From Ely to CPPT

In Democracy and Distrust, Ely famously argued that when interpreting open-ended constitutional provisions, such as the due process clause of the 14th amendment to the US Constitution, courts encounter significant legitimacy difficulties, but that those difficulties do not apply to a role in protecting the channels of political change and the interests of discrete and insular minorities. In this way, Ely laid the groundwork for modern representation-reinforcing theory.

However, Ely’s own ideas have been met with criticism. He seemed to conceptualize the judiciary’s role as neutral or purely procedural, in ways that have clearly been subject to challenge. How we conceptualize democracy is a matter of disagreement.Footnote ¹⁷ Our understanding of the court’s role in this context is therefore anything but neutral or procedural.Footnote ¹⁸ It embeds substantive judgements all the way down or at every level.Footnote ¹⁹

Ely’s conception of discrete and insular minorities was also both over- and under-inclusive. He failed to capture the experience of many historically disadvantaged minorities with significant political influence, for instance, gays and lesbians, or those with increasing social power, but who face ongoing political obstacles to change, such as women.Footnote ²⁰ His ideas were likewise over-inclusive in characterizing certain groups as deserving heightened scrutiny (e.g., those in gated communities), even though they enjoyed historical privilege rather than disadvantage. In effect, Ely sidestepped the need to consider the ways in which democratic processes functioned adequately to protect underlying equality values – that is, concerns about equality of opportunity, equal dignity and commitments to ending the historical subordination of certain groups.Footnote ²¹

Similarly, Ely’s vision did not capture the full range of modern threats to democracy, including ways in which the channels of political change can be undermined.Footnote ²² For Ely, the image was of a single party seeking to entrench itself in power through a range of tactics that in some ways narrowed the space for fair political testation and competition. However, in the modern era, those tactics have become far more extreme.Footnote ²³ Dominant political parties and executive actors have sought to entrench themselves through tactics that go far beyond tilting the playing field in their own favour – yet, still fall short of an all-out military coup.Footnote ²⁴ Instead, they have used the forms of law and constitutional change to undermine federalism, rights, the separation of powers, and especially the set of norms that form what David Landau and I have labelled the ‘minimum core’ of constitutional democracy.Footnote ²⁵

Against this backdrop, modern CRRT conceptualizes a role for courts that is at once broader and narrower than Ely envisaged.Footnote ²⁶ CPPT starts with similar assumptions to Ely, about the nature of courts and their power(s) and jurisdiction, namely that there are (1) independent courts with (2) relatively broad remedial powers and (3) meaningful political support and support in civil society.

Without some meaningful degree of independence from the executive, courts cannot hope to check attempts by legislative or executive actors to entrench themselves in power or degrade the channels of political change. Indeed, judicial review in these circumstances will at best do nothing to protect democracy and, at worse, actively contribute to its erosion.Footnote ²⁷

Courts must have the jurisdiction and remedial authority to counter relevant threats to democratic representation or responsiveness. This power may be expressed or implied. However, it must be an accepted part of what it means for a court to engage in constitutional judicial review. In some continental systems, where there is limited scope for concrete review, or strict limits on access to a court even in abstract cases, this may pose significant obstacles to judicial representation-reinforcement.Footnote ²⁸

Courts must also enjoy some degree of support from political elites and civil society. Without political support or at least tolerance for their decisions, courts are likely to face damaging forms of institutional backlash.Footnote ²⁹ In addition, without some form of ‘litigation support structure’ in civil society, courts may not have the opportunity to hear the kinds of cases that raise issues of representation reinforcement.Footnote ³⁰ They will also have limited capacity to enforce their decisions against unwilling or hostile government actors. The implementation of court orders ultimately depends upon the executive, and without significant public support or support from other institutional actors, courts cannot force compliance with their own decisions.

