Benefits, risks and challenges of ‘open’ constitutional adjudication

When thinking about why constitutional judges may, or even should, take into account arguments and information beyond those put forward by the main parties to the proceedings, two reasons readily present themselves. These are linked, respectively, to the nature of the text to be applied and the identity of its principal interpreter. On the one hand, constitutions differ from ordinary legislation in that they are more than a supreme, positive, binding law; they also purport to give expression to political, moral and philosophical aspirations. Compared to ordinary statutes, constitutions include more provisions couched in open-ended language that permit multiple interpretations not strictly determined by one’s legal imagination. Limitation clauses of fundamental rights that refer to such notions as ’public interest’,1 ‘public morality’,[1] or ‘public order or safety’’ are a classic example. Sometimes the relative vagueness of constitutions reflects

Procedural Rules and Well-Informed and Responsive Judiciaries 85 the drafters’ inability to agree to more precise and prescriptive terminology. More often, it is a deliberate decision to give the constitution sufficient flexibility to speak to the myriad of existing and future social problems that it is expected to address.[2] It is by now trite that these increasingly involve technical or specialist questions that require knowledge of fields beyond the law such as biology, accounting, artificial intelligence, physics, or econometrics.

Even for problems that are not quite so scientific in nature, former justice of the German Federal Constitutional Court Hoffmann-Riem astutely cautioned that “In order to interpret and apply constitutional norms in a meaningful way, it is important to take into account empirical facts, historical experiences, prevailing paradigms, and the distribution of societal and political powers”. It cannot be assumed that those who have invoked the court’s jurisdiction and their opponents will always canvass the full suite of “empirical and prescriptive premises”. They may fail to realise that the judgment in their case affects other constituencies that hold different views or concerns; and if they are conscious of such a broader impact, they may lack the resources or incentives to tailor their submissions accordingly.

Why should we be concerned about this? This brings us to the elusive notion of legitimacy. Hoffmann-Riem captures the essence of this point well when he remarks that “Constitutional provisions very often concern fields where various interests clash and political controversies arise. Therefore, it is important to attempt to ensure that the interpretation and the application of the norm are acceptable not only to the parties to a dispute, but also to the general public, to political and economic actors, to lawyers, and to the scholarly community”.' If a court hands down judgments that are, or are perceived to be, out of tune with societal expectations or regularly misaligned with economic-political realities, it can lose the respect of its audiences who may decide not to give full effects to its rulings or ignore these altogether. Put differently, a court’s authority is bolstered when it is seen as responsive to the wider context in which constitutions operate.

Yet, it is clear that real judges fall short, sometimes significantly, of the ideal Herculean model described by Dworkin: superhuman, omniscient adjudicators possessing infinite competence, intelligence and resourcefulness. [3] While Hercules would have had the internal knowledge to supplement any omissions in parties’ submissions or correct any mistakes, real judges are likely to require assistance to approximate a complete understanding of the case and its likely ramifications. This is amongst others evident in the growing prevalence and acceptance of judges engaging with their foreign counterparts and case law to improve their understanding of the legal issues at stake. This perspective is essentially based on a ‘many minds argument’: infusing multiple perspectives helps to expand the argumentative legal terrain. This, it is hoped, should enable the court to produce ‘better’ decisions supported by more convincing reasoning. In a similar vein, the justification for a broad approach to the (non-legal) sources that feed into the judicial deliberative process ultimately boils down to the positive effect these can have for a court’s legitimacy.

There is an important procedural dimension to the apparent value of and need for interventions by non-parties and extra-legal factors that we should be sensitive to. Courts with a constitutional mandate can be accessed through a variety of avenues, including for the purpose of querying the validity of statutes. Professors Groppi and Lecis analyse the ItCC’s approach in the context of incidental review, a limitation that they justify by pointing to the fact that “it is the core of the Italian system of constitutional justice”.11 This procedure is also known as the preliminary reference procedure, and involves constitutional questions being identified and litigated during an ordinary lawsuit before a regular court. When the validity of the legislation to be applied is deemed dubious, this issue is certified to the

Procedural Rules and Well-Informed and Responsive Judiciaries 87 constitutional court in recognition of its role as the country’s authoritative interpreter of the constitution. The preliminary reference procedure is by no means unique to Italy. On the contrary, countries that subscribe to the centralised model of constitutional adjudication, usually provide for this access route.[4] At the same time, there can be other ways to get a court to review legislation for its constitutionality. Abstract challenges are a particularly popular alternative option. As their name suggests, these do not require an actual case or controversy: they can, and often are, brought before the statute is promulgated or shortly thereafter.

