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Víctor Ferreres-Comella

A Defense of Constitutional Rigidity *

1. Introduction

That the Constitution should be rigid – more difficult to amend than ordinary
legislation – is relatively easy to defend when it comes to that part of the
Constitution that establishes the structure of government. Given that there are
several institutional arrangements a polity can adopt, all of them reasonable, and
given the need to stabilize one of them for political life to proceed in an orderly
way, it is a good idea to establish a particular arrangement in the Constitution
and to make that Constitution difficult to amend. It is more important to have a
settled system of government, even if it is not the best one, than to discuss all the
time which is the best system to have. Stability is itself a value 1. When it comes
to individual rights, however, things are more complex. On the one hand,
constitutional rigidity may look excessive: it is very important for the polity to
adopt the right decision in this context, and it is not at all clear why the
constitutional decision reached by a majority in the past as to what rights
individuals have should bind present majorities. On the other hand, constitutional
rigidity may look insufficient: if we think that individuals are entitled to certain
moral rights that the polity should acknowledge, and it is for this reason that
* This is a short version of a longer piece I have been working on for some time. I
would like to thank Bruce Ackerman, Chris Eisgruber, Owen Fiss, Barry Friedman,
Roberto Gargarella, Larry Kramer, Josep Lluis Martí, Luis Javier Mieres, Carlos
Rosenkrantz and Larry Sager for their helpful comments on that longer and earlier piece. I
am also indebted to all the participants at the Colloquium on Constitutional Theory of The
New York University School of Law, where that longer paper was discussed on April 20,
2000, as well as to those who took part in the “V Congreso Hispanoitaliano sobre Teoría
del Derecho”, which took place in Alicante in October 1999, where I presented some of
my ideas on the same issues. All their remarks were extremely useful. None of them is to
be blamed, of course, for my mistaken views. I would also like to thank Riccardo Guastini
for encouraging me to publish this paper here.
1 For a powerful version of this argument, see Stephen Holmes, “Precommitment and
the paradox of democracy”, included in Jon Elster and Rune Slagstag (editors),
Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988), p.
195.

Analisi e diritto 2000, a cura di P. Comanducci e R.


Guastini
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those rights are enshrined in the Constitution, why should it be possible for
future majorities or supermajorities to change those rights through the
amendment process?
In this article I want to offer a defense of the constitutional rigidity of the Bill
of Rights. I will first characterize rigidity (2). I will then argue that for a rigid
Bill of Rights to ensure its democratic legitimacy through time it must use rather
abstract terms to define those rights (3). I will then offer a justification of judicial
review of legislation under an abstract Constitution (4). Finally, against this
background, I will defend constitutional rigidity (5).

2. Constitutional Rigidity: An Overview

A Constitution is said to be formally “rigid” to the extent that it can only be


amended through political procedures that are more complex than those that are
followed for the enactment and repeal of ordinary legislation. A flexible
Constitution, in contrast, can be amended following the ordinary procedures 2.
Constitutions can be more or less rigid. What makes them so depends on
several factors. A first factor is the number of political institutions that are legally
required to participate in the amending process. In this regard, the presence of
federalism in the amending process is a factor of rigidity. For the United States
Constitution to be amended, for example, it is necessary to obtain the consent,
not only of the federal Congress (or of a Convention that is called by Congress
on the application of the legislatures of two thirds of the States), but also of the
legislatures (or conventions) of three fourths of the States 3. In this regard, it is
more rigid than the Constitutions of the member States of the European Union:
2 The distinction is due to James Bryce, “Flexible and Rigid Constitutions”, a 1905
essay collected in James Bryce, Constitutions (Scientia Verlag Aalen, 1980), pp. 3-94.
Bryce referred to the English Constitution as an example of a flexible Constitution. But
England does not have a Constitution properly speaking: there is no document called
“Constitution” that is superior to ordinary legislation. Still, a Constitution properly so-
called can be flexible: it maintains its superior rank if it is understood that it can only be
amended in an explicit way. That is, an ordinary statute that does not explicitly modify the
Constitution will be deemed to be invalid if it contradicts the latter. This thesis has been
persuasively defended in Spain by Ignacio de Otto, Derecho constitucional. Sistema de
fuentes (Barcelona: Ariel, 1988), pp. 62-63.
It has been debated whether a Constitution that does not establish a special procedure
for amending it should be taken to be rigid or flexible. The dominant thesis is that it is
flexible. Alessandro Pace, however, argues to the contrary: the silence of the Constitution
must be interpreted to mean that the Constitution cannot be amended at all, or that it can
only be amended following a special procedure that is analogous to the one that was
followed when it was approved. On this debate, see Alessandro Pace and Joaquín Varela,
La rigidez de las constituciones escritas (Madrid: Centro de Estudios Constituconales,
1995), “Cuadernos y Debates” number 58.
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in none of them – even in those that have established a federal structure or


something like it – is the approval of the member States or regions necessary for
the enactment of constitutional amendments. (Of course, if we focus our
attention on the “Constitution” of the European Union, things are different. This
“Constitution” is more rigid than the American: the consent of all the member
States is required for an amendment to the foundational Treaties to be valid).
A second factor is the size of the majorities that are needed to approve an
amendment. Some Constitutions require a parliamentary supermajority – this is
so in the United States, Austria, Germany, Portugal, Belgium, Luxemburg, The
Netherlands, Greece and Spain 4. Under other Constitutions, in contrast, a mere
majority is sufficient (Denmark, Ireland, Sweden 5. Others require a
supermajority of Parliament, but if the people participate directly through a
referendum a simple majority of Parliament is then sufficient (France, Italy) 6.
A third factor to consider is whether the participation of the people is
required. Participation can be direct (through a referendum) or indirect (through
elections to a new assembly that must ratify the decision to amend the

3 See article V of the United States Constitution. This feature of the American
Constitution has been criticized by Bruce Ackerman, We the People. Transformations
(Cambridge: Harvard University Press, 1998), chapter 13. According to Ackerman, the
requirement that three fourths of the States ratify an amendment made sense when the
constitutional identity of Americans had both a national and a state dimension. But now
Americans understand themselves to constitute “We the People of the United States”.
There is thus a “mismatch between modern constitutional identity and the classical
forms of amendment” (p. 413). He proposes a new method for reforming the
Constitution: Upon successful reelection, the President should be authorized to propose
amendments in the name of the American people. When approved by Congress, such
amendments should be placed on the ballot at the next two Presidential elections. Each
voter would be treated as an equal citizen of the nation: “his judgment on the
referendum question [would] not count more if he [happened] to live in Wyoming than
in California” (p. 410).
4 See the Constitutions of the United States (article V), Austria (article 44), Germany
(article 79), Portugal (article 286), Belgium (article 195), Luxemburg (article 114), The
Netherlands (article 137), Greece (110), and Spain (articles 167 and 168).
5 See the Constitutions of Denmark (article 88), Ireland (article 46), and Sweden
(Chapter VIII, article 15).
6 See the Constitutions of France (article 89) and Italy (article 138).
In the American context, Akhil Amar has argued that the federal Constitution could be
amended by a simple majority of the voters through a national referendum. A
supermajority requirement should operate only when it is the people’s representatives –
and not citizens directly – that amend the Constitution. See his article “Popular
Sovereignty and Constitutional Amendment”, in Sanford Levinson (ed.) Responding to
Imperfection. The Theory and Practice of Constitutional Amendment (Princeton:
Princeton University Press, 1995), pp. 89-115.
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Constitution). Some form of popular participation is required in Denmark,


