As “new constitutionalism” has spread around the world, constitutions have increasingly afforded courts significant formal power to intervene in politics. A flurry of recent legal research has emerged suggesting that courts can play a critical role in protecting democratic outcomes in constitution-making. This work has suggested that courts can be important players in overseeing “the exercise of political power” in constitutional lawmaking as well as ordinary lawmaking.
Underlying this optimism is the success of courts in three countries in the Global South. Perhaps the most commonly cited example is the Indian Supreme Court and its “basic structure” doctrine for reviewing constitutional amendment. Also, this literature has highlighted the South African Constitutional Court and the assertive role that it has played in reviewing South Africa’s constitutional replacement process. Finally, this literature has examined the Colombian Constitutional Court’s “substitution” doctrine and its role in limiting abusive constitutional amendment in Colombia. An increasing amount of literature has focused on the way that this new emerging “canon” suggests a judicial answer to the problems of constitution-making and enforces “constrained democracy.” For instance, Andrew Arato argues that judicial review can ensure that the principles of constitutionalism apply not just to the resulting constitution but also to “the democratic process of constitution making.”
Other examples beyond the comparative canon suggest, however, myriad problems with robust judicial review in constitution-making. In some cases, courts have tried but ultimately failed to improve the constitution-making process. For instance, courts in Russia and Venezuela seeking to improve the politics of constitutional replacement were unable to block attempts by charismatic executives to impose partisan constitutions. Moreover, in other cases, partisan elites have captured courts and exploited judicial review to advance their own self-interested constitution-making projects. In Kyrgyzstan and Ukraine, for instance, powerful presidents used their leverage over courts to strike down constitutions that weakened presidential power. Finally, in other cases, courts have been created to ensure that cosmopolitan elites can preserve their power in the face of electoral majorities. As the experience of the Thai Constitutional Court demonstrates, although these courts might stop electoral majorities manipulating formal constitutional law, they also work to undermine the influence of mobilized electoral majorities more broadly.
This broader comparative lens suggests that the critical questions for constitutional theorists should no longer be universal ones of whether unamendability clauses are democratic or if judicial regulation of constitution-making is legitimate. Instead, the important questions for those interested in the judicial review of constitution-making are far more specific and context dependent. First, why have courts sought to improve constitution-making politics? Answering this question requires examining how judges can become independent from powerful political movements and intervene to improve deliberation. Second, how have these well-intentioned courts generated compliance with their decisions? This question requires exploring when courts will be more effective in policing the process of constitution-making.
This Article will begin to answer these questions by tracing similarities between the Indian, Colombian, and South African courts. This comparative analysis finds that judicial attitude—and not formal power—is critical in understanding why these three courts worked to improve the politics of constitution-making. These three courts are staffed with ambitious judges who see themselves as part of an elite community that plays an important role in fixing democratic deficiencies. Furthermore, these courts were far more likely to gain compliance when they were reviewing constitutional amendments rather than constitutional replacements. In reviewing constitutional amendments, they gained compliance because their decisions were part of a number of highly activist interventions in the political process. These courts go far beyond what many might think of as the traditional role of a judiciary; thus, compliance with these decisions reviewing constitutional amendments is just part of a widely accepted activist role.
