The decisions courts make in constitutional rights cases pervade our political life and touch on our most basic interests and values. The spread of judicial review of legislation around the world means that courts are increasingly called on to settle matters of moral and political controversy, including assisted suicide, data privacy, anti-terrorism measures, marriage, and abortion. But doubts regarding the institutional capacities of courts for deciding such questions are growing. Judges now regularly review social science research to assess whether a law will effectively achieve its aim, and at what cost to other interests. They cite studies and statistical information from psychology, sociology, medicine, and other disciplines in which they are rarely trained. This empirical reasoning proceeds alongside open-ended moral reasoning, with judges employing terms such as equality, liberty, and autonomy, then determining what these require in concrete circumstances. This book shows that courts were not designed for this kind of moral and empirical reasoning. It argues that in comparison to legislatures, the institutional capacities of courts are deficient. Legislatures are better equipped than courts for deliberating and decision-making in regard to the kinds of factual and moral issues that arise in constitutional rights cases. The book concludes by considering the implications of comparative institutional capacity for constitutional design. Is a system of judicial review of legislation something that constitutional framers should choose to adopt? If so, in what form? For countries with systems of judicial review, practical proposals are made to remedy deficiencies in the institutional capacities of courts.
Paul Yowell is Associate Professor of Law at the University of Oxford, and Fellow and Tutor in Law at Oriel College, Oxford.
1. Introduction I. Removing the Blindfold II. Scope of the Argument III. Recovering Montesquieu 2. The Adjudication of Constitutional Rights I. Constitutional Rights and Ordinary Legal Rights II. Proportionality in Practice III. Proportionality in the US? IV. Absolute and Prima Facie Rights V. Rights, Proportionality and Utilitarianism VI. Rights as Interests VII. Moral and Empirical Reasoning VIII. Other Adjudicative Methods IX. Conclusion 3. Are Rights Trumps? I. The Shielded-Interest Theory II. The Filtered-Preference Theory III. Constitutional Rights and Statistics IV. Revision of the Filtered-Preference Theory 4. Judicial Capacity and Empirical Research I. Empirical Research and the Origins of Proportionality II. Empirical Evidence in the US Supreme Court III. Adjudicative Facts and Legislative Facts IV. Finding Legislative Facts V. The Courts and Social Science VI. Case Studies VII. Conclusion 5. Comparative Analysis of Institutional Capacities I. The Basic Structure of Judicial Reasoning II. The Basic Structure of Legislative Reasoning III. Capacity for Empirical Reasoning IV. Capacity for Moral Reasoning V. The Tyranny of the Majority? VI. Capacity to Protect Minorities VII. An Historical Perspective VIII. Conclusion 6. The Problem of Entrenchment I. Legal Change and the Rule of Law II. Rawls and the Perpetual Constitution III. The Rarity of Constitutional Amendment IV. The Legislative-Judicial Method of Reversing Nullification Decisions V. Conclusion 7. Judicial Review and Constitutional Design I. The American and Kelsenian Models II. Designing a Constitutional Court III. Council of Revision IV. Does the Legislature Need a Check? V. Deference VI. Conclusion