Judicial Supremacy Versus Parliamentary Sovereignty: Jeremy Waldron’s Criticism to Judicial Review

The current debate on judicial supremacy versus parliamentary sovereignty has evolved a great deal in the last years. Movements such as “popular constitutional­ism”, by Larry Kramer (2004) and Mark Tushnet (1999), that intends to take the Constitution outside the Tribunals, or “democratic constitutionalism” by Barry Friedman (2009), which questions the centrality of the judicial supremacy based on the influence of the public opinion and the civil society on the decisions by the Tribunals, are only some of the examples of how the dispute involving who should have the last word about the interpretation of the Constitution is distant from finding a common ground.

The perspective adopted by the advocates of judicial supremacy in the interpre­tation of the Constitution defends a settlement function for the Judiciary, as result of several factors Brandao (2012), endowed by an institutional capacity higher than the Legislative to enunciate what the Constitution is. Among the reasons for judicial supremacy, we could enumerate the following: (a) judges would be free from eco­nomic, political and partisan interests and would be committed to an impartial application of the law; (b) judges would be instructed to preserve the people’s pre­commitments set forth in the Constitution against transitory majorities and their occasional interests; (c) judges would use, according to Dworkin (1985), principled arguments against policy considerations which are characteristic of the legislative; (d) judges would be able to promote a deliberative process guided by reason, and not by political and partisan pressures, a circumstance that would make them, according to Robert Alexy (2005), a type of argumentative representative of the society^[226]; (e) the judiciary should be the guardian of the Constitution, which would only be respected and enforced if protected by an agent situated outside the Parliament (the agency charged to produce ordinary norms that could, if unre­strained, disrespect the Constitution); (f) as result of the training and the specializa­tion on judicial matters, judges would be more qualified to interpret the Constitution (which is a political document as well as a judicial one); (g) as a general rule, since judges scrutinize laws after these laws have already been enforced, they have a privileged position regarding information as opposed to the legislature, and this would insure to the former a higher interpretive capacity (this refers to the so called “ unpredicted consequences" by the legislator); (h) the political isolation of the judges reassures that they do not suffer direct effects from the political and eco­nomic power of lobbying groups; (i) judges would have the duty to ground their decisions on the Constitution; (j) judicial judgment is immune from the strategic behaviour of the legislature, whose activity, as a political actor, has as one of the objectives to broaden his chances to be re-elected and enhance his personal prestige among his voters (or groups that support him), allowing him to give greater rele­vance to particular political actions to the detriment of the faithfulness to the Constitution and the fundamental rights; (k) parliamentary supremacy could repre­sent a risk in relation to the minorities, and a danger of instituting a tyranny of the majority that is impossible to be controlled (which could be empirically demon­strated by historical data).

However, there is a vast number of theorists who criticize the supremacy of the Judicial Branch in the interpretation of the Constitution. Mark Tushnet, for instance, pushing the thesis of constitutional populism, postulates the removal of the “ Constitution from the tribunals”, considering that they do not have the right to have the final word when constitutional interpretation is concerned. The fundamen­tal assumption of these critics is that judicial interpretation of the Constitution does not have a priori any more weight than the interpretation made by another state department such as Parliament.^[227] In the same vein, based on an extensive review of USA history, Larry Kramer enthusiastically defends that there is no basis to support the thesis that the North American Constitution must be definitely interpreted by judges (Kramer 2004).

However, in this chapter, I will discuss in further detail the theorization that I understand as the more sophisticated form of criticism to judicial supremacy, which currently defended by Jeremy Waldron.

According to Waldron in the book “Law and Disagreement” (1999), the practice of judicial review, that grants to judges the power to invalidate legislative enact­ments originating from the parliament and to make decisions about basic issues (attributing them the last word about fundamental rights issues) is not in harmony with the pluralist societies where we live in, where there is a recurrent disagreement between the several conceptions of law and its meanings (moral disagreements on the several ways of life and concepts of dignified life). These are, according to him, reasonable disagreements, where there shall never exist an argument that is a “knocks-down” or, in other words, a final argument. Therefore, it will always be possible to defend a contrary position, for it is possible to imagine good, valid and sincere arguments on both sides or at several sides.

Thus, since people disagree about what justice requires and what are the rights that we have, it is necessary to ask: who must have the power to make decisions in these cases? Waldron answer this question in the sense that constitutional theory and the dogma of judicial supremacy have been marginalizing legislative activity.

