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The Rise of Weak-Form Judicial Review

Mark Tushnet1

I Introduction

Constitutional review, known in the United States as judicial review, originated

in the United States. It took the form of a practice in which upon finding a statute

inconsistent with constitutional norms a court gave the statute no legal effect in the case

at hand and, because of the operation of rules of stare decisis in US law, other courts

subordinate to the deciding court would similarly give the statute no legal effect in cases

coming before them.2 For more than a century this form of review, to which I have given

the label strong-form, provided the only model for constitutional review. As

parliaments increasingly rested on majoritarian theories of democracy and as

constitutionalism spread the tensions between the two were alleviated by accounts of

parliamentary supremacy that stressed legislative responsibility for adherence to

constitutional norms. That responsibility could be enforced by political norms

regulating legislators actions or more effectively by legislators electoral responsiveness

to constituents who themselves cared about adherence to constitutional norms.

Proponents of strong-form constitutional review sometimes contend that that

practice is either compelled or strongly supported by the existence of a written

constitution. Yet even written constitutions can accommodate pure legislative

responsibility for adherence to constitutional norms, either in the large or with respect to

specific provisions. The constitution of the Netherlands specifically states that none of its

provisions are judicially enforceable, although the impact of that limitation is qualified by

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another provision requiring judicial enforcement of international treaties to which the

Netherlands is a party. The Irish constitution of 1937 contains a set of directive

principles of public policy, which are expressly committed solely to the care of the

legislature and unenforceable by the courts.3 The Swedish constitution, which provides

for what appears to be strong-form review, constrains the courts through a limitation that

allows them to declare a statute unconstitutional only if the inconsistency between the

statute and constitutional norms is (in one translation) manifest. Even in the United

States, the home of strong-form review, the political question doctrine is best

understood as identifying constitutional norms whose enforcement is left in the hands of

elected representatives.4

Systems of complete parliamentary supremacy took strong, sometimes

debilitating blows during the twentieth century, when experience was thought to show

that purely political constraints on legislatures were insufficient to avoid a descent into

totalitarianism or more modest but still troubling forms of authoritarian rule. Sometimes

urged by U.S. advisers as in Germany and Japan and sometimes emulating the German

model for designing a constitutional court, constitution designers gravitated toward the

only available model of constitutional review, the U.S.-style strong-form system, as a

remedy.5 Defenders of parliamentary supremacy and constitutionalism argued that

strong-form review raised persistent questions about the relation between on the one hand

the right of the sovereign people to govern themselves, proximately through legislation

adopted by their representatives or by direct legislation the people themselves enacted

and ultimately through their constitution, and on the other the power of constitutional

courts to refuse to treat as legally effective statutes they determined were inconsistent

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with the constitutions higher norms. Constitution designers came up with a number of

mechanisms to address these questions and at least weaken their sting, including the

creation of specialized constitutional courts selected by mechanisms different from those

used to select ordinary judges and restrictions on the preclusive effect of determinations

of unconstitutionality.

In the late twentieth century constitution designers developed another response,

which I have called weak-form constitutional review.6 Weak-form review combines

some sort of power in courts to find legislation inconsistent with constitutional norms

with some mechanism whereby the enacting legislature can respond to a court decision to

that effect. Weak-form systems vary with respect to both the nature of the judicial

power, which can be merely declaratory or provisionally suspensive, and the form of

legislative response, which can be reenactment or slight modification of the impugned

legislation. After describing several of the weak-forms design features, this Chapter

examines the development of weak-form constitutional review in Canada, New Zealand,

and Great Britain. It concludes with some speculations about the future of weak-form

constitutional review.

II Constitutional review, reasonable disagreement and the amendment process

Two features of modern constitutions lie at the foundation of the development of

weak-form constitutional review. Every constitutions terms are subject to reasonable

disagreement among interpreters and specifically between legislators and constitutional

court judges. Weak-form review is a mechanism for dealing with such disagreement in a

way that preserves parliamentary supremacy to as large extent as possible. In addition

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every constitution has some provision for its own amendment. The ease or difficulty of

amending a constitution should affect the choice between strong-form and weak-form

constitutional review.

Put most generally constitutionalism requires some limitations on

parliamentary/legislative sovereignty. Those limitations can be enforced culturally and

politically. A culture of legality among political elites might induce legislators to

deliberate seriously about whether their preferred policy proposals are consistent with

constitutional limitations on their power. A culture of legality in the public might lead

voters to remove from office legislators who in the voters judgment have failed to

comply with constitutional limitations.

