HLS in the World | Constitutionalism and Courts: A Transnational Conversation Among Judges
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HLS in the World | Constitutionalism and Courts: A Transnational Conversation Among Judges


VICKI JACKSON: Great. Well, welcome to
this panel, which is a transnational conversation
among constitutional court judges. We have an unbelievably
distinguished group with us, and I’m going to introduce them. First the people who are
sitting on their courts still. To my immediate right,
Justice Rosalie Abella, who’s a member of the
Supreme Court of Canada. She went to the
University of Toronto. She also graduated from
the Royal Conservatory of Music and Classical Piano,
was called to the bar in 1972. And in 1976, she was
appointed to the Family Court at the age of 29, the youngest
and first pregnant person appointed to the
judiciary in Canada. She led a very important
Royal Commission on equality in
employment in the 1980s, which had a huge impact not only
on the jurisprudence in Canada but on jurisprudence
in many other countries around the world. She’s written many articles
and co-edited many books. And I probably will
stop there, but I could keep going with all
of her distinguished visitor positions and honorary
degrees and whatnots. So that is Rosalie Abella. To her right, far
middle-right, is Koen Lenaerts, who is the President-elect,
like the Chief Justice, of the Court of Justice
of the European Union. For the American students
in the room who are not familiar with it, the EU is
about twice the population size of the United States. And this is the highest
court of the EU, comparable to the United
States Supreme Court. President Lenaerts received
both a Master of Laws and a Master of Public
Administration from Harvard. He got his PhD at the
Catholic University of Leuven, and he has had a
distinguished career both as a member of the
bar, where he, for a time, represented Belgium, if
I remember correctly. He’s been a visiting professor
at this law school in the past, and he has served
at multiple levels over the course of the
European Union most recently and continuing as its president. So we are particularly
honored to have you with us. Now, we have three other
equally distinguished guests. And I’m going to introduce
next Sandile Ngcobo, who is to President Lenaerts’ right. Right and left are
not my strong points. Sandile Ngcobo is
the retired Chief Justice of the Constitutional
Court of South Africa. His undergraduate degree
was from the University of Zululand, his LLB from the
University of Natal in Durban. And he received his LLM
from Harvard in 1986. He practiced law– I
think this period started before he came for the LLM. And it will interest you to
know that his practice was interrupted for a year in
1976 under the apartheid regime, when he was detained
following a student uprising. He worked in a public
interest law firm, trying civil and criminal cases
involving issues, including the forced removal of black
communities to homeland, police torture and assault, wrongful
detention, and a variety of other important issues. After HLS, he spent a year as
a clerk for Judge Higginbotham, if I’ve got it right,
in the Third Circuit, and was a teaching
assistant in classes at Penn, Harvard Law
School, and Stanford. I don’t have time to give
you all the details of his incredibly distinguished
career, but he was appointed to the Labour Court bench
in South Africa in the early 1990s, to the South Africa Truth
and Reconciliation Commission in 1998. And in 1999, he was
appointed Chief Justice of the Constitutional
Court of South Africa, a position he held
until 2011, when he retired. But since then, I
think you served as an acting judge of the
Supreme Court of Namibia, which is a very interesting
practice that happens in some other nation. Now, to Justice
Abella’s immediate right is Dieter Grimm, a former
member of the Constitutional Court of Germany and a regular
visiting professor of Law at Yale Law School. I know I’m not
supposed to mention it, but I actually went
to Yale Law School. So I have an exemption
from that rule. Professor Grimm is
also a professor of law at Humboldt
University in Berlin and a permanent fellow
and former director of the Wissenschaftskolleg
zu Berlin Institute for Advanced Study. He was a justice of the
Constitutional Court from 1987 to 1999. He’s an honorary member of
the American Academy of Arts and Sciences, holds law
degrees from Frankfurt and a master’s from Harvard. Author of many
books and articles, including a quite recent
and fascinating book about the past, present, and
future of constitutionalism. He’s been a visiting
professor at many schools, in addition to Harvard,
including NYU, Toronto, Rome– I can’t go through the list–
and holds honorary degrees from a number of universities. And finally, my friend
Manuel Jose Cepeda Espinosa, who is sitting next
to Professor Tushnet, is currently the president of
the International Association of Constitutional Law. He was president and a justice
of the Colombian Constitutional Court from 2001 until 2009. He played an important role in
making the 1991 constitution as an advisor to the president
for the Constituent Assembly and Constitutional Drafting. He was also a
presidential advisor for legal affairs for the prior
President of the Republic, Virgilio Barco Vargas. He has written extensively on
Colombian constitutional law and the impact of the
1991 constitution. He taught constitutional
law and was dean at Universidad de
los Andes, from which he holds a law degree. And he also holds
an LLM from Harvard. He continues to be affiliated
with the Universidad de los Andes as a member of
the Board of Directors and Director of the Program
on Public Policy, Regulation, and Constitutional Law. And he has served as a
consultant on peace process matters, which, those of you
who follow Colombia know, have been of great
interest and public attention in the last three
to five years or longer. So this is our wonderful panel. And the way professor
Tushnet and I plan to do this is
really as a conversation. So Professor Tushnet and
I will ask questions, and then we hope to leave
maybe 20 or 30 minutes at the end for questions
from the audience. I want to say to our panel,
because we haven’t rehearsed, of course, that you are
not obligated to answer any of the questions. Or if you think the
question isn’t quite right, you’re welcome to change
it and answer the question you think we should have asked. ROSALIE ABELLA: We
do that all the time. VICKI JACKSON: Right. I just wanted to make it clear
that you were invited to do so. So do you want to start, Mark,
with the first question, or do you want me to– MARK TUSHNET: Why
don’t you start. VICKI JACKSON: So first
question goes something like this– constitutional
courts function as governmental organs in
political contexts involving, no surprise, other
organs of government and a public audience. So the big picture question
is, what kind of challenge does this setting pose for
the court you know best? And then there is some