The major concern, in his argument, is to elevate the legislature to the centrality of the philosophical deliberation regarding the Law. The idea is to return to a “dig­nity of legislation” and to deconstruct the philosophical justifications for the judi­cial review. He then advocates the legitimacy of the legislator to decide in circumstances where there are reasonable moral disagreements, considering that judges almost always disagree on moral conflicts, along the same lines that citizens and their representatives do, and, in addition, also make decisions based on the majority rule (ironically stating: is it not also the majority that must prevail in the construction of the judicial provision?). Why, Waldron asks, the political answer to issues about political morality must come from the Courts and not from the parliament?^[228]

Therefore, disagreements regarding principles is part of the essence of politics, and excluding the participation of the parliament (the people) from a final delibera­tion regarding moral disagreements is the same as betraying the spirit of democracy and universal suffrage. To Waldron, the premise of the majoritarian constitutional theory is that judicial review must be affirmed as result of the legislature’s alleged lack of respectability and intellectual capacity. He shares this repulse by making the following point: Why has not any contemporary theorist of the Constitution advo­cated a theoretical interpretation that would dignify the role of the legislator as a super-endowed being (superman) responsible to settle the evils of society under the terms, for instance, of the Judge Hercules de Dworkin’s metaphor? Contrary to it, as it has been already said, the mainstream constitutional doctrine states that the courts are the best institutional spheres to determine the adaptation of normative acts in support to the Constitution.

It is central for Waldron courts lack the right to take a stand regarding the great moral issues in a political community. Questions of justice, for him, are always political. Accordingly, the majority rule in a parliamentary procedure is guided by the idea of political legitimacy, and based on a theory of authority which requires the recognition that each citizen is equal and as result, has the right to participate (and a part in the responsibility to make the law) in the political process to settle controversial matters about political morality. Participation, for him, would be the right of rights. The majority decision would be legitimate for it creates a delibera­tive locus where the voice of each citizen resulting from representation has the same weight. The consent and the feeling of moral affiliation resulting from the submis­sion to the majority decision is what supports the majority principle: as result, each participant can recognize that it is fair to obey a command derived from a procedure which, having treated people as equals and independent, results in a majority delib­eration (even the dissident minorities would have this feeling).^[229]

It becomes clear here that there is an assumption in Waldron’s theory that indi­viduals as moral, autonomous and capable citizens shall promote a responsible debate and yield an impartial and fair political decision. Therefore, the right to participate is central to all the others and is not even subject to deliberative judg­ments (there is no factual situation when this right shall not prevail as result of another, considering that the extension of the opposite right and its meaning are defined by the very right to participate).

As it has been pointed out before, Waldron (1999) stresses that individuals have serious disagreements on matters of justice. He points out, based on Rawls, that even after a discursive procedure developed in a satisfactory way, where the partici­pants in the debate raise their claims to validity and reciprocally criticize them, the subjects might continue to disagree in good faith at the end of the dialogue regard­ing moral issues. The worry here is that we never have a final argument that knocks down the opposite arguments regarding the large issues involving political morality.

Waldron states, therefore, that laws are essentially and not only accidentally a product of assemblies (Parliament) with groups that adhere and support distinct conceptions of justice. This fact, in his opinion, must be taken into consideration to interpret them in the broadest context of the law (Waldron 1999, 10).

Based on the foregoing discussion, it can be affirmed that legislation is not nec­essarily the fruit of a final consensus regarding particular issues, but the result arrived at through a process of vote counting. Since a full consensus is impossible, it is necessary to refute its notion as a deliberative internal logic, and this does not mean that its importance is diminished as an adequate result of the political process (Waldron 1999, 91). Thus, the disagreement needs to be incorporated to the concept of public deliberation, giving attention to its inescapable dissension (Waldron 1999, 95).

Therefore, since the disagreement is unavoidable, the reasons why individuals should obey legislation when it is contrary to their conceptions about fundamental issues of principle must be ascertained. This is, therefore, a pursuit for the founda­tion of the authority of the former.

Therefore, the issue of the authority of laws is not presented as a matter of abso­lute deference to them, in order to understand them as something perfect and immu­table (Waldron 1999, 100). This law’s claim to authority would be associated to a demand for respect and recognition of the legislation, i.e., as something that, at that moment, the community chose as adequate and which, therefore, cannot be ignored based solely on the fact that some of its subjects disagree, with the intention to change them when institutionally possible.