The US model of constitutionalism seeks institutional mechanisms for enforcing

constitutional limitations on parliamentary sovereignty, and the judgment that such

mechanisms are a desirable feature of constitutional design has now become nearly

universal. These mechanisms typically involve some determination by an institution

independent of the legislature on the question of a proposals consistency with

constitutional limitations. The institution might be a body that screens proposals before

they are submitted for legislative consideration. Sweden and Japan have such

institutions, and some observers contend that the near absence in those nations of judicial

determinations that statutes are unconstitutional results from the effectiveness of the

screening process in those institutions.7 A screening body might have the power to

prevent legislative consideration. More typically these rights-vetting institutions offer

their views as advice.8

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Strong-form constitutional review places the power to determine the consistency

of legislation with constitutional norms in a court authorized to deny legal effect to

statutes it concludes are inconsistent with those norms. The phrase it concludes is

crucial to understanding the persistent nervousness in constitutional theory in the United

States and elsewhere about strong-form constitutional review. At least occasionally and

to many observers rather often there can be reasonable disagreement over the proposition

that a statute is inconsistent with constitutional norms.9 It is hardly clear that

constitutionalism requires that the reasonable views of the courts or other reviewing

institution prevail over the reasonable views of the enacting legislature.

Mechanisms of weak-form constitutional review address the nervousness about

giving reviewing courts the final and unrevisable word on such questions. In their most

general form such systems continue to authorize independent courts to analyze and

express their judgments about legislations consistency with constitutional norms, but

allow legislatures to respond if legislators conclude that the legislation is consistent with

constitutional norms reasonably understood. Of course even strong-form systems of

constitutional review provide at least one mechanism for responding to what seem to

some mistaken decisions to deny legal effect to a statute. That mechanism is the process

for amending the nations constitution. Faced with a strong-form courts decision that a

statute is inconsistent with constitutional norms, a nations people can revise those

norms.10 The easier it is to amend the constitution, the smaller the distinction between

strong-form and weak-form review. Put differently, strong-form review raises questions

about the relation between courts and parliaments only in systems where constitutional

amendment is significantly more difficult than is the enactment of ordinary legislation.11

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III Types of weak-form constitutional review

Weak-form review is a relatively recent development. It seems likely that the

design possibilities extend beyond those already in force. Enumerating some

mechanisms of weak-form review may nonetheless bring to the fore several important

characteristics of these mechanisms.

(1) The weakest form of weak-form review may perhaps not deserve the name of

constitutional review at all. It is the pure interpretive mandate, which can best be

understood against the background of purely statutory bills of rights. In a statutory bill of

rights a legislature enacts a list of rights as ordinary legislation. That bill of rights is not

entrenched against repeal or subject to any special rules regarding its later amendment.

How should courts treat the statutory bill of rights? The answer is relatively

straightforward with respect to laws on the books at the time the statutory bill of rights is

enacted. Courts should treat the statutory bill of rights as amending all existing

legislation, which thereafter should be interpreted to be consistent with the statutory bill

of rights. The situation with respect to later-enacted laws is more complex because there

are two equally plausible approaches to interpreting them. A court might assume that

subsequent legislatures wish to comply with the statutory bill of rights and therefore

interpret later-enacted statutes to be consistent with it. Alternatively a court might treat

later-enacted statutes as raising the possibility that they are pro tanto subject-specific

amendments to the statutory bill of rights, which would lead to interpreting them without

giving any special regard to their relation to the statutory bill of rights.

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The pure interpretive mandate is a legislative directive that courts should where

fairly possible interpret legislation, both existing and later-enacted, to be consistent with

some list of protected rights. The interpretive mandate purports to rule out the choice of

the second approach to statutory bills of rights. The primary question that arises in

connection with interpretive mandates is their relation to ordinary principles of statutory

interpretation. Does the direction to interpret a statute to be consistent with the protected

rights operate merely as a tie-breaker? If so a court would use the ordinary rules of

statutory interpretation to determine the statutes meaning and invoke the protected rights

only if the court was genuinely uncertain after doing so what the statute meant.

Proponents of interpretive mandates typically argue that the mandate must do more than

that, largely because situations of genuine uncertainty are rare. They argue that courts

should use the list of protected rights as a new canon of statutory interpretation. The

fact that a statute interpreted in the ordinary way has some adverse effect on a protected

right is in their view a reason for interpreting the statute otherwise. At the extreme this

approach to statutory interpretation can give the protected rights overriding weight,

displacing even the plain meaning of a statutes words.12

Defenders of parliamentary sovereignty reject such an aggressive use of an

interpretive mandate. For them the fundamental questions go not to how courts should

respond to interpretive mandates but to their implications for subsequent legislatures. An

interpretive mandate purports to place some burden of special clarity on later legislatures

that seek to enact statutes that can be challenged as rights-violating. But as a matter of

constitutional theory the power of one legislature so to bind a later one by ordinary

legislation is quite unclear.