However, assuming these preconditions are met, CPPT or CRRT envisages a role for courts that is at once broader and narrower than Ely proposed. In his work on CPPT, Stephen Gardbaum suggests that there is an important role for courts in countering four distinct political market failures: (1) non-deliberativeness of the legislature, (2) legislative failures to hold the executive accountable, (3) government capture of independent institutions and (4) capture of the political process by special interests.Footnote ³¹

Niels Petersen proposes a similar taxonomy of ‘political market failures’Footnote ³² as a guide to a modern theory of representation-reinforcing review. Like Ely, Petersen notes the important role of constitutional courts in protecting minorities and courts’ traditional role as ‘arbitrators in competency disputes’.Footnote ³³ However, Petersen suggests that courts also have an important role to play in ‘safeguarding the integrity of the legislative process’, protecting against ‘legislative capture’ and ‘correcting [for] external effects’.Footnote ³⁴

Manuel Cepeda and David Landau likewise suggest that courts can play three broad roles in protecting and promoting democracy, in addition to the functions identified by Ely: (1) guarding against democratic breakdown, (2) improving the quality of democratic institutions and (3) responding to failures of political institutions impacting majoritarian groups.Footnote ³⁵ In earlier work, Landau also highlighted the potential role of courts in building up democratic institutions and fixing problems with political systems, and opening up alternative spaces for democratic contestation.Footnote ³⁶

I identify three related sources of democratic dysfunction as the basis for a modern CRRT: (1) the actual or attempted accumulation of electoral or institutional monopoly power, (2) democratic blind spots and (3) democratic burdens of inertia. In this account, the accumulation of electoral and institutional monopoly power is in key respects the precursor to what Cepeda and Landau label democratic breakdown: it is the beginning of practices that can effectively erode what Landau and I insist is the minimum core set of institutions and norms necessary for a functioning constitutional democracy.Footnote ³⁷ Democratic blind spots and burdens of inertia are effectively specific sources of dysfunction affecting majoritarian and minority groups: they involve ways in which laws limit the enjoyment of rights supported by democratic majorities, for the benefit of either those majorities or a minority, because of lack of time, foresight, expertise or a willingness to expend the political capital necessary to put an issue on the legislative agenda.

All CPPT/CRRT scholars further suggest that these ideas represent the adaptation and extension of Elyian ideas to fit a global context.Footnote ³⁸ Some scholars doubt whether CPPT or CRRT are in fact neo-Elyian at all: Bo Tiojanco, for example, argues that these ideas endorse a role for the court far broader than Ely himself would have endorsed, and that Ely was largely an interpretivist scholar when much of this scholarship is non-interpretivist in character.Footnote ³⁹ Other scholars embrace the connection between Ely and comparative judicial democracy protection.Footnote ⁴⁰ In part, they do so because it helps make sense of and situate these ideas in relation to past debates and traditions.Footnote ⁴¹

However, they also do so on grounds of principle: many of Ely’s arguments were premised on the limits of interpretivism and there are ways of linking judicial democracy protection to formal legal modalities, sources and values.Footnote ⁴² There is also a connection between comparative theories of judicial democracy promotion and the kinds of concerns about judicial legitimacy that animated Ely’s work. In her insightful contribution to the symposium, Sarah Murray traces these connections and further offers a valuable ‘systemic’ account of how we should think about notions of judicial legitimacy in this context.Footnote ⁴³ In doing so, she also points the way to the importance of locating courts in a broader institutional and political context in ways that fit squarely within the broader concern of neo-Elyian scholars about courts and context-sensitive forms of judicial review.Footnote ⁴⁴

Gardbaum, for example, suggests that ‘Ely’s central insight – that protection of a system of representative democracy against erosion or degradation by elected representatives cannot be left exclusively in their hands – remains a powerful one’, but ‘that for comparative purposes, Ely’s account [of erosion or degradation] is too narrow in a variety of ways’.Footnote ⁴⁵ Cepeda and Landau likewise argue that their broader reading of Ely is designed to respond to the various challenges facing ‘legal orders around the world’, especially those in the ‘Global South’.Footnote ⁴⁶

CPPT v CRRT: Procedure versus substance?

