Weak Procedural Constitutionalism. The Judicial Process as Legitimacy of Judicial Review

1 Introduction: The Democratic Objection to Judicial Control of Legislation

The tension between constitutionalism and democracy is an overwhelming problem given the ultimate power vested in constitutional tribunals to annul laws promulgated by legislatures acting on behalf of the People,^[1] what Bickel referred to as the counter-majoritarian difficulty. The constitutions impose an order of things that require acceptance of the grant of unappealable decision-making power to a minuscule group of unelected officials (judges), purportedly acting on everyone’s behalf: the so-called final say.

The final say is the ultimate expression of a faculty that allows a constitutional court to decide on the most important matters impacting society, those that give value and meaning to a constitution, displacing the role and moral capacity of the citizenry in deciding on what affects them.^[2] It also could generate judicial supremacy, a usurpation of power that places judges above the populace, converting the constitution into a judicial disposition. This event means a concentration of social decisions in the hands of few people, a minority that assumes its own capability, and the construction of the constitution when it must be a collective construction.^[3]

Efforts to resolve this tension have been undertaken from various perspectives (eg, the constitutional, the legislative, and that premised on popular supremacy), with arguments based on whether judicial control of constitutionality ought to be tolerated.

Thus, the theory of constitutional supremacy, which Dworkin champions, presents a model of associative democracy which links moral conditions to rights^[4] (rights understood as minimum prerogatives of citizens against the majority). The value of democracy resides in such moral elements as much as in the application of majoritarian rule. In Dworkin’s view, the judicial role in a democracy is precisely to adopt from among the spectrum of principles decisions that protect rights, even when contrary to the wishes of the majority, given that when a judge declares a democratic body’s decisions unconstitutional, he is acting in concordance with such rights, and therefore, legitimately.

From an opposing perspective, Waldron focuses on the need to reassess the importance of majority rule, not only as a decisional procedure, but as an instrument with enormous moral value focused on recognition of the other, and on the value of their decisional capacity and autonomy, issues on which citizens could be displaced by judges.^[5] When a minority of judges solves the most important moral dilemmas of society, they reduce democracy conceived as a procedure, as well as the capacity and responsibility of millions of people to make decisions. This situation produces judicial supremacy and antidemocratic jurisprudence. In this case, judicial review can be costly for the democratic process.

Waldron considers that judicial supremacy and jurisprudence premised on judges having the final say is undemocratic, illegitimate and must be reconsidered, specifically by granting greater value and dignity to the legislative branch,^[6] reducing the role of judges and suppressing their control of constitutionality, or at least, reducing such role to that of nominal or soft revision,^[7] specifically focusing on the guarantee of democratic due process, free speech and participation.

With reference to the case for popular supremacy, Kramer postulates the need to convene a popular forum to recover what the judges have taken from the citizenry: their constitutions. In the case of the United States, the constitution was conceived of as a descriptor of institutions to assure citizen primacy, particularly with respect to the sagacity and value of their rights and the most transcendental decisions of social life. In general, Kramer reflects, constitutions do not contemplate judicial supremacy, rather, it is jurisprudence and judicial praxis that promote such social elevation, and consequent displacement of the People as sovereign.^[8] Popular constitutionalism finds judicial review intolerable and instead postulates the application of democratic principles, deliberation, and autonomy of the people to resolve core constitutional dilemmas.

In this paper, I try to expose a resolution to the debate generated by the foregoing hypotheses with respect to the democratic objection by proposing a synthesis that renders democratic principles compatible with the preservation of judicial control of constitutionality. This has been mediated by what I have called weak procedural constitutionalism, a methodology through which constitutional conflicts are debated in the legislature and among the citizenry as the real holders of the final say in society, with judicial activity focused on an intermediate say and promotion of subsequent social deliberation. The judicial process thus becomes a public dialogical procedure susceptible to intervention by citizens, and capable of generating public information processes facilitating accountability.

The constant quest for instrumentalities that increase the democratic legitimacy of constitutional courts is an existential necessity. Only through real opportunities for dialogue and citizen participation in the decision-making process can judicial review be made democratically palatable. That requires that both judges and legislators play an intermediate rather than primary role, one in which democratically elected legislatures enjoy a high degree of legitimacy in adopting decisions, in juxtaposition with the derivative legitimacy appurtenant to constitutional courts.