follow-on questions that might relate to the rise of
populism in various countries. But maybe we’ll start
with the big picture, and then you can
adjust it as you like. Who would like to go first? Justice Abella, and then
we’ll just go down the row. Does that sound good? ROSALIE ABELLA:
I see when you’re the only person on the panel who
doesn’t have a Harvard degree, you really have a
lot to show for it. So I’m going to
speak as someone who is on a constitutional court
that is really enjoying a very peaceful moment. And I say that with
enormous gratitude to those who are doing it in
more turbulent environments. We had, during the
’90s I have to say, the difficulty of judging in
the rhetorical turbulence that was the product of a supply side
of invectives from the United States that breathed the
fumes of judicial activism and politicization, words we had
never heard in Canada before. But we’ve survived
it, and we are now doing what I think all
constitutional courts are supposed to do. And we are not
government actors. We are there with
a constitution, which we didn’t pass. The government said
to us, by passing a constitution and a Charter
of Rights and Freedoms, your responsibilities
determine whether what we do passes constitutional muster. So the notion of
judicial activism is something I’ve
never understood. We’re doing our job. And if you don’t
like the result, you can call it
judicial activism. But it is judges
doing what judges do. So what do we do? Well, we always, in Canada,
when we’re assessing rights, do it knowing that there
are several audiences. One is the government,
one is the public, one is other judges, one is
lawyers, one is scholars. And we don’t have a particular
constituency in mind, but I have. And the one I think
about always is history. How will history
judge this decision? Will it say this was a
decision with integrity? Is this a decision
that’s rigorous? Is this a decision that
made sense for its time, whether you are the dissent
or the majority judgment? But because we are doing this
with the benefit of something which many other
courts don’t have, and particularly
the American court– and that is as
Section 1 which says, all rights are
guaranteed subject only to such reasonable
limits as are justified in a free
and democratic society. We have a directive
from our constitution that says, weigh it, balance it. What is the benefit of
the right versus the harm of the infringement? We borrowed proportionality
from the German Constitutional Court. And it is so much easier
than an American Constitution which hasn’t got the
balancing provision and takes an absolutist
approach to many of the rights, particularly
freedom of speech, which has become the
new religion here. It’s a bit scary to somebody
from a tradition that sees limits on some speech. So we can engage in that
proportionality exercise in every single
one of our rights. So how does it interact
with the government? The complainant
proves the breach. The government then
has the onus of showing why it’s a justified breach. That means sometimes the
government is going to win, sometimes the government
is going to lose. When the government wins,
they like it better. When the government loses,
then they’re not happy with it. But we’re not. The worst that happens to
us in a country like Canada, the luxurious country of Canada,
is we get a nasty editorial. There are some countries where– you will hear from
some of them– where your physical
security is in danger. The Chief Justice of
Israel had 24-hour security when he was on the
Supreme Court of Israel. So we make decisions. We risk unpopularity. Unpopularity is what judges are
supposed to be able to risk. We are the non-majoritarian
institution. Governments have to
respond to the public, to the majority of the public. We can take what we think
the majority of the public has in mind. We are not bound by it. We are the place
where minorities can come to have their rights
vindicated with no risk, except controversy. And Edith Wharton in
The Age of Innocence said, Mrs. Manson
Mingott determined what the right thing to do was. Well, courts don’t have that. So public opinion–
there are mood swings. It’s not tested by evidence. We don’t worry about
what public opinion is. We listen to the arguments. We listen to the evidence. We hope that time
will judge it to have been the right decision. VICKI JACKSON: Thank you. Professor Grimm. DIETER GRIMM: Well,
I think in Germany, government and
parliament are not always happy with the decisions
that the Constitutional Court takes. And this is normal. I think that something would
be wrong with the court if the other branches
of government were always pleased with
what the court does. Still, I couldn’t
report of any case of open noncompliance of
the government with court decisions. And this is so in
spite of the fact that the German court
is a quite active court. I make the difference between
activism and passivism. I can only make it after
comparing various courts. Before I started
to compare courts, I didn’t know that my
court was an active court. But now I know it from
comparing, and more active than in the
US Supreme Court, although if I may say
so, less politicized than the US Supreme Court. More active, to give
you one example, the court understands
fundamental rights, civil rights, not only as
negative rights obliging the government to refrain
from certain actions that would be a violation
of fundamental rights, but also as positive rights. That’s to say as imposing
duties on government to act if fundamental
rights, if freedoms are endangered from private actors. So the government
is then obliged, and the Constitutional
Court obliges the parliament to regulate certain
problems that stem from private action that
endangers fundamental rights. So we are in a rather
privileged position. And one has to be
aware of the fact that this can always change. And I say this in
order to mention that we have, in my view, a
dramatic setback with regard to compliance of governments
with constitutional courts. We have it even in the European
Union, 27 member states who, in order to become a member
of the European Union, have to be democratic, have to
comply with the rule of law, have to respect
fundamental rights. But there is a lot of
court packing and court curbing going on in the world
and also in the European Union. The Polish
Constitutional Court is almost paralyzed after
a number of reforms. The Hungarian Constitutional
Court is, after packing, in line with the government. The government has
not to fear anything from that constitutional
court anymore. So we have to be aware of this. If things are as they
are up to now in Germany, this is an achievement
that can by no means be taken for granted. And the question, of
course, is, can courts do anything about that? After having been packed,
after having been paralyzed, there’s little to do for courts. They may not even want
to do anything about it. But in the short,
intermediate term, can courts do
something about it? And I pose a question