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(2) Less weak is a form of review in which a court is empowered to declare a

statute incompatible with fundamental rights, typically after determining that it is unable

to interpret the statute so that it does not infringe such rights. The circumstances under

which such a declaration will make a difference might be limited to situations in which

the rights-violation was inadvertent. It might be that a legislature simply did not

understand that its legislation would have an adverse impact on rights, perhaps because

the impact was buried in the details of a complex statutory scheme. Ordinarily courts

should be able to deal with such difficulties by applying the interpretive mandate, but

occasionally they will be unable to escape a statutes clear wording. The more likely

scenario is one in which the statutory language is both clear and obvious. Here the

purported rights-violation may well have been precisely what the legislature intended.

Again the existence of reasonable disagreement about whether rights are violated matters.

To oversimplify somewhat either the legislature intended to violate rights or it held a

view of rights under which the statute did not actually violate rights. In either case the

legislature is unlikely to do anything in response to the judicial declaration.

This conclusion should be qualified to take account of the informational effect of

a judicial declaration of incompatibility. That effect may make no difference where there

is strong party government because almost necessarily the party leadership knew what it

was doing when it promoted the impugned legislation. Where party discipline is weaker

some members of the majority party understood as a coalition may have harbored

reservations about the legislation that they subordinated to party loyalty but to which they

would give effect once informed that their reservations were well founded. A public

informed by a declaration of incompatibility may respond at the next election, and the

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anticipation of such a response might induce the leadership even in a strong party system

to alter its legislation.

(3) The strongest of the weak-form mechanisms gives the court power to suspend

the legal effect of a statute pending a legislative response through ordinary legislation

rather than constitutional amendment. Canadas so-called notwithstanding clause,

Section 33 of the Charter of Rights, is the primary example of such a mechanism.

(Another description of the provision is that it allows a legislature to override

constitutional provisions.) The clause authorizes the national legislature or a provincial

one with respect to legislation within their respective jurisdictions to make a statute

legally effective notwithstanding enumerated constitutional provisions dealing with

individual rights.13 Statutes protected by a notwithstanding declaration expire after five

years, but the declaration is renewable. The five-year sunset period ensures that an

election intervene between initial enactment and renewal, thereby increasing the

likelihood that legislative responsibility will be enforced through political accountability.

The presence of a notwithstanding or similar clause in a constitution presents

some important interpretive questions. When a legislature invokes such a clause must it

identify precisely which constitutional provisions with which the statute might be

inconsistent, or may it invoke the clause in general terms, such as notwithstanding any

provision of this constitution? May a legislature invoke such a clause prior to any

judicial suspension of an enactments legal effect, or may it do so only after a court has

found a statute inconsistent with constitutional norms? These questions are not entirely

unrelated. After a court finds a statute inconsistent with a specific constitutional norm,

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the legislature can make its statute legally effective by referring to that constitutional

norm in its override.14

These questions help bring out some general features of weak-form constitutional

review.15 Proponents of weak-form review note that legislators may simply overlook

constitutional questions implicated in their policy proposals. A statute might not in fact

embody a reasoned legislative determination that the statute is consistent with

constitutional norms. Weak-form review offers the legislature an opportunity to focus on

that question without necessarily precluding the legislature from reenacting the impugned

statute. In addition and perhaps related legislators are not specialists in constitutional

law. Weak-form review in contrast is performed by such specialists. Weak-form review

may provide legislators with information that they lacked at the enactment stage.

Specialization can of course distort as well as inform judgment. Distracted by their

attention to nuances of constitutional law constitutional court judges might undervalue

the contributions a statute makes to overall social wellbeing. Again weak-form review

has the advantage of allowing legislatures to take these and similar distortions into

account as they respond to the courts decision. These processes have been described

through the metaphor that weak-form review creates a dialogue between courts and

legislatures.16

Requiring an override to be cast in specific terms substantially reduces the

possibility that the legislatures action in adversely affecting constitutional rights, at least

in the eyes of some, is inadvertent, and may increase the possibility that voters will be

sufficiently informed as to hold legislators responsible for their decision. Anticipatory

and specific overrides, that is, those made before a court finds a statute inconsistent with

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constitutional norms identified in the overriding legislation itself, run the risk that the

legislature will identify only one constitutional problem with its enactment while others

are severe enough to lead the courts to invalidate the legislation anyway. Anticipatory

overrides also cannot capitalize on the information that would be provided by a judicial

invalidation, although the relevant information may be widely enough available, for

example by inferences from prior court decisions, to reduce the severity of this concern.