Ireland, Sweden, Belgium, Luxemburg, The Netherlands, and Greece 7. In Austria
and Spain this is so in some cases only 8.
All these are formal, legal requirements. To what extent these requirements
make the Constitution actually rigid, that is, difficult to change in practice, will
depend on extralegal circumstances. The system of political parties is an
important variable in this regard. The more disciplined the political parties, and
the more widespread the culture of coalition (as in so-called “consociational
democracies”), the easier it will be to comply with a supermajoritarian
requirement. In Austria, for example, it has been very easy (at least up to now) to
obtain the support of 2/3 of Parliament to amend the Constitution, especially
during the periods of “coalition government” based on the two major political
parties. In fact, Parliament has sometimes enacted statutes directly as norms of
constitutional rank, in order to immunize them against judicial review 9. In the
United States, in contrast, a majority of 2/3 of Congress is more difficult to
obtain, since American political parties are less disciplined, and it is rare for
them to enter stable agreements on a wide set of issues.
The history of the country is important too. Thus, the Spanish Constitution is
not as rigid as the American from a formal point of view, and the existence of
disciplined political parties facilitates the process of amendment. Yet, the idea of
reforming the Constitution is a sort of “political taboo” in Spain. The reason is
that the Constitution expresses, among other things, a compromise between the
main political forces as to how to resolve certain issues that have historically
divided Spaniards in tragic ways. The Constitution was framed with the Civil
War (1936-1939) in mind. Given this background, there is a strategic interest
among political leaders that the Constitution be “touched” as little as possible.
This general attitude benefits all the clauses of the Constitution, even those that
have nothing to do with those fundamental pacts 10.

7 See the Constitutions of Denmark (article 88), Ireland (article 46), Sweden (Chapter
VIII, article 15), Belgium (article 195), Luxemburg (article 114), The Netherlands (article
137), and Greece (article 110).
8 See the Constitutions of Austria (article 44) and Spain (articles 167 and 168).
9 On this Austrian practice, see Heinz Schäffer, “Austria: La relación entre el Tribunal
Constitucional y el legislador”, in Eliseo Aja (editor), Las tensiones entre el Tribunal
Constitucional y el Legislador en la Europa actual (Barcelona: Ariel, 1998), pp. 40-42.
10 The result is that only one amendment has been made up to now (enacted on
August 27, 1992), which had to be introduced in order to make it possible for Spain to
validly ratify the Maastricht Treaty, which included a provision concerning the rights of
European citizens to vote in local elections which collided with article 13.2 of the Spanish
Constitution. (In fact, the Spanish government tried to convince the Constitutional Court
that it was not really necessary to amend the Constitution. See the “Declaration” by the
Constitutional Court of July 1, 1992).
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Similarly, the political traditions of the country may be “constitutionally


conservative”, in the sense that changes in the Constitution are thought to be
legitimate only if they are supported by very strong reasons. This attitude of
caution and respect for the past may strongly immunize a Constitution against
easy amendment, even if the Constitution is rather flexible from a formal point
of view 11.
So the actual rigidity of a Constitution depends on a combination of formal
(legal) requirements, on the one hand, and political, historical and social factors,
on the other. The question we must now ask ourselves is this: why do we want
the Bill of Rights of the Constitution to be rigid in practice, that is, more difficult
to amend than ordinary legislation?

3. Rigidity and Abstraction

It is usually said that the Bill of Rights of the Constitution expresses the most
fundamental values of the political community. Because there is a wide
consensus among citizens and their representatives that certain rights are
especially valuable, they are placed in the Constitution.
I think that this view is basically correct. There certainly is a correlation
between the Bill of Rights and the fundamental values the community shares.
Moreover, it makes democratic sense for the Bill of Rights to be the political
product of the self-governing community, and not a constraint imposed on it by
external forces. But we must draw the full consequences of this: Since there can
be no “consensus” in the community unless the majority is included in it (a
“consensus” is, at least, a majoritarian consensus), it follows that the Bill of
Rights of the Constitution expresses values that the present majority
acknowledges and accepts. The Bill of Rights, in other words, is not counter-
majoritarian at its foundations.
Now, how can a Bill of Rights that was framed in the past express the
fundamental consensus of today? In this connection, rigidity is a problem. For if
the Constitution were flexible and could thus be changed quite easily by each
new majority, it would be easy for the Constitution to express the fundamental
judgments of the present community (which must be shared, at least, by the
majority). But, as we have seen, most Constitutions make amendment difficult,
and quite often they establish supermajoritarian requirements. Under a rigid
Constitution, therefore, the risk exists that some of the rights it defines will not
be deemed “right” by the present and future majorities, and yet these majorities
will be unable to change them. A different risk exists too: the list of rights may
be considered insufficient by the present and future majorities, but rigidity may
make it impossible for those majorities to amend the Constitution to include the
11 This is what James Bryce thought about the “English Copnstitution”. See his
“Flexible and Rigid Constitutions”, op. cit., pp. 19-22.
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“new rights”. (Of course, they are free to protect the “new rights” through
ordinary legislation, but if the point of the Constitution is to express the
fundamental values the community acknowledges, the Constitution is deficient if
it does not cover the “new rights”).
To counteract this risk, rigidity needs abstraction: the Constitution must use
rather abstract language to define the scope of, as well as the restrictions on,
rights. The Bill of Rights can then accommodate the evolution of moral
judgment 12. This evolution can take place both in a restrictive and in an
expansive direction. Moral progress can suggest that a particular right is not as
broad as it was originally deemed to be, or it can suggest, on the contrary, that it
is broader. In particular, it may happen that as the scope of a particular right is
enlarged, another right with which it collides must then be restricted more
severely than it was thought to be acceptable in the past 13.
If, in contrast, the Constitution expressed rights through very detailed and
categorical clauses, it would be much more difficult for it to attract agreement in
the future. The more detailed and categorical the clauses, the higher the
likelihood that the future majorities would disagree with them or find them
insufficient.
So abstraction is necessary for a rigid Constitution to preserve its democratic
legitimacy through time. Because of this, rigidity tends to generate abstraction,
in the following sense: to the extent that it is feasible (given a certain tradition of
12 Benjamin Cardozo, for example, contrasted statutes and Constitutions in the
following way: “Statutes are designed to meet the fugitive exigencies of the hour.
Amendment is easy as the exigencies change. In such cases, the meaning, once construed,
tends legitimely to stereotype itself in the form first cast. A constitution states or ought to
state not rules for the passing hour, but principles for an expanding future. In so far as it
deviates from that standard, and descends into details and particulars, it loses its
flexibility, the scope of interpretation contracts, the meaning hardens. While it is true to its
function, it maintains its power of adaptation, its suppleness, its play”. The Nature of the
Judicial Process (New Haven: Yale University Press, 1960), pp. 83-84.
In Spain, Francisco Tomás y Valiente also insisted on the importance of the inclusion
of abstract values in the Constitution so as to ensure its “resistance” to the passage of
time: “La resistencia constitucional y los valores”, DOXA num. 15-16 (1994), p. 642.
13 In contrast, Jed Rubenfeld, “Legitimacy and Interpretation”, in Larry Alexander
(editor), Constitutionalism: Philosophical Foundations (Cambridge University Press,
1998), pp. 219-227, argues in favor of an expansive reading, but not a restrictive one. The
set of cases that the framers understood to be examples of violation of a particular right
should not be reduced today. The present interpreter can go beyond that set, but it cannot
restrict it. His theory, then, is a sort of “asymmetrical originalism”. In my view, although
we need paradigmatic cases to anchor the interpetative process, this does not mean that all
the paradigmatic cases of two hundred years ago (or, for that matter, twenty years ago)
should be paradigmatic cases today. As Ronald Dworkin argues, Law’s Empire
(Cambridge: Harvard University Press, 1986), pp. 72-74, some cases may have ceased to
be paradigmatic and become controversial.
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interpretation, which constrains what readers can make texts say), the present
and future generations will tend to read the clauses of the Bill of Rights to be less
detailed and categorical than they could otherwise be read to be, so as to make
rigidity acceptable. Thus, interpreters will say that rights are prima facie, that
there are implicit exceptions to the norms the Bill expresses, even if those norms
look rather categorical; and, conversely, that the specific rights it announces are
evidence of more abstract and fundamental principles that underlie them and that
can be resorted to in order to expand the set of rights.
Abstraction is necessary even if the Constitution is taken to be a more
genuine expression of popular judgment than the ordinary legislation passed by
the present legislative majorities. Bruce Ackerman, for example, who defends the
superior rank of the American Constitution on the ground that it expresses the
more considered judgments of the people, implicitly resorts to the virtues of
abstraction in order to answer the objection that the people of the past (which
excluded blacks and women) should not constrain the people of today (which
includes them). He argues that those “old-timers provided a constitutional
language and institutions through which later generations of women and blacks
have won fuller citizenship” 14. But the constitutional language cannot have this
capacity unless it uses rather abstract concepts. A more specific language would
reveal the racist and sexist conceptions of the old framers, and it would be
objectionable, of course, to make those conceptions bind current majorities. It is
therefore coherent for Ackerman to defend an abstract understanding of the
Constitution and reject the views of originalists like Robert Bork 15.
Abstraction is necessary, moreover, to facilitate the peaceful change of
political opinion within the same generation. If a Constitution is too detailed, it
may be too partisan, with the consequence that when a different majority gains
power, the authority of that Constitution will be in crisis. The Spanish
Constitution of 1931 (of the Second Republic), for example, explicitly
guaranteed the right to have a divorce. At that time this was a very controversial
decision, which alienated the Constitution from large sections of society and
from the conservative political forces. This right should probably not have
figured so explicitly in a Constitution that wanted to establish a stable framework
of government.
Abstraction in a rigid Constitution is thus a device for uniting the nation
under common principles of fundamental justice: it links the diverse political
majorities that succeed each other within a generation, and it links the diverse
generations through history 16.
14 We the People. Foundations (Cambridge: Harvard University Press, 1991), p. 316.
15 See Ackerman’s article “Robert Bork’s Grand Inquisition, 99 The Yale Law
Journal 1419 (1990).
16 In this connection, I find Jed Rubenfeld’s theory of constitutional democracy as
demo-graphy very illuminating. (“Legitimacy and Interpretation”, op. cit.). He argues that
by writing a text (the Constitution), the people commit themselves to certain principles
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All this does not mean, however, that abstraction generates agreement at the
cost of emptiness. The clauses that describe abstract rights and liberties are
different from a clause that simply announces that legislation must be “just” (or
“reasonable”). When present and future generations acknowledge those values,
they agree upon something more specific than “justice” (or “reasonableness”).
This agreement is possible because they are not complete strangers to each other:
Each generation does not erect its political values from scratch. It enters a
political space that is already filled with values. It is “educated” into them. If this
education is based on freedom, the new generation may disagree with the way
those values have been interpreted and applied in the past. But there is still
something non-trivial that it shares with the past 17.
Now, if the contemporary majority of citizens and their representatives accept
the worth of a set of fundamental rights, why should they figure in the
Constitution then? What’s the point of constitutionalizing what the majority
already accepts? The answer has to do with the costs of respecting fundamental
rights. These rights are not cost-free: in order to satisfy them, other interests must
be sacrificed. Due to weakness of will or cognitive limitations, the majority may
end up ignoring some of the rights whose validity and important weight it
acknowledges 18. In the same way that it is possible for an individual to act
inconsistently with the moral principles he freely accepts, it is possible for the
over an extended period of time. He says, however, that “we are members of the same
people that gave itself this law” (p. 215). I prefer to say that the different generations
govern themselves under commitments written in a Constitution that they share. It is not
necessary to say that those generations are members of the same people that framed the
Constitution. It has always tempted dictators to hold that the living people is just a
fraction of the Nation, and that they (the dictators) represent the Nation. The “Fifth
Fundamental Principle of the Movimiento” of the Francoist regime, for example,
explicitly said that the Spanish nation was “the sum of past, present and future
generations”. The Monarch (and, while there was none, Franco) represented the will of
that Nation.
17 Barry Friedman and Scott Smith, “The Sedimentary Constitution”, 147 University
of Pennsylvania Law Review, 1 (1998), emphasize the extent to which the meaning of the
Constitution is the product of a gradual accumulation of popular understandings that the
present generation inherits from the past. In their view, the founding moment does not
have the privileged status that originalists claim. Rather, “because all of our accumulated
history is immanent in us, our constitutional commitments may be found in more recent,
rather than more ancient, history” (p. 8). The problem, of course, is how to distinguish the
mere preferences of the present majority from the deepest commitments of the present
generation. The point of constitutionalism, they argue, is to make the latter prevail over
the former.
18 On the importance of constitutional constraints in order to overcome problems of
weakness of will and cognitive limitations, see Jon Elster, Ulysses Unbound (Cambridge:
Cambridge University Press, 2000), pp. 88-174.
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political majority to violate certain rights whose worth it recognizes. The


