The Case for Judicial Review Without Judicial Supremacy

The essential case for weak-form review is that it is to forms of constitutionalism what the mixed economy is to forms of economic organization: a distinct and appealing third way in between two purer but flawed extremes.

5.3.1 The Strengths and Weaknesses of the Two Traditional Models

After the latest round of the debate about judicial review conducted within the con­ventional bi-polar framework, it seems clearer than ever that there are powerful arguments both for and against legal constitutionalism and that no unanswerable, knock-down case - for one side or the other - that persuades all reasonable people is likely anytime soon.

This enhanced assessment is particularly helpful because in order to explain how weak-form review combines the core strengths of both traditional ones whilst avoiding their major weaknesses, it is of course first necessary to specify what these are. As an institutional form of constitutionalism in a democratic political system, political constitutionalism (or legislative supremacy) has two major strengths or benefits. Firstly, on the issue of legitimacy, by institutionalizing limits on govern­mental power as political in nature and enforcing them through the twin mecha­nisms of electoral accountability and structural checks and balances - such as legislative oversight of the executive - political constitutionalism coheres easily and unproblematically with democracy as the basic principle for the organization of the governmental power that it limits. Whether these limits that protect individual rights and liberties remain exclusively in the political sphere as moral or political rights, or are given legal effect as common law or statutory rights, they are ulti­mately within the scope of the democratic principles of equal participation and electorally-accountable decision-making as determined or changeable by ordinary legislative act.

Secondly, on the issue of outcomes, given the nature of many, if not most, rights issues that arise in contemporary mature democracies - including the existence of reasonable disagreement about how they should be resolved - legislative reasoning about rights may often be superior to legal/judicial reasoning. As powerfully argued by Adam Tomkins and Jeremy Waldron, high quality rights reasoning often calls for direct focus on the moral and policy issues involved free of the legalistic and distorting concerns with text, precedent, fact-particularity and the legitimacy of the enterprise that constrain judicial reasoning about rights.^[142] Moreover, electorally- accountable representatives are able to bring a greater diversity of views and per­spectives to bear on rights deliberations compared to the numerically smaller, cloistered and elite world of the higher judiciary.

At the same time, proponents of judicial review have identified two major weak­nesses of political constitutionalism on the key issues. The first is the risk of either understating or under-enforcing constitutionalism’s limits on governmental power, especially individual rights, as the result of various “pathologies” or “blind spots” to which electorally-accountable legislatures (and executives) may be prone. These include sensitivity to the rights and rights claims of various electoral minorities - whether criminal defendants, asylum seekers, or minority racial, ethnic or religious groups - given the exigencies and logic of re-election, legislative inertia deriving from tradition or the blocking power of parties or interest groups, and government hyperbole or ideology (Bickel 1962; Dixon 2009; Kumm 2007; Perry 2003; Fallon 2008). Under-enforcement of rights may also result from the circumstance that however high the quality of legislative rights reasoning, it inevitably competes in this forum with other deliberative and decisional frameworks. Undoubtedly, these standard, well-known concerns were primarily responsible for the massive switch away from political constitutionalism towards judicial supremacy around the world during the post-war “rights revolution,” as the resources of representative democ­racy alone were perceived to provide insufficient protection.

Secondly, just as political constitutionalists have attempted to turn the tables on the conventional argument that rights are better protected with judicial review in the way we have just seen, legal constitutionalists have tried to do the same with the standard argument that judicial review is democratically illegitimate. Thus, Richard Fallon has argued that important though democratic legitimacy undoubtedly is, it is not the exclusive source or type of legitimacy in constitutional democracies and that the substantive justice of a society also contributes to is its overall political legiti­macy. Accordingly, to the extent that political constitutionalism may undermine substantive justice by under-enforcing rights for the above-stated reasons, it also detracts from the overall political legitimacy of a democratic regime (Fallon 2008, 1718-22). More generally, Mattias Kumm has argued that in addition to electorally- accountable decision-making, a second precondition for the legitimacy of law in constitutional democracies is the requirement of substantively reasonable public justification for all governmental acts, including legislation, burdening individuals’ rights. As part of our commitment to constitutionalism, legislation unsupported by a reasonable public justification for the burdens it imposes on individuals is illegiti­mate regardless of majority support. Political constitutionalism, however, provides no adequate forum for critically scrutinizing the justification for a piece of legisla­tion to determine if it meets the minimum standard of plausibility in terms of public reasons. Given the various potential pathologies noted above, legislative delibera­tion and political accountability are insufficient to ensure that burdened individuals are provided with the reasonable justification to which they are entitled, as evi­denced by many decisions of domestic and international constitutional courts (Kumm 2009).