Importantly, the various procedures to impugn a statute feature different types of parties and do not presume a single, uniform context for constitutional problems to rear their head. In evaluating the merits of inviting additional parties or soliciting more information, we should accordingly be clear about the identity of the parties directly involved in the proceedings and the considerations they can be expected to advance. In other words: what interests will they represent that may need to be counter-balanced, supplemented or contextualised by other views?

Under the preliminary reference procedure, a central role is played by regular judges and private parties. The former are officially the constitutional court’s interlocutors and act as gatekeeper by deciding when to certify the constitutional issue and how the challenge to the statute’s validity is formulated, thereby shaping the parameters of the inquiry. The regulatory framework governing the initiation of preliminary reference proceedings typically does not specify at what point the constitutional court must be engaged. The only logical prerequisite is that this must happen before the regular judge hands down her judgment. It is, however, commonly required that the regular judge must have real concerns about the constitutionality of the legal norm or that the constitutional question is a serious one. This makes it prudent to only make the referral once the proceedings are quite advanced and detailed submissions have been made on thispoint. In cases that call for the use of experts, it would be sensible to wait until they have been consulted so that their views can be taken into account and reflected in the file that will accompany the reference. In such situations, there would be less of a need for the constitutional court to also use its own power (where this exists) to appoint experts.

In addition, the focus of preliminary questions will be on the manner in which a statute is applied to identified persons or entities. In their submissions, the parties will accordingly place the alleged constitutional defect within its social, real-world context rather than emphasise considerations of political desirability or abstract points of a legal-theoretical nature. The setting of an ordinary dispute further increases the likelihood of there being specific individuals or corporate entities who are not a party to the proceedings, but whose rights or interests may be affected by the judgment. These are third parties in the way the term is understood in typical private or administrative adjudication. To the extent that the (civil, criminal or administrative) procedural framework governing the main dispute allows such parties to make representations to the deciding regular judge, it would seem both logical and fair to extend their right to do so to the constitutional portion of the proceedings.

It should be noted here that the government is not systematically a party to preliminary reference cases, as many of these will involve two (or more) private individuals or corporations. In these situations, there are, however, good reasons for a constitutional court to invite the government and other public institutions to make representations. The government’s role in the preparation of the statute under scrutiny means that it has a unique understanding of the impetus for the statute’s adoption, the mischief it is intended to address, and the political and financial considerations that explain why solution A rather than solutions B through E was chosen. Furthermore, if the regime on locus standi before the regular courts is generous, cause lawyers and interest groups can strategically use litigation to mount constitutional challenges and in so doing, vindicate the interests of certain segments of society. They will, naturally, champion these particularistic concerns in their presentation of the issue. As Owen Fiss has pointed out, using the example of entitlements to welfare benefits in the US context, “the Court’s perspective must be systematic, not anecdotal: The Court should focus not on the plight of four or five or even twenty families but should consider the welfare system as a whole - a complex network embracing millions of people and a host of bureaucratic and political institutions”. Extending a right to be heard to the government and other stake


O. FlSS, The Law as It Could Be, New York, New York University Press, 2003, 218-219.

holders with a public mandate ensures that the constitutional judges adjudicating preliminary reference questions remain attentive to the larger picture and are not swayed too easily by the dramatic circumstances of a specific case.

