Justice Scalia’s criticism of the ‘living Constitution’ interpretive theory highlighted the dangers facing the democratic process from the judicial approach whereby terms used in the Constitution are perceived, not in the sense they had when they were adopted, but through the meaning that judges may give them using contemporary social perceptions. Paul Yowell brings out in his book a less often noted type of judicial activism, yet one even more dangerous to the democratic process: the courts’ tendency to review empirical and moral data in order to review legislation restricting fundamental rights. If the theory of a ‘living Constitution’ allows judges to free themselves from the shackles of the verbal boundaries of the constitutional text by substituting their own views on what the Constitution should say, the judicial assessment of empirical data and ethical reasons supporting, and thus justifying, legislation on fundamental rights, may erect the courts as the ultimate arbiter of the adequacy of legal rules, with whatever this implies for the quality of democracy in which such practice appears.
In the following lines, I will try to unfold in seven points the structure of Professor Yowell’s argument and to stress its importance in the frame of the principles governing democratic governments. I will focus on the part of the argument which can be used by judges who, albeit empowered to review the constitutionality of the laws, still wish to avoid the lure of extending their powers to the detriment of democratic processes.
1. On a preliminary note, it should be stressed that the judicial review of empirical and ethical data on the legislative restriction of fundamental rights does not concern specific cases, but the legislative act through which the restriction, as a rule of law, is adopted. In other words, the issue discussed by Yowell in his book is not whether, for instance, a ban of a particular demonstration is compatible with the freedom of assembly having regard to the demonstration’s anticipated harmfulness, but whether the legislative prohibition of assemblies, for instance in front of schools or other places frequented by minors, is compatible with the relevant fundamental right.
2. The second clarification to be made here, which is crucial for understanding of Yowell’s argument, is that any piece of legislation limiting a fundamental right has two sufficiently distinct aspects. The first derives from a compelling social need which justifies, in fact and not merely as a legitimate purpose, the intervention of the legislature, whereas the second is linked to the practical suitability of the legislative measure chosen to remedy that compelling social need. In the first case, it is a matter of proving the occurrence of relevant facts; in the second, it is of assessing the practical consequences which a legislative measure may or is expected to develop. If, for instance, the compelling social need consists in ensuring the viability of a collapsing social security system, and the measures of increasing contributions or reducing pensions is expected to bring about the appropriate remedy, then the adoption of such measures, in view of their expected practical consequences, may be accepted as the justification for increasing charges or decreasing benefits.
3. The compelling social need deriving from a state of affairs justifying the intervention of the legislature is not to be subject to the common evidentiary rules applicable in a trial for proving the factual claims of the parties. Yowell employs here a highly useful distinction between adjudicative facts and legislative facts. The former are submitted, when their truth is called into question, to the traditional rules foreseen by the civil, criminal, or administrative rules of procedure. These rules are precise evidentiary rules and every trial depends on them for the demonstration of truth—for instance, in a criminal trial, the innocence or guilt of an accused person in regard to a specific criminal act. Legislative facts are something different. These are also facts relevant to a judicial case, but they help determine not the application but the validity of the applicable rule which depends upon them. For instance, the prohibition of a chemical substance due to the harm its use causes to human health loses its foundation when the substance is proven harmless during a trial. However, since there are no specific rules governing presentation of evidence on legislative facts, a judge has full discretion to determine such facts. The judge may seek them freely where she believes she can find them, determine, at her discretion, the relevant burden and standard of proof, and take them into account even if the parties were not given the opportunity to refute them.
4. The choice of the appropriate measure is based on the legislature’s prediction that the measure it adopts will remedy the compelling social need. The judicial review of the proportionality of a legislative measure refers primarily to the assessment of its consequences. Here, the issue is not, as in the previous case, an event or a state of affairs demonstrating the existence of a compelling social need. Here, the inquiry is into the consequences which are expected to arise from the implementation of the legislative measure, having regard to the expectation that this measure is the appropriate remedy for the compelling social need which has triggered the legislative process. If, for instance, it is forbidden to assist a person seeking euthanasia, because the legislature considers that vulnerable persons might otherwise be coerced into euthanasia without actually wanting it, these anticipated consequences of allowing euthanasia must be supported by scientific studies, statistics, research, or empirical inferences as to the probability of facts on which the ban is based, in order to respond to the compelling social need it supposedly remedies.