Constitution may serve as a counteracting force in this regard. By having the
fundamental rights expressed in the Constitution, the community is reminded of
their special weight. By making those rights more “visible”, the Constitution
encourages citizens and their representatives to ask themselves whether the
decisions they propose are truly consistent with them. The Constitution reflects
and at the same time reinforces a public culture where the rights that are
commonly acknowledged as fundamental are “taken seriously” in political
discussions 19.
This vision of the Bill of Rights of the Constitution is incompatible, of
course, with the position advocated by American “originalist” scholars, such as
Robert Bork and Antonin Scalia 20. These scholars tend to interpret the principles
the constitutional framers announced in light of the way they would have acted
(or the way they did act) at the legislative level. This ignores that the framers,
like the rest of mortals, did not always live up to their ideals 21. Similarly, the
present majority that receives the Constitution as a legacy of the past may
acknowledge the values it establishes and yet sometimes disregard them in
practice.
So although an abstract Bill of Rights, at the foundational level, is
“majoritarian”, it offers standards for scrutinizing what the framers did in the
past and what present majorities do today when they enact ordinary legislation.
This opens the space for judicial review, of course, to which I now turn.

4. Judicial Review under an Abstract Constitution

19 Thus, the last article of the French Constitution of 1793 – article 124 – provided
that the Declaration of Rights and the Constitution would be engraved on tables at the
legislative assembly and in the public squares of the nation. The idea was that the
Declaration of Rights would preside over the public deliberations of citizens and their
representatives.
20 See Robert Bork, The Tempting of America. The Political Seduction of the Law
(New York: The Free Press, 1990); and Antonin Scalia, “Originalism: The Lesser Evil”,
57 Cincinnati Law Review, 849 (1989), and A Matter of Interpretation (Princeton, New
Jersey: Princeton University Press, 1997), pp. 37-47, 144-149.
21 An interesting case arose in Spain in this connection: The very same Parliament
that enacted the Constitution of 1978 (which was later ratified by the people in a
referendum) passed a tax law. Some years later, in its decision 45/1989, the Constitutional
Court invalidated that tax law on the ground that it was contrary to the principle of
equality (for it unjustly disadvantaged married couples). The Constitution was not
interpreted in light of the practice of the framers. Rather, the practice of the framers was
judged against the constitutional principles they announced. This presupposes, of course,
that the majority that enacts a Constitution may act inconsistently with those principles.
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Under a rather abstract Bill of Rights, judicial review of legislation can be


justified on the ground that it helps maintain the public culture that the
Constitution both reflects and tries to reinforce.
Judicial review exemplifies in a particularly refined way the practice of
arguing for and against political decisions on constitutional grounds. The
majority that has enacted a law can be brought before a Court to offer reasons in
support of that law, when it affects fundamental rights, and to answer the
counter-reasons that the plaintiff has articulated. The Court can thus focus the
attention of citizens and their representatives on the issues that have been raised,
on the arguments and counter-arguments that have been made, and on the
reasons that the Court has finally considered relevant and sufficient to justify its
decision. A more refined public opinion can emerge from this process. It is not
merely that judicial review creates a site for deliberation. It is also that the
existence of this site has an important side-effect: it keeps the deliberative spirit
alive in the polity at large, on issues concerning rights. As Dworkin says, judicial
review “forces political debate to include argument over principle, not only when
a case comes to the Court but also long before and long after” 22.
This role for judicial review is especially important in European countries
that have parliamentary systems. Under these systems there are no real checks
and balances between the executive and the legislature, since the Prime Minister
is normally the leader of the political party (or coalition of parties) that has a
majority in the legislative assembly. Political power is concentrated in the
executive, and the political majority in Parliament merely registers its will. The
real debate takes place between the executive and the parliamentary opposition.
But this debate may be insufficient to ensure that the executive takes the
constitutional values seriously. For institutional reasons, the opposition is too
weak to act as a deliberative counter-weight. The government has many
advantages over the opposition, in terms of the amount of relevant information it
can obtain and its capacity to make its points known to the public. It is therefore
important to create an additional deliberative check, and judicial review is a good