The premise for the exercise of what I denominate as weak constitutionality control,^[9] or the hypothesis for a weak procedural constitutionalism, is a possible synthesis of the tension between constitutionalism and democracy, with emphasis on the Colombian case. This paper is organized as follows: A concrete introduction and conceptual discussion about the democratic objection, or counter-majoritarian difficulty (Sections 1 and 2); an analysis of related procedural instruments (the right of action, the hearing, and the sentence) to demonstrate how it might be applied (Sections 3 and 4). A conclusion about how procedural standards can moderate the fixation on judges (Section 5).^[10]

2 Concerning the Counter Majoritarian Dilemma

The control of constitutionality exercised by judges of a constitutional or Supreme Court raises one of the most relevant theoretical issues for constitutional democracy: the debate concerning the legitimacy of judicial control to determine the unconstitutionality of legislative decisions (the counter-majoritarian difficulty). On the one hand, there is the reality that judicial supremacy undermines norms established by representatives legitimized by popular election as they disappear through the contrary conclusions of a less legitimate institution, one undemocratic minority.^[11] On the other hand, judicial control of constitutionality is presented as the most effective means to guarantee the supremacy of the constitution, its direct application and binding nature, besides, an important mechanism for controlling and limiting the State, and an optimal institution for containment of majoritarian irrationalities and their dictatorial tendencies.^[12]

Constitutionalism postulates that there are disputes that the majority is not competent to decide; topics such as whether or not fundamental rights apply to a person since rights are presumed to pre-exist the State, as well as the cause of its existence, they must necessarily limit the exercise of its authority and power. Constitutionalism, thus, insists that the dignity of an individual cannot be placed in the hands of the majority.^[13] This perspective posits that, despite being a minuscule minority, judges are better positioned and prepared to protect such rights, which cannot be left adrift or subject to the majoritarian whims of the moment. They must be studied by an impartial legal expert unaffected by political passions, one able to reach a decision notwithstanding the sentiments of the majority. When a judge determines that fundamental rights should prevail over the will of the majority in a specific case or in decisions of general applicability, they highlight the counter-majoritarian origin and nature of rights.

These decisions determine whether personal development and individual freedom should prevail over general opinions, concerning cases such as restrictions on the consumption of recreational drugs, sexual practices and orientation, or gestational rights. These kinds of judicial rulings are evaluated as measures of respect for individuality, or the rejection of State interventionism. They are illustrations of compliance with the judiciary’s duty as a guarantor of fundamental rights.

Thus perceived, constitutional democracy is an institution in which the power of majorities is constrained,^[14] in order to avoid extremism in which majorities can decide and change anything they want. Constitutional democracy implies subjecting the majority to legitimate restrictions required to make rights possible and constitutional restraints enforceable. It implies that majorities must understand the need to justify their actions through constitutional practices respectful of minorities. It deals with limits on majoritarian power, imposing ethical comportment and respect for the dignity of others. Majorities cannot decide everything, they should not pursue courses of action that violate the rights of minorities. They should not seek to exclude minorities but rather must allow them a venue from which to express their disagreements and the ability to convert or replace the majority.^[15]

The Constitutions demarcate the limits of power, protecting rights whose validity and realization is counter-majoritarian, regardless of what the majority may think or choose. They seek to establish a balance, subtracting power from democracy in favour of individual liberty. Democracy contains an immense potency, one capable of integrating all power, which is what makes it potentially dreadful. Being capable of everything, it can easily attain an absolutist character, one capable of discarding anything, even fundamental freedoms. For this reason, constitutions require a guardian, one that preserves freedom and which, from the supremacy of the constitution, can confront any force, whether legislative, executive, or social.

In the exercise of constitutional control,^[16] constitutions possess a counter-majoritarian character, which deepens restrictions on democracy, making it seem that the equilibrium between constitutionalism and democracy is lacking. That, in turn, reduces popular power and replaces it with that of judges, a constitutionally created institutional minority tasked with containing the passions, and excesses of majorities, over the rights of others, and over the constitution itself.

The democratic objection, however, rejects the idea that rights can only be protected from indiscriminate majoritarian whims through incontestable judges. This objection is premised on the belief that rights can be protected and developed democratically and that perhaps their best variant does not evolve through judicial analysis but from open, deliberative processes.^[17] Such critique does not imply a general rejection of the judicial function, but rather rejects judicial control of laws as elitist and reductive of citizen participation. It is contemptuous of the fixation on judges and their societal posture,^[18] as well as of any organ with jurisdiction to impose its decisions generally but lacking democratic legitimacy.