In addition anticipatory overrides cannot contribute to a dialogue between courts and

legislatures on question of constitutional interpretation.

IV Weak-form review and the idea of judicial-legislative dialogue

Weak-form review can be quite weak, as the examples of the pure interpretive

mandate and the declaratory form of review show. What benefits might there be from

such an institution in a world where courts and legislatures can reasonably disagree on

the question of a statutes consistency with constitutional norms? As noted above, one

benefit is dialogue between courts and legislatures. The tension between strong-form

constitutional review and parliamentary sovereignty is strongest when fully informed

legislatures simply but reasonably disagree with the interpretation a court gives to a

constitutional limitation on legislative power. Dialogue allows courts to inform a

legislature of the courts understanding of the constitutional provision while allowing the

legislature to respond and take conclusive action based on its own understanding.

Two episodes in Canadian law illustrate different forms of dialogue. (1) In R. v.

OConnor ([1995] 4 SCR 411), a sharply divided Supreme Court developed the common

law in light of the Charter to allow relatively generous opportunities for defense counsel

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to gain access to the medical and counseling records of a complainant in a prosecution for

sexual assault. Parliament responded with a statute that essentially adopted the

dissenters views on when such access should be granted. The Supreme Court then

upheld the statute against constitutional challenge, observing that it did not hold a

monopoly on Charter interpretation (R. v. Mills, [1999] 3 SCR 668). (2) In 1989

Parliament adopted a comprehensive and rather strict system regulating advertising of

tobacco products. The Supreme Court found that the system violated constitutional

guarantees of free expression because each component of the system failed under one or

more of the tests for proportionality (RJR-MacDonald Inc v. Canada (Attorney General),

[1995] 3 SCR 199). Its proportionality analysis delineated the outlines of constitutionally

permissible legislation, and Parliament responded by enacting a statute that conformed to

those outlines.

Responses can take several forms depending on the precise contours of the weak-

form mechanism. Consider first a weak-form mechanism authorizing courts to do no

more than declare a statute incompatible with constitutional norms, the declaration

having no immediate legal consequences. A legislature need do nothing to make its

statute legally effective after such a declaration. It may of course face political pressure

or social expectations that it do something in response, but the simple declaration of

incompatibility puts the legislature in no different legal position than it was in before the

declaration. Next consider a weak-form mechanism that suspends a statutes legal

effectiveness subject to later legislative action. Importantly one possible response is

doing nothing because the legislature informed by the courts decision concludes that

constitutional norms do indeed preclude it from accomplishing its policy goal. A

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legislature that on reflection wishes to make its statute legally effective does have to

respond. Depending on the design of the weak-form mechanism, it can do so by

reenacting the statute either by the ordinary process of legislation or under some

modestly enhanced procedural requirements, such as a qualified majority rule requiring a

majority of the legislature as a whole rather than simply a majority of legislators present

and voting, or a modest supermajority requirement.17

The responses described so far reflect a legislatures judgment that its own

reasonable view that the statute is consistent with constitutional norms should prevail

over the reviewing courts view. The Canadian experience illustrated by the dialogue

on tobacco advertising suggests that the most common legislative response will be

tinkering with the statute to ensure that it conforms to the reviewing courts view. This

response has two notable characteristics. It is one in which the legislature accepts rather

than rejects the reviewing courts constitutional interpretation, perhaps because the

legislature initially overlooked constitutional concerns or perhaps because the

legislatures reflective reconsideration led to a change in a majoritys views about

constitutionality. In addition the tinkering will almost certainly come at some cost to the

legislatures initial non-constitutional policy goals. Modest adjustments in procedures

will increase implementation costs, which in turn will reduce the number of occasions on

which the statute will be invoked. Tinkering as a response may reflect a legislative

judgment that the reduction in the statutes effectiveness is not large enough to justify

incurring the political costs of directly disagreeing with the courts.

V The development of weak-form constitutional review

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By the late twentieth century parliamentary supremacy was the reigning

constitutional theory in only a handful of nations, mostly in the British Commonwealth.