without giving the answer. But maybe we have a chance
to discuss it later. Is there justification
in such a situation where courts are endangered? Is there a
justification for courts not to render a judgment as
the constitution, in their best knowledge, would require it,
but render it different judgment in order to save
the institution? VICKI JACKSON: Very
interesting question that I hope will be taken up. We’ll hear next from
President Lenaerts KOEN LENAERTS: Well,
thank you, Vicki. I have the advantage to speak
after the two first speakers, because I can fully subscribe
to what they’ve said, also in relation
to the proper scope of activity of the Court of
Justice of the European Union. I should clarify
for the audience that the European Union
is a common government structure for 28, soon
to be 27, member states, at the same time, a
common legal order. And it is the task of the Court
of Justice of the European Union to ensure the uniform
interpretation, application, and enforcement of Union law. This is simply required
in order to guarantee the equality of all the member
states and their peoples before the common
law, before Union law. And on the other hand,
the second function, it must ensure the
constitutionality of all the laws of the
Union with the primary law of the Union. And I see some students now,
look, hey, constitutionality. He uses the word “constitution.” Yes, because the foundational
treaties of the Union, as well as the Charter
of Fundamental Rights of the European Union, the
Bill of Rights in the US, form what the French
call so beautifully “bloc constitutional,”
the constitutional bloc on which the Union is based. So that is our ultimate rule of
reference, rule of recognition, to quote another
Harvard scholar, the rule of
recognition vis a vis which we will uphold
the legality of all what is happening in
the European Union. Now, this is a system of what
Laurence Tribe would call separated and divided powers. So we have the
principle of conferral. That’s the EU speak for the
principle of attributed powers, of enumerated powers,
principle of enumerated powers. So we must always stay
within the confines of the competences
conferred to the Union. And of course, we
draw the lines. It’s a line-drawing
exercise between the Union and the member states, between
the seven Union institutions interacting through a certain
system of checks and balances, which we call the principle
of institutional balance. So all these types of
litigation are submitted to us. But this is done on the
express competence conferred to our court in the treaties. So in other words,
we haven’t the need for Marbury versus
Madison judgment, because the equivalent
of Marbury versus Madison is simply written in the full
text of the Constitution. It says that we
have the competence to control the constitutionality
of the laws made. So that makes it easier. However, it also means that
since the legislative areas in which the Union is becoming
active are ever-increasing– not because of the union itself
but because of the member states, which as
masters of the treaties that is of the
Constitution, are conferring ever more powers in every broad
fields to the European Union. Including in cases as
asylum and immigration, criminal law, family
law matters whenever there is a cross-border
element, conflict of laws, conflicts of jurisdiction,
all sorts of fields which are far-removed from
the common market, from the Commerce Clause
you would say here. So it’s law in general. And it means that we are
involved in all those fields. It is now fair to say that
we are handing down judgments in all the delicate and
sensitive constitutional law areas in which the US
Supreme Court is active. And this more or
less simultaneously– religion in the workplace,
race and ethnic origin in the workplace,
handicap in the workplace, forbidding grounds
of discrimination, sexual orientation. All these methods are included. We have now a same-sex marriage
case pending in our court. Why? A Romanian national marries
a US national in Belgium, where same-sex
marriage is allowed. This while the Romanian
man was working as a migrant worker in Belgium. Now he’s returning home because
he got a better job offer in his home state, Romania. They refuse to recognize
the same-sex marriage, as being contrary to the
Romanian constitution. Ever heard about
Obergefell versus Ohio? The terms of the debate is
Roberts against Kennedy. That’s Kennedy for the majority,
five, Roberts for the minority dissent, for four. That’s what I mean. We are in court doing that. So we have all the sensitivity
of constitutional law adjudication pertaining
to any jurisdiction. We have good textual guidance,
like in the Canadian case. What you said about this
balancing and proportionality, it’s only in our text as
well, fortunately enough. But all the same, even taking
all of that into account, we must be very, very cautious. Do the job, being active,
yet not activists. And we are in a context
of very great diversity between these member states. Bigger diversity, I would
suggest, than, for instance, in the United States. So we must accommodate that in
order to keep the law uniform, to keep the constitutional
standards uniform, at least at the
basic level, indicate what member states
can do separately according to their own choices. And keeping that balance is the
big challenge for our goals. The final point is,
I think we can do it. We are expressly mandated
or charged with that task by the member states
as [NON-ENGLISH],, masters of the treaties. But we do it always
with a concern to avoid becoming a player. We are an umpire. We may not be seen
as a player in a pluralistic political debate. So we are an umpire. We listen to all the
arguments, like Rosalie Abella said, to all the arguments. And it’s the strongest
legal argument which wins. And we make single judgments,
no dissenting opinions, to have a final say of the
law, which will thereafter be the law of the land in the
whole of the European Union. It’s not our choice
not to have dissents. It’s in the texts. It’s also in the text
of the Constitution. The judgments must be
consensual in order to have the capacity
to be recognized as the final authority. VICKI JACKSON:
Thank you very much. Chief Justice Ngcobo. SANDILE NGCOBO: Thank you. If I had my way,
I would simply say I associate myself
with everything that my colleagues have said. But I do want, though,
to try to raise another aspect from the
South African perspective. I think there’s always
an inherent difficulty in trying to serve a
multiplicity of masters– the public, the government,
NGOs, and everyone else. So as a court, we decided
to take a conscious decision to serve only one master. And that is the Constitution. And I think the attitude of
the South African government, the public towards the
Constitutional Court, must be understood against
the background of why the Constitutional Court was
established in the first place. Prior to 1994, we
had a judiciary that was dedicated,
with a few exceptions, to the enforcement of apartheid
