Vol. 16 No.8 (August, 2006) pp.576-582
INTERPRETING CONSTITUTIONS: A COMPARATIVE STUDY, by Jeffrey Goldsworthy (ed). New York and Oxford: Oxford University Press, 2006. 384pp. Hardback. £50.00/$90.00. ISBN: 0199274134.
Reviewed by Mariah Zeisberg, Department of Political Science, University of Michigan. Email: zeisberg [at] umich.edu.
The field of comparative constitutional law is now routinely heralded as emerging and cutting-edge. And, although claims that researchers need help orienting themselves are sometimes overblown (for, with the help of Jackson and Tushnet 2002, 2006; Jacob, et al. 1996; Koopmans 2003; the works published elsewhere by the contributors themselves; and the Internet, English-speaking researchers have access to almost all of the information treated in this volume), it is still the case that we are lacking a systematic source of academic commentary that links basic explanations of constitutional history and structure together with discussions about interpretive questions faced by high-court judges in different countries. The field of comparative constitutionalism still needs textbooks for researchers.
To that end, INTERPRETING CONSTITUTIONS offers essays describing the contours of constitutional interpretation by high court judges in six countries: the United States, Canada, Australia, Germany, India, and South Africa. The authors are prominent scholars of constitutionalism. Each country is discussed in relation to a common set of questions, and the analysis offered is highly descriptive, not evaluative or argumentative. The book focuses on judicial constitutional interpretation, but the political institutions of each country are treated in broad strokes, as is the political history of its judiciary. The decision to provide these background constitutional materials makes the book useful not only to public lawyers, but also to researchers of comparative constitutionalism as well as political scientists. Anyone who needs a basic understanding of constitutional structure and dominant interpretive issues in these countries will find the book useful – although, with the (very) high cost of the book, your only access to it might be through the library.
Each chapter examines the same set of issues. These include: the main contours of the constitution in question, with emphasis on its allocation of powers and its amendment procedures; the high court’s history and structure; the national legal culture; and main interpretive problems and methodologies, including overviews of significant constitutional decisions rendered by the constitutional court. Although some of the essays are lively, none are show-stoppers. The book does not offer large conceptual shifts, provocative new analysis, or newly-generated empirical evidence. The book’s highly descriptive orientation, and most especially the rhythmic hum created by its movement from constitutional history to political organization, to judicial structure, to interpretive dilemmas, repeated six times over, can contribute to a somnolent [*577] reading experience. But the organizational parallelism does allow for easy identification of main points of contact between the countries included, and it is true that the occasional excitement from noticing an unexpected congruence or line of possibilities is not only useful but also enlivening. This is a textbook for academic and legal researchers, and as a textbook, it succeeds.
The chapters are organized according to length of experience with the constitution under scrutiny—so the US, with the oldest Constitution, is first and South Africa is last. This organization works well, permitting the reader to see how constitutional experience in some countries affected ratifying debates and, later, interpretive practices in other countries.
The first essay, on the United States, may have the highest bar to clear, as it covers a country with which readers are perhaps already highly familiar. Given this familiarity, I am not sure how useful the inclusion of the US is for the stated purpose of the book. But the essay Mark Tushnet provides is a relatively engaging overview of the basic structure of the US Constitution, the institutional allocation of powers, and dominant modes of judicial interpretation, including a discussion of the countermajoritarian difficulty. He emphasizes the highly pragmatic and precedential reasoning of Supreme Court decisions.
One of the best elements of his essay is his emphasis on the replication of certain founding dilemmas throughout American interpretive practice, with special light focused on Clarence Thomas’ view of states rights (p.10). Some of these conflicts Tushnet does not treat as genuine dilemmas – for example, he mentions the framers’ “discomfort with direct participation by the people in making fundamental law,” but then drops the point (p.9). Given the emphasis on democratic participation in the constitutions of the other countries treated in the volume, the conflict between the framers’ “discomfort” and the democratic authority of the Constitution could be usefully developed.