If these are the most important strengths and weaknesses of political constitu­tionalism that emerge from the recent academic debate, what are the equivalents for legal constitutionalism? One of its strengths is fostering public recognition and con­sciousness of rights.

A second strength of legal constitutionalism - in either its “big-C” or common law variations - is that it may help to protect against the above-mentioned tendency towards the under-enforcement of rights resulting from the potential pathologies and blind spots affecting politically accountable legislatures and executives. Where they are politically independent in the sense of not needing to seek re-election or renewal in office after initial appointment, judges exercising the power of judicial review are in a better institutional position to counter or resist such electorally- induced risk of under-enforcement (Kyritsis 2012; Perry 2003). This is not so much an argument about expertise as about incentives and institutional structure. Courts also decide cases upon concrete facts, some of which may have been unforeseen by legislators (Fallon 2008, 1709), and indeed bring a more context specific or “applied” dimension to rights deliberation that complements the necessarily greater generality of that undertaken by legislatures.

Thirdly, in the positive version of the argument noted above, legal constitution­alists have made the case that judicial review is essential to the overall legitimacy of a constitutional democracy. Thus, Richard Fallon argues that to the extent judi­cial review promotes substantive justice by helping to protect against under­enforcement of rights, it might “actually enhance the overall political legitimacy of an otherwise reasonably democratic constitutional regime.”^[143] In this sense, judicial review may result in a trade-off among different sources of legitimacy but not between rights protection and overall political legitimacy.

Human and constitutional rights adjudication, as it has developed in much of Europe,... is a form of legally institutionalized Socratic contestation. When individuals bring claims grounded in human or constitutional rights, they enlist courts to critically engage public authorities in order to assess whether their acts and the burdens they impose on the rights- claimants are susceptible to plausible justification....Legally institutionalized Socratic con­testation is desirable, both because it tends to improve outcomes and because it expresses a central liberal commitment about the conditions that must be met, in order for law to be legitimate (Kumm 2007, 4).^[144]

Thus, for example, judicial review aims to ensure that an individual burdened by a statutory ban on gays in the military is able to put the government to the task of providing a reasonable public justification for the enacted law, one not relying on prejudice, tradition, disproportionate means, etc., failing which it is illegitimate.^[145]

And what are the weaknesses or costs of legal constitutionalism as an institu­tional form in a democracy? Starting with the issue of rights protection, one is that just as there may be under-enforcement of rights due to electorally-induced or other legislative pathologies, there may also be under-enforcement resulting from certain judicial pathologies.^[146] These include (1) the risk of rights-relevant timidity that comes with responsibility for the final decision and its real world consequences; (2) concerns about lack of policy expertise or legitimacy in the context of assessing justifications for limiting rights - the universal second stage of modern rights analy­sis; (3) the artificially and legalistically constrained nature of judicial reasoning about rights; and (4) the relative lack of diversity of perspectives among the elite members of the higher judiciary. Now, it might be thought that, even if it exists, the risk of judicial under-enforcement of rights is not much of a concern because it is premised on, simply mirrors, a prior under-enforcement by the legislature. Where it occurs, it is true that the countering force of judicial review does not take place, but we are no worse off in terms of rights-enforcement than before the judicial decision.