legal order and its policy. When there was a
political change in 1994, one of the
crucial questions that as a nation
we had to ask was, who can we entrust
with the guardianship of the Constitution? Can we trust judges who, for
most of their judicial lives, have been involved in
enforcing apartheid laws? Secondly, we were dealing
also with a thoroughly unrepresentative judiciary,
which was composed of, I think at the time, probably
about 98% white males, with one or two
women at that time. There were no Africans of
blacks who served in that court. So there’s the reality
that we were faced with. And it was against
that background that a decision was
taken to establish a new court with no
ties to the past, with no baggage
from the past, which we can then entrust
with the enforcement of the new constitution. It is the newness
of the court that defined the relationship
between the court and the political branches
of government and the public. Right at the very beginning,
one of the very tough cases that the court had to
face was to strike down what the most popular president
had done, President Mandela. We struck down laws that he
had made which permitted– where he delegated
power to the provinces. And the court held
you can’t do that, and we will tell you what
you should have done. The very same evening, when the
court rendered the judgment, he went on public
radio and television to commit himself to adhering
to the judgment of the court. A couple of years later, he was
also faced with a difficulty. A high court judge had asked
him to appear before it in order to give evidence
of and concerning a commission of an inquiry
that he had appointed. The commission of inquiry
had to do with problems in the rugby football. The public, which included
myself at the time, we were dead against that. We just couldn’t understand why
this judge from the old order would call upon our
president to go and appear in court in
circumstances where this was a reactionary litigation. Because they simply didn’t
want any investigations to be conducted into
the rugby league. President Mandela was the first
one to say he will go to court and he will give evidence. So that, in a
sense, set the tone for how government and
the political branches of government were going to
react to court decisions. The other important factor
that must be taken into account is the enormous power that
the Constitutional Court has. It has the power to deal
with ethnic disputes that raises a constitutional matter. Now, if you are a
constitutional democracy subject to a constitution,
it is difficult to fathom any dispute which would not
raise a constitutional issue. So from that
standpoint the powers of the Constitutional
Court, on the face of it, appear to be somewhat unlimited. And what is more, the
Constitution itself gives it enormous powers in
the sense that it has the power to decide what many,
in other countries, would regard as a
political question, such as a dispute
considering the status and the powers of the various
spheres of government. We can consider the
constitutionality of the bill. We can strike down a bill. We can strike down any
law and make any order that we consider just and
equitable in the circumstances. It is precisely the
exercise of that power which has more recently
changed attitude of government. What has been happening over
the last couple of years is that the court
has increasingly been drawn into issues that are
so politically controversial, raises profound issues
of political morality, which were considered
to be traditionally the no-go zone for courts. That’s where the court
has been dragged into, including the squabbles
among political parties. It is precisely when we
exercise the jurisdiction that has incurred on occasion
the wrath of the government, where you are beginning
to see somehow a slight change
in their attitude where they will criticize the
court, say all kinds of things. However, whatever they
may see in public, they have always respected
the decisions of the court. And for us, that’s
important, because it is only if the government,
which is charged with the responsibility of
implementing our decision, that we can be comfortable
in the job that we’re doing, that democracy and
constitutionalism would be protected. But regrettable, if one
looks across the continent, the picture is not that good. More recently,
for example, there were elections in Kenya,
presidential elections. There were problems
with those elections. The matter went to
the Supreme Court. The Supreme Court
invalidated those elections. This drew criticism
from the politicians. There were newspaper
reports indicating that judges were referred
to as thugs and as crooks. That’s what the
reporters were saying. On Thursday this week,
there was supposed to be a rerun of those elections. But on the eve of
these elections, an urgent matter was
brought to the Supreme Court again to postpone the elections. Because the opposition
parties took the view that there were things that
had not yet been ratified, so as to create
an atmosphere that would be conducive to
free and fair elections. Now, reports coming
from that country indicate that the day
before, a bodyguard of the deputy chief
justice was shot at. The following day,
when the Supreme Court was ready to hear the matter,
four judges did not turn up. As a result, there
was no quorum, and the Supreme Court
could not hear the matter. I’m citing this example
simply to illustrate how attacks on the judiciary,
how anything that tends to undermine the judiciary, may
frustrate constitutionalism. These elections were
intended to allow the people exercise
their right to vote, elect their own leaders. But they’ve been frustrated
because the judges did not turn up. As a result, there
was no litigation. So I’m citing this
just to make the point. And as my colleague from
Germany made the point, it’s just not
confined to Africa. In Germany– in Hungary,
as he has pointed out. And in this country,
too, when federal courts started to strike down
some of these travel bans, that drew criticism. So it’s not a question of
it can’t happen with us. It will. It’s a question of time. And the real question
is, what can judges do in order to
protect themselves against these kinds of things? It is our court. At least we can pride ourselves
in South Africa the sense that our constitution
protects the judiciary by guaranteeing our
independence and calling upon the branches of
government to take every step necessary in order
to protect our independence and to make sure that our
judgments are effective. So that, in a sense,
has a way of capping the excesses of the political
branches of government. Because if they do
anything that is calculated to undermine the judiciary,
that would be a violation of the Constitution. Shall I stop there
for the time being? VICKI JACKSON: For
the time being. But that’s fascinating. And I see that you’ve
picked up the question that Dieter put on the table. But we’ll now hear
from Professor Cepeda, and then we’ll give you a chance
to ask each other questions, if you would like, before