22 Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press,


1985), p. 70.
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candidate to perform that role 23. This is so even in countries like France that have
adopted some elements of a presidential system 24.
The case in favor of judicial review is strengthened to the extent that the
Court can make new voices present, thus enriching the available set of reasons
and counter-reasons that are relevant to measure the constitutional validity of a
statute. Although representative democracy makes it possible for different social
perspectives and political ideas to encounter each other in a legislative assembly,
it has inherent limitations. The assembly is too small, and some voices will not
be present. The representative system has a structural tendency to simplify.
Moreover, in actual democracies access to the legislative assembly is costly, and
the resources that are necessary to have access to it are not evenly distributed.
There is therefore a risk of legislative bias against those groups that are more
marginalized in society. To the extent that those groups have easier access to the
judicial process, the Court decides on the basis of a more complete set of
arguments 25. Public debates can thus be enriched with the new voices and

23 It is worth noting, by the way, the following paradox. One the one hand, the fact
that in parliamentary systems there are no real checks and balances that constrain the will
of the executive and the political majority that supports it is often taken to be a reason in
favor of establishing judicial review. On the other hand, the very fact that a presidential
system like that of the United States is based on a complex system of checks and balances
is also taken to be a reason in favor of judicial review: The latter is a new element in that
system; since there are so many checks, why bother about an additional one?
On several issues concerning the doctrine of separation of powers, see Bruce
Ackerman, “The New Separation of Powers”, 113 Harvard Law Review, 633 (2000).
Ackerman shows the defects of the American version of the separation of powers (which
is presidential) and defends a different model, “constrained parlamentarianism”. This
model is a parliamentary system where a Constitutional Court serves as a check on the
political majority and where the people are allowed to frame and change the higher law
through successive referendums.
24 Dominique Rousseau, for example, in his article “The Constitutional Judge:
Master or Slave of the Constitution?”, 14 Cardozo Law Review, 775 (1993), justifies the
role of the French Constitutional Council in the following way: “In light of the silence and
weakness of Parlement, the Council appears as the only place in which the government’s
legislative will may be effectively discussed. The decline in confrontation between
government and Parlement corresponds to the increase in confrontation between the
executive and the Council, the latter thus appearing as the modern counterweight in a new
constitutional balance” (pp. 792-93).
25 On this ground, a system (like the American) that gives all judges the power of
constitutional review when deciding concrete cases is superior to a system (like the
“European model” in its original version) that entrusts such power to a special
Constitutional Court that decides issues in the abstract and to which individuals and
groups have no access, or no easy access.
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arguments that the Court makes visible through its decisions 26.
The establishment of judicial review entails a risk, however: judges could
start to enforce values that are different from those that the political community
accepts. In order to offset this risk, democracies usually entrust the selection of
constitutional judges to the majoritarian political branches 27. In this way they
ensure that judges will interpret the Constitution according to the understandings
that are most commonly shared. In this regard, however, there is an important
difference between the United States and Europe: in the United States the federal
judges have tenure for life, whereas the justices of the Constitutional Courts in
Europe normally serve for a limited period of time 28. The American solution has
26 As Owen Fiss argues (“The Supreme Court 1978 Term. Foreword: The Forms of
Justice”, 93 Harvard Law Review, 1 (1979), p. 13), judges exercise their power after a
dialogue with very special qualities has taken place: “(a) Judges are not in control of their
agenda, but are compelled to confront grievances or claims they would otherwise prefer to
ignore. (b) Judges do not have full control over whom they must listen to. They are bound
by rules requiring them to listen to a broad range of persons or spokesmen. (c) Judges are
compelled to speak back, to respond to the grievance or the claim, and to assume
individual responsibility for that response. (d) Judges must also justify their decisions”.
Although Fiss refers to these features in order to support his thesis that judges are in an
institutionally suitable position to give meaning to the public values of the community, I
think those features are also relevant to support my thesis that courts can enrich public
debates and contribute to maintain a general public culture that is sensitive to rights.
27 In the United States, for instance, the Justices of the Supreme Court are appointed by
the President with the advice and consent of the Senate. In Europe, the members of
Constitutional Court are normally selected by the majoritarian institutions. In Austria, the
Court is composed of 14 justices: 8 are selected by the executive, 3 by the National Council,
and 3 by the Federal Council. In Germany, there are 16: 8 are elected by the Bundestag and
the other 8 by the Bundesrat. In Italy, there are 15: 5 are selected by the President of the
Republic, 5 by Parliament, and 5 by the high courts (2 by the Council of State, 2 by the
Supreme Court, and 1 by the Court of Accounts). In Spain, the Constitutional Court is
composed of 12 justices: 4 selected by the Congress, 4 by the Senate, 2 by the executive, and
the other 2 by the General Council of the Judicial Power (whose members in turn are
appointed by the Congress and the Senate). In Portugal there are 13 justices: 10 of them are
elected by the Assembly, and the other 3 are appointed by those 10 themselves. France is a
special case, in that it is not the Houses of Parliament but their Presidents that decide the
appointments: of the 9 justices of the Constitutional Council, 3 are selected by the President
of the Republic, 3 by the President of the National Assembly, and the other 3 by the
President of the Senate. For useful information on this, see Dominique Rousseau, La justice
constitutionnelle en Europe (Paris: Montchrestien, E.J.A., 1998), pp. 49-57.
28 The period is 12 years in Germany and 9 years in Italy, France, Spain and
Portugal. In Austria, in contrast, the justices of the Constitutional Court serve until they
reach the age of 70 years. (An age limit of 68 years also exists in Germany). See
Dominique Rousseau, La justice constitutionnelle en Europe, op. cit., pp. 57-59.
13

the disadvantage that it may allow the Court to depart too much from the present
majoritarian consensus 29. On the other hand, a long tenure may be necessary in
order to allow judges to act in an impartial way 30. There is a difficult trade-off
here. This is one of the most complex questions of institutional design in a
constitutional democracy.
5. The Justification of Constitutional Rigidity

Up to now I have offered no reason in favor of constitutional rigidity (of the


Bill of Rights). Rather, after having endorsed the common view that the
Constitution expresses the fundamental values of the political community, I have
gone on to suggest that rigidity may make it difficult for a Bill of Rights enacted
in the past to enjoy a majoritarian support today. This risk, I have argued, can be
neutralized through abstraction. I have then suggested a justification for judicial
review of legislation. It is now time to justify constitutional rigidity.
Sometimes rigidity is linked to the protection of minorities. Rigidity is said to
protect minorities by giving them a veto over majoritarian attempts to amend the
Constitution. The problem with this view is, first of all, that it does not account
for those Constitutions that require no supermajority for an amendment to be
valid. Here the minority has no veto. Secondly, this view does not account for the
Constitutions that do require such a supermajority either: a) We cannot assume
that there is a perfect correlation between the political minority in Parliament and
the social minorities that are to be protected. b) Nor should we take the relative
size of a group as a good indicator of its relative political power (women, after
all, are a majority and millionaires are a tiny minority). c) But even assuming
that there is a certain connection between the size of a social group and the
degree to which its interests will be protected by Parliament, we then face a
problem: the supermajority requirement will not help the smallest groups, which
are supposed to be the most vulnerable. A requirement of a 2/3 supermajority
will help the minority of 34% a lot (since their support is needed to obtain 2/3),

