Encuadre IV: Personalidad

Ely fails to acknowledge that constitutional procedures embody political ideals whose meanings need to be progressively clarified in the course of democratic struggle. Bruce Ackerman therefore pro-poses to complement Ely’s backward-looking theory of judicial review with one that is more forward-looking. According to him, protecting democracy does not always require that judicial review be exercised to protect constitutional procedures against majorities.

Sometimes it requires that judicial review side with these majorities against these procedures. More precisely, Ackerman argues that during revolutionary periods, when the settled meaning of the con-stitution itself is being challenged by democratic supermajorities, judicial review must eventually reverse its function. Instead of appealing to settled procedure in checking the supermajority, it must eventually accept the supermajority’s mandate and abandon its backward appeal to a procedure that is no longer recognized as legit-imate by the supermajority.

Ackerman cites the New Deal as a case in point. He agrees with Ely that the Supreme Court advanced democratic values in uphold-ing the New Deal, but he disagrees with him about whether its douphold-ing so reflected a backward-looking or a forward-looking type of legit-imation. Ely thinks that Carolene Products reaffirmed procedural values whose priority over substantive property rights was already

implicit in the Constitution. These values revolved around a con-ception of equality: the extension of equal civil and political rights to all races and the extension of social welfare – necessary for robustly exercising these rights – to all persons. Prior to accepting this backward-looking democratic ideal, the Supreme Court actively promoted a forward-looking laissez-faire economic vision. This vision was not compelled by the Constitution, but by a pro-business political ideology that selectively interpreted the Fifth Amendment’s injunction – against depriving persons of property without due process and fair compensation – as an injunction against any kind of progressive social legislation.

Ely sees the Court’s New Deal reversal of its previous pro-business agenda as a return to constitutional basics. Following this change, the Court now exercised judicial review against the dom-inant business elite it had once supported. Ackerman, by contrast, interprets the Court’s switch as moving in the opposite direction – away from accepted constitutional procedure and toward a new political vision that actively broke with precedent. The old Court’s business stance was a reflection of accepted constitutional pro-cedure; the new Court’s rejection of that procedure reflected a revo-lutionary concession to a new political consensus.

Ackerman’s claim that judicial review combines both backward-looking and forward-backward-looking modes of legitimation is based upon his belief that the United States instantiates a dualistic form of democracy. Monistic democracy, exemplified by the British system,

‘grants plenary lawmaking authority to the winners of the last election’ to enact whatever policies they want (Ackerman 1991: 7).

Since there is no constitution limiting the power of the majority – only weak judicial review is exercised by the House of Lords – the majority in the British House of Commons can implement revolu-tionary changes regardless of whether these changes have wide support among the populace. Monistic democracy is thus a recipe for legislative tyranny. At the other end of the spectrum is rights-foundationalist democracy, exemplified by the German system. This system constitutionally entrenches, or removes from democratic amendment, all fundamental rights. It is therefore a recipe for judi-cial tyranny.

Monistic democracy reflects a forward-looking notion of legiti-macy; rights foundationalist democracy reflects a backward-looking one. Neither notion taken alone provides a satisfactory account of

legitimation. Monistic democracy is forward-looking in promoting the political articulation of freedom and equality. However, because it provides no reliable mechanism of judicial review, it permits tran-sient majorities to make sweeping changes in the content and scope of our basic rights. Hence, its decisions seldom rise to the level of a legitimating supermajoritarian consensus. Rights-foundationalist democracy, by contrast, provides for a mechanism of judicial review in its backward-looking emphasis upon fixed and unchanging rights.

Judicial review exercised in this manner checks majoritarian tyranny but prevents the ideal meaning of basic rights from unfolding in democratic politics. Dualistic democracy allows room for both backward-looking and forward-looking conceptions of legitima-tion. This feature is evident in the constitutional provision for amendment, which allows forward-looking democratic change that has met and survived the challenge of backward-looking judicial review.

During periods of intense moral crisis, American citizens find themselves torn from their self-interested complacency and political apathy. Under these conditions of revolutionary (or sovereign) democracy, citizens may come together as a People and speak for constitutional change with a united voice. After initially resisting this voice, the courts, Ackerman argues, should heed its mandate.

Conversely, during periods of normal democracy, when most citi-zens are too absorbed in their own private affairs to exercise sufficient vigilance over the political fortunes of their nation, the courts should function as ‘gatekeepers’ of democracy, protecting the Constitution from the tyrannical whims of transient majorities.

Under these conditions, invoking a backward-looking conception of democratic legitimacy of the rights-foundationalist type seems appropriate.

Ackerman’s compromise between judicial review and democracy appears to favour democracy. For, unlike Ely, he recommends weak-ening the backward-looking function of judicial review in times of revolutionary upheaval. Ackerman dislikes Ely’s idea that the defence of democracy always means the defence of accepted consti-tutional procedure. Accordingly he prefers popular democracy as the royal road to constitutional change, even going so far as to recommend the adoption of a new system for amending the Constitution. Following his proposal, the president – rather than two-thirds of both houses of Congress or two-thirds of the state

legislatures – would propose amendments that could then be sub-mitted directly to the voters for ratification in a popular referendum (ibid.: 54–5).

This proposal, Ackerman believes, is not as radical as it sounds, since it already conforms to the way in which Americans have changed their Constitution. The most important revolutionary changes made in the American Constitution over the last 150 years have had strong presidential and congressional – and, to a lesser extent, strong popular – backing. In all these cases the provisions for amendment contained in Article V of the Constitution, which required approval by three-fourths of all state legislatures, were bypassed. But Ackerman also concedes that the price for expediting constitutional change could be high. A religious leader riding the popular crest of Christian fundamentalist fervour could, as presi-dent, propose an amendment – later ratified by three-quarters of the voters in an election – declaring Christianity the official religion of the land (ibid.: 14).

3.4. CONSTITUTIONAL INTERPRETATION

In examining whether judicial review is compatible with democracy we distinguished between forward-looking and backward-looking ways in which judicial review might be legitimately exercised. Now we need to examine how these ways of exercising judicial review are related to different approaches to constitutional interpretation.

Many who think of judicial review as a backward-looking exercise are deeply worried about what is often referred to as judicial activism. Judges engage in activism whenever they interpret the Constitution so as to advance their own personal political agenda.

Those (like Scalia) who oppose judicial activism – so-called ‘strict constructionists’ – insist that judges should not read anything into the Constitution that isn’t already plainly there.

All judges are strict constructionists in practice but not necessar-ily in theory. For, as positivists argue, whenever the Constitution is silent on some crucial question, judges cannot avoid at least some-times reading things into it that aren’t already there. This is because the Constitution is a document whose use of highly abstract terms – such as life, liberty, property, equal protection, and the like – can mean many different things. Indeed, forward-looking approaches to judicial review, which are especially sensitive to the evolving

meaning of moral terms such as these, do add something to the Constitution, if only by way of clarification.

The question thus arises: is it theoretically possible for judges to be strict constructionists all the time? Is interpreting the Constitution in light of moral beliefs not expressly stated therein always activism? In short, what are the limits and possibilities of legitimate constitutional interpretation?