In one (brief) part of his essay, Tushnet offers a highly contestable reading of Madisonian theory on separation of powers. With regard to separated powers, Tushnet believes that Madison offered a theory of political interaction, not interpretation, such that the Constitution can be said to ‘mandate’ whatever it is that the branches do. Political actors do not need to interpret their powers so much as exercise them, and the resulting pattern of interaction is the Constitution’s meaning on separated powers. This leads Tushnet to invoke Madison on behalf of the radical proposition that “political accommodations reached by the president and Congress simply are what the Constitution means with respect to war powers,” a proposition which Tushnet himself criticizes, because politicians will defend their conceptions of the powers they are accorded by referring to the Constitution’s independent language (p.21). In fact, Madison was not ignorant of this. He was well aware that elected political officials would elaborate the [*578] Constitution’s meaning, and that they would use the Constitution’s rhetorical resources to do so; as an elected official himself, he offered contestable understandings of the proper scope of the powers of various agencies. He did this in order to protect the Constitution’s division of powers. But Tushnet’s incomplete account of Madison’s thought is still useful, for it helps us compare Madison’s relatively amoralistic conception of interbranch dynamics with the highly normative conceptions of inter-institutional dialogue that are apparently present in the Canadian, German, and South African political experiences (pp.100-102, 204-206, 214, 275-278).
The essay on Canada by Peter Hogg emphasizes the role of the British Privy Council in establishing the groundwork for Canadian interpretive efforts (especially the Council’s obtuse treatment of federalism questions); the political and interpretive significance of several distinctive clauses of Canada’s constitution, including the ‘notwithstanding’ and the ‘limitation’ clauses; the dilemmas associated with the confusing Canadian strategy for dividing legislative powers between federal and national legislatures; and the strong powers of the modern Canadian Supreme Court. Hogg also offers important insights on the Canadian conception of constitutional dialogue, and the role this concept plays in augmenting not only judicial, but also regional power. It is clear that if judicial rulings are viewed as the beginning of a ‘dialogue,’ the Court may find itself more empowered to issue strong rulings; this is one reason for some to resist the idea of a Court as a ‘conversation-partner.’ But one compelling element of Hogg’s account is his discussion of how Canadian commitments to mutual consultation have strengthened regional powers in at least one crucial instance, the Secession Reference, which mandated that any separation between Quebec and the rest of Canada be conducted through a series of fair negotiations (pp.99-100).
Jeffrey Goldsworthy emphasizes the highly legalistic and formalistic cast to Australian jurisprudence. Not wishing to hamper the government too much in its efforts to settle Australia, constitutional framers there avoided protecting abstract rights, and so interpretive questions are primarily about structural questions. It also seems that Australian jurisprudence is confusing; Goldsworthy mentions that the opinions of the High Court are often very long, and rarely unanimous, making it “sometimes difficult to discern what, if any, general principle has been authoritatively decided” (p.114). This may place special burdens on his essay. Good organization may be one of the most important elements of a strong textbook, and the organizational scheme of this particular essay is weak. The discussion of history, constitutional structure, and complicated interpretive disputes are pulled together in ways that are sometimes baffling, and occasionally Goldsworthy makes claims about judicial interpretation without offering citations to the relevant cases (pp.115, 133).
I found quite useful Goldsworthy’s discussion of the role of foreign legal experience in Australian interpretive [*579] practice. Although the Australian constitution does not explicitly contemplate the use of foreign legal sources, Goldsworthy highlights how framers and, later, interpreters have made use of the constitutional experience of other nations, especially Canada’s experience of the Privy Council, American and Canadian understandings of separated powers, and British and American conceptions of rights. Goldsworthy especially relies on a tension between British and American interpretive traditions to frame his discussion of Australian interpretive practice. It is an interesting avenue, although it would be useful to have more discussion about the main contours of what Australian jurists believe those traditions to be, other than contrasting British ‘formalism’ with American ‘creativity’ (p.115). Because some Australian interpreters deny the difference between the two traditions, and because Goldsworthy believes some judges to have mistaken understandings of what those traditions actually require, the discussion around this point quickly becomes unnecessarily complex. That said, this essay offers two of the best stories in the volume, including a fantastic episode of judicial bungling brought on by judges who were confused about their own earlier interpretive positions (p.126), as well as an intriguing example of how formalism can disable judges from protecting constitutional institutions from creative statutory writing (p.138). These stories are teaching goldmines.