29 Michael Perry, for example, in his book The Constitution in the Courts – Law or
Politics (New York: Oxford University Press, 1994), p. 197, has suggested that the
justices of the Supreme Court should be appointed for a limited period of time, in order to
ensure that the Court’s views are closer to the present will of “We the People”.
30 Because the Justices of the Supreme Court of the United States enjoy tenure for
life, they have no professional ambitions for the future, and this strengthens their
independence. Christopher Eisgruber, Judicial review as a democratic institution
(unpublished manuscript), rightly stresses this point. Interestingly, it has been argued that
the fact that the Justices of the Italian Constitutional Court vote in secret and no dissenting
opinions are published is a factor that serves to protect the Justices against external
influences where future career may be implicated. See Mary Volcansek, Constitutional
Politics in Italy. The Constitutional Court (New York: St. Martin’s Press, Inc., 2000), pp.
8, 24.
14

but it will not help the minority of 1% very much, which is supposed to be much
more vulnerable 31.
So the connection between rigidity and the protection of minorities is not
very clear. An alternative way to justify rigidity, and to define its role and limits,
is as follows:

a. The rigidity of the constitution as a means to protect the practice of


justification before the court

The rigidity of the constitutional clauses that express rights and liberties can
be justified as a means to protect the practice of deliberation before the Court in
charge of reviewing ordinary legislation. A flexible Constitution (by which I
mean a Constitution that, as a matter of fact, can be amended as easily as
ordinary legislation) would make it possible for the parliamentary majority to
easily escape the burden of justifying its legislative decisions to the Court: The
majority could easily decide to alter the relevant clauses of the Bill of Rights in
advance, so as to make it legally impossible to discuss whether a particular
statute it wants to enact is consistent with those rights. Alternatively, the majority
could decide to amend the relevant constitutional clauses later, if the Court
strikes down the statute. This would reduce the pressure on the majority to give
good reasons to the Court to convince it that the statute respects the rights that
are at stake.
A rigid Constitution, in contrast, makes it more difficult to neutralize ex ante
or ex post the effects of judicial review. To this extent, it presses the majority to
give good reasons to the Court. And, conversely, it encourages those who think
they have good arguments against a statute, to go to the Court and make them
explicit: they know that if they convince the Court, their victory will not be
easily taken away through a constitutional amendment.
This conception of rigidity can accommodate those Constitutions that require
no supermajority for amendment, but require instead that the majority in
Parliament seek the direct or indirect support of the people. Such Constitutions
can still protect the practice of judicial review: the decisions of the Court striking
down legislation will not be easy to neutralize by the ordinary majority in
Parliament, since a more complex procedure will have to be followed.
Constitutional rigidity, then, protects the practice of judicial review,
understood as a reason-giving practice. It can also protect, by the way, the
institution of judicial review itself. From a formal point of view, the institution
31 The same line of reasoning applies to the fact that in some countries it is not a
simple majority of Parliament, but a supermajority, that is needed to select the members of
the Constitutional Court (in Germany and Portugal, a supermajority of 2/3; in Italy, a
supermajority of 2/3 for the first three votes, and of 3/5 for the successive votes; in Spain,
a supermajority of 3/5). That supermajority is not going to offer much protection to those
social groups that, because of their few numbers, are supposed to be the most vulnerable.
15

can be established by ordinary legislation, or by the Constitution. In England, for


instance, a (very weak) form of judicial review has recently been introduced by
the Human Rights Act 1998, but this Act could be repealed by Parliament 32. In
contrast, in those European countries that have Constitutional Courts, the power
of constitutional review of legislation is explicitly grounded in the Constitution,
and no ordinary law can abolish it. In the extreme case where no constitutional
amendment suppressing judicial review would be valid, the institution has its
highest formal foundation. This is the case of Portugal, for example 33. These
formal features, however, must be put in a wider legal and political context.
Thus, although judicial review is not explicitly mentioned in the American
Constitution, it is nevertheless extremely secure. Nobody seriously thinks that in
the immediate future Marbury v. Madison may be overruled by the Supreme
Court or suppressed through a constitutional amendment: it is too essential a part
of the American legal and political tradition 34.

b. Constitutional amendability as a means to check the interpretations rendered


by the court

Now, that the rigidity of an abstract Constitution can be justified in the way I
have suggested does not mean that the political branches have no say in the
interpretation of the rights and liberties it announces. Although the rigidity of the
Constitution protects the decisions of the Court against easy erosion, there
should be a space for a “dialogue” or dialectical interaction between the Court
and those branches. Peter Häberle has rightly said that there must be an “open

32 A comment on this Act, which took effect in October 2000, can be found in K.D.
Ewing, “The Human Rights Act and Parliamentary Democracy”, 62 The Modern Law
Review, 79 (1999).
33 Article 288 k) of the Portuguese Constitution explicitly establishes that any
constitutional amendment must respect the existence of judicial review of the
constitutionality of legal norms.
34 For a provocative and thoughtful argument against the institution of judicial review
by an American scholar, however, see Mark Tushnett, Taking the Constitution Away From
the Courts (Princeton: Princeton University Press, 1999), especially Chapter Seven. But
Tushnett himself says that he is “swimming upstream” in the American context (p. 173).
Jeremy Waldron (who is not American) is critical of judicial review too, but he has no
hope that his arguments are going to dislodge such a firmly entrenched practice in
America. See Democracy and Disagreement (Oxford: Clarendon Press, 1999), p. 16.
There has been discussion, though, as to whether Congress could curtail constitutional
review through its power to define, and therefore to limit, the appellate jurisdiction of the
Supreme Court and the original and appellate jurisdiction of the lower federal courts. For
a general discussion, see Michael Perry, The Constitution, the Courts and Human Rights
(New Haven: Yale University Press, 1982), pp. 128-139.
16

society of constitutional interpreters” 35. The interpretation the Court elaborates is


not to be absolutely privileged.
This means, first of all, that the Constitution, although difficult to amend,
should be amendable. The Court is fallible, and its interpretations may have to be
rejected in the end. The justification of judicial review does not lie in the
prediction that the Court will always get the right answer. Nor does it depend on
the calculus that it will get it right more often than the democratic legislature.
Rather, it is grounded on the belief that the Court will contribute to public
deliberation, both by requiring the community to take certain principles
seriously, and by enriching public debate with new arguments and points of view
that were not properly taken into account at the parliamentary stage. This
contribution is only possible if the practice of judicial review is protected, and to
this effect the Constitution should be rigid. But, in the end, the political
community should have the authority to express its final judgment concerning a
controversial issue.
Therefore, the political branches should be able to “respond” to the Court
through a constitutional amendment 36. The purpose of the amendment should not

35 “Die offene Gesellschaft der Verfassunginterpreten“, JZ, 1975, pp. 297-305.