Their legal elites came to believe that some mechanism for overseeing legislative

compliance with constitutional norms was desirable.18 Canada adopted the strongest of

the weak-form systems, followed by New Zealands choice of the weakest, and then the

United Kingdoms choice of the intermediate variant.19

(1) After beginning his career as a constitutional lawyer, Canadas minister of

justice and prime minister Pierre Trudeau came to the view that Canadas persistent

division between Quebec and the rest of Canada over national identity could be solved by

patriating the Canadian constitution. Doing so, Trudeau believed, would provide a basis

for reconfiguring national identity around the constitution as a charter of rights and

around multiculturalism rather than bilingualism. A 1981 advisory opinion from the

Canadian Supreme Court held that patriation required extensive consultation with the

provinces and substantial agreement among them over the constitutions terms. Meetings

with the provinces first ministers produced agreement on many terms, but division

persisted over the creation of an enforceable charter of rights, with leaders of social

democratic parties skeptical about US-style constitutional review because of experience

in the 1930s in the United States and Canada when courts obstructed economic recovery

programs. Trudeau was committed to such a charter as an essential component of

constitutional reform. The ministers comprised by inserting two provisions in the

proposed constitution, and the Canadian constitution was patriated in 1982 with an

accompanying Charter of Rights enforceable in the courts.

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The first provision affecting constitutional review was the notwithstanding clause,

a real innovation in constitutional design.20 It authorized legislative responses to judicial

invalidation in the form of straightforward reenactment of the impugned legislation.

Quebecs political leadership had not accepted patriation, and immediately after the

constitution became effective invoked the notwithstanding clause to protect all of the

provinces statutes against constitutional challenge. The most controversial of those

statutes was a bill requiring that all commercial signage in Quebec be in French. Several

businesses challenged the sign law as a violation of their Charter rights and the use of the

notwithstanding clause as improper. The Canadian Supreme Court held that it could

examine only whether Quebecs use of the notwithstanding clause was formally valid

(Ford v. Quebec (Attorney General), [1988] 2 SCR 712).21 Despite or perhaps because

of this holding the notwithstanding clause has not been used since 1988 to insulate any

significant legislation against constitutional challenge.

The second provision was a general limitations clause applicable to the rights

enumerated in the charter. Modeled on language in existing international human rights

documents, where the terms were used to identify permissible limitations on particular

rights, the clause provides that all the rights are subject only to such reasonable limits

prescribed by law as can be demonstrably justified in a free and democratic society. The

general limitations clause invited a different type of legislative response. As Canadian

constitutional doctrine has evolved courts make two determinations. They ask first

whether the challenged legislation infringes on a constitutional right. The standard for

determining whether a right is infringed is in general easy to satisfy. Once it is the

second, more consequential determination must be made. The court asks whether the

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infringement is demonstrably justified. Constitutional doctrine has converted this into a

multi-stage proportionality test.

The language of the general limitations clause suggests one form that challenges

to legislation can take. Litigants might argue that the statute limits a constitutional right,

and that the limitation is not demonstrably justified. If the courts agree the legislature can

respond by providing a stronger justification than it had earlier, for example by compiling

a more complete legislative record of the statutes effectiveness at addressing a social evil

and the relative ineffectiveness of alternatives. The proportionality doctrine has

components that invite cognate responses. To satisfy the proportionality requirement

legislation must impair as little as possible the right, and there must be a

proportionality between the effects of the measures and the objective of the statute (R

v Oakes, [1986] 1 SCR 103). Legislation that fails the proportionality test in either of

these ways might be reenacted with a demonstration that no alternatives achieve the

legislations goals with a smaller effect on rights. More commonly the legislature

responds with slight alterations in the legislation to reduce the adverse effect on rights

while preserving the statutes main features.

(2) In New Zealand as in Canada a law professor politician was the moving force

behind the adoption of a bill of rights and as in Canada questions about national identity

played a role. Having received a law degree and taught at law schools in the United

States, Geoffrey Palmer had a principled commitment to a fully enforceable bill of rights,

and worked for its adoption as minister of justice and then prime minister. He saw such a

bill of rights as part of a package of constitutional reforms, which included proportional

representation and the recognition of constitutional status for the Treaty of Waitangi

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(1840) between New Zealands indigenous Maori people and its British settlers.

Palmers advocacy of an entrenched bill of rights failed in the face of strong assertions of

a national commitment to parliamentary supremacy. Shortly before the Labour Party led

by Palmer lost its majority in 1990 the New Zealand parliament adopted a statutory Bill

of Rights listing protected rights and containing an interpretive mandate.