Don Kommers’ essay on Germany is organized, rich, and thematically engaging. Although he offers his own assessments, the essay provides enough space for readers to draw independent conclusions, and he provides the raw materials for scholars to rethink a number of public law intuitions. Most significantly, Kommers’ essay undermines the idea that highly aspirational constitutions place greater interpretive burdens on judges and political actors. This seems to be a great strength of the German experience with constitutional amendment. It is oriented towards maintaining strong normative aspirations in the legal order, but also towards ensuring that those aspirations are codified and expressed through positive law. The Germans’ commitment to rule by (written and particular) law does not seem to conflict with their equal commitment to the legal expression of highly abstract theories of right. Kommers’ discussion of Germany also undermines the distinction between formalistic and purposive interpretation – the German constitutional tradition seems to be heavily both. This work complicates our understanding of the meaning of the efforts of Australia, among others, to eschew normativity on behalf of formalism.
Kommers distinguishes between the German constitutional experience and that of other nations, especially through his discussion of the explicit German commitment to internationalism. He uses a comparison between American and German styles of judicial interpretation to distinguish between various ways of being legally ‘creative’ (p.179) and offers a highly engaging discussion of the German understanding of positive rights, a discussion which complicates the received understanding of any [*580] necessarily zero-sum relationship between the two (pp.183, 184). (Heinz Klug picks up the point in his essay on South Africa, whose positive rights jurisprudence is also quite sophisticated (p.309).) Kommers also offers citations to material that may be useful to researchers, including the provision of a list of leading German law journals (p.193).
S.P. Sathe authored a very substantive piece exploring what seems to be a highly energetic Indian constitutional practice. The Indian constitutional system is complex, both in terms of government structure and in terms of the rights that are protected. Sathe’s essay discusses this detailed, specific, and elaborate system of rights in relation to the need to protect social relationships of pluralism—so, for example, while freedom of speech and religious liberty are protected, the Constitution allows for the punishment of both hate speech and acts meant to ‘outrage’ the religious feelings of a class (pp.219-220). In the drafting stage, judicial empowerment was connected to a concern for preventing the ruling supremacy of religious majorities (p.228). The essay hence focuses a question that is in the background of all the essays about the relationship between pluralism and rights protection. Some recent work argues that judicial empowerment is related, not to the need to protect social pluralism and minority rights, but rather to the desire of dominant economic classes to protect their hegemonic interests (see Hirschl 2004). Yet the Indian Supreme Court has used its capacity to act legislatively through directives to address a wide range of human rights issues affecting minority groups (p.258). The empowered Indian Supreme Court has also been willing to involve itself politically to achieve results that it believes are constitutionally required, in one instance even arranging loans in order to dissolve a contentious legal dispute between riksha owners and riksha pullers (p.259). Does judicial empowerment mean, per se, that dominant political classes are protected? Or is such protection rather the function of legalism, from which courts may occasionally depart? Sathe’s description of the Indian Supreme Court calls out for more nuanced work about the role of empowered judiciaries in protecting minority groups.
Sathe’s contribution also reminds us that debates which may seem esoteric are, in some places, highly relevant political problems. For example, the constituent power controversy surfaces in India as a question about whether the Supreme Court has the power to hold constitutional amendments unconstitutional (pp.242-245). The relevance of this question is conditioned by the fact that Indian barriers to amendment are not only low, but also, in many cases, entirely possessed by the normal legislative assembly (p.221). Also, the increasingly tedious debate about whether judges ‘make’ or ‘apply’ law emerges as a fresh question through the Indian Supreme Court’s ruling that an unconstitutional constitutional amendment can nonetheless be prospectively affirmed for the sake of law and order (p.224). The episode is similar to one that Peter Hogg discusses regarding a Canadian judicial ‘fiat’ of holding a statute unconstitutional yet [*581] nonetheless valid (pp.97-98). Both episodes raise profound questions about the meaning of constitutional law in a way that simple disagreement about the merits of various judicial decisions does not.