36 In France, for example, two relatively recent constitutional amendments have been
enacted in order to make it possible to pass legislation that the Council had found contrary
to the Constitution. One is the amendment of November 25, 1993, which has introduced a
new article in the Constitution (article 53-1) on the right to asylum. This was the first time
an amendment was approved as a response to the jurisprudence of the Council (in this
case, the decision of August 12-13, 1993). See Georges Burdeau, Francis Hamon and
Michel Troper, Droit Constitutionnel, op. cit., p. 454. More recently, a constitutional
amendment has been introduced (that of July 8, 1999) to make it possible for legislation to
establish quotas for women as political candidates in the elections. This is in reaction to
the Council’s decision of January 14, 1999 (which is based on that of November 18,
1982). As amended, article 3 of the Constitution includes a clause that says that the law
favors the equal access of women and men to electoral mandates and elective functions,
and article 4 includes a provision to the effect that political parties shall contribute to the
enforcement of that principle of equal access “according to the terms established by the
law”. So the Constitution seems to refer the issue back to the legislature. For a criticism of
this amendment, on the ground that the constituent power (the sovereign) should not
abdicate its power to establish norms that have a certain content for the judge to identify
and not simply to create out of nothing, see Georges Vedel, “La parité mérite mieux qu’un
marivaudage legislatif”, Le Monde, December 8, 1998.
In Ireland, the Seventeenth Amendment to the Constitution, passed on September 17,
1997, and approved in a referendum on October 30, is a response to the Supreme Court’s
decision in the case Attorney General v. Hamilton (1993), which had held that the
deliberations at the meetings of the Government were absolutely protected by the
principle of confidentiality. The amendment introduces two exceptions to this general
rule.
In the United States, Article V has been used to overrule the Supreme Court four
times: The Eleventh Amendment overrules Chisolm v. Georgia (1793), the Fourteenth
17

be to “destroy” the abstract right announced in the Constitution, but to express a


specific interpretation of that right (or of a set of conflicting rights) that differs
from the one established by the Court.
Judicial review loses much of its legitimacy from a democratic point of view if
the political branches cannot check the Court through constitutional amendments 37.
In this regard, it is interesting to note that Alexis de Tocqueville explained that,
because it was not legally possible to amend the French Constitution of 1830, the
French could not accept judicial review of legislation under it, in contrast to the
situation in America, where the Constitution, though rigid, could after all be
amended. Amendability was understood to be a necessary check on the Court’s
power 38.
It should also be noted that the fact that the rights and liberties the Court
invokes are written down in a constitutional text, or made reference to in that
text, makes it easier for the political branches to “respond” to the Court: they can
rewrite the text 39. If, in contrast, the Court appealed to principles that had no
overrules Dred Scott v. Sandford (1856), the Sixteenth overrules Pollock v. Farmers’Loan
and Trust Co. (1895), and the Twenty-Sixth overrules Oregon v. Mitchell (1970). More
recently, a constitutional amendment was proposed and finally rejected by Congress to
overrule United States v. Eichman, 110 S.Ct.2404 (1990), a decision by the Court that
protected flag-burning under the free speech clause of the First Amendment.
37 A similar view is defended by Nicolò Zanon, “La Corte, il legislatore ordinario e
quello di revisione, ovvero del diritto all’‘ultima parola’ al cospetto delle decisioni
d’incostituzionalità”, in Giurisprudenza Costituzionale, 1998, number 6, pp. 3179-83.
38 Alexis de Tocqueville, Democracy in America (Vintage Books Edition, 1990),
Volume I, Chapter Six: “If in France the tribunals were authorized to disobey the laws on
the ground of their being opposed to the constitution, the constituent power would in fact
be placed in their hands, since they alone would have the right of interpreting a
constitution of which no authority could change the terms. They would therefore take the
place of the nation and exercise as absolute a sway over society as the inherent weakness
of judicial power would allow them to” (pp. 100-101). In contrast, “in America, where the
nation can always reduce its magistrates to obedience by changing the Constitution, no
danger of this kind is to be feared” (p. 101).
39 Note that it is not necessary for the principles to be written down in the text. It is
sufficient for them to be referred to by the text. Thus, the Preamble of the French
Constitution of 1958 appeals to the French Declaration of Rights of 1789, as it was
confirmed and completed by the Preamble of the French Constitution of 1946. The latter,
in turn, proclaimed that certain rights are sacred and inalienable, and reaffirmed the rights
of the Declaration of 1789 as well as “the fundamental principles recognized by the laws
of the Republic”. These “fundamental principles” are unwritten principles: even though
they are reflected in past written statutes, they are not canonically formulated in an
authoritative text. The Constitutional Council can invalidate a modern statute on the
ground that it violates the unwritten principles. Now, it is still possible for the political
branches to respond to such a decision: even if those principles are unwritten, they are
18

direct or indirect connection to a text, it would be more difficult for those


branches to articulate their response 40.
Consistently with all this, we should hold the view that if the Constitution
explicitly entrenches certain rights and principles against amendment, as is the
case in some countries, this means that those rights and principles cannot be
destroyed. But it is still possible for the political branches to modify, though a
constitutional amendment, the Court’s specific interpretation of those rights and
principles 41. Thus, the German Parliament cannot repeal the dignity clause, but it
could amend the Constitution to “respond” to the Court’s interpretation of that
clause in connection with the abortion issue, for instance.
And, viceversa, we should hold the view that, although the Constitution does
not explicitly entrench rights, there are certain fundamental rights that are so
crucial to human dignity that they cannot be repealed as such. In this limited
sense, they constrain the exercise of the power of amendment 42.

indirectly referred to by the French Constitution, and this is a text that can be amended. In
this way, a new rule could be introduced in the Constitution regarding the proper
interpretation of a particular unwritten principle.
40 It could be argued that under all Constitutions we can distinguish a “written part” and
an “unwritten” one. The written part is the text itself, whereas the unwritten part is the set of
principles the legal community uses in order to interpret that text. The “semantic
Constitution” that the Court enforces is the product of the text and that set of principles of
interpretation. The political branches could amend the text, but not such principles. Still, to
the extent that those principles give considerable weight to the plain meaning of the text in
the overall set of interpretive arguments, it is obvious that the easier it is for the political
branches to alter the constitutional text, the more easily they can make their will prevail.
41 Examples of entrenchment can be found in the Constitutions of Italy (article 139),
France (article 89), Germany (article 79.3), Greece (article 110), and Portugal (article 288).
42 The Spanish Constitution, for example, contains no explicit clause to this effect.
Some scholars, however, consider that some principles are so basic that they cannot be
repealed through a constitutional amendment, such as the principles that guarantee
fundamental rights (or, at least, a privileged set of them). On this issue, see Pedro de Vega,
La reforma constitucional y la problemática del poder constituyente (Madrid: Tecnos,
1985), pp. 151-60, 219-303; and Javier Jiménez Campo, “Algunos problemas de
interpretación en torno al Título X de la Constitución”, Revista del Departamento de
Derecho Politico (UNED), num. 7, 1980, pp. 95-100. On the other hand, some parts of the
Constitution are so difficult to amend (because the special procedure of article 168
applies) that as a matter of fact it is as if they were immutable. The purpose of the framers
seems to have been to entrench them as a matter of fact, as Javier Pérez Royo explains, La
reforma de la Constitución (Madrid: Congreso de los Diputados, 1987), pp. 156-57, 190,
202.
In the United States the dominant view is that there are no implicit limits on the
content of constitutional amendments. In the past, however, some authors have defended
the contrary view. References to them can be found in John Vile, “The Case Against
Implicit Limits on the Constitutional Amending Process”, included in the collection of
19

c. Legislative responses as an alternative way to check the court

In the previous section I have tried to defend the amendability of the


Constitution as a way to make it possible for the political branches to respond to
the Court’s interpretations. Constitutional amendments, however, have some
drawbacks. It is legitimate for the political branches to make sure that, through
the amendment, the judicial intepretation they disagree with will be replaced. But
in order to serve this legitimate goal, they may have to resort to one of the
following strategies when framing the amendment: a) they may reenact, in the
form of a constitutional amendment, the same provisions of the statute that were
invalidated by the Court; b) they may provide that the controverted question is to
be decided by the ordinary legislature, in effect “deconstitutionalizing” the issue.
The problem is that in both cases the Constitution loses its capacity to serve as a
vehicle for public discussion, since in the first case it speaks “too clearly”, while
in the second case it “says nothing”. The Constitution should occupy an
intermediate position between these two extremes when it comes to rights.
So although constitutional amendment is a legitimate response, it is not
always the best one. A second type of political reaction should also be available:
The legislature should be authorized to insist on its point of view, by enacting a
new statute that is similar or even identical to the statute that the Court has
declared unconstitutional. The idea is to generate a second round of discussion
before the Court, in the hope that the Court can be persuaded to modify its past
interpretation.
Notice that this “legislative response” is different from the one that is
possible in the United Kingdom under the 1998 Human Rights Act, which allows
Parliament to maintain a statute that a Court has declared incompatible with the
Bill of Rights 43. It is also different from the legislative response that is permitted
in Canada, where the legislature can reenact a statute that the Court has held