This response strikes me as at least partially misguided for two reasons. First, assuming a court has under-enforced the right, it is not true that we are no worse off. The judicial decision formally legitimates the statute and the legislative under­enforcement in a way that would not be the case without; there would simply be a controversial statute on the books which many people reasonably believe violates rights and should be repealed. Moreover, there is now a judicial precedent in place, which may affect the political and/or legal treatment of other or future statutes. It is for these reasons that Justice Jackson famously chided the U.S. Supreme Court for taking the case of Korematsu v. United States.^[147] It is one thing for the elective branches to under-enforce rights during a perceived national emergency; it is another for the highest court to give its seal of legitimacy to that under-enforcement. Secondly, the response assumes that the existence of judicial review has no effect on the rights deliberations otherwise undertaken by the legislature itself in the course of enacting the statute, that judicial review provides an additional and sup­plementary layer of rights scrutiny - a safety net - over and above the legislative one. There are plausible reasons to believe, however, that judicial review within a legal constitutionalist framework results in the processes of political rights review being reduced or even bypassed altogether in favour of relying on the courts, which after all have the final word.^[148] Why spend precious time on matters you do not decide? That is, judicial and political review may well be more substitutes for each other than supplements within legal constitutionalism, so that before opting for the latter one would need to be persuaded that on balance the rights under-enforcement stemming from judicial pathologies is likely to be less than from legislative ones.

A second weakness of legal constitutionalism is that may also lead to the over­statement or over-enforcement of constitutionalist limits on governmental power. There is a term for this weakness and it is “Lochner.”^[149] So even if, very generally speaking, potential under-enforcement of rights is worse than potential over- enforcement,^[150] over-enforcement of the Lochner variety is far from harmless error. That is, where courts use their supreme interpretative power to read into a constitu­tional text certain controversial rights that are the subject of reasonable disagree­ment, they may be artificially limiting the scope of governmental power in the service of substantive injustice. This type of over-enforcement undermines the overall political legitimacy of an otherwise democratic constitutional regime.

A third weakness of legal constitutionalism is the general weakness and relative ineffectiveness of relying on ex post regulatory mechanisms to the exclusion of ex ante ones.^[151] If constitutionalism imposes limits on governmental power, some of which take the form of individual rights, then relying primarily or exclusively on courts to enforce them will often be tantamount to closing the barn door after the horse has bolted. Some laws that raise serious rights issues may never be challenged in court, others may be challenged but under-enforced, and in most cases laws will not be challenged until at least some of the damage they are judicially assessed to impose has already been caused. Abstract judicial review acknowledges, and is designed to deal with, this problem but several systems do not permit this type of review and those that do usually limit standing to elected representatives of a certain number or office, whose political interest in challenging a law may or may not coin­cide with those likely to be adversely affected by it.^[152]

Fourthly, there is a strong tendency within legal constitutionalism for courts to become the primary expositors of rights in society and yet there are serious weak­nesses in judicial modes of rights deliberation from the perspective of this important function. Judicial review may be conceptualized and defended (in common law jurisdictions at least) as incidental to the ordinary judicial function of deciding a case,^[153] but deciding a specific case is far from all that a highest court typically does when exercising this power in the context of a controversial rights issue. Rather, depending on the scope of its judgment, it resolves not only the case but the rights issue raised in it as far as lower courts in future cases are concerned, and, depending on its accepted or perceived interpretive supremacy within the entire political sys­tem, its resolution becomes the authoritative one for all purposes. In this way, the highest court tends to speak for, and in the name of, society as a whole. Here again, the “limitations inherent within judicial forms of decision-making” (Tomkins 2005, 29) discussed by Tomkins and Waldron come to the fore, as does the concern with over-legalization or judicialization of principled public discourse generally, whereby the legal component or conception of rights is over-emphasized at the expense of the moral and political.^[154]

These first four weaknesses mostly address the issue of whether or not rights are better protected with judicial review. Last, but by no means least, is the familiar and standard concern with legal constitutionalism from the perspective of legitimacy in a democratically-organized polity, the concern that Fallon and Kumm have attempted to outflank. As this concern is so familiar, I shall be brief. It may perhaps be expressed or captured this way: in the name of attempting to ensure against under-protection of rights, legal constitutionalism gives to an electorally- unaccountable committee of experts unreviewable power to decide many of the most important and weighty normative issues that virtually all contemporary demo­cratic political systems face, even though it turns out that these issues are not ones for which the committee’s expertise is especially or uniquely relevant.