One of the important questions raised in the various contributions to the symposium, and in the conference that led to it, relates to the best way of labelling this emerging school of comparative constitutional thought. In an important article in ICON, Gardbaum labelled this school of thought as a form of ‘comparative political process theory’Footnote ⁴⁷ and the term has already attracted scholarly attention.Footnote ⁴⁸ Indeed, it was an inspiration for this symposium.Footnote ⁴⁹ Yet, in subsequent work, in this volume and elsewhere, Gardbaum has sought to outline a role for courts in protecting democracy and the rule of law that he openly acknowledges is substantive or at least semi-substantive in nature.Footnote ⁵⁰

There are also two additional reasons to avoid the language of ‘political process theory’. First, as already noted, the ‘process’ label was a part of Ely’s own ideas that attracted significant controversy. Ely claimed that his ‘process-based theory’ avoided substantive evaluative judgements about what democratic constitutional norms required.Footnote ⁵¹ Yet, this claim has been convincingly and consistently rebutted by US scholars for more than four decades.Footnote ⁵² Hence, when US scholars talk about process-based theory, few do so with a view to endorsing rather than rejecting its contemporary relevance.Footnote ⁵³

Second, the reference to process theory is inherently ambiguous. Conceptually, it could refer to judicial review of the political process – for example, review by courts of processes of legislation or executive decision-making, and whether they comply with constitutional or sub-constitutional requirements of fair, open and reasoned deliberation. Or it could refer to the review of legislative or executive decisional outputs, with a view to courts playing a role in protecting, complementing or scaffolding processes of political decision-making.

Ely himself seemed largely to envisage review of the latter kind: hence, he used the term judicial ‘representation reinforcement’ as synonymous with the language of political process theory. In addition, most modern CPPT theorists adopt a similar approach. Indeed, even in proposing CPPT as a label, Gardbaum has proposed a mix of judicial review of inputs and outputs, or review that is procedural, substantive or semi-procedural and semi-substantive in nature. This also accords with broader scholarship within the CPPT tradition.

For instance, most courts worldwide adopt some form of ‘proportionality’ test in determining whether limitations on constitutional guarantees can be considered justified. That is, they ask whether a law has a legitimate aim and, if so, imposes limits on constitutional guarantees that are proportionate to that aim – in the sense of rational, suitable and adequate in the balance.Footnote ⁵⁴ In the United States, the Supreme Court adopts a more rule-like approach, which divides proportionality-style judgements into three distinct tiers of ‘strict scrutiny’, ‘intermediate scrutiny’ and ‘rational basis review’, and avoids explicit judgements about whether a law is ‘adequate in the balance’.Footnote ⁵⁵ However, even still, many leading US scholars argue that the court’s approach resembles a form of implicit proportionality-style test.Footnote ⁵⁶

Proportionality judgements also naturally invite attention to the functioning of the democratic process: for instance, if elected representatives have given careful consideration to alternative policy measures, this will increase the case for courts to apply a relaxed version of a ‘minimal impairment’ or narrow tailoring requirements, whereas if they have not considered or debated these options, or done so for a long period of time, there will be a much stronger case for more robust judicial oversight and application of minimal impairment requirements.Footnote ⁵⁷

A key part of CRRT, as Hailbronner and Kujus note, is that it has both an activist and restraintist element: it is both a ‘sword’ that provides a defence of robust, strong forms of review by courts in certain circumstances and a ‘shield’ against arguments that courts should exercise review of this kind in all cases.Footnote ⁵⁸ This twin understanding can also shape any proportionality-style judgement – including the degree of deference, or ‘margin of appreciation’, applied by national and transnational courts in the making of those judgements. For instance, Hailbronner and Kujus suggest that if a court identified national law as altering the democratic minimum core of a country’s constitutional system, this points towards a reduced margin of appreciation on the part of the European Court of Human Rights, whereas in other cases, the appropriate margin would depend on a range of factors, including the presence of other sources of democratic dysfunction.Footnote ⁵⁹

