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Institutions for Implementing Constitutional Law

Mark Tushnet1

This Essay considers institutions for implementing constitutional law understood

as political law. After a brief discussion of what it means to describe constitutional law

as political law the Essay e!amines the ways in which institutions can be designed to

respond to different "proportions# of politics and law in one$s understanding of

constitutional law. The aim is primarily to map understandings of constitutional law on

to institutional designs in a way that illuminates the obser%able %ariations in institutions

actually used to implement constitutional law.

Larry &ramer has recently brought to the attention of '.(. constitutionalists an

understanding of constitutional law that had been lost from %iew for a while in the 'nited

(tates although it has remained close to the forefront of discussions of constitutional law

elsewhere in the world.) *n that understanding constitutional law is political law. +oth

terms on the right side of the e,uation matter. Constitutional law is political in a sense to

be described shortly but it is also law in the usual sense. Law is a set of normati%e rules

and principles designed to guide decision in particular cases pursuant to a disinterested

-"neutral# to use a term familiar from '.(. constitutional discussions application of the

rules and principles to the facts at hand. In addition the guidance law pro%ides is

reasonably well/defined0 no doubt there is a range of choices a%ailable to sincere

1Carmack aterhouse 2rofessor of Constitutional Law 3eorgetown 'ni%ersity Law

Center.

)cite

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Michelman calls the laws of law/making.; These are the rules that go%ern the processes

by which ordinary laws are made. It is law

;cite

>*ne standard distinction between law and politics is howe%er ruled out by treating

constitutional law as political law. That distinction treats politics as a forum for -mere

preference aggregation and law as a location of deliberations that include some elements

other than preference aggregation -and that on what is probably the pre%ailing %iew

e!cludes preference aggregation altogether. Treating constitutional law as political law

strongly suggests that the political component of constitutional law is different from

preference aggregation although perhaps the political component could be understood to

be that portion of law if there be one that does implicate mere preference aggregation.

Combining the latter %iew with standard notions that bar ?udges from implementing their

preferences suggests that constitutional law as political law should not be implemented

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though because it is not nearly as discretionary as other law/making processes. Clearly

constitutional law can ha%e its political and legal components in any number of

combinations. :or con%enience in the this Essay$s mapping e!ercise I di%ide the

possibilities into two types and then the latter type into two groups. The two types are

institutions of constitutional change through formal amendment and similar action and

institutions for the consideration and application of e!isting fundamental law. ithin the

latter type which includes importantly systems of ?udicial re%iew for constitutionality

the political component of constitutional law has the larger role in the first group I

consider the legal one the larger role in the second.

@

ritten constitutions can be easy to amend or hard to amend. Consider first a

constitution that is ,uite easy to amend = in the limit of course by a simple ma?ority %ote

of the usual legislati%e ,uorum. (uch a constitution is simultaneously entirely legal and

entirely political. Its legal component is e!pressed when it is applied its political

component when it is amended perhaps in response to an une!pected or disfa%ored

application. As the difficulty of amendment increases so does the legal component of

constitutional law. 2olitics will still play a large role in determining fundamental law

when a constitution can be amended by a ,ualified ma?ority of a sitting legislature -a

ma?ority of the house rather than a ma?ority of a ,uorum or a super/ma?ority of the

by ?udges.

@My e!amples of how different conceptions of constitutional law map on to different

institutional forms are ,uite styli8ed. :or e!ample in discussing parliamentary

supremacy I ignore the complications introduced by the effects in 3reat +ritain of the

uman 6ights Act 1BB@ and 3reat +ritain$s agreement to be bound by the decisions of

the European Court of uman 6ights.

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de%ices for changing itpro tanto with respect to a particular proposal at hand. These

de%ices too respond to different conceptions of the role of the political in constitutional

law and can be organi8ed by identifying the triggering e%ent that leads to displacing the

e!isting constitutional rule. The most modest e%ent is a sense arising from the culture of

constitutionalism that the proposal is inconsistent with the constitution. Legislators can

respond to that sense by denying the e!istence of an inconsistency by modifying the

proposal or by acknowledging the inconsistency and concluding that present e!igencies

?ustify a one/time departure from the constitution.11

In one of its uses (ection 44 of the Canadian Charter of 6ights ser%es this

function. (ection 44 authori8es legislatures to make legislation effecti%e -for no longer

than fi%e years notwithstanding its inconsistency with some of the rights guaranteed by

the Charter. The Canadian (upreme Court has held that (ection 44 can be used

prospecti%ely that is before any court has actually found such an inconsistency.