Judicial control implicitly promotes the idea that judges are superior to mere citizens whose cognitive abilities to resolve social dilemmas are mistrusted and criticized. It defends the ideal of trusting an expert in law and legal analysis over a citizen who lacks the capacity to discern the scope and nature of rights, and is not really interested in understanding rights, nor in identifying and defending their meaning. Such perspectives are among the many reasons for the perceived crisis of representation,^[19] which proponents claim the judicial system has had to resolve by protecting rights, and adopting socially recognized decisions (for example, it is my point about the Colombian case). The recognition, prestige and trust granted to the constitutional courts is inversely proportional to that granted to the legislative branch.^[20]

The perception of democracy and of the tolerance for intrusion in public decision-making by non-democratically elected organs are key aspects of the counter-majoritarian difficulty. Responses to such objections, vary depending on whether what is challenged involves a minoritarian and elitist organ which displaces the citizenry in transcendent decision-making processes, with responses tending to focus on the role of the judiciary. If the perception is that a rigid and supremacist constitution is the source of antidemocratic practices, the approach will be to consider another constitutional model, one granting more power to popular, or legislative processes.

Among the varying opinions concerning the counter-majoritarian difficulty, there are those who deny its existence by expressing a vision of constitutional democracy only possible to the extent that a privileged place is secured for judges, primarily through a rigid and supremacist constitution guaranteeing fundamental rights. Alternatively, deliberative theses are posited that tolerate the idea of constitutional control but reduce the judicial role through augmented popular participation in deliberations culminating in the decision-making process.^[21]

However, if the core of the debate is not focused on the need to preserve constitutional supremacy, the answer must demonstrate that democracy and its procedures, and the value of participation, are, in and of themselves, sufficient to guarantee the protection of rights even in the absence of judicial supremacy and of the counter-majoritarian nature of constitutions (eg, notwithstanding control over constitutionality, and restrictions on democracy^[22]) without detracting from the prevailing constitutional model. It is also essential in this debate to demonstrate:

1. why democracy, as a civil, ethical process for the resolution of social conflicts, one governed by rights, as well as a constitution, is not enough to resolve social dilemmas, and why its place should be usurped by institutions that do not act democratically, although claiming to do so through a constitution;

2. whether democracy should be a determinant value and principle in social and constitutional praxis;

3. if democratic procedures and the legitimacy they provide matter even more than their results;

4. or if what really matters are the positive results and social trust that other institutions can provide.

The counter-majoritarian difficulty poses a quandary. On the one part, a constitution is legitimized through popular adoption, elevating popular sovereignty and the rule of law, which sends the message that the decisions of the people prevail. On the other part, when it comes to rights or difficult cases, Constitutional Courts, whose task seems to be to ignore the separation of powers and democracy, in many situations, lead to morally correct decisions but nullify popular participation. The counter-majoritarian dilemma must either be corrected, or tolerated, and this is a formula that each society must find according to the reading it makes of its constitutional and democratic dynamics.^[23]

3 Weak Procedural Constitutionalism: Procedure as a Civic Guarantee

The main elements of weak procedural constitutionalism will be developed, starting with an analysis of weak constitutionalism, with the goal of arriving at a synthesis resolving the tension between constitutionalism and democracy; a proposal that focuses on judicial procedure to ensure citizen participation, due deliberation, and adequate interaction between judges, institutional and social actors.

Acceptable judicial control of constitutionality must guarantee the existence of control mechanisms over the judicial decision-making power, especially when judges adopt rulings that nullify legislation, or constitutional reforms. That implies measures that, while not necessarily eliminating judicial control, make it an increasingly public process subject to contradiction, which implies preventing judges from having the final say, something which would deprive their decisions of democratic legitimacy.

The idea of weak procedural constitutionalism represents an alternative structure that, while not disregarding the importance of judicial experience and temperament; recognizes the dangers of generating judicial supremacy capable of excluding other social and institutional actors from interpretive and decisional activity. Instead of usurping the resolution of political and social affairs from political forums,^[24] it proposes that courts serve as centres of deliberation and popular expression.

Weak procedural constitutionalism seeks to create, or optimize, procedural instruments that limit judicial discretion, to avoid judicial activism and enhance a broad spectrum of opinions in social, political, and constitutional deliberations, while recognizing the role of judges as procedural coordinators and as arbiters of many of the conflicts experienced by political communities. Therefore, a general theory of public constitutional procedure is required, one capable of creating and preserving public comportment that maintains required judicial probity, meanwhile encouraging citizen participation.