we go on to the next round. MANUEL JOSE CEPEDA
ESPINOSA: Thank you, Vicki. It has been
fascinating listening to the different perspectives. I come from Colombia, where
the Constitutional Court lives permanently in the eye of
Hurricane Katrina, Maria, Jose. All the hurricanes
come every month to the Constitutional Court. And so the questions
that have been put– how can a court at the same
time protect the Constitution and protect rights? Take into account the force
of the political context that is discussing issues
that are arriving to the court, not one year,
two years, three years later, but at the moment the
discussion is going on in the political context? And third, is a court
whose only power is to write a piece of paper? That is the power of the court,
to write a piece of paper. How can the court manage
to do her job and survive? So this is the big question for
the Colombian Constitutional Court. And this question must be, at
least in our context, addressed taking account the
following problems. The first problem is structural
failures in the state and the political process. What I mean for that
is that the state is not representative enough. A lot of Colombians
feel that Congress does not represent them or
does not listen to them. Second, a state that has
a precarious capacity to do things. So the 1991 constitution
promises that everyone would have a right to health. But the state does not have
the capacity to do that. So how can the court
interpret a constitution that promises that– the state that does not have
the capacity to deliver? But citizens that go to the
court asking for the court to interpret the Constitution,
how to handle that? Third problem, very critical
one, a very unequal society. A very unequal society with
exclusion, discrimination, marginalization, and
a political system that is not responsive to that. So this is that. And secondly, a bigger
structural problem– political forces
that are not always respectful of the rule of law. In this context, the
questions that have been put– how does a court manage– are very, very important. But in Colombia, we have,
fortunately a paradox. We have this context. But at the same time, we
have a stable legal tradition and constitutional tradition
of judicial review. So our Marbury
versus Madison case was 130 years ago, in 1887. We have abstract judicial
review of the constitutionality of statutes approved by
Congress through actio popularis since 1910. So 120 years of effective
judicial review of legislation in abstract judicial review. So that has given to the
court a traditional legitimacy to be in the eye
of the hurricane and take very
difficult decisions. But in addition,
the court has tried to combine two very important
elements for the sustainability of judicial review. The first already
mentioned is do your job of protecting rights. When the times
arrive that there is going to be a rebellion
of the political process against a very
unpopular decision, or against a series of
very unpopular decisions, the first protection is
whether the people feel protected by the courts or not. So when I was in the
court, there was– excuse me the anecdote– there
was an attempt to curtail the powers of the court. And there was a
constitutional amendment introduced to
Congress to curtail the powers of the court. What can the court do there? Well, nothing. What happened was that people
of different characteristics tried to protect the court. And it was a very moving
moment in which people went to the streets, all kind. Even indigenous peoples that
marched from the provinces to Bogota to surround the
court and say to Congress, you cannot touch this court,
because this court protects our rights. It’s doing her job. That’s very important,
very important. The second element that I
think protects the court is if the court is open– this is very controversial– is open to a kind
of remedy, to adopt a remedy that allows
the political process to discuss the remedy. So you are in the
eye of the hurricane. You render the decision,
but you don’t impose an absolute decision forever. On the contrary, you
protect the Constitution, and you allow the political
process to perhaps think about this solution. I’ll mention one example. We call it this way. It shouldn’t be called
this way, but it is the way it was called in the concept. The Constitutional Court in the
’90s decided that the voluntary termination of life
was a right protected by autonomy and dignity– in a Catholic country! In a Catholic country! That generated a
huge discussion. Most of the discussion
was against the court. How could the court
allow for that? Initiatives for referendum
where debates in Congress were going on. And it lasted for years. But in the end, there was no
amendment to the Constitution to overrule the court. And the preferences in the
political opinion evolved. And now in Colombia,
most Colombians accept that there is a right
to decide whether to terminate your own life if you’re
a terminally-ill patient, because the court did not
impose an absolute remedy. It rendered a
decision and opened up for the political process
to act and to react. The test case of
sustainability for me was the presidential
reelection case. It was a case in which we
had a very popular president, always 70% of
popularity, that decided that he wanted to be reelected. And so he amended
the Constitution to be reelected immediately. It was also the government
that had put forth restricting the powers of the court. So the court, it
was decided that– I will not go into the details
of this decision, decided that one reelection, but only
one reelection, was allowed. Otherwise, it would be an
unconstitutional constitutional amendment. That’s a tough, tough thing. But that’s another topic. So only one
reelection is allowed. Of course, the
president was happy. He didn’t realize
that it was only one. It means the only one. So after being reelected
once, he said, OK. I’m still 70%. Let’s try it again. Let’s go for the second
reelection amendment. And then a new court– I was not in the court at the
time, I was in the first– said, OK, remember that
we had said only once. And so struck down
as unconstitutional the second reelection amendment. And the president,
70% of popularity, that had a chance to participate
in the election of the court that struck down the
second reelection amendment said, OK, I abide by it. So I think this is a
test on how to navigate in the eye of the hurricane. VICKI JACKSON:
Thank you very much. This was fascinating. We actually have a list of six
questions, which we’re clearly not going to get to. But what I thought we might do
is ask any of the panelists who want to have a one-minute
comment on anything anybody else said. And I will enforce it. And my students in the
room know that I actually put my little alarm on. But I thought that
if anybody had a comment on what any of
the colleagues had said, here’s a shot at it. And then the next round,
we’ll do more quickly. Comments? Justice Abella, I could see
you taking notes furiously. ROSALIE ABELLA: I just want to