In contrast, abstract constitutionality challenges are usually brought by a range of public institutions, such as the (federal and federated) govern-ment(s), a qualified parliamentary minority or the prosecutor general. The government will always be involved, either initiating the constitutional litigation or defending the statute’s validity against an attack mounted by another State organ. The dominant role of public institutions means that submissions in the course of abstract review proceedings will be coloured by party concerns and political beliefs. They can be expected to refer to the generalised, empirical, non-legal data that has been collected in support of the statute as it made its way through the legislative process. Put differently, abstract constitutionality challenges are not designed to draw the court’s attention to the social circumstances in which legislation operates and the impact it has on the lives of individuals in the same way that preliminary reference procedures are. This is all the more so when countries allow such challenges to be filed a priori, so before the statute is promulgated and can generate effects 'on the ground’, as is possible in France, Hungary and Poland. Matters are admittedly somewhat different in countries that allow institutions with a clear public interest function to trigger abstract review, such as the Ombudsman (e.g. Spain, Portugal, Hungary) or trade unions and professional associations (e.g. Poland, Slovenia).

It should further be remembered that most constitutional courts carry out functions other than keeping the legislature in check by verifying the constitutionality of statutes. Their additional powers can range from resolving competence disputes between different echelons or branches of the State to ruling on the impeachment of key officials to supervising the integrity of elections to deciding to ban political parties.

In short, the different tasks involve different types of parties to the dispute, different kinds of constitutional questions, and different constitutional provisions that are likely to take centre stage. To concretise: when a court is asked to rule that the central level has encroached upon the powers of the subnational entity, the matter will be litigated by the federal and relevant federated executives, who will argue their claim on and provide evidence pertaining to the requirements of the constitution’s vertical competence catalogue, rather than say, the bill of rights which in contrast tends to feature prominently in constitutional complaint proceedings or preliminary


A good overview is offered by T. GINSBURG, Z. ELKINS, Ancillary Powers of Constitutional Courts, in 87 Texas Law Review 1431 (2008).

reference questions.[5] The assumption will be that individuals or groups representing a collective interest have no obvious role to play in the context of such competence allocation litigation. In the same way, their participation would not be expected to make a helpful contribution to the judicial deliberations when a court is asked to determine that the president has forfeited her office due to unbecoming conduct. Relatedly, the information needed to decide whether the president has engaged in ‘high treason’ (e.g. Italy, Czech Republic) is of a qualitatively different nature than that required to determine whether someone has been validly elected to parliament (e.g. Germany, France). The implication that the reality of the multipurpose court has for the procedural regime for extrinsic submissions and extra-legal considerations should be clear: those studying this dimension of constitutional adjudication should neither expect nor encourage a one-size-fits-all framework.

Finally, we should be mindful of the possible risks attendant on opening constitutional proceedings to a wide spectrum of parties and insights. First, the court will need resources to work through the additional submissions and information. This may require it to hire more supporting personnel if its budget would allow for this or, more likely, re-allocate existing staff to the possible detriment of the court’s other needs. The judges will need to set aside more time to study the supplementary briefs and materials, which probably means a longer interval between submissions and hearings and the delivery of the judgment. Those having prepared the interventions would also expect the court to engage with the argument and data put forward therein. When the court heeds such expectations, the length of decisions will increase and so does the workload of those in charge of editing and translating (again: a resource issue); when it would not, the social acceptability of its decisions could suffer.

Second, the court might be ‘captured’, or perceived to be, by certain groups or interests. This connotes the situation in which entities or collectives whose concerns may be affected, but not directly determined by the judgment can make submissions during the adjudication of a constitutional issue with general societal relevance. Although the possibility to intervene will typically be open to all constituencies with a potential interest in the matter, we cannot assume that each and every one of these will do so or do so effectively. Yet again, this is a question of resources, combined with variations in the degree of institutionalised representation of interests. Corporations, for instance, have sufficiently deep pockets to prepare high-quality interventions in all cases that may impact the business environment. Moreover, they are typically united in industry associations which allows them to more effectively convey their concerns and preferences to different State organs - the courts included. Likewise, professions such as accountants, doctors, lawyers and the like are regulated in most countries. This means that there will be a national association that can claim the mandate to speak with a single voice on behalf of these practitioners and which moreover will have developed considerable experience in doing so.[6]

This may be different for more vulnerable constituencies like consumers, migrants, or minorities. Their rights are often championed by a multitude of smaller advocacy groups whose focus and arguments need not point in the same direction. Their budgets are often smaller as well, consisting mainly of voluntary donations rather than compulsory membership fees. Thus, the external submissions that the court receives may not cover the full spectrum of views on the constitutional issue before it or exhibit the same level of internal cohesion and calibre in the way arguments are presented.