The easy, conventional and mostly rhetorical response to this concern is pre­mised on a legal fiction; namely, that a supermajority of citizens has self- consciously, deliberately and clearly pre-committed to a set of higher law solutions to rights issues, and the function of the courts is simply to apply these - in essentially the same way as any other type of law.^[155] The legal reality is that many of the most important rights issues as and where they present themselves are inevitably the subject of reasonable disagreement among and between judges, legislators and citi­zens - as routinely evidenced by closely divided courts, legislatures and referenda on some of the most controversial and difficult topics. Such disagreement - about which rights exist, their meaning, scope and application, as well as permissible limits on them - persists whether or not rights and rights claims are left in the realm of moral and political discourse only, are deemed part of the common law or have been incorporated into the particular textual formulas of a statutory or constitutional bill of rights. As Jeremy Waldron puts it, “the Bill of Rights does not settle the dis­agreements that exist in the society about individual and minority rights. It bears on them but it does not settle them. At most, the abstract terms of the Bill of Rights are popularly selected sites for disputes about these issues” (Waldron 2006, 1393).

In this context, the case for some of the most fundamental, important and divi­sive moral and political issues confronting a self-governing society of equal citizens being subject to the rule that the decision of a judicial majority is final and effec­tively unreviewable, on the legal fiction that they are wholly questions of law akin to the interpretation of a statute or a contract, appears weak - if not duplicitous. So too on the frequently proffered alternative basis that they concern matters of prin­ciple (as distinct from policy) best left to, and answered by, courts alone (Dworkin 1977, 81-130).^[156] Even were the distinction between principle and policy to be suc­cessfully explained and justified, if “constitutional democracy” is taken to require excluding the participation and reasonable judgments of equal citizens and their electorally-accountable legislative representatives on all rights-relevant issues of principle in favour of the reasonable judgments of judicial majorities, then the qual­ifying adjective has largely swallowed what it qualifies.

5.3.2 A Normatively Appealing Third Way

The persistence of these weaknesses with both traditional models alongside each of their strengths is a major problem because of the structure of the choice between them. In the either-or universe of the bipolar model, we are stuck with one or the other in a “winner-take-all” institutional system that requires the weaknesses of the chosen model to be endured alongside its strengths, whilst the complementary mer­its of the other model are lost entirely. It is legal constitutionalism versus political constitutionalism, judicial supremacy or no judicial review at all. But this “warts­and-all” structure of institutional design choice is unnecessarily crude and dispro­portionate with respect to the normative costs and benefits of the two models. By contrast, a major advantage of weak-form review as an intermediate hybrid is that it makes possible a form of “proportional representation” among the strengths of both legal and political constitutionalism, whilst also severing or minimizing the major weaknesses of each.

The core of the case for the new general model is the argument for both weaker- form judicial review and weaker-form legislative supremacy versus either strong­form judicial review or strong-form legislative supremacy. The central problem with strong-form judicial review is not that rights-based judicial review has no value or cannot be justified at all, but that it is too strong. In the familiar language of proportionality, it is not the least restrictive way of achieving this value with respect to others that are also central and essential within a constitutional democ­racy. Moreover, as already previewed in the previous section, there are good rea­sons for believing that at least part of this value—protecting against under-enforcement of rights — may not be optimally or best promoted by strong judicial review, even if it were the case that on balance it affords better protection than political constitutionalism.

Similarly, the central problem with traditional strong-form legislative supremacy is also that it is unnecessarily strong. Just as judicial supremacy risks giving not only final but exclusive voice to the highest court, traditional strong-form legisla­tive supremacy needlessly creates a monopoly for elected representatives in terms of whose voice counts or has legal authority on rights issues. If the core concept of parliamentary sovereignty is perfectly consistent with the existence of moral, politi­cal and procedural constraints on legislative decision-making, as Jeffery Goldsworthy (2010, 302-3) reminds us, the new model adds two concrete and spe­cific types of such constraint: the procedural requirement of pre-enactment rights review and the very visible political constraint of a formal, but not necessarily legally final, judicial opinion on rights issues raised by enacted laws. By challeng­ing the legislature’s institutional monopoly of authoritative voice on rights issues, this second constraint in particular can be said to weaken legislative supremacy compared to the traditional version that remains part and parcel of political constitutionalism.