11The +ritish anti/terrorism legislation adopted in )1 illustrates this possibility with

the peculiar twist that the constitutional norms applied are e!ternal to the +ritish legal

system. The uman 6ights Act 1BB@ directs +ritish courts to construe legislation to be

consistent with the European Con%ention on uman 6ights where such a construction is

fairly possible and to make a declaration that legislation is incompatible with the

Con%ention when it cannot be so construed -and is in the court$s ?udgment incompatible

with the Con%ention. *ne pro%ision of the proposed anti/terrorism legislation was

clearly incompatible with the Con%ention. 2ursuant to Con%ention pro%isions the +ritish

go%ernment issued a declaration derogating from the rele%ant Con%ention pro%ision with

respect to the legislati%e proposal -that is declaring that the Con%ention pro%ision was

inapplicable. citesF

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2rospecti%e uses of (ection 44 are rare and in the Canadian constitutional culture seem

likely to occur only when the legislation$s proponents belie%e that the courts would find

the legislation in enacted to %iolate Charter rights.1) (ection 44 used prospecti%ely

displaces the otherwise applicable constitutional law in the ser%ice of politics.

There are also more formal institutions to trigger that sort of reconsideration. A

legislature might ha%e a committee on constitutional matters charged with %etting

legislati%e proposals for constitutionality. a%ing concluded that a proposal is

inconsistent with the constitution the committee will notify the legislature which again

has the opportunity to respond in the ways I ha%e mentioned. The +ritish 2arliamentary

Goint Committee on uman 6ights is an e!ample of a legislati%e committee on

constitutional matters. The Committee consists of members from the ouse of Commons

and the ouse of Lords.14 It is charged with "e!amining matters relating to human rights

in the 'nited &ingdom# and has taken a fairly acti%e role in %etting proposed legislation.

Although it is a relati%ely recent inno%ation it appears to ha%e worked reasonably well in

bringing constitutional problems with proposed legislation to the attention of members of

2arliament.

Legislati%e committees on constitutional matters are of course composed of

members of a go%ernment$s political branches and so are likely to gi%e the political

1):or e!ample (ection 44 was in%oked prospecti%ely by the go%ernment of Alberta to

insulate its statutes limiting marriage to heterose!uals from a Charter challenge that

Canadian constitutionalists fully e!pect to succeed within a few years with respect to

some other pro%ince$s marriage statute. citeF

14At present si! Committee members are from the Labour 2arty two are Liberal

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component of constitutional law a large role in their deliberations. Det the members

chosen to ser%e on such committees and willing to do so are likely to think that the

constitution has a substantial legal component as well. And a legislature that sets up

such a committee is = by that %ery fact = indicating its %iew that the legal components of

constitutional law deser%e more attention than the legislature would gi%e them on its

own.17

*ne can increase the legal component e%en more by charging a court with the

responsibility to determine whether legislation is consistent with the constitution and

then gi%ing the legislature an opportunity to respond to the court$s action.

19

The +ritish

uman 6ights Act 1BB@ is an e!ample. 'nder the Act courts ha%e the power to declare

statutes incompatible with the European Con%ention on uman 6ights. (uch

declarations -of which only a handful ha%e been made so far ha%e no immediate legal

effect on any ordinary person$s rights. 6ather the declaration is a trigger for

reconsideration of the legislation. The minister responsible for the legislation can do

nothing in response of course or may introduce amendatory legislation in the ordinary

course. More important for present purposes though the minister has the power to

introduce such legislation and automatically place it on a fast track for adoption and e%en

to amend the legislation himself or herself if doing so is urgently necessary sub?ect to

parliamentary ratification.1;

17Cite to political science literature on committee composition

19*b%iously the legal component is high here because of the general %iew that court

decisions ha%e as large a legal component as one can ensure in institutional design.

1; :inally it is worth noting that we can make a legislature$s power to o%erride e!isting

constitutional pro%isionspro tantoless or more difficult to e!ercise. As noted (ection 44

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I turn now to the second type of institution concerned with constitutional law as

political law. (ystems of parliamentary supremacy ob%iously gi%e the political

component of constitutional law a %ery large role. Indeed one might wonder whether

such systems treat constitutional law as law at all. The answer though is that they do =

or at least that they can. :irst a culture of constitutionalism places some limits on what

legislators in such a system belie%e they can properly do. The difficulty is that such a

culture is a form of long/term politics and legislators may succumb to the pressures of

short/term politics and treat constitutional fundamentals in the same way they treat

ordinary issues of public policy. *r put another way a culture of constitutionalism may

not count as an institutionfor implementing constitutional law.

