, ‘The selection of US Supreme Court justices’, International Journal of Constitutional Law, 2006, Vol 4, Issue 4, pp.652–663 at 655; David S. Law, Appointing Federal Judges: The President, the Senate and the Prisoner’s dilemma, University of San Diego Public Law and Legal Theory Research Paper Series, Sep 2004, pp.1–50, at pp.24

[31] Michael Salter, Brett Kavanaugh’s Nomination and the Moral Context of Trauma Science, Journal of Trauma and Dissociation, 2019, Vol 20, №2, pp. 135–139 at pp. 135; see also Sabrina Siddiqui and Lauren Gambino, Brett Kavanaugh’s confirmation to US supreme court gives Trump a major victory, The Guardian, 7 Oct 2018 < https://www.theguardian.com/us-news/2018/oct/06/brett-kavanaugh-confirmed-us-supreme-court/> Accessed 19 Nov 2019; Lawyers’ Committee for Civil Rights under law, Report on the nomination of Justice Brett Kavanaugh as an associate justice of the United States, at p.15–16 < https://lawyerscommittee.org/wp-content/uploads/2018/08/Lawyers-Committee-Report-On-Judge-Kavanaugh.pdf/> Accessed 19 Nov 2019

[32] Norman Dorsen, ‘The selection of US Supreme Court justices’, International Journal of Constitutional Law, 2006, Vol 4, Issue 4, pp.652–663 at 655; see also Alicia Bannon, ‘Choosing state judges: a plan for reform’, Brenan Centre for Justice 2018, pp.1–25 at p.10; Herbert M Kritzer, Law is the mere continuation of politics by different means: American judicial selection in the Twenty-First Century, DePaul Law Review, Winter 2007, Volume 56, Issue 2, pp.423–468 at pp. 439

[33] It is assumed that judges secure tenure almost ipso facto, upon being elected unless in illness or death.

[34] Richard A Posner, Foreword: A political court, 119 Harvard Law Review 32 (2005), pp. 32–102 at pp.40

[35] Hogg and Bushell, The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn ‘t Such a Bad Thing after All), Osgoode Hall Law Journal, Volume 35, Number 1, Spring 1997, Article 2, pp. 75–124 at p.79; see also Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights — And Democracy-Based Worries, 38 Wake Forest Law Review, 2003, pp. 813–838 at p.830

[36] Stephen Gardbaum, [You don’t need the chapter title when citing books, just the title of book publisher etc and p. number]The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press 2013) at p.44; Mark Tushnet, ‘Weak-Form Judicial Review: Its Implications for Legislatures’, New Zealand Journal of Public and International Law, June 2004, Volume 2, Number 1, p.9

[37] Stephen Gardbaum, ‘Reassessing the New Commonwealth Model of Constitutionalism’ (2010) International Journal of Constitutional Law, pp. 167–206 at p.169

[38] Tushnet (n. 4) at p.831

[39] Stephen Gardbaum, “What Is the New Commonwealth Model and What Is New about It?,” The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press 2013) at p. 25

[40] Stephen Gardbaum, “What Is the New Commonwealth Model and What Is New about It?,” The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press 2013) at p. 27

[41] ibid.

[42] Rosalind Dixon, Weak-Form Judicial Review and American Exceptionalism, University of Chicago Public Law and Legal Theory Working Paper No 348, May 2011 at p.9; Stephen Gardbaum, “What Is the New Commonwealth Model and What Is New about It?,” The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press 2013) at p.41; Sara Jackson, Designing Human Rights Legislation: ‘Dialogue’, the Commonwealth Model and the Roles of Parliaments and Courts, Auckland University Law Review, Volume 13 pp. 89–115 at p.100; Stephen Gardbaum, ‘Reassessing the New Commonwealth Model of Constitutionalism’ (2010) International Journal of Constitutional Law, pp. 167–206 at p. 171

[43] London School of Economics and Political Science, Declarations of Incompatibility under the Human Rights Act 1998, Apr 2013, <http://www.lse.ac.uk/humanRights/documents/2013/incompatibilityHRA.pdf/> Accessed 19 Nov 2019; see also Joint Committee on Human Rights, Report on Human Rights Judgments, Seventh Report of Session 2014–2015 , 4 March 2015, < https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/130.pdf/> Accessed 19 Nov 2019

