Mark Kende

The most famous problem in American constitutional law is the counter-majoritarian dilemma, which asserts that it’s troubling for an unelected U.S. Supreme Court to invalidate duly enacted laws. In a journal article, Semiprocedural Judicial Review, Israeli legal scholar Ittai Bar-Simon-Tov makes an important contribution to the scholarly debate over this dilemma, drawing partly on the jurisprudence of several national and trans-national courts. This global focus distinguishes his article from some similar earlier work by American law professor Dan Coenen. Tov’s theory preserves judicial review but also promotes deliberative democracy.

The article starts with evidence that various courts have found laws unconstitutional, or illegal, because the laws were adopted without sufficient deliberation, public consultation, legislative findings, notice, or other procedural protections. The author himself does not reject substantive review, but he argues that examining a law’s procedural context should also determine legality, especially when courts are engaged in proportionality analysis (e.g. the balancing of the state’s interest versus the individual’s burden). This addition of procedural to substantive review minimizes the counter-majoritarian dilemma by fostering thicker democratic processes.

Tov relies on cases from the European Court of Human Rights and the European Court of Justice, as well as German Federal Constitutional Court decisions and Belgian decisions. The U.S. Supreme Court has occasionally employed a similar technique called “structural due process” an idea that is featured prominently in a well-known Harvard Law Review foreword by Laurence Tribe. Tov shows that Justice Stevens’ dissenting opinion in the affirmative action case, Fullilove v. Klutznick, was based on the absence of meaningful Congressional deliberation about racial tradeoffs. In another case, Reno v. American Civil Liberties Union, the Supreme Court used the First Amendment to strike down an Internet speech restriction partly because Congress never seriously debated the issues raised. Moreover, in certain Commerce Clause cases, the U.S. Supreme Court has ruled that the absence of formal Congressional findings may be one reason a federal law is unconstitutional, United States v. Lopez, though there are contrary decisions as well.

Tov explains that one benefit of his approach is that it promotes dialogue between the courts and the legislature, a concept that is in fashion now amongst constitutional theorists—for good reason, in his view. His approach would even allow a legislature, in some cases, to re-pass defective legislation. He differentiates this approach from another interpretive method, pure procedural review, which shows no concern about the substantive rights at stake.

Tov acknowledges possible criticisms. One concern is that his approach invites courts to micro-manage the legislative process. In addition, it’s not clear what procedures will suffice. This means a judge’s personal values could not only influence the substantive analysis, but could also impact the procedural part. Further, why would the exact same law be legal if passed using one set of procedures, but not another?

Tov responds well. First, he advocates that judges integrate procedural review into their proportionality analysis of rights adjudication, rather than completely replacing proportionality. This limits the proposal’s impact. Second, courts can avoid micro-managing by only requiring evidence of “participation and a minimal level of deliberation and debate in the legislative process.” (P. 297.) Also, courts and the legislature must take dialogue seriously, and not see each other as adversaries. Third, the danger of judicial subjectivity can be averted if courts use the same level of deference regarding the legislature in all cases and are clear in their expectations for legislative procedures.

Lastly, he says semi-procedural review will work best in cases where a law infringes on express individual rights, but he does not rule out procedural review of implied rights completely. He does argue that egregious human rights violations can never be justified on procedural grounds. This is actually akin to the paradoxical American concept of “substantive due process,” since no amount of process can make these rights infringements acceptable.

In summary, he asserts:

Constitutional rights (and perhaps other substantive values) will be protected on two levels. Egregious substantive violations will be subject to judicial invalidation regardless of the quality of the legislative process. Lighter infringements, in which constitutionality, is a matter of reasonable disagreement or a wide “margin of appreciation,” will be subject only to procedural safeguards in the sense of ensuring the possibility for participation and a minimal level of deliberation and debate in the legislative process. (P. 298.)

This article is an important addition to constitutional theory, though it is not completely new, as mentioned earlier by the reference to Dan Coenen’s work. Indeed, the American academic and jurist Hans Linde’s writings on “due process of law making” appear to be the source of this kind of theory. Hans Linde, Due Process of Lawmaking, 55 Neb. L. Rev. 197 (1976). Moreover, Tov omits some important cases. For example, in Hampton v. Mow Sun Wong, the U.S. Supreme Court said that an undemocratic federal agency lacked the bona fides to deprive immigrants of access to federal jobs. Even in Regents of the University of California v. Bakke, Justice Powell wrote of the Board of Regents that, “isolated segments of our vast governmental structures are not competent to make [affirmative action] decisions, at least in the absence of legislative mandates and legislatively determined criteria.” In addition, an important South African Constitutional Court case invalidated legislation, allowing abortions, because the Parliament had failed to engage in sufficient consultation with the public in the provinces, though this may be an example of pure procedural review. Doctors for Life International v. Speaker of the General Assembly, 2006 (SA) 416 (CC). Moreover, it’s not clear how Tov’s approach works in a legal system, like the American one, that uses a more categorical approach to rights, rather than a proportionality review. In his defense, though, the article’s focus is not on the United States.

The most fundamental criticism, however, is that the author imposes a deliberative democracy model on legislatures, akin to the republicanism of Cass Sunstein and Frank Michelman, while many scholars, politicians, and others embrace a pluralist or public choice model. Even Justice Souter wrote, as Tov mentions, that, “[Judicial] authority to require Congress to act with some high degree of deliberateness . . . would be as patently unconstitutional as an Act of Congress mandating long opinions from this Court.” (P. 289, citing United States v. Lopez at 613-614 (Souter, J. dissenting).) Thus, many experts and citizens may not be that bothered by unprincipled law making. But that’s perhaps why the author only requires minimal deliberation by the legislature. This minimalism, however, paradoxically removes some of the spice from his proposal, and perhaps even invites legislatures to use boilerplate. Nonetheless, this is an important, succinct, and well-crafted article that develops a middle ground between excessive judicial activism, and judicial passivity in the face of government misdeeds.