make an observation if I can. It is, for all of
us, inconceivable that we would not look
to what each other does in constitutional adjudication. Not to be bound by it,
but to learn from it. And I have to say
once again, just listening to my colleagues
talk about their perspectives, I have trouble
understanding an approach to constitutional
decision making that operates on the premise that
what other countries and courts are doing are not relevant. VICKI JACKSON: Oh, do
you think there’s been a debate about this anywhere? [LAUGHTER] ROSALIE ABELLA:
Somebody told me. So you learn from what
other countries do. You can agree, you can disagree. Isaiah Berlin said, there’s no
pearl without some irritation in the oyster. So you may find yourself
really offended by what another country does. But you may find a good
idea, because we’re all in the same business. And we all have constitutions
that set out rights, and it’s useful to see what
other countries do in assessing rights in their own contexts. I also want to say I’m totally
intimidated, because the three constitutional scholars
for whom I have the most time and respect are
Vicki Jackson, Mark Tushnet, and Frank Michelman. And they’re all here. And I feel like I’m
writing an exam. VICKI JACKSON: You
did very, very well. You know, I’m going to
make just a brief comment. We heard from, especially, Chief
Justice Ngcobo and President Cepeda the importance of the
role of political figures and the decisions of people
in the government to comply, to uphold, or to threaten. And both of those are relevant,
I think, to the question that Professor
Grimm put, which is if you start to see
the signs of threats to courts or to
constitutionalism, are there measures
that can be taken? President Lenaerts mentioned
some very sensitive issues involving gender and religion
in the workplace, which might be particular points of worry. So let me throw that
out, but ask you folks to keep your
comments relatively short so that we have time
to get to the audience. Who wants to go next? Yes. [SIDE CONVERSATION] KOEN LENAERTS: Two
ways of dealing with exactly that issue, Vicki. First of all, we are courts,
meaning that we decide cases. It is very important to
decide one case at a time. I’m paraphrasing Cass
Sunstein’s article. That’s more important when the
more sensitive the issues are you should strictly
stay in the confines of what the judicial office has
been entrusted with to decide. In case of controversy,
stay in your case. No obiter dicta. No developments. Not saying, we should now
deal with the matter globally. So when we get often
comments on our jurisprudence from academic circles
or other circles, this judgment leaves more
questions open than it answers. And that’s usually
meant as a criticism. When I read that,
I say, fantastic. Job well done. So that’s the first means. The second means is going to
the core of the reasoning, which can support the operative
part of the judgment, the core of the legal reasoning. And that should set
the limits within which the political process takes
it up again from there. It’s exactly what
President Cepeda said. I recognize myself and the
way of doing of our court constantly. There is an interaction
between the judicial process and the political process. We have now, for
instance, in our court, difficult cases pending on the
so-called social dumping that is– I’ll save you the details. It’s the whole
mechanism of posted workers which come from
Central and Eastern Europe to work into Western Europe,
and this while they’re still affiliated to the
social security coverage of their
country of origin, which tends to be only 1/5 of
the cost of the affiliation in the west of Europe. And that, of course, is
distorting competition within the internal market. The question then
arises, should that be validated in all circumstances? Or if there is
evidence of fraud, can we then say that
the normal mechanism does not come into play? We have to rule
about these cases in the limited context
of a fraud case as the case is brought to us. We will say what we have to say. The case is pending. But it will center on that
core issue, and whatever we say will be a new impetus
for the political process to take it from there. But I can tell you that
the European Commission said we are now waiting– on that social security
affiliation matter– the judgment of the court. Because that might
bring us together to find the necessary
qualified majority on that issue in the council thereafter. Often it’s a beautiful
infraction of the judicial and the political process. VICKI JACKSON:
Thank you, Dieter, I see you wanted
to get in briefly. I’ll put my timer. DIETER GRIMM: I think I would
distinguish two scenarios. Scenario one is
you can’t be sure. If you deviate once
from the constitution, you will afterwards be
in a position to continue on the normal basis. In this case, I would find a
justification to act like this. Only this is the most
unlikely scenario. The likely scenario is
that you cannot be sure. You cannot be sure. And if you, in that case where
you cannot be sure that you will reach your purpose,
if then you deviate from the constitution, you contribute
to the delegitimization of the court of
the constitution. So I think the normal answer,
under normal conditions, is you should not do it. VICKI JACKSON: Thank you. ROSALIE ABELLA: What
are abnormal conditions? Normal conditions? Normal condition is that,
generally, the government will comply with
what the court says. VICKI JACKSON: Oh, we’re
still within our time. Thank you. Sandile. SANDILE NGCOBO: I think Manuel
has raised a question that often troubles me. And that is the one thing
that political branches of government fear the
most is the public, because they get into power
through the vote of the public. If they no longer have
the support of the public, you’re most likely
to get out of power. Here’s the question. And the judges,
too, need confidence of the public in their work. So that at least that public
confidence in the judiciary can in a sense act
as a check on how the political
branches of government react to the decisions
of the court. Something tells me
that perhaps there may well be a nuanced difference
between public support on the one hand, and public
confidence in the judiciary. I will stop there. VICKI JACKSON: Thank you. Perfect timing. If I could get my– I’m learning, as
my students know, I’m learning to
control this thing. Mark, do you want to take over
with one or two questions? And ask for short
responses so then we can get to the audience. Maybe three-minute responses MARK TUSHNET: I’d
like to pick up on something that
Justice Abella mentioned and sort of
generalize the debate. Which is, in her
version, the US aversion to referring to other countries’
constitutional jurisprudence. And the more general version
is that in the United States– and I’m asking this as
people who have been court judges in the United States– we think it’s
important for judges to have a more or
less self-conscious theory of constitutional