I have claimed that the general case for the new model, like the arguments for the mixed economy, it that it is combines the strengths of the two purer but flawed extremes whilst avoiding their weaknesses. It is now time to make good on this claim by explaining how this is achieved. As we have seen, to the extent that propo­nents of legal and political constitutionalism have engaged each others’ arguments, it has mostly been in a debate about judicial review in which the common ground is that the two main issues are whether there is reason to suppose that rights are better protected with or without judicial review and whether judicial review is democrati­cally legitimate. Although at times, political constitutionalists almost seem to rue the focus on rights - which they acknowledge has been the trigger for the growth of legal constitutionalism (Bellamy 2007, 15) - as misplaced, it is too late in the rights revolution (at least in the context of mature liberal democracies) to cede this terri­tory to the opposition.

How exactly does the new model accommodate and combine the strengths of both polar positions whilst severing their weaknesses as inessential and dispensable? And what is the argument that the resulting intermediate position better protects rights whilst also maintaining political legitimacy in a democracy? First, on the issue of rights protection, the case for the new model accepts almost everything that critics of legal constitutionalism say as to why legislative reasoning about the sorts of rights issues confronting all modern societies is or may be better/more appropri­ate than judicial reasoning, with its inherently artificial and constrained nature and relative inability to focus directly on the moral issues involved. This acceptance is institutionalized in pre- and post-enactment political rights review. At the same time, it also accepts and accommodates the legal constitutionalist argument that judicial review may sometimes help to reduce the risk of certain types of under­enforcement of rights, hence the role of courts in between the two stages of political review. Given what has just been said, this is obviously not because courts are better or more expert than legislatures at rights deliberation but because each institution comes to the task from a different perspective, has different strengths and weak­nesses that may usefully be brought to bear on rights issues to help improve out­comes and protect against under-enforcement. Again, the relative strengths of legislatures are those expressed by Tomkins and Waldron, as well as the greater diversity of views mentioned above. The relative weaknesses of legislatures are the potential rights-relevant pathologies to which they may be subject. The relative advantage of courts here is independence from these potential electorally-induced pathologies and the dimension of fact-specific, applied rights deliberation versus the more general and abstract approach of legislatures, but the weaknesses are the parallel tendencies towards pathologies of their own and the general problem of relying exclusively on ex post regulation discussed above.

What the argument for the new model rejects as uncompelling, disproportionate and dispensable in the two polar models on this issue is the following. First, in the case for political constitutionalism, it does not accept the consequence of conclud­ing that, on balance, legislative reasoning about rights is superior to (or no worse than) judicial; namely, that rights issues should be left exclusively to the former. This consequence is a function of the either-or universe of the bi-polar framework, in which it is necessary to choose between legislative and judicial modes of reason­ing about rights. The appeal of the new model here is that it revises the standard implication of this argument by recognizing the respective strengths and weakness of courts and legislatures and providing a significant and appropriate role for both. Accepting the net superiority of legislative over judicial reasoning about rights may determine which has the power of the final word but it does not entail that no role is served by, or afforded to, the latter.

Secondly, with respect to the legal constitutionalist case for judicial review, the argument for weak-form review rejects the implication that under-enforcement con­cerns justify not only a judicial role in the protection of rights but also a judicial veto over legislation - what Fallon refers to as one of the “multiple veto points” in the system (Fallon 2008, 1707) - or at least one that is not defeasible by ordinary major­ity vote of the legislature. Rather, for the new model, under-enforcement concerns mean that courts should be a “checking point” in the system, having an interpretive, alerting and informing function with respect to rights issues, somewhat akin to the delaying power of the House of Lords as the second legislative chamber versus the veto power of the U.S. Senate.^[157] This revision, of course, reflects and expresses the difference between weak-form and strong-form judicial review. To the significant extent that the case for legal constitutionalism turns on the incentives and potential rights-relevant pathologies of elected officials, the case for the new model here is that the combined impact of mandatory political rights review and non-final judicial review will sufficiently alter those incentives and counter the pathologies to render the solution of judicial finality unnecessary and disproportionate. This distinct mode of judicial input into rights discourse can be helpful as the legally penultimate word in both informing/spurring rights review by the political branches and raising the costs of legislative disagreement through an alerted citizenry. As with the criminal jury trial to which Fallon analogizes the argument for judicial review as protection against under-enforcement of rights, we may give citizen-members of the jury a veto power in order to minimize erroneous conviction of the innocent, but (and this is the limit of the analogy) we do not give such a power to second-guess their deci­sions to judges. Accordingly, unlike the two traditional models, the new model recognizes and reaps the respective benefits of both legislative and judicial reason­ing in terms of their contributions to rights deliberation and protection against under-enforcement, but within an institutional structure that affords the power of the final word to the former.