In order to handle the problem discussed here, Waldron works the notion of the “circumstances of politics”, which comprises the situations where, even though individuals disagree in good faith about the best collective decision to be made, they share a deep commitment that it would be better for them to coordinate their actions by a common solution for the issue, in spite of their disagreement about its content. Thus, the need and the inevitability of a collective decision would create an envi­ronment appropriate for the adoption of a morally controversial stand by the collectivity.

Having made this point, he acknowledges that the majoritarian procedure involv­ing decisions, based on the counting of votes, is a procedural technique that allows the adoption of a collective stand in the middle of an existing disagreement (Waldron 1999, 107-108). Hence, according to this understanding, the way to identify a course of action as being collective (as “ours”) must be agnostic with regards to its substance (merits), considering that there is the fact of disagreement, making the procedure a neutral way to make a choice among the proposed alternatives.

It just so happens that for Waldron (1999, 108), the majority process is not a mere technique, but also a method that is morally respectable, superior to the other ways to select a stand to be adopted. It can be said here that laws not only deserve respect because they establish a common standard under the circumstances of poli­tics (which is necessary for collective coordination in the face of disagreement), but also because they constitute the product of something accomplished in a legitimate way, considering that, during their elaboration, they respect the individuals that will coordinate their actions.

Therefore it can be said that as far as individuals are concerned the majoritarian process is justified in two ways: (1) it does not ignore different concepts about jus­tice and the common good, inasmuch as it is not necessary that a good-faith opinion of someone be discarded in the search for an alleged consensus; (2) it establishes a principle of respect for each individual, which is intrinsic in the dynamics of this process (Waldron 1999, 109).

Waldron (1999, 111) warns that these considerations are not based on any type of relativism, but rather on an appropriate attitude towards the good-faith disagree­ment of the participants in the political sphere. He believes that dissent, in most cases, should not be explained as a consequence of a selfish action by individuals or other corrupt actions from the heart of the community, and alludes to the notion of “burdens of judgment”, developed by Rawls, to explain the issue. Thus, it consists in the idea that when it comes to the most important judgments regarding themes and conditions of mutual concernt, made by the people, we should not expect that rational individuals, even after a free deliberation process, will arrive at the same conclusion, considering that they will disagree about the relevance and the weight to be ascribed to particular considerations.

Having, therefore, acknowledged the burdens of judgment, Waldron (1999, 304) believes that the common explanation for existing disagreements regarding rights is associated to the complexity of issues upon which a decision is necessary. The ref­erence to our own interests, therefore, would only be part of a special explanation about a particular disagreement.

To summarize the debate on the advantages of a majority decision, Waldron believes that this system would give to the opinion of each individual the maximum possible weight, in the process where political will is forged. Thus, it could be said that it would constitute a fair method to make decisions, respecting the judgments of each participant (Waldron 1999, 114).

It must be pointed out that an equal respect to individuals would not impose, in itself, a majoritarian decision-procedure (Waldron 1999, 115). However, since we disagree (in good-faith) on substantive issues as far as what the appropriate out­comes to equalitarian respect is concerned, we need a decision process that is intrin­sically compatible with such. In Waldron’s opinion (1999, 116), the majority decision would be the most appropriate candidate to this task.

In short, the author holds that a procedure of this type does not establish, in itself, the authority of the legislation (Waldron 1999, 117). Nonetheless, the majority decision not only would offer a solution for important issues in the sphere of politi­cal circumstances, but would do it with respect to the individuals who disagree about the outcome of the procedure (Waldron 1999, 118).

Therefore, the majority process would be grounded on what is regarded as the “right of the rights”, that is, the right to participate in the drafting of laws (Waldron 1999, 282). The notion defended here is that, if there is a disagreement in society regarding issues where a common decision is necessary, all must have the right to participate in an equal way in the solution to the controversy. By consequence, in his opinion, taking rights seriously means taking each person seriously as he holds opinions regarding rights (Waldron 1999, 311-312).

Thus, Waldron raises against the judicial review an objection based on rights, and more specifically, on the right to participate in the political decisions of the polity. Along these lines, since individuals, including magistrates, disagree on mat­ters of principle (major issues regarding political morality), it is better that the deci­sion about its shaping is reached within the scope of a majority decision, such as the legislative process, rather than by a Constitutional Court, since, in the former, unlike the latter, a larger participation is given to the agents, even when dealing with a representative system.