To be fair, the common requirement that would-be interveners need the court’s permission before filing briefs (more on this below) is intended to attenuate the resultant risk of judges unintentionally or unconsciously privileging certain interpretations of the general interest over others. Having said that, this requirement cannot satisfactorily address the point about the cogency and persuasiveness of submissions by auxiliary parties. Furthermore, there is nothing to prevent advocacy groups and other interested constituencies from sending in unsolicited briefs despite not having received judicial permission to do so.

  • [1] E.g. Dutch Constitution, Art 14; Czech Constitution, Art. 11(4). 2 E.g. Italian Constitution, Arts. 19 and 21; Polish Constitution, Art. 45(2). 3 ’E.g. German Basic Law, Art 13(4), Spanish Constitution, Section 16(1).
  • [2] Flexibility and generality have been identified as possible factors to boost a constitution’s longevity: Z. Elkins, T. Ginsburg, J. Melton, The Endurance of National Constitutions, Cambridge, Cambridge University Press, 2009, 81-92. 2 W. Hoffmann-Riem, Constitutional Court Judges’ Roundtable: Comparative Constitutionalism in Practice, in 4 International Journal of Constitutional Law 556 (2005), 559. 3 Ibid., 558. ' Ibid., 557. See also the fascinating account by Georg Vanberg on the influence of public support on the attitude of Germany’s constitutional judges: G. VANBERG, The Politics of Constitutional Review in Germany, Cambridge, Cambridge University Press, 2005. One of those interviewed explained that “there cannot be a long-running divergence between the views of the public at large and the jurisprudence of the court. The court must be carried by a consensus of the citizens. ... Every citizen has certain ideas about what the Basic Law is supposed to guarantee, and you can’t depart too far from that. The decisions have to be understandable and acceptable”.
  • [3] 2 Law’s Empire, Cambridge, Harvard University Press, 1986. 3 ’Amongst many others, see T. GROPPI, M.C. PONTHOREAU (eds), The Use of For 4 eign Precedents by Constitutional Judges, Oxford, Hart Publishing, 2013; M. BOBEK, 5 Comparative Reasoning in European Supreme Courts, Oxford, Oxford University Press, 2013. 6 For versions of this argument, see e.g. A. VERMEULE, Many-Minds Arguments in Legal Theory, in 1 Journal of Legal Analysis 1 (2009); C. SUNSTEIN, A Constitution of Many Minds, Princeton, Princeton University Press, 2009. 7 See T. Groppi, A.M. Lecis Cocco Ortu, in this book.
  • [4] 2 the Czech Republic, France, Germany, Hungary, Latvia, Lithuania, Luxembourg, Po 3 land, Romania, Slovakia, Slovenia and Spain. 4 For a more detailed discussion, see M. DE VISSER, Constitutional Review in Europe -A Comparative Analysis, Oxford, Hart Publishing, 2013, 99-128. '■*But see Organic Law 2/1979 on the Spanish Constitutional Tribunal, Art 35(2) (“The judicial body may raise the question only on completion of the proceedings and within the prescribed deadline for delivering its judgment”). 15 This is the case, amongst others, in Spain (Organic Law 6/1985 on the Judiciary, Art 5(3); Gennany (Law on the Gennan Federal Constitutional Court, §80(2) and BVerfG, 2 BvL 3/02 (2009)) and France (Ordinance no 58-1067 on the French Constitutional Council (as amended), ss 23-2 and 23-4).
  • [5] In France, the rules governing this procedure even explicitly limit the grounds of review that can be used to challenge statutes through the preliminary question mechanism to those parts of the bloc de constitutionnalité that guarantee fundamental rights and liberties. 2 Cf. KJ. LYNCH, Best Friends? Supreme Court Law Clerks on Effective Amicus Cu
  • [6] Ibid., 50-51 (“Sixteen per cent of clerks specifically cited the briefs of the American Medical Association, the American Psychological Association, and American Bar Association as consistently trustworthy”). 2 See e.g. UK Supreme Court Practice Directions, Rule 8.8.1; Rules of the Canadian Supreme Court, Rule 55; US Supreme Court, Rule 37(2).
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