Constitutionalism position to resist political pathologies, they may be

Constitutionalism is the scope and modes of government power, in particular the constraints that is placed upon it in order to protect the individual and collective liberties of its citizens. It has traditionally taken two distinct and polar institutional forms, legal and political. In a legal constitutionalism system, these limits, and rights in particular, are or should be predominantly legal in nature. They are often enshrined in a piece of legislation that is given superior status and cannot be changed by ordinary political means. Judges are responsible for upholding these rights through strong judicial review. They have the power to declare legislation unconstitutional and refuse to apply it in particular cases. In this way judges are appointed almost as a ‘Moral Arbiter’. As Judges are given the final authority in this way, they are often said to be judicially supreme within a legal constitutionalism system. The USA is a paradigmatic case of this form of constitutionalism. 

Legal constitutionalists strongest argument is the public consciousness and recognition of rights due to having a codified statement of rights and liberties, this creates more transparent and visible rights, more part of the general consciousness, which in turn offers more protection. Due to courts being politically independent and unelected, they are in a better institutional position to resist the pathologies that will undoubtedly effect politically accountable legislatures and executives. In this way they can protect the under-enforcement of the individual rights of minorities. They also ensure the legitimacy of the legislation parliament is producing, and allow individuals to request that the government provide a reasonable public justification for breaching their rights, not relying on any discrimination, otherwise the legislation is rendered illegitimate. 

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On the other hand, although courts may be in a positive position to resist political pathologies, they may be subject to certain judicial pathologies. There is a clear lack of diversity among the elite members of the higher judiciary. Another weakness of this form of constitutionalism is that giving judges the strong interpretative powers, and powers to strike down legislation is entirely against the legislatures intention could completely undermine political legitimacy in what is supposed to be a democratic society. Arguably judges, with no policy expertise, should not be able to make policy decisions and undermine parliaments wishes, who are elected by popular vote. This is widely believed to be the biggest disadvantage of legal constitutionalism, also known as the ‘counter-majoritarian’ difficulty. 
Ex post regulatory mechanisms are also obviously less appealing than ex ante ones, because in most situations the law will not be challenged until some damage has already been caused.

By contrast, the polar opposite form of constitutionalism, is political constitutionalism. In political constitutionalism constraints on government power, as well as protection of individual rights and liberties, are or should be predominantly political in nature. The legislature have the final authority, meaning they have legislative sovereignty. Judges do not have the power to review legislation, and rights are often contained in an Act of Parliament, which can easily be amended by ordinary political means. The United Kingdom, was a strong example of political constitutionalism before the enactment of the Human Rights Act (1998). 

An advantage of this form of constitutionalism is that it coheres easily with democracy being the basis for the organisation of the governmental power it is limiting. This is because it enforces these limits through electoral accountability and structural checks and balances. Legislative reasoning may also be superior to legal and judicial reasoning. Jeremy Waldron makes a strong argument that direct focus on the moral and policy issues, free of legal, legality, and fact particularity concerns is required when rights are concerned. Electorally accountable representatives bring a greater diversity of views and perspectives than the elite world of the higher judiciary. However, political constitutionalism comes with the risk under enforcing constitutionalist limits on governmental power, particularly when concerning the individual rights of minorities. This is the result of various ‘pathologies’ to which legislatures and executives may be prone to, because they are elected. We have seen through numerous decisions of the domestic and international courts that political accountability is insufficient to ensure burdened individuals are provided with the reasonable justification to which they are entitled. Such as in the case of R v Brown, in which a minorities (homosexual men) rights were not recognised.

As a result of mutually reinforcing developments in both practice and theory, it has been suggested that the United Kingdom is straying from its strong political constitutionalism stance associated with its traditional model of parliamentary sovereignty. Some of these well-known developments are the enactment and subsequent application of the Human Rights Act (1998), the legal consequences of membership of the European Union and the ECHR. 

As a solution to widespread debate Steven Gardbaum proposed a ‘third-way’ form of constitutionalism. After observing the innovations in the constitutional design in the Commonwealth countries of Canada, New Zealand and the United Kingdom, he moulded a model of constitutionalism designed to sit between the two polar opposites of constitutionalism. Gardbaum claimed the new commonwealth model would take the positives of both legal and political constitutionalism, whilst avoiding the negatives. He claims his model will recalibrate these two existing choice options by relocating the power between the judiciary and the political branches – adding to judicial power if starting from political constitutionalism, and removing from it if starting from legal constitutionalism). This will bring them into greater balance and denies too much power to either, ultimately creating a better working co-existence between the democratic self-governance and the constraints of a constitutionalism, the twin concepts of underlying constitutional democracy. He suggests this is achieved by a ‘unique blending and sequencing’ of political and judicial rights review, under a codified bill of rights. 