Whittington (2000, 697-698) makes the following remarks about Waldron’s criticism to the judicial review:

Waldron considers essentially two types of justifications for constitutional rights and judi­cial review: the problem of majority tyranny and the strategy of precommitment. His argu­ments against each are straightforward and related. Employing an independent judiciary as a check against majority tyranny is only reasonable if we can identify when majorities might be tyrannical, but that judgment requires a substantive theory of rights and justice that we do not have.

Regarding the second argument, that is, precommitment, Waldron (1999, 258) reveals an understating that was later criticized about the constitutional restrictions in which they consubstantiate limits that citizens would impose to themselves while being agents endowed with moral capacities. From this viewpoint, agents would be aware of the possibility that they, at some point in time, could violate individual rights, and this would lead them to adopt certain constitutional limitations as a pre­caution (Waldron 1999).

In order to prevent the precommitment notion to contradict the autonomy of individuals that have established it, the restraint applied at a given occasion (T₂) must be the fruit of a spontaneous decision taken at an earlier occasion ( T1). Since there is no possibility, in the field of constitutional restraints, for a causal procedure where limits are automatically applied at T₂, after the circumstances set forth in T1 have been verified, the idea of constitutional precommitments depends on the giv­ing to a social actor, which is not to be confused per se with the individuals that have set forth these very restrictions, the power to decide, at T₂, if these constitu­tional restrictions would apply or not to the occasion (Waldron 1999).

Therefore, it can be noted that for the notion of constitutional precommitments to be adopted, a social agent A must grant to another agent (B) the power to deliber­ate (exercise judgment, decision) regarding the applicability or not of the restraints in the cases herein. Nonetheless, Waldron (1999, 262) questions whether, in this case, it is possible to really talk about an autonomous precommitment by A, consid­ering that, despite of the fact that at T, the selection of restrictions has such nature, at T₂ agent A is subject to the judgment of another, that is, B.

It must be pointed out that the problem verified by Waldron (1999) is aggravated upon the realization that, unavoidably, there is controversy in judgments at T₂: indi­viduals disagree on the material implications of the abstract principles adopted dur­ing the time when constitutional restraints are selected. Thus, since there are divergences regarding these judgments, Waldron believes that granting to a third party - such as the Judiciary - the jurisdiction to decide on issues that are the object of disagreements would be the same as refusing the exercise of self-governance (Waldron 1999, 264).

In short, therefore, when a precommitment established by citizens becomes obscure, uncertain or controversial, the idea of precommitment lacks support as a method to defend the judicial review against the democratic objection (Waldron 1999, 266). In practice, what we would be doing would be not to respect precom­mitments, but rather to recognize the superiority of a view (of agent B who makes a decision at T₂) in relation to the others, in an environment permeated by complex and morally controversial considerations. Moreover, the following question needs to be answered: Who is to say that at the time these very precommitments were erected, the situation was neutral and not pathological (flawed) from the start? This is, as a matter of fact, another point that is generally forgotten by the defenders of this perspective regarding precommitment.

Therefore, since people reasonably disagree on issues of principles, justice an so on, valuing previous constitutional limitations is the same as taking a position among diverging opinions concerning the best interpretation of these themes (Waldron 1999, 269). If the most satisfactory explanation for the existence of a persistent disagreement results from the importance of the objects under dispute, it is necessary to abandon the logic of precommitments and allow that the temporary adoption of a conception as superior to the other ones occur through collective deci­sion procedures during a given period of time (Waldron 1999, 270).

Furthermore, according to Waldron, the force of the notion of precommitment is also weakened by the fact that a change of public opinion concerning a particular issue can be explained more accurately, in most cases, by a change or maturing of the public debate and not as result of a condition of social pathology, that would demand the adoption of previous constitutional restrictions as a precautionary way to such pathological condition. Therefore, it would not be worthy to ponder about such previous limitations (Waldron 1999, 271).

Therefore, for Waldron, the claim made by those who believe that democracy needs a precommitment to some issues for its own existence (such as guaranteeing the rights of the minorities that would assure the possibility of existence of opposi­tion, etc.) would only be valid if two conditions were satisfied: (1) unanimity and constancy regarding an appropriate concept of democracy and the conditions that are necessary for it to exist, and (2) if the minorities had any reason to fear that a legislative change of the rules regarding freedom of expression and the possibility to oppose was an attempt to silence dissidents. To the mentioned author, none of these conditions is met, and for this reason, he rejects the strategy of grounding judicial review on the notion of constitutional precommitments (Waldron 1999, 279).

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