interpretation. The questions we distributed
mentioned originalism. But it doesn’t really
matter what that theory is. We see that having a
theory of interpretation is important– you can
probably tell by my voice that I’m skeptical about that. But I would like to see
what you have to say about– what do you do when you’re
interpreting your constitution? And one side point,
related point, is the need to reach a
decision without dissent that the European [INAUDIBLE]. It seems to me to be an
incredible constraint on, I would say, the
coherence of decisions. So anybody can react to that. VICKI JACKSON: I want to go
down the table coming this way, since we went that way. Start with Manuel and come down. MANUEL JOSE CEPEDA
ESPINOSA: Thank you. Yes, it’s a very tough question. I would say that, at
least in my jurisdiction, we have a consensus
on certain elements. But it was a consensus that
was difficult to reach. In the sequence I will
summarize the issues. The first one, originalism. The first point was a
rebellion of the Constitutional Court against originalism. Why? Because the Constitutional
Court was created in 1991 by a Constituent Assembly
whose members were alive. So the court said,
it’s not the delegates of the assembly
that will tell me what is the meaning of such
articles of the Constitution. It’s myself, and I will
interpret the Constitution as a judge. So it was a way to
strike an independence from the authors of the
Constitution that were alive. So originalism
died very quickly. [LAUGHTER] So originalism is out. Second, the court
then had to discuss how to interpret promises
of the Constitution that were difficult to enforce. Right to health for everybody. How to do it in Colombia for
right to health for everybody, very difficult. So the court basically,
after a lot of discussion, accepted that some
social rights could be enforced judicially case
by case after a huge debate. And the way to do it
at the beginning– and we will come
back to that– was when there is a connection to
an obvious fundamental right. Let’s say the right to life. If the threat to health is
so big that the right to life is at stake, social rights
are going to be enforced. That was the beginning
of another topic that probably we’ll
discuss afterwards. The second big issue
was, how are you going to interpret the
Constitution in a civil law country when the
Constitution is open to several interpretations? Do precedents have
a role to play? Shall we go beyond the text? And so the court said,
yes, we cannot pretend not to look to precedent even if we
are from a civil law tradition. So that’s the second element,
third element of consent. Then since we have had abstract
judicial review for such a long time, let’s
say since 1910, we had an approach to
judicial review of legislation that was, just in the abstract,
a comparison of two texts– the text of the law and the
text of the Constitution. Let’s say very
formalistic on logic. Proportionality was not allowed. But then, after a
huge debate, the court accepted proportionality. So we have a consensus
now on proportionality. Then came a very tough
point, which is this one– VICKI JACKSON: Can we have
one wait until the next round? MANUEL JOSE CEPEDA
ESPINOSA: Sorry. ROSALIE ABELLA: This is cute. VICKI JACKSON: Well,
I’m working on it. SANDILE NGCOBO: How
much time do I have? VICKI JACKSON: Three minutes. SANDILE NGCOBO: Three minutes? ROSALIE ABELLA: She’s
going to use the hook. SANDILE NGCOBO: I think I’m
going to send a text message. One, our approach has
tried to stay away, far away, from the
concept of originalism. When we interpret
the Constitution, we are concerned about,
what does the text mean? What is the purpose that
this particular provision of the Constitution says? What assists us in ascertaining
the meaning of the text. We’ll look at the context. And the context is not just
limited to the other provisions of the Constitution. But it goes beyond that. It looks at legislative
history, for example. It looks more fundamentally
at our history. And I think what informs our
constitutional interpretation of the national codes
that we have fashioned for ourselves in
the Constitution, as well as the fundamental
principles that have been established
by the Constitution in order to facilitate the
achievement of those goals, the Constitution
makes it quite clear that it is a transformative
constitution which seeks to transform South
African society from what it was during the apartheid
time to a very new society. One that’s
characterized by respect for human dignity,
fundamental human rights, and social justice. And in order to facilitate the
achievement of these goals, the Constitution, in the
very first provision, establishes foundational
values that will facilitate the achievement of those goals. One of those is the
supremacy of the constitution and the rule of law. The importance of that is that
it enables the courts to strike down any legislation of
conduct that is inconsistent with the Constitution
so as to carry on the Constitutional project
of transforming the society. That is what informs. And if we look at our
jurisprudence, time and again, we refer to the codes
that were fashioned for ourselves in
the Constitution, as well as the
fundamental principles. Happily, in South Africa, we may
not excavate beneath the text in order to find
those principles. They are set out in
the Constitution. VICKI JACKSON: Sorry. Thank you very much. President Lenaerts. KOEN LENAERTS: Well,
I can draw on what has just been said for
the Court of Justice of the European Union. The main method
of interpretation is in the text,
context, and objectives. Now, text and context, that’s
exactly like the Chief Justice said. So I don’t have
to dwell upon it. We didn’t have much
preparatory works, but it is now changing
because of this convention on the future of
Europe, which was in fact running as the
preparatory gremium for the Lisbon version of
the present treaties on which the European Union is based. So we have something. But the important thing
is the objectives. And here, contrary
to common wisdom that it is either
textual interpretation, also in this country,
originalists, the original intent and
close to the text, et cetera. The opposite is done– teleological. The telos, the purpose of
interpretation, et cetera. In European Union
law, the two, and I’m going to astonish
you, almost coincide. Why? A bit like what you
said about South Africa, the purposes for which
the Union has been created are spelled out up front
in the treaties as such and in each competence
conferred on the European Union. In other words, the European
Union is not a goal in itself. It is a means to reach
the policy goals, which member states have
entrusted because they were aware of the fact
that they could not themselves and their
peoples themselves take upon them effectively. So they have entrusted the
Union with these policy fields. So we must make sense
of this relation between objectives and means. And that is the core of our
competence jurisdiction, whether it be vertical