(till culture may matter at least sometimes. The political ,uestions doctrine of

'.(. constitutional law when understood in a particular way pro%ides an e!ample of how

a constitutionalist culture operating through politics can constrain action and thereby

enhance the effecti%e role of the legal component of constitutional law in a system that

treats legislati%eHe!ecuti%e action as final. 2olitical ,uestions are ,uestions of

constitutional interpretation fairly open to disagreement where the political branches$

interpretation is final. The problem for the political ,uestions doctrine has always been to

identify the criteria for determining when a constitutional ,uestion is a political ,uestion.

The best answer to that problem I belie%e is that political ,uestions are those where

there is good reason to belie%e that the political branches ha%e strong incenti%es to

has an automatic sunset pro%ision unlike all other legislation. *ne could re,uire that

legislati%e o%errides of constitutional pro%isions be adopted by superma?orities or by

ordinary ma?orities in successi%e parliamentary sessions or by any of the other de%ices

that are used to make permanent amendments difficult to adopt. Cite to +ork$s proposal.

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interpret the Constitution in a reasonably disinterested way.1>

(ome hints of this answer come in the opinion of Gustice Gohn 2aul (te%ens in

Walter Nixon v. United States.1@ That case in%ol%ed an impeachment of a federal ?udge.

After the ouse impeached the ?udge the (enate con%ened a committee to hear li%e

testimony. That committee prepared a report which pro%ided the basis for a %ote on

con%iction or ac,uittal by the entire (enate. Gudge i!on argued that this procedure did

not gi%e him the "trial# to which he was entitled by the Constitution. The Court held that

the ,uestion of whether Gudge i!on recei%ed a trial within the meaning of the

impeachment clauses presented a political ,uestion. In doing so the Court necessarily

held that Gudge i!on could not challenge in court a "trial# that consisted of a coin toss.

In response to that conclusion Gustice (te%ens wrote "6espect for a coordinate +ranch of

the 3o%ernment forecloses any assumption that improbable hypotheticals . . . will e%er

occur. . . .#1B Gustice (te%ens$s thought here is that (enators will be constrained by

somethingto pro%ide basic fairness in their procedures. The best candidate is a sense of

constitutional responsibility that is a sense that with respect to constitutional

fundamentals the (enate should treat the Constitution as ha%ing a significant legal

component. That sense is induced by electoral considerations5 (enators reasonably fear

that their constituents will retaliate against them at election time unless the (enators take

their constitutional responsibilities seriously.)

1>Cite to casebook

1@cite

1Bcite

):or discussions of actual practice see Mark Tushnet

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(econd and perhaps more important in the present conte!t "parliamentary

supremacy# should not be taken to refer e!clusi%ely to systems in which e!ecuti%e and

legislati%e power is combined as they are in 3reat +ritain. 6ather it refers to a system

in which decisions about constitutional matters taken by ordinary political actors = not by

?udges = are final. (o a separation of powers system can gi%e a %ery large role to the

political element of constitutional law. *ne aspect of The Federalist$s argument for a

separation of powers system deser%es note here. (eparation of powers worked to secure

constitutionalism according to The Federalist because it set ambition against ambition

and linked the political interests of particular power/holders to the interests of the

institution in which they held power. The libertarian/leaning interpretation of this

argument is that separation of powers makes it hard to get the go%ernment to do anything

which itself preser%es liberty. There is another interpretation though more resonant with

the interests of this Essay. The purely self/ or constituency/oriented interests of particular

power/holders cancel each other out when ambition is set against ambition. Det ambition

means that power/holders want to getsomethingdone. In the absence of self/interest or

constituency/interest all that power/holders can do is enact laws that ad%ance the public

interest = or in the terms I ha%e been using promote fundamental constitutional %alues.

A constitutionalist culture and separation of powers then are two institutions that

fit reasonably well the conception of constitutional law as law that is primarily political.

*ther possibilities deser%e mention as well. The pre%iously mentioned legislati%e

standing committee on constitutional matters is one. Another is an office in the e!ecuti%e

branch whose charge is to %et e!ecuti%e proposals and about/to/be/enacted legislation for

constitutionality.)1 And finally a "court# understood as largely political might be gi%en

)1The *ffice of Legal Counsel in the '.(.