New Zealands courts have been rather cautious but not completely inactive in

their use of the interpretive mandate. Some judges have invoked theoretical concerns

about the ability of an earlier legislature to bind a later one to justify their caution. Yet in

one notable case the nations high court held that the Bill of Rights Act authorized the

courts to remedy some violations with a damages remedy despite the fact that they have

no authority even to declare legislation incompatible with the Act (Baigents Case,

[1994] 3 NZLR 667). More recently the court overturned the conviction of a

schoolteacher and political activist for dishonouring the nations flag by burning it in a

political protest, invoking the interpretive mandate as requiring that the word dishonour

be given as narrow an interpretation as possible to ensure that the statute not infringe free

speech rights (Hopkinson v. Police, [2004] 3 NZLR 704).

(3) The British Human Rights Act 1998 was the culmination of a campaign by

the Labour Party to bring rights home, as one of the Partys documents put it.

Historically the Labour Party had been quite hostile to the judiciary. The Taff Vale

decision (1901), which imposed monetary liability on a labor union for actions taken in a

strike that was held to violate common law rules against interference with contractual

relations, held an iconic and notorious place in Labourites understanding of courts and

the law. Labour leaders believed that judges as members of the ruling class and typically

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of upper class origins themselves were inevitably biased against the working class, which

cautioned strongly against developing policies that required judicial support to be

effective. The US experience in the first decades of the twentieth century with the

enforcement of notions of due process to limit social welfare legislation was taken as

exemplary. Further, the Labour Party was committed to parliamentary sovereignty with

widespread public participation in elections and a strong party system, which its leaders

believed would eventually guarantee their programs long-term success.

The Labour Partys position changed after Margaret Thatcher became prime

minister in 1979. Leading a strong and cohesive Conservative Party government,

Thatcher was able, as Labour leaders saw it, to force through legislation inconsistent with

long-standing British traditions, which they believed would have been blocked by courts

empowered to enforce human rights. Other developments contributed to changing

attitudes within the Labour Party about judicial protection of rights. The democratization

of the legal profession promised to transform the judiciary, at least in the long run.

Constitutional changes occurred in other components of the British system of

parliamentary supremacy, weakening the case against constitutional review. Practices of

ministerial and cabinet responsibility changed dramatically, for example.22 The United

Kingdoms accession to the European Community and to the human rights regime of the

European Convention on Human Rights had theoretical and practical effects as well.

Constitutional theorists struggled to reconcile the doctrine of parliamentary supremacy

with the doctrine that European Community law had direct effect within the United

Kingdom. No solution was entirely satisfactory, but one promising route was a

modification of the doctrine that no earlier parliament could bind a later one. That

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modification would provide support for the adoption of an entrenched bill of rights.

Perhaps more important, British politicians were embarrassed by the rate at which the

European Court of Human Rights found that the United Kingdom had violated rights

protected by the Convention.

Labour Party leader John Smith put together a package of constitutional reforms

to incorporate in the Partys platform, including devolution of power to Scotland and

Wales, and his successor Tony Blair implemented many of the reforms. One was the

Human Rights Act 1998. The HRA made most of the rights protected by the European

Convention enforceable as domestic law through an interpretive mandate coupled with a

power in higher courts to declare primary legislation incompatible with the enumerated

rights.23 Such a declaration would have no immediate legal effect. The Labour

government stated its expectation that declarations of incompatibility would promptly

produce the introduction of legislation to eliminate the incompatibility. In addition the

HRA authorized fast-track procedures for such remedial legislation, and even authorized

the minister with jurisdiction over the matter to modify the impugned statute by executive

order pending prompt submission to parliament of remedial legislation.

The House of Lords has been reasonably aggressive in its use of the interpretive

mandate, with some decisions appearing to invoke human rights concerns to override the

plain meaning of statutory language. An anti-terrorism case known as the Belmarsh

decision is the most celebrated and controversial use of the declaration of incompatibility

(A v Secretary of State, [2004] UKHL 56). Several persons suspected of terrorism

offenses were detained at Belmarsh Prison without charge, for an indefinite period.

Justifiably concerned that indefinite detention might be held to violate the detainees

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rights under the European Convention, the government filed a derogation from the

Convention with respect to the detentions. The House of Lords held that the derogation

was legally ineffective and declared that the detentions were incompatible with the HRA

because the standards for detention improperly discriminated between citizens and non-

citizens equally suspected of terrorism-related offenses, and because indefinite detention

was a disproportionate response to the threat the detainees posed.24 Subsequent decisions

have upheld many provisions of terrorism-related legislation, to the point where some of

those who strongly supported the adoption of the HRA have expressed disappointment

with its impact.

