Overcoming Judicial Supremacy through Constitutional Amendment: Some Critical Reflections*

• Published date: 01 June 2021
• Author: Mariano C. Melero De La Torre
• Date: 01 June 2021
• DOI: http://doi.org/10.1111/raju.12313

© (2021) John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 2 June 2021 (161–179)

Overcoming Judicial Supremacy

through Constitutional Amendment:

Some Critical Reflections*

MARIANO C. MELERO DE LA TORRE

Abstract. This paper critically examines the proposal to overcome the judicial definition of fun-

damental rights by using constitutional amendment procedures. Authors known as “political

constitutionalists” have advocated weak- form judicial review as an alternative to the constitu-

tional practice currently prevailing in liberal democracies. The proposal under consideration

here seeks to achieve this alternative by making constitutional amendment as easy as possi-

ble, i.e., through minimal constitutional rigidity. The discussion begins by questioning the idea

of adopting institutional design as a suitable criterion for rating a judicial review system as

“strong” or “weak.” Then the alleged relevance of constitutional amendment in the specification

of constitutional rights is called into question. Lastly, the paper reaches a double conclusion. On

the one hand, minimal constitutional rigidity is not an alternative to prevailing constitutional

practice, but a more collaborative version of the same practice; on the other hand, minimal

constitutional rigidity only represents a genuine alternative design when it is part of a model

(“strong popular sovereignty”) aimed at overcoming the current constitutionalist paradigm.

1. Introduction

In the currently predominant constitutional practice, changes in the interpretation of

the constitution have become a regular means of adapting the supreme norm to so-

cial change. Although interpretation cannot be deemed a perfect substitute for a for-

mal constitutional amendment, it is a fact that in a majority of democracies today the

interpretations of judges (or, as the case may be, those of constitutional judges) are

generally taken as determinant with regard to the ultimate rights and principles

granted in the legal order in the context of each individual case. Some authors, close

to so- called “political constitutionalism,” have defended certain amendment pro-

cesses to enable the will of the majority to determine concrete rights over and above

* This work has been developed under the research project Constitutional Reform: Philosophical

and Legal Problems (DER2015- 69217- C2- 1- R). I would like to thank Daniel Oliver- Lalana,

Alfonso Ruiz Miguel, and Juan Carlos Bayón for invaluable feedback on previous versions of

this paper. I am also enormously grateful to Aileen Kavanagh for inviting me to discuss my

work at a workshop at Oxford Law School, where participants provided me with insightful

comments. I should also thank the two referees for their detailed and thought- provoking

remarks.

Mariano C. Melero De La Torre

162

Ratio Juris, Vol. 34, No. 2© (2021) John Wiley & Sons Ltd.

judicial determinations.1 The aim of this paper is to discuss to what extent the pro-

posal for a minimal constitutional rigidity (hereafter, MCR) entails a genuine alterna-

tive to the current constitutional practice.

The structure of my argument is as follows. In the first three sections, I briefly

describe the current constitutionalist paradigm (Section2), the charge of democratic

deficit alleged by political constitutionalists (Section3), and the proposal for MCR to

remove or reduce that deficit (Section4). I then present my critiques to this proposal

in the subsequent three sections. A first critique refers to the adoption of institutional

design as a suitable criterion for rating a judicial review system as “strong” or “weak”

(Section5). Secondly, the alleged relevance of constitutional amendment in the spec-

ification of constitutional rights is called into question (Section6). Lastly, I argue that

MCR implies a more collaborative version of the same currently prevailing consti-

tutional practice, and that it can be sufficient to achieve the aims of that practice in

certain political circumstances and constitutional traditions (Section7.1). However,

I try to show that MCR represents a genuinely alternative constitutional design only

when it is part of a model (which I will label “strong popular sovereignty”) designed

to leave behind the dominant conception of constitutionalism (Section7.2).

2. The Constitutionalist Paradigm

Under the current constitutionalist paradigm, the constitution has two dimensions.

On the one hand, it has a constituent aspect, insofar as it establishes the form of gov-

ernment and the structure of public powers, and on the other hand, it presents a

regulatory side, given that it is a direct source of rights, obligations, and prohibitions.

The first dimension (“constitution of settlement”) is composed of what H. L. A. Hart

termed “secondary rules,” the formal rules governing the production and modifica-

tion of primary rules, whereas the second dimension (“constitution of conversation”)

is made up of abstract moral contents allowing what Ronald Dworkin called the

“moral reading” of the constitution (Levinson 2016, 84– 5). It is important to stress,

in anticipation of what follows, that each dimension implies a different method for

guaranteeing the binding nature of the constitution (Troper 2001, 148– 53). While the

former provides a more or less adequate design for the institutional arrangements

that render the desired behaviour inevitable (or highly probable), the latter trans-

forms the constitutional values and purposes into prohibitions and duties that guide

public powers’ actions and social life in general.

In the English- speaking world, in particular, “legal constitutionalism” is the name

given to the doctrine according to which the constitution is the supreme legal norm

from which basic rights and obligations are directly derived, and whose applica-

tion and/or interpretation ultimately comes down to the decisions of constitutional

judges or courts. In the contemporary constitutional state, the validity of laws does

not depend exclusively on formal conditions, but also on the compatibility of their

1 Outstanding in the context of constitutionalism in the United States is the work of Rosalind

Dixon and Adrienne Stone (Dixon and Stone 2016). In Spain, where the constitutionalist model

known as “European” is in operation, characterised by the Constitutional Court’s interpretative

monopoly, some renowned authors have defended an easing in the amendment rules as a

means of reaching a more democratic constitutionalism than at present; among them, see Hierro

2016, 199– 203, and Laporta 2007.