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power to determine = either pro%isionally or finally = that legislation is unconstitutional.

These institutions gi%e the legal component of political law a slightly larger role than

pure parliamentary supremacy does.

These agencies speciali8e in constitutional matters and therefore are likely to

think of their "mission# as taking constitutional fundamentals more seriously than do the

generalist politicians elsewhere in the go%ernment. Their staffs are likely to ha%e a large

number of lawyers and may de%elop an institutional culture in which responsibility to the

legal aspects of constitutional law plays a significant role. *f course they are members of

the go%ernment and so are not likely to treat constitutional law as law only. :urther they

report to ordinary politicians and their reports will be acted on or not with an eye to the

political dimension of constitutional law.)) This is only to say that these institutions still

fall in the category of institutions in which the political component of constitutional law

plays a larger role than the legal one.

Also in this category but mo%ing toward the "more law/like# end of the spectrum

are constitutional courts on the &elsenian model. According to &elsen the political

component of constitutional law meant that the ordinary courts could not properly be

in%ol%ed in "?udicial# re%iew. Instead a court that speciali8es in constitutional law

should e!ercise the power of re%iew. (peciali8ation and the concomitant remo%al from

the administration of ordinary law would make such a court sensiti%e to the political

e!ecuti%e branch agency with similar responsibilities.

))2olitical circumstances might be such that the go%ernment would not be embarrassed

by a report from one of these agencies that a legislati%e proposal %iolates constitutional

principles or might be willing to acknowledge the %iolation but enact the law that

e!cepts the statute from ordinarily applicable constitutional principles.

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component of constitutional law. :urther &elsen thought the constitutional court should

be remo%ed from case/specific ad?udication where indi%idual claimants would assert that

they had constitutional rights to be determined according to law. Indi%idual claims that

is would induce re%iewing courts to reduce the political component of constitutional law

and fa%or the legal component more than they should. :inally the decision/makers who

compose a &elsenian constitutional court should be selected with an e!plicit concern for

their sensiti%ity to the political component of constitutional law.

*f the modern systems of constitutional re%iew probably only :rance$s fits the

&elsenian model reasonably well.

)4

:rench legal theorists conceptuali8e the Conseil

Constitutionelas an e!tension of the legislati%e process thereby emphasi8ing the political

o%er the legal. It e!ercises re%iew before legislation goes into effect entirely di%orced

from case/specific ad?udication. 2olitics of the ordinary sort plays an e!plicit role in

selecting members of the Conseil Constitutionel as is symboli8ed by the entitlement of

former presidents of the 6epublic to sit on the Conseil.)7

Contemporary international courts pro%ide an e!ample of another institutional

arrangement that responds to the dual components of constitutional law although of

)4*ther post/orld ar II constitutional courts depart in %arying degrees from the

&elsenian model. In particular most such courts ha%e some mechanism for consideration

of indi%idual complaints either by reference from the ordinary courts when a

constitutional ,uestion arises in connection with a pending case or by direct

consideration of applications from aggrie%ed indi%iduals. In such courts the balance

between the political and the legal components of constitutional law begins to tip in fa%or

of the legal.

)7The point is symbolic because the entitlement has gone largely une!ercised.

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course they do not enforce constitutional law in the usual sense. The most ob%ious

recognition of the political in international tribunals is their composition5

6epresentati%es of the states whose actions are in ,uestion are entitled to sit on the

tribunal considering the complaint. At present for e!ample each member/state of the

European 'nion appoints a ?udge on the European Court of Gustice.)9 In other tribunals a

temporary ?udge will be appointed when the court does not ha%e a ?udge from a state

whose action is at issue.

In addition the European Court of uman 6ights uses a legal doctrine that

recogni8es the political component of the law it administers. This is the "margin of

appreciation# doctrine which seems likely to be increasingly emulated in international

tribunals. According to that doctrine each nation is to be gi%en some leeway in its

application and interpretation of fundamental human rights because nations face different

arrays of social economic and political problems such that what is acceptable as an

interpretation of fundamental law in one nation -perhaps one e!periencing high and

persistent le%els of crime would not be acceptable in another. At the same time the

actual ad?udications of international tribunals tend to be highly legali8ed.

ith the introduction of -real courts into the institutional mi! I can turn to the

second group of institutional arrangements I mentioned earlier. These are arrangements

that emphasi8e the legal component of constitutional law o%er the political component

essentially by gi%ing courts a large role in implementing the constitution.); Earlier I

)9That may change as the 'nion$s membership e!pands although my understanding is

that those responsible for institutional design in the 'nion e!pect the ECG to grow.