essays edited by Sanford Levinson, Responding to Imperfection, op. cit., pp. 191-96. A
similar thesis is advocated by some scholars today. See, for instance, Walter Murphy,
“Merlin’s Memory: The Past and Future Imperfect of the Once and Future Polity”, also
included in Levinson, ibid.; and Jeff Rosen, “Was the Flag Burning Amendment
Unconstitutional?”, 100 Yale Law Journal, 1073 (1990).
43 The Human Rights Act of 1998 gives effect to certain provisions of the European
Convention on Human Rights and some of its protocols. Certain high courts in Great
Britain are authorized to issue a declaration of incompatibility between a legislative
provision and the Convention rights. The declaration has no coercive effect, however. The
law is still enforced, and it is Parliament that decides whether to amend it or not. Although
in the majority of cases Parliament is expected to accept the declaration of
incompatibility, it still holds the key. A comment on this Act can be found in K.D. Ewing,
“The Human Rights Act and Parliamentary Democracy”, op. cit.
20

unconstitutional and immunize it against judicial review through an explicit


declaration to this effect 44.
The more rigid the Constitution is, the more necessary it is to allow the kind
of legislative response I am referring to. (In Spain, for example, it is very unlike-
ly that the Court will be checked through a constitutional amendment, since
reforming the Constitution is a sort of “taboo” 45. Of course, Parliament should
not reenact statutes in a frivolous way. A certain period of time must have
elapsed after the Court’s decision. In particular, it is probably necessary that the
election of a new Parliament has taken place. One can thus condition the
legitimacy of this sort of response, but one should not reject it altogether 46.
It is often noted that the publication of dissenting opinions by the judges of
the Court is a good thing, since it reveals that there is another way of interpreting
the Constitution, another conception that may become dominant one day. It is
commonplace to say that dissenting opinions are an important engine in the
critical development of constitutional law, and that for this reason they should be
44 Article 33 of the Charter of Rights and Freedoms of 1982 authorizes Parliament to
protect a statute against judicial review by explicitly declaring that the statute should be
valid notwithstanding the constitutional rights with which it might conflict. There are
some rights, though, that cannot be neutralized in this way: linguistic rights, freedom of
movement, and political rights. The effects of the “notwithstanding declaration” expire
once a period of time (no longer than five years) has elapsed, but the declaration can be
reenacted for additional periods.
45 As Pedro Cruz Villalón (now President of the Court) has said, the Court knows
that it will not be answered through a constitutional amendment, and this puts it in a more
difficult position. See “Constitución y Tiempo: primera década”, 15 Revista de la
Facultad de Derecho de la Universidad Complutense, 335 (1989), p. 361.
46 Some authors have argued that reenactment is an illicit act. See, for instance, Javier
Jiménez Campo, “Consideraciones sobre el control de constitucionalidad de la ley en el
Derecho español”, in La jurisdicción constitucional en España (Madrid: Centro de
Estudios Constitucionales, 1995), p. 92; Raúl Bocanegra, El valor de las sentencias del
Tribunal Constitucional (Madrid: Instituto de Estudios de Administración Local, 1982), p.
236. For a position in favor of reenactment after a reasonable period of time has elapsed,
see Luís Nunes de Almeida, in his report on Portuguese constitutional adjudication
collected in Eliseo Aja (editor), Las tensiones entre el Tribunal Constitucional y el
Legislador en la Europa actual (Barcelona: Ariel, 1998), p. 244.
The German Federal Constitutional Court held in 1987 that a decision that declares a
law void is binding upon all federal constitutional bodies by the reasons supporting the
decision, and that therefore “a federal law of the same content cannot be enacted once
more” (BVerfGE 1, 14 (15)). But this holding has later been abandoned by the Court. The
justification for this change is that “the Federal Constitutional Court has to match acts of
the legislative power with the Constitution itself and not with precedents” (BVerGE 77, 84
(104)). See the reference in Robert Alexy and Ralf Dreier, “Precedent in the Federal
Republic of Germany”, in Neil MacCormick and Robert Summers, Interpreting
Precedents. A Comparative Study (Ashgate, Dartmouth, 1997), pp. 26-27.
21

celebrated 47. What needs to be stressed, however, is this: it should be possible for
that critical evolution to take place in two different directions: not only against
the legislature, but also in favor of it. That is, it should be possible for the future
Court not only to replace the constitutional interpretation that now renders a
statute valid, but also to replace the interpretation that renders a statute invalid.
Now, there are two ways in which a system can facilitate the reversal of the
Court’s doctrines in a direction that is favorable to the legislature:
1) One is federalism. In federal countries where legislation in the area of
individual rights is decentralized, it is not necessary that the same state
legislature that enacted the invalidated statute enact a new one. Another
constitutional case will arise under a similar statute of another state, and the
Court will then have the opportunity to review its doctrine and to establish
whether it must be qualified or abandoned. This is so in the United States, for
instance, and – to a lesser extent – in those European countries that have
established a federal system 48. Moreover, the European Court of Human Rights
and the European Court of Justice occupy a position similar to that of the United
States Supreme Court in this regard: the legislation emanates from a plurality of
sources (the Parliaments of the different member States of the Council of Europe
and of the European Union, respectively), and this generates the necessary
dynamic for jurisprudential changes 49.
47 Within limits, of course. If there are too many dissenting and concurring opinions,
there may be too much confusion. See Joseph Goldstein, The Intelligible Constitution.
The Supreme Court’s Obligation to Maintain the Constitution as Something We The
People Can Understand (Oxford: Oxford University Press, 1992). In Germany, Spain and
Portugal, dissenting and concurring opinions are published, but there are not so many of
them as there are in the United States. In Austria, France and Italy they are not authorized.
In connection to France, Dominique Rousseau notes that the critical opinions of
commentators are very important as a substitute (“The Constitutional Judge: Master or
Slave of the Constitution?”, op. cit., pp. 784-87). He too stresses the idea that the Court
does not have the final word: “More than anything, it would be unacceptable to posit, as
Dean Favoreu seems to wish, that ‘as soon as the constitutional judge’s decision is issued,
the debate ceases’. Although the Council calms political life, it must not lull it to sleep!”
(p. 783).
48 For an interesting account of the way the Supreme Court of the United States
engages in a complex set of interactions with the different state legislatures, see Barry
Friedman, “Dialogue and Judicial Review”, 91 Michigan Law Review, 577 (1993).
49 Thus, the plurality of legislative sources within the European Union has made it
easier for the European Court of Justice to qualify its first doctrine concerning reverse
discrimination in favor of women. In a first case, the “Kalanke case” (October 17, 1995),
it reviewed the legislation enacted by the Parliament of the German Land of Bremen
establishing a form of reverse discrimination, and found it contrary to the principle of
gender equality. In later cases, the Marschall case (November 11, 1997), the Badeck case
(March 28, 2000), and the Abrahamsson case (July 6, 2000), the Court has had to examine
22

2) The other way in which reversal is facilitated is by linking judicial review


to concrete cases. In the United States, for example, the Supreme Court does not
invalidate a statute in the abstract and expel it from the legal system: it simply
establishes a precedent that blocks the applicability of the statute to similar cases.
The Court can rehabilitate the statute in the future: since the statute was not
“written off the books” by that precedent, the statute can be applied again if the
Court overrules the precedent. In such a system it is not necessary for the
democratic legislature to “defy” the Court in a solemn way, by enacting the same
statute or a similar one (although this is possible too 50. Some case will arise in
the future that will allow the Court to overrule itself. Maybe this will be possible
through the “disobedience” of some public official who will try to enforce a
statute that is constitutionally suspect under the Court’s doctrine. But this
disobedience is less visible and solemn than reenactment by the legislature 51.
Things are different in those European countries that have established a
system of abstract review of legislation. Under this system, when the
Constitutional Court invalidates a statute, it does “expel it from the legal
system”, and it cannot be retrieved in the future.

