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Constitutional Reasoning and Political Deliberation

Published online by Cambridge University Press:  06 March 2019

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In the recent Anglo-American scholarly debate, contrary to that of continental Europe, judicial review of legislation raises strong criticism for various aspects. Among these, I will examine the claim that legislators are better equipped than courts in constitutional reasoning, on the ground that the institutional settings and procedures affecting the former ensures a better protection of rights than those that characterize the judicial function. The following questions will be posed: Do legislators primarily deal with rights as such? Do they reason about rights, and in that case for which purposes? Are these purposes sufficiently similar to those affecting the judicial reasoning about rights? Why in most legal orders courts are bound to reason-giving? While answering these questions, I will outline the different meaning that consequentialist reasoning is likely to acquire, respectively, in representative assemblies and on the bench. I will then classify the kinds of juridical consequences, and of the corresponding premises, that might affect constitutional reasoning according to the different weight of judicial construction. Finally, I will attempt to demonstrate why the indeterminacy of principles on which constitutional reasoning is expected to rely should be viewed as enhancing, rather than as distorting, the insight of courts on the right at stake.

Type
Part A: Political Theory and Constitutional Reasoning
Copyright
Copyright © 2013 by German Law Journal GbR 

References

1 See, e.g., Mark Tushnet, Taking the Constitution Away from the Courts (1999); Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (2004).Google Scholar

2 Waldron, Jeremy, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1360 (2006); see also Bellamy, Richard, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy 48 (2007).Google Scholar

3 Bellamy, , supra note 2, at 37.Google Scholar

4 Waldron, , supra note 2, at 1370.Google Scholar

5 Waldron, Jeremy, Judges as Moral Reasoners, 7 Int'l J. Const. L. 2, 19 (2007).Google Scholar

6 Id. at 23.Google Scholar

7 The premise is shared even by some opponents of the thesis. See, e.g., Richard H. Fallon Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693, 1695 (2008).Google Scholar

8 Beaud, Oliver, Reframing a Debate Among Americans: Contextualizing a Moral Philosophy of Law, 7 Int'l J. Const. L. 53, 63 (2009).Google Scholar

9 Ronald M. Dworkin, A Matter of Principle 11 (1985).Google Scholar

11 Waldron, , supra note 2, at 1375.Google Scholar

12 Id. at 1370.Google Scholar

13 Id. at 1378.Google Scholar

14 See Stephen Holmes & Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes 41 (1999) (explaining how this not only, and not necessarily, includes social rights).Google Scholar

15 Waldron, , supra note 2, at 1385; but see Bellamy, supra note 2, at 124.Google Scholar

16 Id. at 1385.Google Scholar

17 Id. at 1385.Google Scholar

18 Id. at 1383.Google Scholar

19 Id. at 1385.Google Scholar

20 Neil MacCormick, Rhetoric and the Rule of La: A Theory of Legal Reasoning 104 (2005).Google Scholar

21 Jowell, Jeffrey, Of Vires and Vacuums: The Constitutional Context of Judicial Review, in Judicial Review and the Constitution 331 (Christopher F. Forsyth ed., 2000).Google Scholar

22 Bellamy, , supra note 2, at 37.Google Scholar

23 Hart, Herbert L.A., The Concept of Law 127 (1961).Google Scholar

24 See MacCormick, , supra note 20, at 170.Google Scholar

25 Waldron, , supra note 2, at 1382.Google Scholar

26 Id. at 1384.Google Scholar

27 Cserne, Péter, Policy Arguments Before Courts: Identifying and Evaluating Consequence-Based Judicial Reasoning, 3 Human. j. Eur. Stud. 9, 13 (2009), available at http://works.bepress.com/peter_cserne/53/.Google Scholar

28 MacCormick, , supra note 20, at 104.Google Scholar

29 Id. at 105.Google Scholar

30 Id. at 109.Google Scholar

31 Luhmann, Niklas, Legal Argumentation: An Analysis of its Form, 58 Mod. L. Rev. 285, 297 (1995).Google Scholar

32 Postema, Gerald J., Melody and Law's Mindfulness of Time, 17 Ratio Juris 203, 213 (2004).Google Scholar

33 Alexy, Robert, A Theory of Constitutional Rights 47–48 (2002) (emphasis omitted).Google Scholar

34 Id. at 86.Google Scholar

35 Michelman, Frank, Law's Republic, 97 Yale L.J. 1493, 1528 (1988).Google Scholar

36 Luhmann, Niklas, Operational Closure and Structural Coupling: The Differentiation of the Legal System, 13 Cardozo L. Rev. 1419 passim (1992).Google Scholar

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