Bills of Rights with Strings Attached: Protecting the Past from Judicial Review
Constitutional Dialogue: Rights, Democracy, Institutions (Rosalind Dixon, Goeffrey Sigalet, and Grégoire Webber eds., Cambridge Studies in Constitutional Law, Forthcoming)
22 Pages Posted: 12 Oct 2017
Date Written: June 1, 2017
Some Constitutions shield from judicial review statutes that have been in force prior to their adoption, thus, fostering a unique dialogue between the representative bodies and the courts. Scholars perceive this phenomenon as esoteric, appearing in African or Caribbean countries alone. But, this phenomenon is widespread covering both civil law and commonlaw countries. It defines a large part of what constitutionalism is about. This puzzling phenomenon should have warranted discussion, but there is no literature offering a comprehensive theoretical and comparative framework of this phenomenon. The existence of these savings clauses may suggest the constitution-makers’ view that the existing state of the law was already in compliance with human rights standards; or that the corpus of legal materials provides the necessary specification of open-ended rights in a Constitution. Alternatively, it may suggest that this was the compromise needed to enable the adoption of the Constitution or that society's priorities were to direct judicial review to new legislative activity. However, regardless of the reasons for the adoption of these savings clauses, these Constitutions are not exclusively forward-looking, only affecting new legislation. Rather, such clauses affect the dialogue between the branches of government over the meaning of constitutionalism. When the rationale for adopting a savings clause is ideological, that existing law is good and should be preserved, this might lead to an originalist interpretation of the Constitution. In contrast, when savings clauses are adopted as a compromise or efficiency device, courts may try to read the savings clause narrowly to minimize its effects on the constitutional system. Most importantly, savings clauses may deal with the most sensitive issues of societies and might curtail a country’s constitutional development to such a degree that no less than a revolution is needed to restart the constitutional system without the burden of the savings clause.
Keywords: constitutional savings clauses, preservation of laws clauses, constitutional transition, originalism, judicial review
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