This is proposed to be done in three stages, the first being mandatory pre-enactment political rights review. This requires both elective branches of government, the executive and the legislature, to engage in the rights review of a proposed statute, before and during the bills legislative process. This is formalised, mandatory and deliberate, as opposed to voluntary and more relaxed within a more political constitutionalism model. Gardbaum argues this is a direct alternative response to the standard concerns of the ‘majoritarian-difficulty’ by transferring some of the responsibility for rights protection from the external and more indirect mechanism of judicial review, back to the legislature themselves. There is hope that this will create a ‘stronger and deeper rights consciousness in all institutions exercising public power’. In the United Kingdom government ministers are also required to make a statement when introducing a bill, as to whether it is compatible with the HRA, with a further in depth report available if required. 

The second stage, is weak-form judicial rights review, decoupling judicial review from judicial supremacy. Gardbaum does not want to remove judicial review, as it serves an important purpose by opening up a line of dialogue for rights related issues. He differentiates weak judicial review from strong because although a court can make a declaration of incompatibility in the UK under s4 Human Rights Act (1998), they cannot strike it down. Judges are also given additional enhanced judicial powers in order to protect and enforce rights, such as the power of interpretation under s3 Human Rights Act (1998), which requires courts to interpret domestic law in a way that is compatible with convention rights ‘as far as is possible to do so’. The Canadian Charter similarly grants courts the right to declare laws unconstitutional. These powers are far stronger than any powers granted to the courts in the traditional perspective of parliamentary sovereignty, however, the legislature retain the final authoritative word on the situation. 

The final stage is post enactment political rights review, this is where the legislature may exercise its power of the final word. Declarations of incompatibility from UK courts are by no means binding on the legislature, and they may completely disregard the courts recommendations if they wish to do so. The Canadian Parliament can famously legislate with a ‘not withstanding’ clause under s33 of the Charter, allowing them to override certain parts of the Charter. The legislature has the power here to enforce any disagreement with the courts, and so has the ultimate final say on what the law of the land is, by majority vote. Gardbaum distinguishes this third stage as ‘the most distinctive’ of the three because, ‘the function performed by the third stage is the key one of decoupling constitutional review from judicial supremacy of permitting the legislative view about rights to prevail over the expressed judicial one.’

Despite Gardbaum offering an appealing model of third-way constitutionalism, many scholars, including Aileen Kavanagh argue that it is just that, a ‘model qua model’ that has failed to become a ‘model in practice’.

The notwithstanding clause under the Canadian Charter has never been used at federal level. Additionally, past and current Prime Ministers have promised not to make use of it, because of the high political cost it incurs. Similarly, in the UK, there has been an almost complete rate of legislative reliance with declarations of incompatibility. Parliament has amended all legislation in light of decisions of the courts, apart from the single issue of prisoners voting rights. This had led many constitutional scholars to believe a constitutional convention to always follow judicial decisions is forming. If the aim of the third-way model of constitutionalism was to give the legislature the ‘last word’, its fair to say that it has not worked in practice, as the judicial rulings have become final and conclusive.

The balance of power offered by Gardbaums model of constitutionalism can only work in practice if the power given to each institution is exercised, if it is not, then the structure collapses into either polar form of constitutionalism and there is no balance of power. The ‘model collapses in practice’ where ‘legislatures do not use their power of the final word’. This could be said to then reduce the new model to a system of judicial supremacy. 

Gardbaums entire model is based on and through the ‘narrow lens’ of the last word and because this power is not exercised, the entire model collapses into more of a judicial supremacy model. It ignores the reality and complexity of the process before during and after the ‘final’ decision is made, and therefore offers a weak balance of power, and weak democratic legitimacy. 

It is also worth noting, that even if Parliament did fail to remedy a rights violation identified in a declaration of incompatibility, then the litigant can seek a judgment in his or her favour from the European Court of Human Rights. Kavanagh argues that in this way, the idea that ‘the declaration amounts to a provisional statement of judicial opinion begins to look strained’. Even if Parliament did exercise its final authority power here, it would be overruled. So it could be argued it doesn’t exist at all.

Gardbaum has argued that although the UK government has only once chosen to ignore the recommendation of the court, this one occasion is highly significant, as it concerns a blanket ban on prisoners voting — a highly controversial subject. He states it is ‘arguably the only one so far issued that involves both of the situations in which, giving the deliberate raising of political costs involved, one might realistically expect the elected branches to think seriously about exercising their power to resolve a rights issue themselves in disregard of the stated judicial view.’ Gardbaum insists that parliament will exercise their power when is necessary, retaining ultimate sovereignty, even if they do not always exercise it. He also disregards the idea that his model doesn’t work in practice, arguing that the fact that it ‘operates differently in a variety of contexts, does not negate its being a model.’