Let us now turn to the issue of legitimacy. Once again, the case for the new model is that it is able to combine and accommodate the core insights of both oppo­nents and proponents of judicial review into a package that is more compelling and proportionate than either alone. The democratic legitimacy of collective decision­making procedures (and especially higher lawmaking procedures) is obviously a centrally important value within constitutional democracies. By granting the power of the final word to the legislature, the new model preserves and promotes this value. At the same time, the new model acknowledges and accommodates the broader legitimacy concerns raised by Fallon and Kumm in their defences of judi­cial review. To the extent that weak-form judicial review helps to protect against under-enforcement of rights by giving courts checking, alerting, informing and decision-making functions that supplement legislative rights deliberations and counter characteristic potential pathologies, it promotes justice and so enhances overall political legitimacy. But it does so, too, when also countering judicial under­and over-enforcement of rights, against which legal constitutionalism is generally powerless.

With respect to Kumm’s argument, it is first necessary to distinguish reasonable public justification for general l egislative acts that burden individuals from admin­istrative and judicial decisions, which are typically subject to forms of judicial review for reasonableness even in systems that do not provide for constitutional review of legislation.^[158] These are not at issue and clearly perform the legitimating, rule of law function that Kumm prescribes. As for legislative acts, the new model obviously provides the judicial forum for the required critical assessment of rea­sons. The question, therefore, is whether strong-form judicial review rather than weak is necessary or essential to fulfil this condition of legitimacy and so is justified as a proportionate departure from the norm of democratically-accountable decision­making.^[159] I believe the answer is no. To explain why, let me begin by making explicit what has largely been left implicit in the argument so far: the case for the new model’s override power is premised on reasonable disagreement with the courts on a rights issue. The basic principle at work here is that democracy requires a reasonable legislative judgment to trump a reasonable judicial one.^[160] In one sense, therefore, if courts and legislatures both adhere to their normatively assigned roles and (as in Kumm's theory) courts only invalidate legislation for which there is no reasonable public justification, then legislatures would never exercise their override power - which perhaps becomes redundant. But by the same token, under this sce­nario it cannot be said that strong-form judicial review is necessary as weak-form review would achieve exactly the same result.

More realistically, however, the risk that both will depart from their normatively circumscribed powers must be taken into account: that courts will invalidate reason­able legislative decisions in favour of the court's view of the correct one and legis­latures will exercise their override power in support of unreasonable legislative decisions. In these circumstances, is strong-form judicial review rather than weak justified? In current practice, Kumm's normative standard is not in fact the one that is generally understood to govern judicial review and courts regularly overturn leg­islative decisions which cannot be said to be unreasonable.^[161] But what if it were? Under strong-form review, there is little to counter the risk of judicial overreaching on this issue - as by reason of their very independence, courts face no direct politi­cal constraint - and the legislative override power would be a useful institutional check in the absence of others as a form of separation of powers. Moreover, we are by hypothesis here - a court has invalidated a reasonable legislative act - in the situ­ation where the principle of a reasonable legislative judgment trumping a reason­able judicial one applies, so that use of the override would be justified. By contrast, unlike the strong-form judicial power, this legislative power would be subject to a significant institutional or political constraint against the risk of misuse; namely, the fact that a court has issued a formal judgment finding there to be no reasonable public justification for the legislation violating individual rights. Finally, so far we have been discussing the situation in which there have been clear departures from the standard of reasonableness, but as Kumm notes, the limits of reasonable dis­agreement may also be subject to reasonable disagreement (Kumm 2007, 28 n 43). That is, courts and legislatures may reasonably disagree about whether a legislative act is within the bounds of the reasonable. For the same two reasons just noted - the checking function of the override and the default or tie-breaking nature of legisla­tive power that democracy requires - weak-form review also seems the more justi­fied solution here.