Heinz Klug’s essay on South Africa offers a powerful rendition of the momentous constitutional history of that nation. Beyond the inherently compelling story of South Africa’s constitutional transition, of special interest is Klug’s development of themes raised in other chapters in the volume. For example, the South African Constitutional Court, like the Indian Supreme Court, may well be empowered to overturn constitutional amendments; Klug highlights the Constitutional Court’s explicit reference to Indian jurisprudence (p.300). Klug also discusses South Africa’s dialogic conception of constitutionalism. The South African Constitution designates principles of interaction between the national, provincial, and local spheres of government, requiring “co-operative governance” and “interregional compromises through political negotiation.” Klug relates this concept of dialogue to the need for a “culture of justification,” which he explicitly links to the German constitutional experience (pp.275-277). These three countries hence seem to provide promising territory for investigating the constitutional significance of inter-institutional dialogue and mutual justification. Is the dialogic, reason-giving view of constitutionalism only a theoretical pretext for strong judicial power? Canada, Germany, and South Africa all seem to have the most developed conception of dialogic powers, and these nations also have very strong judicial institutions. But in some cases, court-ordered ‘dialogue’ strengthens non-court institutions. South Africa’s Constitutional Court has held, for example, that different political organs have a constitutional duty to avoid legal proceedings against one another and to settle disputes through political means (p.298).
Jeffrey Goldsworthy’s final essay focuses on questions of judicial activism, restraint, creativity, and legalism; summarizes some of the main points of each of the essays; and considers different explanations for various interpretive philosophies courts have adopted. The reader will surely draw independent conclusions about the critical questions posed by the book; it is a strength of the volume that it provides enough information for readers to move in many different directions. For example, in considering the making of the constitution along with interpretive issues, the volume expresses the significance of the drafting process for establishing lines of interpretive difficulty later. Almost all of the essays help us think about both the difficulty and the necessity of referring to framers’ intentions, most notably Goldsworthy (p.126) and Klug (p.286). The book also creates a context for exploring how structures of constitutional representation relate to the nature of the high court’s involvement in resolving conflicts between levels and branches of government.
According to the right set of criteria, the book is a success. The essays are largely [*582] coherent in both structure and vocabulary; the authors manage to insert distinctive perspectives while keeping to their organizational discipline; and the essays support readers in generating ideas for new research directions. Although the book focuses on questions of constitutional interpretation, the comparative orientation and the scope of constitutional questions that each essay addresses will make it a valuable reference for political scientists and political theorists, not just lawyers. The book will prove especially useful to graduate students or researchers contemplating a shift in their primary research direction. We must only hope that similar books will emerge, at a lower cost, to expand the scope of the countries treated.
Jackson, Vicki C., and Mark Tushnet (eds.). 2006. COMPARATIVE CONSTITUTIONAL LAW, 2nd ed. New York: Foundation Press.
Jackson, Vicki C., and Mark Tushnet (eds.). 2002. DEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW. Westport, Connecticut: Praeger.
Jacob, Herbert, Erhard Blankenburg, Herbert M. Kritzer, Doris Marie Provine, Joseph Sanders. 1996. COURTS, LAW, AND POLITICS IN COMPARATIVE PERSPECTIVE. New Haven: Yale University Press.
Hirschl, Ran. 2004. TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Cambridge, MA: Harvard University Press.
Hogg, Peter. 1997. CONSTITUTIONAL LAW OF CANADA. 4th ed. Toronto, Canada: Carswell Legal Publications.
Klug, Heinz. 2000. CONSTITUTING DEMOCRACY: LAW, GLOBALISM AND SOUTH AFRICA’S POLITICAL RECONSTRUCTION. Cambridge, UK: Cambridge University Press.
Kommers, Donald P. 1997. THE CONSTITUTIONAL JURISPUDENCE OF THE FEDERAL REPUBLIC OF GERMANY. 2nd ed. Durham NC: Duke University Press.
Koopmans, Tim. 2003. COURTS AND POLITICAL INSTITUTIONS: A COMPARATIVE VIEW. Cambridge: Cambridge University Press.
Sathe, S.P. 2002. JUDICIAL ACTIVISM IN INDIA: TRANSGRESSING BORDERS AND ENFORCING LIMITS. New Delhi: Oxford University Press.
© Copyright 2006 by the author, Mariah Zeisberg.
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