VI Speculations on the future of weak-form constitutional review

Strong-form review has existed for two hundred years in the United States and for

many years in other jurisdictions, providing a rich empirical basis for evaluating it. The

much shorter experience with weak-form review means that evaluating it empirically

requires a great deal of speculation. The primary empirical question about weak-form

review is whether the mechanism in any of its forms is likely to be stable over time.

Instability might occur in both directions. Review might be so weak that the system

degenerates into parliamentary supremacy. Alternatively, review might degenerate

into strong-form review if legislatures never take a stand against judicial invalidations.

Whether the latter should be regarded as degeneration is unclear. Suppose courts

regularly declare statutes unconstitutional and legislatures regularly fail to respond by

overriding the courts decisions, or respond by enacting new statutes that conform to the

courts requirements. That course of conduct might reflect a considered judgment by the

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legislature that strong-form review is in practice better than weak-form review, and that it

can embed a strong-form system simply by regularly complying with judicial

declarations. Another way of putting what amounts to the same point is that legislatures

might regularly find that the political costs of overriding judicial decisions exceed the

policy and political benefits of doing so.

What limited experience there is suggests that sustaining a weak-form mechanism

is difficult. The notwithstanding clause in Canada has fallen into desuetude, largely

discredited by its use to insulate French-language favoring legislation in Quebec from

review under the national Charter of Rights and by occasional threats, never effectively

carried out, to use the clause to protect legislation discriminating against gays and

lesbians. The clause remains an important symbol of parliamentary supremacy as the

governing theory of Canadian constitutionalism: A party leaders suggestion that the

clause be eliminated to perfect Canadian constitutionalism met a strong and highly

critical response. The general-limitations clause in Canada has become the textual basis

for testing all legislation against a requirement of proportionality, inviting tinkering

responses that accept the courts supremacy in constitutional interpretation. Evaluations

of the vitality of the judicial-legislative dialogue reach mixed conclusions, depending on

whether modifying a statute to conform to judicial requirements is treated as an example

of productive dialogue or as an example of judicial supremacy.

In Great Britain the Labour government routinely modified legislation in response

to declarations of incompatibility. Most such declarations involved provisions that were

probably inadvertent rights violations even from the governments point of view, but the

most prominent decisions involved aspects of anti-terrorism legislation and crime control

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laws. The Labour government grudgingly accepted those decisions. It responded by

developing a discussion paper on rights and responsibilities, which asserted that the

government was proud that it introduced the Human Rights Act and it will not resile

from it nor repeal it.25 Yet uneasiness with expansive interpretations of the protected

rights continues in Great Britain. Conservative Party leaders have been uncomfortable

with those interpretations, and at this writing it is unclear whether the Human Rights Act

will retain its current form. Interpretation of statutes to ensure conformity with the

Human Rights Act placed some strain on traditional theories of statutory interpretation,

although not to the breaking point.

In New Zealand too occasional expansive uses of the interpretive mandate have

generated concern that the mandate will create a system of strong-form review. More

commonly observers assert that the government pays too little attention to human rights

issues when it introduces legislation, citing the rather large number of instances in which

the Attorney General, an official with a fair amount of independence from the

government, has reported that government legislation is inconsistent with the bill of

rights.

Weak-form constitutional review is one of only a handful of inventions in

designing constitutional courts to occur over the past two centuries. Whatever its

ultimate fate, its mechanism for reducing the tension between parliamentary supremacy

and constitutional limitations on that supremacy provides the ground for serious

reflection on fundamental features of constitutional design in modern democracies.

References

23

Dixon, Rosalind. A Democratic Theory of Constitutional Comparison, 46 American

Journal of Comparative Law 947-997 (2008).

Gardbaum, Stephen. The New Commonwealth Model of Constitutionalism, 49

American Journal of Comparative Law 707-60 (2001).

Gzler, Kemal. Judicial Review of Constitutional Amendments: A Comparative Study

(Bursa: Ekin Press, 2008).

Hogg, Peter & Allison Bushell, The Charter Dialogue Between Courts and Legislatures,

35 Osgoode Hall Law Journal 75-124 (1995).

Jowell, Jeffrey & Dawn Oliver, eds. The Changing Constitution (Oxford: Oxford

University Press, 1985).

Law, David S. The Anatomy of a Conservative Court: Judicial Review in Japan, 87

Texas Law Review 1545-93 (2009).