In sum, the conventional democratic legitimacy concerns with judicial review are genuine and powerful in the context of pervasive rights indeterminacy. Again, given this context, the argument that democratic legitimacy requires the reasonable view of a legislative majority to trump the reasonable view of a judicial majority seems compelling. Fallon and Kumm are correct that democratic legitimacy is not the only source or type of political legitimacy in constitutional democracies, but it is a critically important and presumptive one. Departures from it carry a strong burden of justification. If protecting against under-enforcement of rights and/or the requirement of reasonable public justification for legislative burdens on individuals are the potential bases for such a justified departure, the means of furthering these components of political legitimacy must be proportionate; in particular, they must promote their objectives in ways that least restrictively depart from the democratic legitimacy of electorally-accountable decision-making. Weak-form judicial review is that least restrictive means; strong-form judicial review is not.

Institutionally, then, the strengths of legal and political constitutionalism that the new model combines in its hybrid status are as follows. From the latter, it employs the benefits of the more unconstrained and all-things-considered legislative style of moral reasoning about rights both before and after the exercise of weak-form judi­cial review. As part of the “after,” of course, the new model also retains the possibil­ity of ultimate reliance on the principles of electorally-accountable decision-making and political equality. From legal constitutionalism, the new model first takes the enhancement of general rights-consciousness that generally comes with a specific and fairly comprehensive statement of legal rights. It then attempts to counter potential legislative under-enforcement of rights in part by empowering politically independent and unaccountable judges to give their considered opinions on the mer­its of rights claims filed by individuals, thereby providing a forum to critically assess the public justification of laws and bolstering the broader legitimacy of the political system.

At the same time, the new model also avoids or seeks to minimize the major weaknesses of both traditional models. From political constitutionalism, it counters the rights-relevant pathologies or blind spots to which electorally-accountable insti­tutions may be prone by, first, mandating rights consciousness and review in the legislative process itself and, secondly, establishing judicial review. Of the weak­nesses of legal constitutionalism, the new model counters certain judicial pathologies that may result in both the under- and over-enforcement of rights by not relying solely on courts for protection of rights but also on rights review and deliberation by the political institutions. This enables the benefits of legislative reasoning about rights to supplement the limitations of judicial rights reasoning. At the pre-enactment stage, this political rights review also introduces the advantages of ex ante regula­tion in addition to the ex post regulation of judicial review, which may help to pre­vent rights violations from occurring in the first place. And at the post-enactment stage, it permits the new model to neutralize legal constitutionalism’s democratic legitimacy problem.

As part of its hybrid nature, and like the analogous mixed economy, the new model not only selectively incorporates and combines certain existing features (i.e., the strengths) from each of the two polar ones whilst discarding others (the weak­nesses), but also revises them and in the process creates at least two wholly novel features that are not part of either traditional model. The normative appeal of these two exclusive features contributes substantially to the overall case for the new model. The first of these is the checking and alerting rights-protective roles of the courts compared to the full veto power of judicial supremacy just discussed in the context of Richard Fallon’s arguments. More akin to the delaying power of the UK’s second legislative chamber, the House of Lords, than the outright veto of the U.S. Senate - and for similar reasons of democratic legitimacy - one version of these more limited powers is institutionalized in the judicial declaration of incom­patibility, a novel judicial power when enacted as part of the HRA.^[162] The second exclusive feature is the new model’s dispersal of responsibility for rights among all three branches of government rather than its centralization in either the courts (judi­cial supremacy) or the legislature (legislative supremacy). It is achieved in the three sequenced stages of mandatory pre-enactment political rights review by the execu­tive and legislature, post-enactment judicial rights review, and post-litigation politi­cal rights review by the legislature. In this way, the new model not only produces a better, more proportionate general balance of power between courts and legislatures than the two more lopsided models of legislative and judicial supremacy, but also specifically with respect to the recognition and protection of rights.

