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During the late twentieth century, first policy-makers, then students of constitutionalism, came to understand that pervasive corruption undermines constitutional democracy.1 Corruption at the street level – police officers who respond to complaints and civil servants who process claims only after receiving bribes – undermines citizen confidence that their government can deliver anything worthwhile.2 Corruption at the highest levels, this chapter’s focus, breaks the connection between elections and policy outcomes. By the late twentieth century, the project of fighting corruption had become an important component in democracy promotion and, by extension, in constitutional design.
Audit agencies are among the oldest fourth-branch institutions. Their primary mission has always been to track the use of public money. Sometimes the payments are “merely” wasteful: the official making them paid too much because he did not take the time to look for cheaper sources of the goods or services. Here auditors detect government inefficiency. At other times, auditors detect some important forms of fraud: payments to cronies and payments for work not done, for example.1
Malaysia 2018. From independence in 1957 until recently, Malaysia was a “competitive authoritarian” state whose political system was dominated by an alliance known since the 1970s as the Barisan National (BN). The BN controlled all national political institutions, including the national Election Commission. The Commission determines district boundaries and supervises the conduct of elections. By the early 2010s, the BN’s dominance was fraying because of internal divisions and the increasing consolidation of a single opposition group.
As we have seen, Kelsen identified a fourth function of government, preservation of the constitution, and assigned it to a new institution, the constitutional court. The reason was that in a party-political world neither the legislature nor the executive could be trusted to perform the function except under specific, and probably unusual, conditions. Absent those conditions, legislatures controlled by one party would not investigate threats to the constitution posed by an executive of their own party, and would exaggerate the threats posed by an executive of the opposition party – and conversely, with executive oversight of threats posed by the legislature. Call this a problem of conflict or convergence of interest.
What design choices do constitutional framers actually make? Of course, one could simply compile constitutional provisions to find out, but it would be helpful to have some sort of classification. The functional argument for IPDs suggests some possibilities, allowing us to distinguish among IPDs and identify choices made about their powers, methods of appointment, required qualifications, and the like.
Contemporary constitutional design probably includes IPDs on the list of best practices. In a party-political world, which is to say, in today’s constitutional world, the case for creating IPDs to complement the traditional Montesquiean branches rests on seemingly cogent theoretical and functional arguments. Examining IPDs in design and operation, though, might lead to some troubling conclusions: that they don’t systematically improve the quality of constitutional democracy beyond the level generated by the traditional branches; that their functioning is so dependent upon local circumstances and contingencies that there are few lessons to be learned from them; that their performance may depend upon the overall party system within which they operate; and, troublingly, that they might work best in systems where they are least needed (those with stable competitive parties or dominant parties with stable programmatic factions) and even in those systems might actually weaken the Madisonian mechanisms of constitutional guardianship.
Chapter Nine of South Africa’s Constitution is titled, “State Institutions Protecting Constitutional Democracy.” Its list of institutions that “strengthen constitutional democracy” includes the public prosecutor, the Human Rights Commission, the auditor-general, and the Electoral Commission.1 Seen in the context of the Constitution’s written text, these institutions form a branch on a par with Parliament and the president.
Constitution designers can identify from local and worldwide experience some general threats to constitutional democracy: conflicts over election outcomes, for example, or corruption at high and low levels.1 Their local knowledge can give them some sense of how important each type of threat might be for the systems they are designing. Variations in the types and severity of threats mean that designers must make choices: there is no one-size-fits-all “fourth branch” or any of its components. (That point should be obvious when we note the rather wide range of choices made in designing constitutional courts.)
Constitutional theory dating to Montesquieu identified three branches of government, each with a specific function: the legislature enacted general rules, the executive enforced the rules, and the judiciary resolved disputes about the rules’ meaning and application. Every government had to have these branches in some form; that is, the branches were necessary elements in a governance structure. In addition, the branches were exhaustive; that is, taken together they did everything a government could do.1
Twenty-first-century constitutions now typically include a new 'fourth branch' of government, a group of institutions charged with protecting constitutional democracy, including electoral management bodies, anticorruption agencies, and ombuds offices. This book offers the first general theory of the fourth branch; in a world where governance is exercised through political parties, we cannot be confident that the traditional three branches are enough to preserve constitutional democracy. The fourth branch institutions can, by concentrating within themselves distinctive forms of expertise, deploy that expertise more effectively than the traditional branches are capable of doing. However, several case studies of anticorruption efforts, electoral management bodies, and audit bureaus show that the fourth branch institutions do not always succeed in protecting constitutional democracy, and indeed sometimes undermine it. The book concludes with some cautionary notes about placing too much hope in these – or, indeed, in any – institutions as the guarantors of constitutional democracy.
The World Justice Project publishes a “Rule of Law” Index. For 2016 the nations with the highest scores were Denmark, Norway, and Finland. Germany outranked Singapore, which in turn outranked the United States. Russia and Ecuador were tied at the relatively low 45th position, but both were above Bolivia (104) and Venezuela, which came in dead last. The Index attempts to measure compliance with what its sponsors identify as “universal principles of the rule of law.” These are that “[t]he government and its officials and agents as well as individuals and private entities are accountable under the law,” that “laws are clear, publicized, stable, and just, are applied evenly, and protect fundamental rights, including the security of persons and property,” that “[t]he process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient,” and that “[j]ustice is delivered by competent, ethical and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.”1 Some of these universal principles replicate in other terms Lon Fuller’s famous list of elements of the rule of law; others go beyond Fuller’s minimum requirements.