Oliver, Dawn. Constitutional Reform in the United Kingdom (Oxford: Oxford

University Press, 2003).

Tushnet, Mark. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights

in Comparative Constitutional Law (Princeton: Princeton University Press, 2007).

Waldron, Jeremy. The Core of the Case Against Judicial Review, 115 Yale Law

Journal 1346-406 (2006).

1 William Nelson Cromwell Professor of Law, Harvard Law School.

2 This formulation captures the strong-form character of constitutional review in the

United States, the focus of this Chapter. For a discussion of other features in the design

of constitutional review, see Victor Cornella, The Rise of Specialized Constitutional

Courts, [this collection].

24

3 The Indian constitution of 1950 contains a similar section, modeled on the Irish one.

The Indian Supreme Court has referred to the directive principles in its interpretations of

constitutional provisions that are judicially enforceable. The Irish Supreme Court has

gestured in that direction as well, but has resisted the temptation more successfully.

4 In Luther v. Borden, 48 US (7 How) 1 (1848), the Supreme Court held that whether a

states system of government satisfied the constitutional requirement that the United

States guarantee that each state have a republican form of government was a political

question, meaning that it was to be determined by the legislative and executive branches.

5 This Chapter deals only with weak- and strong-form constitutional review, and not

questions about whether review is dispersed among a number of courts or centralized in a

single one (either a specialized constitutional court or a generalist court). Nor does it

consider the suggestion made to me by Vicki Jackson that constitutional courts whose

members serve for short terms might come to resemble weak-form courts, with quick

replacement of judges who render decisions politicians disagree with.

6 The first scholar to identify weak-form constitutional review as a distinctive and general

feature of constitutional design was Gardbaum (2001). For my contribution, see Tushnet

(2007).

7 On Japan, see Law (2009). Law addresses but rejects the argument that Japans

screening mechanism accounts for the low level of judicial invalidations.

8 For a discussion of these institutions, see Janet Hiebert, Legislative Alternatives to

Judicial Review, [this collection].

25

9 Jeremy Waldron has been the legal theorist most insistent on this claim and its

implications for constitutional review. For his most careful formulation, see Waldron

(2006).

10 Subject to whatever limitations the system places on the ability of a people to amend

their constitution. For a survey of the issue of unamendable constitutional provisions, see

Gzler (2008).

11 I think it important to note here that those who think about constitution design should

not assume that the enactment of ordinary legislation is a simple majoritarian process. It

might be, as it tends to be in pure parliamentary systems with strong political parties, but

it need not be. Enactment is not a simple majoritarian process in separation of powers

systems or even in parliamentary systems with weak party discipline.

12 The issue has been mooted in a number of British cases, with some judges defending

this approach in principle though never actually applying it.

13 The clause does not apply to voting and language rights.

14 Subject to the possibility that the court ruled on only one constitutional challenge in a

situation where others might remain available.

15 For a discussion bearing on these responses, see Dixon (2008).

16 The metaphor was introduced in Hogg & Bushell (1995), and has spread widely.

17 The only limitation on these procedural enhancements is that they cannot be as

stringent as those required for constitutional amendment.

18 The major hold-out among nations committed to parliamentary supremacy was France,

where the Constitutional Council created in 1957 was initially understood as a

mechanism to adjudicate disagreements over the allocation of law-making authority

26

between the president and the parliament and only gradually became a mechanism for

general constitutional review. The last step appears to have been taken with a

constitutional amendment adopted in 2008 that authorizes the Constitutional Council to

determine the constitutionality of statutes after enactment, although that recent

development has not taken effect as of this writing and its impact therefore cannot be

determined.

19 Designers of constitutional courts in central and eastern Europe in the 1990s chose

strong-form review, almost certainly under the influence of the German model and so

probably independent of their views on the relation between parliamentary supremacy

and constitutionalism.

20 There is some dispute over who first devised this solution.

21 For complex reasons the court was able to find that the sign law violated Quebecs

provincial bill of rights, and the broader sign law was replaced by one requiring that

signage be predominantly but not exclusive in French.

22 For a discussion of these and other constitutional changes, see Oliver (2003). For a

survey of changes in their incipiency, see Jowell & Oliver (1985).

23 The Convention right to effective remedies for rights violations was excepted from the

list, out of concern that incorporating such a right would be inconsistent with the limited

declaratory remedy created by the HRA.

24 The government responded by creating a system of fairly stringent house arrest rather

than detention in a prison-like facility.

25 Ministry of Justice, Rights and Responsibilities: developing our constitutional

framework (March 2009).

27