However, there are also elements of CRRT-informed proportionality analysis that are procedural and substantive in nature. Judicial judgements about narrow tailoring, for example, are ultimately semi-procedural in nature: they involve courts identifying alternative legislative approaches that are at least plausibly as effective, and yet more rights protective, than the approach taken by the legislature. However, because courts ultimately afford some deference to, or a margin of appreciation, to the legislature on these questions, the role of courts is at once procedural and substantive. The substantive judgement involves courts identifying an alternative regime as plausibly effective, and the procedural judgement involves a finding that the legislature did not give adequate attention or consideration to this alternative.

Another doctrinal implication of CRRT involves a preference for a mix of ‘strong’ and ‘weak’ judicial remedies, or at the very least, careful attention to remedial issues – and an approach to them that is explicitly democracy-sensitive. As Po Jen Yap and I note in our article, Responsive Judicial Remedies in Asia, there is now a wide range of remedies courts can deploy in engaging in a process of constitutional judicial review – globally and in Asia. CRRT further suggests that courts should deploy remedies strong enough to counter the particular democratic dysfunction underpinning a constitutional complaint, but weak enough to avoid creating damaging forms of institutional backlash or reverse democratic inertia. In this way, we also link the idea of CRRT to ideas about constitutional dialogue and strong–weak and weak–strong judicial review.Footnote ⁶⁰

In Reading Ely in Tokyo, Yvonne Tew likewise emphasizes the importance of ‘judicial statecraft’ as a factor informing the success of efforts by courts not only to protect and preserve democracy, but also to help construct successful democratic transitions.Footnote ⁶¹ Statecraft, for Tew, also consists of several elements: judicial approaches that involve a mix of strong and weak review, engagement with elites and broader civil society and a carefully constructed narrative or set of rhetorical choices about what the court is in fact doing.Footnote ⁶²

Tew also introduces a new and interesting way of distinguishing between decisions that are weak–strong versus strong–weak in approach: decisions that are legally narrow but substantively strong, she labels ‘mini-maximalist’ in character. Indeed, she suggests that narrow reasoning is often most effective, in this context, where it involves an emphasis by courts on legal precedent and continuity. In addition, decisions that are substantively broad and strong, but remedially weak, she labels ‘maxi-minimalist’. Echoing work by Sam Issacharoff and myself on this topic, she suggests that decisions ‘ai[d] a fragile court in delaying or avoiding immediate public or political assaults, while building up institutional strength for stronger judicial assertions in future confrontations with the political branches’.Footnote ⁶³

But again, weak judicial remedies can take more or less substantive or procedural forms. A classic form of weak–strong remedy is a suspended declaration of incompatibility: remedies of this kind are squarely substantive, but they give legislatures additional time and political opportunities to define a preferred response to an exercise of representation-reinforcing judicial review. However, other weak–strong remedies can be viewed as far more procedural in character. For example, ‘engagement’-style remedies require executive actors to go through certain processes of consultation before a final decision can be reached. Moreover, it is the failure to undertake consultation of this kind that gives rise to a decision to set aside a prior action as unconstitutional.

A third important doctrinal question facing courts is the question of the scope or outer limits of judicial review, and whether courts can or should review certain forms of ‘political questions’.Footnote ⁶⁴ In the United States, the Supreme Court has long held that the federal judiciary cannot review such questions, whereas in most countries, courts take a broader view of their own jurisdiction, but a flexible approach as to whether they will review such questions in a particular case. Indeed, as Erin Delaney notes, they employ alternative jurisprudential devices for ‘avoidance’, which allow such judgements to be made on a more case-by-case basis.Footnote ⁶⁵