Such citizen participation has to be broad enough to legitimize the constitutionalization process, because only to the extent that diverse voices are heard (and based on their discourse), can synthesis be attained, decisions reached, and the necessary legitimacy conceded to specific constitutional decisions, thus displacing the concept of constitutional courts as archetypal, or exclusionary modes of public reasoning.^[25] One would not be talking about weak constitutionalism:

1. if it were acceptable for judges to continue to arrive at their decisions free of any extrajudicial control;

2. if the deliberative levels they promote^[26] were admitted as justifiable, or if the idea that judges are the best interpreters of current popular expression^[27] was accepted;

3. if it was acknowledged that judges are society’s guides and moral monitors;^[28]

4. or if judges were recognized as the gauges that maintain the balance between majorities and minorities.^[29]

The issue does not involve diminishing the foregoing or ignoring their potentialities; rather, the point is that despite such justifications,^[30] judges neither procedurally nor substantively attain necessary levels of legitimacy.^[31]

Theories are required that effectively resolve the democratic objection, or that at least make judicial control progressively more democratic and tolerable, make it less offensive with respect to the capacity and autonomy of the majority, institutional actors, and social movements.^[32] The final decisions must be made subject to legislative or popular challenges through democratic mechanisms that permit rethinking of judicial decisions and overcoming the lack of democratic legitimacy materially, and not just dogmatically.

Why consider procedure as a solution to generate a more democratic character for judicial review? Judicial procedures are the judiciary’s channels of communication and promote decision-making premised on detailed rationality, but whether they are correct or not, they are also the safeguards for judicial practices, the means to realize revisions, major or slight; they are the extension of the administration of justice’s procedural practices. While in an ordinary trial, judges issue judgments governed by due process with rigorous stages, and instances for parties and authorized interveners, a constitutional process cannot be guided by an identical procedural theory.

This, however, does not imply that institutions that optimize the supervision of the judiciary cannot exist, given that constitutional processes involve decisions of general interest justifying the development of regulated civic intervention. Judicial procedure can be constituted as a barrier filtering consideration of citizen demands, imposing additional requirements, and procedural burdens not contemplated by due process, but which satisfy the praxis of the courts and their officials.

Procedure can shield judicial activism by imposing jurisprudential rules aligned with the prevailing personal morality of judges, whose decisions become res judicata, clothed in the prestige enjoyed by such courts in a given society. Such practices permit courts to silence debate, and they may mutate into exclusionary moral chaperons with respect to diverse social postures they neither know, nor comprehend, especially because they can only be understood in the context of dialogical proximity with the communities and representatives of the majorities and minorities involved. Consequently, it is necessary to consider the structure of procedures consistent with the public nature of constitutional debates, social and institutional interests, guided by a theory as to the democratic process, one in which the directive nature of the judge is recognized but in which citizen participation prevails to the point of driving decisions on the constitutionality of a legal norm, or of constitutional amendments.

Like any procedural theory, it must not only provide a general or structural idea of the institutions that make up the process, but must also express the roles of the judges and of the parties, intervening parties and third parties. It must also include the principles that will regulate the practice and be especially clear about the central purpose of the action: the peaceful resolution of conflicts, which, in a public process of constitutionality, must also involve deliberation, disagreement, and the guarantee of democracy and participation. Such elements integrate constitutional due process with guarantees of a right of action and contradiction.

4 Constitutionality Judgments in a Weak Procedural Environment

The constitutionality process must ensure the prevalence of democracy, the grant of the final say to the citizenry, and judicial and legislative deliberation.

5 Conclusion: A Possibility for Debate

The type of public constitutionality procedure described in this paper presupposes careful considering of the workings of constitutional courts, of their expertise and contributions to the formulation of public reason, and the collective meaning of the constitution and its rights; it also requires new qualities from constitutional tribunals, qualities such as being the procedural guarantors of democracy, not only guaranteeing formal and substantive merits simply assuring the most effective participation possible within the social and deliberative contexts of concrete cases for majorities and minorities as well as institutional participants in their diverse configurations. In the field of deliberation, rather than aspire to heroic status, judges should aspire to the perhaps more mundane and critical role of procedural coordinators.^[56]

In such a context, the constitutional judge becomes a facilitator of deliberation. A role in which their voice promoting the making of decisions is heard and forceful; the protagonist must be the voice of the citizenry, the voice of the sovereign. Such collective sovereignty will determine the depths of the required deliberations, the ones that generate the greatest disagreements, or that promote the construction of lasting responses to social dilemmas.