Courts, Rights, and Federal Constitutionalism

Courts have fallen on hard times. At the turn of the century, courts and judicial review—in conjunction with the globalization of entrenched human rights—were considered core elements of national and transnational liberal constitutionalism, with particular aspirations for their rights-protective capacities. Perhaps expectations for courts in fragile or emerging democracies were overbroad or unrealistic. Perhaps democratic concerns about unelected judges in mature democracies were underappreciated. Regardless, in this era of democratic backsliding and rights retrenchment, courts are losing their shine.

We should not forget, however, that courts perform many roles beyond individual rights enforcement, particularly in federal systems. My research is focused on how courts function in multi-level governance systems (whether federal, quasi-federal, or devolutionary). My previous work has explored the connections between federalism and judicial power, both in how an apex court can use the divisions within a federal system to advance its institutional role and how those divisions can also work to undermine the court’s legitimacy. I am interested in broad intra- and inter-branch dynamics as well as in fine-grained questions of the institutional design of federal judiciaries that are often overlooked in the constitutional design literature. And in using a comparative lens to study these questions, I seek to derive theoretical insights that can span different contexts.

In my recent article, The Federal Case for Judicial Review, I bring federalism and federation into the conversation about rights-based review, to highlight the various complications that federation presents and to raise questions about the meaning of federal democracy and federal constitutionalism.

In a federal system, one must ask not only what is the content of the right, but also at what level should the right be defined and protected. Is it the collective (federal) demos or the various subunit demoi that should control? When does diversity “degenerate from being democracy-reinforcing” into a threat to the shared political project?

The tension between federalism and rights reflects the core federal challenge of unity in diversity. The federal form anticipates disagreement on the content and application of some rights; in fact, federalism is thought to provide “a partial solution" to the very difficult problems of disagreement on moral principle. But a commitment to individual rights implies a shared goal of devising consistent protections, so that an individual’s rights do not vary from subunit to subunit. The pressure for uniformity can be heightened by the strong feelings rights generate: As Guido Calabresi and Eric Fish explain, “People do not merely wish to be able to live according to their own deeply felt moral principles, they often also wish to impose those principles upon others.”

In the article, I argue that the variation inherent in the federal dynamic and the morality underpinning rights combine to create a systemic centralizing bias—a centripetal force that favors the national demos over the demoi of the constituent units. I then conduct a comparative institutional analysis to assess whether apex courts or federal legislatures are better placed to counteract that bias. I conclude that a federal apex court, while facing centralizing pressures similar to those faced by a federal legislature, has countervailing institutional features that increase its ability to acknowledge and balance the multiple majorities intrinsic to federation.

The article demonstrates that federal constitutionalism sits uneasily in the liberal constitutional construct, given the latter’s prioritization of the individual and federalism’s necessary acknowledgment of community. For example, I explore the kinds of rights claims that may emerge in federal systems, highlighting the likelihood of what I call “hybrid claims”, or one in which a state (or subunit) seeks to protect the state-protected individual rights of its own citizens from federal (or central) interference. This possibility, well understood in the European Union, is rooted in the foundational construct of federalism as a territorial construct. As Stephen Tierney writes in his excellent new book, The Federal Contract, accommodating territorial pluralism is at the heart of the federal idea. And this centrality makes federalism “a discrete genus of rule within the constitutional species.”

In my analysis, I presuppose a heterogenous federation with cross-cutting cleavages as my stylized example. And thus, my model can accommodate the assumption Jeremy Waldron posits in The Core of the Case Against Judicial Review of a “strong commitment on the part of most members of the society ... to the idea of individual and minority rights.” But many federations or federal systems are built on the core intuition that certain groups will not be properly protected and thus require separate institutional mechanisms or safeguards

What of these federations? Accommodationist or ethnocultural federations—intentionally designed to accommodate group interests and identity—require addressing the minority-within-minority challenge: mediating between group rights (territorially defined) and the individual rights of members of that group (burdened by the group itself). Of course, the judiciary is rarely seen as a locus for this kind of problem-solving; it “appeals to principles of justice that may themselves be the sedimented norms of a dominant culture.” But perhaps it could be, if we think more creatively about its role in creating and enforcing structural rights, and whether a court could ensure possibilities of exit by requiring an available diversity of jurisdictions (and rules) alongside freedom of movement.