);These courts could be speciali8ed constitutional courts or generalist courts. :or reasons

suggested earlier generalist courts are likely to gi%e the legal component of constitutional

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discussed prospecti%e uses of Canada$s (ection 44 procedure but more commonly

(ection 44 is seen as pro%iding opportunities for legislators to respond to ?udicial

rulings.)> The idea is that the Canadian courts can approach constitutional interpretation

in a relati%ely legali8ed way knowing that if they under%alue the political component of

constitutional law the political branches can read?ust the balance by o%erriding the courts$

interpretation. Constitutional law as a whole then consists of ?udicial interpretations

which treat constitutional law as mainly ordinary law and legislati%e decisions to

o%erride or not which treat constitutional law as mainly political.

That way of understanding the power to o%erride allocates the different

components of constitutional law to different institutions. (ection 44 says that

legislatures can declare legislation effecti%e notwithstanding Charter pro%isions -rather

than notwithstanding ?udicial interpretations of the Charter. This suggests that the

legislature is insisting on implementing the statute despite its inconsistency with the

Charter because it regards the statute$s policy as more important than the Charter$s law.

(ection 44 treats constitutional law as articulated by the courts as almost entirely legal

but constitutional law as articulated by the Canadian go%ernment taken as a whole inserts

a political element through the possibility of the legislati%e o%erride for policy or political

reasons. *ne who belie%es that constitutional law is political law might be concerned

with the incenti%es (ection 44 pro%ides courts and legislatures on this conceptuali8ation.

There is howe%er an alternati%e conceptuali8ation that uses (ection 44 to show

that constitutional law is political law through and through and that its different

components need not be allocated to different institutions. *n the alternati%e

law a larger role than they gi%e the political component.

)>(ee "dialogue# literature.

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conceptuali8ation a legislature$s o%erride is not a -mere policy ?udgment inserting

political considerations into an otherwise legali8ed constitution. 6ather it is an

e!pression of disagreement with the courts$ interpretation of the constitution. That is a

legislature using (ection 44 is not necessarily making a statute effecti%e notwithstanding

the Charter but is making it effecti%e notwithstanding an erroneous Charter interpretation

pro%ided by the courts. The legislature$s action is ?ust as legali8ed as the courts$.

This alternati%e conceptuali8ation is a useful correcti%e to the final mapping of

constitutional law as political law on to institutional forms. That mapping is of course

the '.(. system of ?udicial re%iew which I call strong/form re%iew.

)@

In strong/form

re%iew courts$ interpretations of the constitution are final and binding = in terms of

political morality if not in terms of enforceable law = on all political actors.

The '.(. (upreme Court$s recent decision in%alidating the 6eligious :reedom

6estoration Act e!emplifies strong/form re%iew.)B There the Court insisted that Congress

lacked the power to specify the content of constitutional norms differently from the way

the Court itself did e%en where Congress$ specification could not be dismissed as entirely

unreasonable.4 The tradition of strong/form re%iew goes back a long way though. *ne

can find it in what is perhaps the easiest reading of the passage inMarbury v. Madison

that has been taken to articulate the political ,uestions doctrine. Chief Gustice Marshall

wrote5

The pro%ince of the court is solely to decide on the rights of indi%iduals not to

)@:or additional discussion see Mark Tushnet Alternati%e :orms of Gudicial 6e%iew

Mich. L. 6e%. -forthcoming.

)BCity of +oerne %. :lores cite.

4The most noted e!pression of strong/form re%iew is Cooper %. Aaron cite.

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in,uire how the e!ecuti%e or e!ecuti%e officers perform duties in which they

ha%e a discretion. Juestions in their nature political or which are by the

constitution and laws submitted to the e!ecuti%e can ne%er be made in this

court.41

The most straight/forward reading of this passage has Marshall distinguishing between

,uestions of law which implicate indi%idual rights and political ,uestions which do

not.4) The Constitution that is is a legal document remitted to the ordinary courts for

ordinary interpretation when indi%iduals raise claims that their rights ha%e been %iolated.

Constitutional law has no political component at all0 politics is the realm of the discretion

conferred by the Constitution on the political branches.

