Introduction
A central preoccupation of constitutional theory is with the democratic legitimacy of judicial decision-making in constitutional cases. This concern is most acute where judges declare legislation invalid on the ground of inconsistency with rights contained in a bill of rights and those decisions can only be abrogated through constitutional amendment.
However, constitutional rights cases can be defined more broadly so that they include cases on rights that are fundamental in the sense that they are understood as a political constraint on government, regardless of whether abrogating judicial decisions on those rights requires constitutional amendment or ordinary legislation.[289] The rights might be contained in an entrenched or statutory bill of rights, or in the common law. Due to the status of these rights, judicial interpretations of them may be difficult to abrogate.[290] [291] Furthermore, the rights are often of a broad moral or political character, leaving the courts with substantial discretion on controversial matters of public interest.This chapter examines one response to this concern with democratic legitimacy that is found in decisions of the highest courts in several jurisdictions and which has been defended by some of those countries’ most respected scholars. This response is that in hard constitutional cases, judges should base their decisions on shared community values. These community values are distinguished from public opinion, which may be divided and ill-informed. This response will be called the community values approach. It will be argued that some variants of this approach have been, and can be, persuasively critiqued. Judicial speculation about community values, as distinct from public opinion, is likely to exacerbate rather than lessen tension between judicial decision-making and democratic values.
The community values approach has nevertheless proved resilient and merits further exploration. This chapter takes seriously its aim of promoting democratic legitimacy in constitutional decisions by connecting them to the community’s values. Some of the democratic theorists referred to by adherents of the community values approach are helpful in understanding how this aim could be achieved. Achieving this aim would depend, for instance, upon understanding community values as informed majority opinion. It is finally argued, drawing on experience with deliberative polling, that this aim might be realised if constitutional juries are introduced.
By connecting the community values approach to constitutional juries, light will be shed on both. While the community values approach is not the dominant judicial response to concern about democratic legitimacy - legal formalism and judicial restraint may be more significant - it has been prominent and is likely to endure.[292] In a democratic culture, connecting reasons offered in constitutional cases to the community’s values can appear attractive. However, those concerned about the democratic legitimacy of judicial decision-making in constitutional cases should be concerned about practices and approaches that exacerbate rather than lessen this concern, and should be interested in whether there are feasible, more democratic approaches to decision-making in at least some of these cases.
This chapter proceeds as follows. Section 12.2.1 mentions some examples of the community values approach in the United States and Canada. A US and Canadian case will be referred to and the writers discussed are US legal scholar Harry Wellington and Canadian legal philosopher Wil Waluchow. Section 12.2.2 mentions some criticisms of Wellington before critiquing Waluchow. On the other hand, Sect. 12.2.3 suggests that work by US political scientist Robert Dahl, who is referred to by Wellington, supports an understanding of community values as informed public opinion, and this different understanding holds democratic promise.
US philosopher Ronald Dworkin’s constitutional conception of democracy, endorsed by Waluchow, is also helpful in exploring how deference to informed public opinion could promote legitimacy in constitutional cases.Section 12.3 considers how the ideal of constitutional review based on informed (or deliberative) public opinion could be supported and realised. Section 12.3.1 suggests that research on deliberative polls supports the distinction found in the community values approach between ordinary and deliberative public opinion. It also indicates how deliberative public opinion can be determined. This leads to consideration of constitutional juries. Section 12.3.2 outlines some proposals for constitutional juries and argues that a proposal I made in 2010 is especially promising in realising how constitutional review based on the community’s values could enjoy legitimacy (Ghosh 2010).
12.2