This dispersal of rights responsibilities has the goal of fostering a stronger and deeper rights consciousness in all institutions exercising public power and is an essential part of the aggregate rights protective features of the new model. Overall, in the three following ways, it creates a different, and arguably more attractive, rights culture than the one produced under judicial supremacy. First, in the context of reasonable disagreement about rights, the dispersal rather than the concentration of responsibility is likely to affect the content of the recognized rights. This is due to both types of “judicial pathologies” about rights discussed above: (1) the artifi­cially and legalistically constrained nature of judicial reasoning about rights that largely excludes direct engagement with the moral issues involved; and (2) the greater diversity of views and perspectives that electorally-accountable representatives can openly bring to rights deliberations compared to the numerically smaller, cloistered and elite world of the higher judiciary. Secondly, in terms of procedure, rights discussions will be far more inclusive and participatory leading to greater rights consciousness among both elected representatives and electorate. In affirming rather than denying Waldron’s “right of rights” (Waldron 1998), the new model here institutionalizes a democratically legitimate rights regime. Thirdly, for standard checks and balances reasons the dispersal rather than the concentration of rights responsibilities reduces the risk of under-enforcement that comes with rely­ing exclusively on any one institution - whether courts or legislatures. As noted above, although better known, under-enforcement concerns are hardly limited to the legislature. The key innovation here is the distinctive new model feature of supple­menting ex post judicial rights review with ex ante political rights review by the executive and legislature. For its goal is to internalize rights consciousness within the processes of policy-making and thereby reduce or minimize rights violations in legislative outputs at the outset.

A final argument for the new model, at least as against legal constitutionalism, relates to judicial appointments. Under judicial supremacy, because of the power that they wield, the claim that constitutional court judges should have whatever partial or indirect democratic accountability they can be given is an irresistible one. As a result, judicial appointments to these courts become political appointments, with several variations in the precise mode of legislative and/or executive selection but in almost all of which political affiliation is taken into account.^[163] Yet, for some, observing constitutional court judges deciding important and close cases politically, along predictable ideological lines, is unedifying and problematic, and at least partly in tension with the very independence that the argument for judicial review centrally relies upon. To be clear, this practice does not necessarily affect one aspect or sense of judicial independence - that once in office judges are no longer beholden or answerable to politicians, although it may do where judges sit for renewable terms - but it does in the sense of having impartial, relatively disinterested, non­party political, or at least non-partisan, individuals appointed to judicial office in the first place. For others, the desirability or acceptability of political appointments to the constitutional judiciary is not intrinsic, something that is independently valuable or justified, but rather is instrumentally and essentially tied to the nature of judicial supremacy within a democracy.

Understandably, there have been calls for the new model jurisdictions to follow the same path. As judges now exercise powers of constitutional review, they too should be given whatever indirect democratic accountability is available through the practices of political nomination and public hearings.^[164] At the same time, this is anathema to many others within the Commonwealth common law culture in which the new model currently operates, given the longstanding official norms of merit, seniority and peer review for high judicial office and the irrelevance - indeed invisibility- of partisan political views and affiliations. The United Kingdom has recently moved even further in the direction of greater insulation from political fac­tors, and also greater transparency, by instituting the fully independent Judicial Appointments Committee to replace the opaque method of selection by the Lord Chancellor.

Depending on one’s point of view on this issue, one advantage of the new model is that, unlike judicial supremacy, it has the resources to resist this call for indirect democratic accountability and political appointments to the highest courts. This, of course, is the direct mode of democratic accountability for rights outcomes result­ing from the existence of the legislative power of the final word. Accordingly, there is no necessary requirement for the politically-tinged constitutional decision­making everywhere characteristic of judicial supremacy in practice. This can be left to the elected and accountable politicians under the new model. Here, by contrast, the designated task of the courts is to be as independent of political decision-making as possible and in all senses, to provide a complement rather than a supplement to such reasoning by bringing the best of the distinctive judicial technique, including its technical, impartial, disinterested and non-partisan nature, to bear on rights issues. To be sure, these norms are never fully realised in practice and the limita­tions of this technique speak against its automatically having the final word on contestable rights issues, but it is what justifies a judicial role in the process, if anything does. In short, the new model arguably provides the best of both worlds, and judicial supremacy the worst: more politically independent judicial reasoning and more direct democratic accountability for the ultimate resolution of rights issues versus politically-tinged and, at this point, wholly unaccountable judicial decisions that are final.

5.4