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11. The Constitutional Entrenchment of Federalism
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332 11 THE CONSTITUTIONAL ENTRENCHMENT OF FEDERALISM JACOB T. LEVY 1. Introduction One of the most striking developments in the past ten years of constitutional theory has been the partial or wholesale critique of judicial review among those traditionally identified as “legal liberals” or “liberal legalists.” In its moderate versions, this critique encompasses Cass Sunstein’s account of judicial minimalism and Mark Tushnet’s call to “take the Constitution away from the courts.”1 Its least moderate version is the sweeping critique Jeremy Waldron has offered over almost twenty years of all constitutional judicial review in well-functioning democratic systems.2 These debates in recent political, legal, and constitutional theory about the idea, and legitimacy, of constitutional entrenchment have mainly focused on the entrenchment of substantive normative commitments and, especially, of bills of judicially enforceable rights. American constitutional theory has been preoccupied with cases like these since at least the Warren Court; Canadian constitutional theory has followed a similar path since the enactment of the Charter of Rights and Freedoms; and the relevant debates in Britain have centered on whether that country ought to have such a bill of rights. But most entrenched constitutional provisions—which is to say, most constitutional provisions in most states with written consti- The Constitutional Entrenchment of Federalism 333 tutions—concern institutional arrangements. In this essay I try to draw attention to such institutional arrangements, and particularly to the arrangements surrounding federalism. While the constitutional entrenchment of federalism and federalist arrangements is, I think, defensible and perhaps even indispensable,3 it is not somehow outside the scope of the criticisms of entrenchment that have been made in other contexts. Indeed, federalism is a centrally important instance of the phenomenon under debate, and I do not think we can understand the phenomenon without attention to it. If, as I think, entrenchment is legitimate with respect to rules of federation, then that may tell us something about the legitimacy of the entrenchment of rights. 2. The Concepts in Play “Constitutional entrenchment” admits of variation; even within a given constitutional order, some provisions may be amendable by weaker action than others. I’ll refer to any rule or provision as entrenched which cannot be altered by the same rules as ordinary legislation of the central government (i.e., parliamentary majorities , with presidential acquiescence in presidential systems). Such entrenchment can take the form of requiring amendment by legislative supermajorities, by popular (majoritarian or supermajoritarian ) referenda, by the concurrence of center and provinces or of legislature and electorate, or any combination of these. But it is important to note that some entrenched provisions are avowedly unamendable without discarding the constitutional order altogether , such as the German Bill of Rights; and some are effectively so, such as the rule guaranteeing equal representation for each state in the U.S. Senate. For purposes of this essay I will mainly elide one potentially important distinction concerning entrenchment: between the entrenchment of a constitutional provision and its enforceability by means of judicial review. That is, I will assume that entrenchment and judicial enforcement do go together—whether the enforcement is by a regular court or a specialized constitutional one, and whether the judiciary has the last word (prior to constitutional amendment) or other actors may override the judiciary (as in the Canadian notwithstanding clause). A constitution that is nominally [3.239.59.193] Project MUSE (2024-03-19 09:06 GMT) 334 Jacob T. Levy entrenched but declaratory in its effects—one that tries to provide a focal point for public deliberation about matters of foundational importance but that does not offer any institutional restraints on the central legislature—falls outside the scope of this essay, even if that declaratory constitution is entrenched in the sense of being difficult or impossible to amend. The judicial override of legislative enactments does not exhaust the actions that a constitution may authorize in its own defense, of course. I take it that the core of constitutional entrenchment, indeed the core of the link between constitutional rights and the judiciary, is the defense of procedural, rule of law rights against executive action. Habeas corpus is fundamental to the rule of law and thence to constitutionalism. Judicial limits on legislatures represent a kind of late extension by analogy of the core judicialconstitutional function of ensuring that persons are only imprisoned and punished in accordance with enacted, prospective, promulgated laws.4 But this kind of thing is uncontroversial among the theorists with whom I am concerned here; Waldron, whose skepticism...