If howe%er constitutional law is -by definition political law strong/form re%iew

might cause some problems unless it is tempered with some other institutional de%ices.

(trong/form re%iew allocates the political and legal components of constitutional law to

different institutions. As noted in connection with the first understanding of the (ection

44 o%erride procedure described abo%e doing so may create incenti%es that lead

constitutional law to be o%erlegali8ed and underpolitici8ed.

The 'nited (tates lacks a (ection 44 procedure that tempers strong/form re%iew

but it contains some institutional de%ices aimed at ensuring that the courts ha%e some

incenti%es to treat constitutional law as at least in part political. These are the

mechanisms usually enumerated as ones of political ontrolof the courts5 Congress$s

41cite

4)*n this reading the reference to ,uestions that are submitted to the e!ecuti%e by the

constitution is e,ui%alent to a statement that the e!ecuti%e$s action in resol%ing such a

,uestion implicates no legal rights.

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power to regulate the ?urisdiction of the federal courts the impeachment power and the

power of nomination and confirmation. The first two may seem primarily as methods of

retrospecti%e control or responses to decisions by the courts and in that they seem to

resemble the retrospecti%e uses of the (ection 44 power. +ut there is an important

difference. An o%erride used to correct an erroneous ?udicial decision need not affect the

?ustices who made that decision in the slightest0 they need not e%en be embarrassed by

the o%erride to the e!tent that they take it to e!press only disagreement on a matter about

which reasonable people can disagree. The e!istence of a power to o%erride ?udicial

decisions retrospecti%ely that is need ha%e no incenti%e effects on ?udges as they

consider what to do ne!t. The impeachment power is ob%iously different because it

gi%es the legislature a power to place a ?udge$s continuation in office in ,uestion. The

power to control ?urisdiction has some incenti%e effects as well albeit more modest ones5

The threat of losing work may be significant to a ?udge who has taken the position to do

something.44

The retrospecti%e powers do ha%e some forward/looking effects. +ut in the

'nited (tates those powers ha%e fallen into disuse to the point that a rational ?udge

looking forward should not gi%e any more weight to them than he or she does to the

possibility that a legislator dismayed at a ruling would hire an assassin to kill the ?udge.

The problem with the powers o%er nomination and confirmation is somewhat

different. These powers operate as screening de%ices at the point of entry to the ?udicial

role. They can be used to ensure the selection of ?udges who understand constitutional

law to ha%e a political component as well as a legal one. They cannot influence the

beha%ior of ?udges once seated. :or ?udges to treat the political component of

446ecall the interpretation of The Federalistoffered earlier.

1@

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constitutional law with appropriate seriousness then the president and Congress must

insist on choosing ?udges who already ha%e and are likely to continue to ha%e the

appropriate understanding of constitutional law. ith respect to the latter one might

think that something like a minimum age ,ualification would be desirable. The theory

would be two/fold5 An older nominee has a longer track record on which the president

and Congress can base their ?udgment about the candidate$s understanding of

constitutional law and probably more important an older nominee$s %iews are less likely

to change because of the conser%atism associated with age.

e might return to &elsen$s %iews in addressing the concern that nominees ha%e

the right understanding of constitutional law. orking within a ci%il law tradition in

which ?udges were members of a certain kind of bureaucracy &elsen thought that ?udges

on a constitutional court ought to be drawn from outsidethe ?udiciary precisely to ensure

that such ?udges take seriously constitutional law$s political component. &elsen$s

position in its strongest form seems inappropriate for a system of strong/form re%iew

like the 'nited (tates$ particularly where as in the 'nited (tates the constitutional court

is also a generalist court. +oth the generalist character of the court and perhaps more

important the system$s commitment to a strong/form system of ?udicial re%iew suggest

that the ?udges on such a court should treat the legal component of constitutional law as

the predominant one. hat can be said though is that these commitments must be

tempered a bit to ensure that the ?udges also understand that constitutional law is political

law. 2robably the best that can be done is to de%elop a norm for nominations and

confirmations that ?udicial e!perience is nota prere,uisite for ser%ice on a court with

substantial responsibility for constitutional law and that the desirability of ?udicial

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place are likely to operate in fact. +ut as noted earlier such cultural factors may be

particularly difficult to build into relati%ely stable institutional designs. In the end then

we may face a situation in which the institutions of constitutional re%iew recurrently

come into tension with the political/legal culture within which those institutions operate.

)1