similar statutes and regulations enacted by other Parliaments and Administrations. The
Court has thus been able to clarify and, to a certain extent, qualify, its first doctrine. This
contrasts with the situation of a national Constitutional Court that has to review legislation
enacted by a single central Parliament.
50 In favor of reenactment, for example, see Stephen Macedo, Liberal Virtues
(Oxford: Clarendon Press, 1991), p. 151.
51 The legitimacy of some degree of “disobedience” by public officials is accepted in
America even by scholars who have emphasized the importance of having an authority
that settles constitutional controversies. Thus, Larry Alexander and Frederick Schauer, in
their article “On Extrajudicial Constitutional Interpretation”, 110 Harvard Law Review,
1359 (1997), make an argument in favor of judicial supremacy, but they qualify their
conclusions in the following way: “With respect to cases in which the constitutional norm
speaks directly to officials, however, official disobedience will be necessary for the Court
to reconsider a ruling that a type of statute is unconstitutional. In some cases, an official
may feel strongly enough about the issue that she will be willing to engage in an act of
disobedience, and defend it as such. In other cases, the state of the law may allow a good
faith claim of uncertainty about the law’s application. And in still other cases, the age of
the prevailing Supreme Court case – or a change in the composition of the Court – will
permit a good faith claim that a different result might now be reached. Nothing in our
argument prevents these actions, and even widespread acceptance of our position would
leave the Supreme Court with sufficient opportunities to reconsider earlier rulings that
ought to be reconsidered. What acceptance of our position would make more difficult is
the kind of direct disregard by officials of Supreme Court opinions that are plainly ‘good
law’, in the sense of an overwhelming professional consensus that the same result would
be reached again by the Supreme Court” (p. 1386).
23

So if we have neither “federalism” nor “case-by-case” judicial review, we


have a system where judicial evolution in a direction that is favorable to the
legislature can only take place through legislative reenactments. We could say
that under such a system, if judicial review is “centralized” in the Constitutional
Court, the necessary “disobedience” is centralized in Parliament.
It should be noted, however, that there is one sense in which the evolution of
the Court’s interpretation is more difficult in the United States than in most
European countries. This is a result of the doctrine of precedent. First of all, by
virtue of this doctrine, a decision by the United States Supreme Court declaring
that a particular statute is contrary to the Constitution has a general blocking
effect: this effect extends, not only to that particular statute, but to any other
statute that is relevantly similar, whether it was enacted in the past or will be
enacted in the future. Secondly, although precedents can be overruled by the
Court, some intrinsic weight is given to them. This creates some inertia in favor
of past interpretations 52.
The situation is different in European countries that belong to the civil law
tradition. First of all, the effects of a decision by the Constitutional Court
invalidating a particular statute are normally limited to that statute. The statute is
written off the books, yes, but only that statute is. Res iudicata is normally
thought to extend to the particular legal text that was reviewed, and no further
than that. This means that if there is another statute that is similar or identical to
the one that was invalidated (either a statute that is reenacted by the legislature
after the Court’s decision, or, in federal systems, a statute that another legislature
had enacted in the past or that it has enacted after the Court’s decision), it will be
necessary to open a new procedure of review before the Court. Ordinary judges
will not be authorized to disregard the new statute by themselves 53. The

52 Thus, the Supreme Court in Casey (505 U.S. 833 (1992)) decided to reaffirm Roe
(410 U.S. 113 (1973)), in spite of its reluctance (in particular, Justices O’Connor,
Kennedy and Souter’s reluctance) to accept Roe as correct on its merits. It was the reasons
in favor of stare decisis (such as the protection of past expectations and judicial integrity)
that tilted the balance in favor of reaffirming Roe.
In this connection, an interesting proposal has recently been defended by Michael
Stokes Paulsen, “Abrogating Stare Decisis by Statute: May Congress Remove the
Precedential Effect of Roe and Casey?”, 109 Yale Law Journal, 1535 (2000). He argues
that Congress may abrogate stare decisis in a particular class of constitutional cases
(abortion, for example), and direct the federal courts to decide such cases in accordance
with the courts’best present understanding of the meaning of the Constitution, without
according prior judicial interpretations any decision-altering weight beyond the
persuasiveness of their reasoning. Congress would not substitute its judgment for that of
the courts on the merits of a particular constitutional issue: it would simply direct them to
examine the issue afresh.
53 Thus, the Spanish Constitutional Court, in its decision 23/1988, FJ 2, said that
ordinary courts cannot set aside a statute on the ground that it contradicts the Constitution,
24

Constitutional Court will have to speak again, and this will give it the
opportunity to review its past interpretations. Secondly, although the
Constitutional Court will try to respect its own precedents, it will not give them
as much intrinsic weight as they have in the United States. The idea that a
precedent has some authority beyond its being the correct interpretation of the
law is rather foreign to civil law traditions. As the German Constitutional Court
said, the “Court has to match acts of the legislative power with the Constitution
itself and not with precedents” 54. So the existence of a weak doctrine of
precedent moderates the rigidity that the European system of abstract review –
with its capacity to write statutes off the books – entails.
So, to sum up, we can say that the “legislative responses” I have argued for
are particularly necessary in those countries where (a) a single Parliament has
legislative authority on a certain matter, and (b) the Constitutional Court reviews
statutes in the abstract. In these systems, moreover, the absence of a strong
doctrine of precedent makes it easier for a “legislative response” to encourage
the Court to reconsider its past interpretations.

6. Conclusion

Is constitutional rigidity excessive? It would certainly be excessive if the


Constitution expressed the fundamental rights in such precise and categorical
terms that, with time, a gap opened between its content and the majoritarian
consensus that prevails at the present time. But if the Constitution resorts to
abstraction, this risk can be drastically reduced. The Constitution can then
preserve its “majoritarian” character at a foundational level.
What really constrains majorities are the decisions rendered by the Court
after interpreting those abstract rights, decisions that are difficult to counteract
because the Constitution is rigid. This rigidity is justified on the grounds that it
protects a valuable practice: the practice of giving reasons to the Court to defend
and attack legislation, to see whether it comports with the fundamental principles
the political community adheres to.
Constitutional rigidity, however, is not absolute: the political branches can
amend the Constitution, and, less drastically, they can check the Court through
“legislative responses” that generate new rounds of debate. In this way, the
abstract rights that the Constitution enumerates are given concrete meaning
through a process in which political majorities (and/or supermajorities) perform
an important role.
Is constitutional rigidity insufficient, then? For those who think that
majorities (and supermajorities) have a structural tendency to satisfy their
even if it similar or identical to another one that the Court struck down in the past: they
should raise the question to the Court.
54 BVerfGE 77, 84 (104).
25

preferences to the detriment of the rights of individuals and minorities,


constitutional rigidity will seem insufficient: even if a supermajority of 2/3 or 3/5
is required to amend the Constitution, how is that going to protect the minority of
1%? However, experience suggests that although majorities can make wrong
decisions in the area of rights, they are not structurally biased against them. After
all, in many countries it is ultimately majorities that have made and supported
liberal Constitutions (and liberal legislation), and have allowed them to be
enforced by a Court. Even the rights that are more directly geared to the
protection of minorities – such as the right not to be discriminated on grounds of
race – flow from a contemporary political consensus that includes the majority. If
that is so, constitutional rigidity, which protects, but does not immunize, the
interpretations reached by the Court against the contrary judgment of the
political branches, is not an insufficient technique to protect rights (in a world
where nobody is infallible).