CRRT also points to the value of this latter approach: like Ely’s own theory of representation reinforcement, it rejects any strict division between law and politics. It further suggests the importance of courts responding to a range of political threats to the health of democratic processes and functioning – including risks not envisaged by Ely and risks that Ely foresaw but regarded as too thorny for judicial involvement.Footnote ⁶⁶

Traditional notions of the political question doctrine, for example, suggest that courts cannot or should not review the validity of proposed or actual constitutional amendments. According to this view, amendments represent an exercise of constituent power, or popular sovereignty, which is before rather than subservient to a court’s own legal power and authority.Footnote ⁶⁷ Alternatively, judgements of this kind would involve courts entering the ‘political thicket’ in ways that undermine the distinction between constitutional law and politics.

Scholars working in or adjacent to CRRT, however, have directly challenged these ideas: Yaniv Roznai, for instance, has argued that constitutional amendments reflect the exercise of delegated or ‘secondary’ forms of constituent power and, hence, that it is legitimate for courts to enforce limits on the scope of that power, by reference to the gap between primary and secondary constituent power.Footnote ⁶⁸ Others, such as Amal Sethi and Sergio Verdugo, have challenged the very idea of constituent power as a useful organizing device.Footnote ⁶⁹ In addition, almost all CRRT scholars point to the inherent fluidity of the law – politics distinction. Because of this, CRRT proponents also argue for the desirability of courts playing a role in policing the legitimate boundaries of formal constitutional change, including through processes of formal amendment.

Often, this will take the form of courts applying an ‘unconstitutional constitutional amendment’ doctrine (UCA), which imposes substantive and procedural limits on the scope for formal amendment powers.Footnote ⁷⁰ However, it can also involve courts imposing purely procedural limits, for example, by insisting that certain amendments are invalid because of how they are proposed, debated, or approved.Footnote ⁷¹

Hence, one of the decisions explored in detail in the symposium is the decision of the Supreme Court of Kenya in the BBI Case. Footnote ⁷² This case involved a successful challenge to various proposed amendments to the Constitution of Kenya initiated by former President Kenyatta. The proposals were struck down by the High Court and Court of Appeal applying a form of the UCA doctrine. However, the Supreme Court relied on a narrower, more procedural reason for invalidating the amendment: it held that they had been improperly proposed by the President, when the Constitution set out exclusive procedures for the proposal of amendments – either by Parliament or popular initiative.Footnote ⁷³ Gautam Bhatia ties this approach by the Supreme Court of Kenya to a version of CRRT. In effect, the Court’s decision in the BBI Case imposed additional obstacles on attempts by President Kenyatta to undermine electoral and institutional pluralism, but without purporting to prevent all such change.

However, to describe the decision as purely procedural would be a misnomer: in focusing on the procedures for constitutional change, rather than substantive limits on such change, the Supreme Court of Kenya was arguably threading the needle between an overly weak or strong review, from a prudential perspective. A decision of this kind was, in contrast, clearly representation reinforcing in nature.Footnote ⁷⁴

The less confusing term for modern, neo-Elyian ideas, I suggest therefore, is in fact the language of judicial representation reinforcement. The label avoids any (false) claim to theoretical or political neutrality. Further, it is broad enough to embrace all the varieties of judicial review in aid of democracy protection and promotion – whatever form of precise focus they may have or take. It is, in a sense, the larger envelope that can include sub-strands of debate about the virtues of more or less substantive versus procedural, or strong versus weak, approaches to judicial representation reinforcement.

Judicial representation goes global? Frontiers and limits

What is the ultimate reach of these ideas or CRRT as a theory of comparative constitutional review? As part of this, and earlier symposia, CCS scholars have questioned the relevance or usefulness of CRRT to jurisdictions in the Global South and North that conceptualize their own constitutional project as transformative in nature.

Transformative constitutionalism implies a quite broad and ambitious role for constitutional courts in promoting a more inclusive and materially just democratic system – a role that goes far beyond what both Ely and many modern CRRT proponents envisage.Footnote ⁷⁵ Hence, a range of scholars have questioned the usefulness of CRRT to jurisdictions – such as South Africa, India or Colombia – in which the dominant understanding of the constitutional order is transformative in nature.