[44] Rt Hon Sir Geoffrey Palmer, President, Law Commission, The Bill of Rights Fifteen Years On, Keynote Speech, Ministry of Justice Symposium, 10 Feb 2006, at para 20, < https://www.lawcom.govt.nz/sites/default/files/audioFiles/Palmer%20speech%20on%20the%20Bill%20of%20Rights.pdf> Accessed 19 Nov 2019

[45] NZBORA, S4; See also Stephen Gardbaum, ‘Reassessing the New Commonwealth Model of Constitutionalism’ (2010) International Journal of Constitutional Law, pp. 167–206 at p. 184

[46] Stephen Gardbaum, ‘Reassessing the New Commonwealth Model of Constitutionalism’ (2010) International Journal of Constitutional Law, pp. 167–206 at p. 184

[47] 391 U.S. 430 (1968)

[48] ibid. at 439

[49] Allen, Daugherity and Trembanis, Charles C. Green v County School Board of New Kent County, US Supreme Court Decision, Virginia Commonwealth University, 2004, pp. 270–273 at pp.272

[50] ibid.

[51] Christopher P. Manfredi and James B.Kelly, Six Degrees of Dialogue: A response to Hogg and Bushell, Osgoode Hall Law Journal, Volume 37, Number 3, pp.513–527 at p. 520

[52] 163 U.S. 537 (1896)

[53] R v Poumako [2000] 2 NZLR 695

[54] Rt Hon Sir Geoffrey Palmer, President, Law Commission, The Bill of Rights Fifteen Years On, Keynote Speech, Ministry of Justice Symposium, 10 Feb 2006, at para 18, < https://www.lawcom.govt.nz/sites/default/files/audioFiles/Palmer%20speech%20on%20the%20Bill%20of%20Rights.pdf> Accessed 19 Nov 2019

[55] Janet .L. Hiebert, Parliament and the Human Rights Act: Can the JCHR facilitate a culture of rights? International Journal of Constitutional Law, 2006, Vol. 4, Number 1, pp.1–38 at p.14

[56] R(Nicklinson) v Ministry of Justice [2014] UKSC 38

[57] ibid. at [55]

[58] R(Nicklinson) v Ministry of Justice [2014] UKSC 38 at [191]

[59] 391 U.S. 430 (1968)

[60] 418 U.S. 717 (1974); see also Parents Involved in Community Schools v. Seattle Public Schools, 551 U.S 701 (2007)

[61] James W Ely, Civil Rights Movement in The New Encyclopaedia of Southern Culture, University of North Carolina Press 2006, at p.56; Jon Greenbaum, Looking back on 1963 Fifty Years Later, (2013) 40 Hum Rts 2, at p.3; Jonathan Rieder, ‘The Summer of Our Discontent: The Struggle That Changed a Nation’ (2013) 40 Hum Rts 5, at p.9

[62] Stephen Gardbaum, ‘Reassessing the New Commonwealth Model of Constitutionalism’ (2010) International Journal of Constitutional Law, pp. 167–206 at p. 205

[63] Barry Friedman, The Will of the People and Constitutional Change, (2010) 78 Geo Wash L Rev, pp. 1232–1254 at p.1235

[64] Roberto Gargarella, ‘We the People’ Outside of the Constitution: The dialogic model of constitutionalism and the system of checks and balances, Current Legal Problems, Oxford University Press 2014, Vol 67, pp.1–47 at pp. 41

[65] James Madison, Federalist Paper №55

[66] Roberto Gargarella, ‘We the People’ Outside of the Constitution: The dialogic model of constitutionalism and the system of checks and balances, Current Legal Problems, Oxford University Press 2014, Vol 67, pp.1–47 at pp. 42

[67] Roberto Gargarella, ‘We the People’ Outside of the Constitution: The dialogic model of constitutionalism and the system of checks and balances, Current Legal Problems, Oxford University Press 2014, Vol 67, pp.1–47 at pp. 42

[68] Thomas Paine, ‘Rights of Man’ (1792)

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