Constitutionalism, Judicial Review, and Progressive Change: A Rejoinder to McClain and Fleming

Linda McClain and Jim Fleming have written a thoughtful critique of one of main arguments in my recent book Towards Juristocracy: The Origins and Consequences of New Constitutionalism.1 In focusing on an argument that occupies approximately one-third of book, they inevitably overlook some of book's other (and I'd humbly suggest, at least equally significant) arguments. McClain and Fleming subject book's genuinely non U.S.-centered themes to scrutiny by canonical liberal American constitutional theory. They correctly argue that liberal American constitutionalists have seldom harbored hopes that courts may advance progressive notions of distributive justice and social and economic rights.2 But just how relevant this point is for an understanding of Canadian, Israeli, or South African constitutional landscape is not entirely clear. In each of these countries, debate about status of social welfare such as right to healthcare, education, housing, or work, is at core of constitutional discourse-judicial, academic, and otherwise. The courts in these polities, while embracing a creative and often activist interpretation of so-called generation rights, have nevertheless remained lukewarm at best to option of interpreting pertinent constitutional rights provisions to include social and economic rights.3 Echoing this selective judicial interpretation of constitutional McClain and Fleming suggest that real potential for progressive change lies not with implantation of a more expansive catalogue of first and second generation rights. Rather, as they see it, advancement of distributive justice is better assessed against a more traditional liberal standard that focuses primarily on civil liberties and formal equality.4 Had I adopted a definition of progressive change that includes gender equality, they suggest, one would have reached a less skeptical conclusion than mine concerning potential ability of constitutionalization and judicial review to advance progressive notions of distributive justice.5 This is a soothing argument for anyone who wants to see courts as the most enlightened branch. Alas, it is based on a simplistic and at times illinformed conceptualization of equality, capabilities, and life opportunities. My aim in this brief rejoinder is to address some of thought-provoking points made by McClain and Fleming, while taking opportunity to say a few words about recent intellectual renaissance of comparative constitutional law. But first we must set record straight. I. What Are Arguments Actually Put Forth in Towards Juristocracy? Towards Juristocracy advances a number of arguments. It opens with observation that [o]ver past few years world has witnessed an astonishingly rapid transition to Juristocracy.6 From Canada and Israel to European Union, fundamental constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries, whether domestic or supranational. Most of polities that have hosted such an expansion of judicial power have recently adopted a constitution or undergone constitutional revision that contains a bill of rights and establishes some form of active judicial review.7 An adversarial rights discourse has been establishing itself in most of these polities as one of dominant forms of political discourse.8 A commonly held belief that judicially affirmed rights are self-implementing forces of social change (removed from constraints of political power) has gained a near-sacred status in public discussion. National high courts and supranational tribunals meanwhile have become increasingly important, even crucial, political decisionmaking bodies. To paraphrase Alexis de Tocqueville's observation about United States, there is now very little moral or political controversy in world of new constitutionalism that does not sooner or later become a judicial one. …

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