5. The constitutionality of a law may, however, be challenged before the courts many years after its adoption, when the consequences of implementing the measures introduced by it are already apparent. In that case, the causal link between the adopted measures and the actual situation is never given. Thus, if the relation between smoking and lung-cancer can now be considered proven for the purposes of banning smoking in public places or advertising tobacco products, the connection, as a proven fact, between, on the one hand, racial segregation in education, and, on the other hand, the feeling of inferiority of black people, was not scientifically demonstrated at the time when it was delivered by the Supreme Court of the United States in its monumental decision on this topic. Some measures, whether or not they can be fully justified by empirical data, are so morally unacceptable to the reviewing judge, that she cannot but declare them incompatible with the core values of a democratic society.
6. And thus another parameter is introduced: the assessment of a measure restricting fundamental rights in the light of moral standards. Reasoning based on empirical data subject to evidence is thus supplemented by moral reasoning, for powerful convictions regarding the fair or unfair nature of an act or conduct, which are held by a whole society or significant part of it, make empirical proof of their value seem redundant. That the sterilization of persons on the ground of mental disability is condemned as a form of eugenics, and therefore must not be imposed as a sanction to criminals, is a judgment that cannot be reversed by any empirical arguments in favor of the benefits that such a measure can bring. The same applies to human behaviour assessed by moral standards such as pedophilia, polygamy, and racism, where the relevant bans are so strongly grounded in moral perceptions fully incorporated into the constitutional order that challenging their prohibitions cannot even be voiced. However, a problem arises where the judge decides by using her own moral perceptions as constitutional authority, in order to remove from public debate and political confrontation a category of acts making them a constitutionally protected freedom. This happened in the United States with regard to abortion and same-sex marriage, and in Canada with regard to euthanasia, where restrictive arrangements of traditional origin could no longer be justified in the context of a society having the respect for human dignity as an overriding moral value.
7. The question posed by Yowell is whether a court, even a constitutional court, is better placed than a legislature for collecting, analyzing, and assessing the necessary data in order to address the empirical and moral questions mentioned in the previous points of the present note. In his book, Yowell demonstrates that this acquisition, analysis, and assessment of the empirical data and moral reasons that occurs when the proportionality of a restrictive measure to a fundamental right is considered, is not a normal process of judicial practice. It is neither an interpretation of the applicable rule of law nor an evidentiary process on critical facts concerning individual cases. These empirical data and moral reasons are made up from observations and inferences from the society as a whole. This is precisely why, as I have suggested in ‘The Fair Balance – Justice as an Equilibrium Setting Exercise’ (Nomos, Sakkoulas 2014), the political responsibility of a democratically elected government is the necessary complement of the decisional process. First, political responsibility, in the context of a democratic process, compensates for the lack of certainty as to the prediction of the results expected to be brought about by new legislation. Second, it legitimizes the government when making moral choices that have not yet been socially justified enough to become constitutionally respected rules.
The argument developed by Yowell as to the suitability of courts of law for replacing the legislature in the assessment of situations and events concerning the broader society or in adopting of principles and rules based in moral reasoning is not just convincing. It is a kind of institutional imperative, if we consider that elected officials have a fundamental role to play in our societies. Suppose, for instance, that in order to deal with a budgetary crisis, either all pensions should be horizontally reduced at a uniform rate, or the reduction should concern only the higher pensions so as not to affect the lower ones. Regardless of whether the pension, as a social or property fundamental right, is subject to the status of enhanced constitutional protection, is it not a fundamental question of democracy to give the power of choice to the legislature and not the judge? Yet trends have recently developed within the judiciary, both at the national and supranational level, which run contrary to judicial restraint . In countries where the judiciary has the power to review the compatibility of laws with fundamental rights, courts have the last say; and it is therefore they that determine the limits of judicial review. That is where national constitutions may come into play and impose procedural limitations on judges when they ask the legislature to demonstrate in trial the correctness of its legislative choices.
Judge Ioannis Sarmas is a Supreme Court Judge, Hellenic Court of Audit