However, in his thoughtful essay, Transforming Process Theory, James Fowkes suggests that CRRT may, in fact, still have some value even in these contexts.Footnote ⁷⁶ Specifically, he suggests that for transformative constitutionalism to succeed, it needs to encourage a dynamic conception of the judicial role (such as that advocated by David Landau),Footnote ⁷⁷ whereby courts intervene to counter political dynamics that may be undermining social and economic transformation, but then recede from view, as the political branches become more able to take an active role in leading this ongoing process of transformation. In addition, CRRT, he suggests, offers important conceptual and intellectual resources for thinking about this kind of dynamic, democracy-sensitive role.Footnote ⁷⁸

Another important question facing representation reinforcement theory concerns the role of transnational institutions, including courts such as the European Court of Justice or the European Court of Human Rights. In countries such as Hungary and Poland, one of the big questions has become how the EU and adjacent transnational institutions can respond to the erosion of democracy within Europe, either through sanctions or expulsion.Footnote ⁷⁹

However, another strand of comparative representation reinforcing theory looks at the role of transnational courts. Some scholars have expressed scepticism about the capacity of transnational institutions or courts alone to protect and promote democracy,Footnote ⁸⁰ but as Michaela Hailbronner and Lisa Kujus show in their essay on Comparative Representation Reinforcement Theory in the European Court of Human Rights, there may be conditions under which courts have greater promise as agents of democratic representation reinforcement. One is a history of institutions being created with these goals in mind: Hailbronner and Kujus show compelling evidence of this in the case of the European Court of Human Rights. Another is the degree of existing support for such an approach in a transnational court’s jurisprudence.Footnote ⁸¹

In other contexts, CRRT may have more limited relevance or applicability, yet legal and political elites may still invoke it as a defence of the legitimacy of certain forms of judicial review. This may be done in good faith but out of a mistaken belief that CRRT applies to all countries and cases – even those where basic preconditions of judicial power and independence are not met.Footnote ⁸² Or it could involve an exercise of bad faith, or form of ‘abusive’ constitutional borrowing of these ideas in the service of anti-democratic constitutional change.Footnote ⁸³ As Landau and I note, constitutional theories as well as doctrine often travel across national borders, in ways that serve both to bolster democracy and, in the wrong hands, legitimate attempts to undermine it.

The line between these two cases may also be a fine one. For instance, in his essay in this symposium, Amal Sethi advances arguments in favour of courts upholding a UCA doctrine as a means of protecting democracy and democratic processes.Footnote ⁸⁴ Thus, he highlights the role of the ‘basic structure’ doctrine in early Indian cases, in setting limits on the arbitrary exercise of executive power. However, he also notes the dangers of judicial over-enforcement of these doctrines. Indeed, he suggests that India may currently be witnessing the application of the doctrine in ways that, at best, are misplaced, and at worst are ‘self-aggrandizing’ or even ‘abusive’ in nature.Footnote ⁸⁵

The promise, and limits, of CRRT across these various contexts is a deeply important question, but also one that invites further scholarly dialogue and debate. Ultimately, the symposium offers just a slice of what a modern comparative representation reinforcing theory might involve or look like. It is the beginning, not the end, of a conversation on new ways of thinking about the relationship between judicial review and democracy.

However, it is an invitation to scholars around the world to continue thinking about what courts can and should contribute to a project of democratic representation reinforcement in an age of increasing doubt about the legitimacy and effectiveness of courts as agents of progressive social change and democratic resilience.

The framing of that conversation also matters: courts will often need to go beyond a focus on democratic procedures, or procedural doctrines and approaches alone, to protect democracy.Footnote ⁸⁶ Hence, as scholars, we should embrace language that invites attention to substantive and procedural forms of judicial review. This article also suggests that this is the language of comparative representation reinforcement.