Constitutional Interpretation after Regimes of Horror

Abstract

In this paper, I explore the ways in which new constitutions encode national collective memory at the point of political transformation and the strategies through which constitutional courts make use of this collective memory to expand their powers. There has been a world-wide turn to constitutionalism as a form of politics and a rapid emergence of an aggressive constitutional judiciary in many new democracies emerging from "regimes of horror." I argue in this paper that the aggressiveness of constitutional courts in new democracies stems from the ability of these courts to participate in shaping the collective memory about the previous regimes of horror. Courts can then position themselves as the border guard of the boundary between past and future.

Constitutions can serve as the focal point for the creation of collective memory for three reasons. First, most of the new constitutions in post-horror regimes are long ones. Long constitutions, coupled with judicial review, simply give courts more leverage for getting involved in political matters. Long constitutions also represent more pre-commitment on the part of the political powers involved in setting up the new regime about what that regime will look like and how it will be different from the previous one, pre-commitment that gives constitutional court decisions a certain amount of legitimacy.

Second, a new high court with the power of judicial review in a post-horror regime can be seen as preventing the current government from turning into the previous one. The new regime is then defined constitutionally in large part by being "not that" past one. The constitutional politics of "not that" give courts quite a lot of room for maneuver, especially where there is agreement over both what the specific wrongs of the previous regime were and how these wrongs should be righted now. Where there is perceived to be a particular danger of backsliding into the regime of horror again, constitutional courts are given particularly broad powers to act.

Finally, activist courts ought to be considered in a broader historical and comparative perspective. The very acceptance and success of strong constitutional review in some countries (particularly in the post-horror regimes that quickly followed WWII) have provided a reason to adopt strong constitutional review in others. While judicial review may have been a daring experiment 200 years ago, it is by now an ordinary feature of modern democratic polities around the world. Constitutional drafters insert powerful forms of judicial review as a matter of course into most, if not all, new constitutions. There is, in other words, a sort of legitimacy in numbers, where the success of aggressive judicial review in one country makes its absence in another a sign of democratic weakness. Strong constitutional courts in some clearly successful democracies embolden other governments to signal their commitments to constitutional values by doing the same.