This chapter uses examples from the United States to sketch these and other aspects of toweringness as a relational concept. It examines toweringness as a relation between one judge and his or her colleagues, using brief case studies from the New Deal era, which show judges as dependent upon the historical circumstances in which they find themselves, and a case study of the relation between William J Brennan and Earl Warren, showing an aspect of a court’s bureaucratic or institutional organization with a discussion of law clerks and opinion-drafting, and as subject to re-evaluation using Felix Frankfurter as an example.
This Chapter questions whether there is a “doctrine” of proportionality. By “doctrine,” a way of dealing with problems across a range of problems. Using the country studies presented in this book, the chapter identifies a number of reasons for thinking that there is – and perhaps cannot be – such a doctrine. First, the components of proportionality are elements in any reasoned explanation for an outcome in a constitutional case; as a result, “hints” of proportionality analysis in cases not using its structured version may not in fact illustrate proportionality analysis at all. Second, courts allocate different analytic methods to different domains; as a result, proportionality analysis and categorical analysis co-exist in the system as a whole. Third, something like a categorical analysis is likely to appear at the “less restrictive alternatives” stage of proportionality analysis. Finally, even systems committed to proportionality analysis might find themselves eventually adopting some categorical rules as a means of achieving better results overall than proportionality would produce directly. The Chapter concludes with some observations about the role that structural, educational, and political contexts play in the choice between categorical and proportionality analysis.
The legal philosopher H. L. A. Hart wrote a widely cited article with the subtitle ‘The Nightmare and the Noble Dream’. For Hart the nightmare was American Legal Realism's claim that legal doctrine had no determinate content, that every judicial decision was ‘an uncontrolled act of lawmaking’, while the noble dream was Ronald Dworkin's hope that all serious legal questions had a single correct answer compatible with morality's dictates. Although Hart was not explicit, he hinted that, should jurisprudes wake from their sleep, they could have a view of the judicial process as neither a nightmare nor a noble dream, but as a realistic human enterprise suitable for workaday use.
In this brief chapter honouring the work of Upendra Baxi, I argue that the pursuit of judicially enforced social welfare and equality rights in the modern world is both a nightmare and a noble dream, that in contemporary circumstances the effort to enforce social welfare rights in the courts is bound to fail but must be pursued. I note at the outset that this chapter is not an exegesis of Baxi's work, nor a self-conscious effort to extend it. Rather, I offer my own reflections on some issues to which Baxi has paid attention.
I begin with social welfare rights even though they are typically described as ‘second generation’ rights with a more recent origin than equality rights. The reason is that the argument I develop to explain why judicial enforcement of social welfare rights is a nightmare transfers to the equality setting, but is more difficult to develop from the ground up in that context.
The Limits on Judicial Enforcement of Social Welfare Rights
The Mexican Constitution of 1917 was the first to include social welfare rights. It was assumed then and for several decades thereafter that these rights provided political guidance to legislators but were not judicially enforceable. That understanding was widespread but not, I think, deeply theorized. It seems to have arisen in part from a sense that the ways in which social welfare rights would be provided were highly various and subject to largely discretionary political choices: Social democrats had their policy proposals for realizing social welfare rights, liberals their own different proposals, and communists yet another set.
Contemporary discussions of populism elide important distinctions between the ways in which populist leaders and movements respond to the failures of elites to follow through on the promises associated with international social welfare constitutionalism. After laying out the political economy of populisms’ origins, this Article describes the relation between populisms and varieties of liberalism, and specifically the relation between populisms and judicial independence understood as a “veto point” occupied by the elites that populists challenge. It then distinguishes left-wing populisms’ acceptance of the social welfare commitments of late twentieth century liberalism and its rejection of some settled constitutional arrangements that, in populists’ views, obstruct the accomplishment of those commitments. It concludes with a description of the core ethnonationalism of right-wing populism, which sometimes contingently appears in left-wing populisms but is not one the latter’s core components.
An international consensus on the content of domestic constitutional law has structural ‘rights’-related components. The former requires roughly democratic systems for choosing representatives/executives. The consensus favours some forms of judicialised constitutional review, though the precise form is open to choice. The rights component includes a standard list of ‘core’ civil rights, including in this category equality along a number of dimensions – though not class or income. The rights-component is fundamentally neo-liberal. This is clearest in connection with ‘second generation’ social and economic rights, which – the consensus holds – can be recognised in a constitution but should not be vigorously enforceable (in systems where there is judicial enforcement of constitutional rights). The rights of free expression and political association must be specified in ways that allow political challenges to be mounted against efforts – including legislative programmes of political parties that control governments – to resist the neo-liberal policy agenda. Departures from this consensus are described as departures, not from ‘neo-liberal’ or even ‘liberal’ constitutionalism, but as departures from constitutionalism as such. We could ‘thin down’ the idea of constitutionalism quite a bit without abandoning constitutionalism’s core commitment to avoiding arbitrary government action.
The first generation of constitutional courts often plays a heroic role in constitutional construction, in part because there is much work to be done and in part because political reasons often lead to staffing these courts with extraordinarily talented individuals. Succeeding courts are often less distinguished, in part because there is less important work to be done, and in part because the first generation courts may have taken actions against the nation’s political leadership that generates a backlash against the courts. Sometimes that backlash leads to the deliberate selection of less talented judges for positions on the constitutional courts. In addition to backlash, successor courts may simply illustrate regression to the mean – the replacement of extraordinary judges with ordinary ones, simply because that is what one would predict about any selection process. These considerations suggest the importance of thinking about “judicial time,” the pace at which courts change, in relation to political time, the pace at which governing political coalitions change.