or horizontal. And even in the fundamental
rights protection, when we have to weigh up
limits to the exercise of some fundamental
rights, it will be in view of an objective
of the general interest proportionately pursued. And this according to the
three-step German thing– geeignet, erforderlich,
angemessen. We took it over
from Germany, which means appropriate,
necessary, and proportionate in the strict sense. All of that is
purpose-driven at the start. But that purpose is
textually laid down in the text of the
treaties, in any regulation, in any directive of
the European Union. And that gives also some
legitimacy to what we do. Yes, it is, of course,
inscribing itself in a political context. But at the same
time, that context is given by the
political process itself at the appropriate level. The member states
for the treaties, the legislative process
for the text under that. VICKI JACKSON:
Thank you so much. Justice Grimm. DIETER GRIMM:
Number one, Germany had a fierce debate
on methodology in the Weimar Republic, 1920s. This is still worth being
read, and the most important contributions exist in English. This is over. We have now a rather firm
consensus about methodology, which I cannot
describe in length. But there is no original
list in Germany. There is no formal list
of positivists in Germany. It’s a substantive
approach, short of a purposive
value-oriented approach. Number two, dissents,
because I think this is an important point. If we agree, and I
think almost all of us will agree, that a norm of the
Constitution, or any legal law, does not fully determine the
application to a concrete case, if we agree with
that, that means that there is always more than
one correct solution to a case. And if this is so, I would
say we should lay it open. That’s to say the
disagreement within the court, within the range of a legitimate
answer, should be laid open, and with a– well, to you, I think,
it would not hurt the authority of the court. A democratically-ripe society
can deal with it if there is not only one correct answer. The difference between the
United States and Germany, we have the dissenting opinion. Only the Constitutional
Court has it. We make use of it. I wrote, in my 12 years on the
court, two dissenting opinions. And don’t believe that these two
cases were the only ones where I was in the minority. This is what a Supreme Court
justice does every week, and maybe there is
good reason to think, is it really necessary to
pronounce every disagreement that one has? VICKI JACKSON:
Thank you very much. And Justice Abella. ROSALIE ABELLA: I knew you would
throw out a question like that. He’s been provoking me
on constitutional theory ever since I met him. And it’s a very fair question. And I don’t know. I have never been
able to put into words what the governing
theory is, because I find it does vary with the cases. But my overall
constitutional approach is– what do I think a
constitution is for? Whom does it serve? It’s an aspirational document. The text is the beginning
of the conversation. History matters. The Americans seem to be buried
in this dispute about text and history and the extent
to which they are relevant, overriding, paramount. It’s just part of
our background, like every other
Western democracy. And when we started
our Charter of Rights, our constitutional protection
of rights conversation, it was 1982. Originalism had not
made an appearance. And I know that Ed Meese
made his speech in 1985, saying our intention is to
have a constitution that’s interpreted in accordance
with the intentions of the drafters, promoters, and
ratifiers of the Constitution. Well, in 1985, the
Supreme Court of Canada, who had a constitution
since 1982, was asked to
interpret the Section 7, right of life, liberty,
and security of the person. The framers in 1982
made it very clear that they thought that was
a procedural protection. And the then chief
justice wrote, I know that’s what they wanted. That’s not what they’re getting. We think it’s procedural
and substantive. And that was the
last time we ever had a discussion
about whether or not originalism had any relevance. And the problem
with originalism, as it is sometimes
applied– and not everybody on the American Supreme Court. You do have diversity of views. The problem is that
it’s a bow to tradition. And when you bow to tradition,
a constitution can’t grow. You can’t have
originalism when you’re thinking about segregation,
or the rights of women, and the use of history to either
justify striking down abortion, as what’s done in
Roe, or fighting gay marriage, as was done
in Obergefell isn’t helpful. But if you look at constitutions
as what are you trying to protect, the
dignity of people, the rights of people in a
post-world War II context, despite the geopolitical shifts
going on around the world, which makes, as Dieter says, our
job even more important, not– stability, but not stagnation. We have to protect those values
that our constitutions were developed to protect. Will it depend on the case? Yes, of course. I don’t know what freedom of
expression means every time. [SIDE CONVERSATION] VICKI JACKSON: So
I thought maybe we’d collect a couple of
questions from the audience. Mark, is that OK? So my idea is to see
who would like to raise a short, concise question. And we’ll collect
a couple of them, and then let
anybody on the panel who wants to address it go. So don’t be shy. Let me congratulate
the audience on a set of wonderful questions. [APPLAUSE] And I will suggest that
each member of the panel pick only one or two. And if you each take
just under three minutes, we can get through
within our time. Would you like to go
first, Mr. President? KOEN LENAERTS: Well, thank you. First, on conflict avoidance– that was really a
question, music to my ears, because I think that is
what the Constitutional Court, including our court in
that capacity, always does. That is to say, you
interpret the rule whose constitutionality
is to be checked. And what often happens is
that the case is brought, challenging the
constitutionality of a law, say an EU directive,
that our court interprets as directive in
a way that it can conform to the
constitutional standards. And then, although the
applicant loses the case, it in fact wins, because
it has consolidated a legislative
interpretation, which is then avoiding the problem raised. It’s not always
possible, but it is done to a far,
far greater extent than it is often thought. Now, that picks in also on
your point and on your point. “The stable constitution,
but the Constitution which doesn’t stand still.” Roscoe Pound. And your question made
me think in relation to that to what was once
assigned as an exam question to me by Lawrence
Tribe in my LLM year. This is a constitution we are
expounding, exclamation mark. Chief Justice Marshall,
McCulloch versus Maryland. And that’s exactly
what we’re speaking of. The words are the words. But sometimes, the words
will not remain sufficient because society has developed. So you have to give,
on the basis of text, context, and objectives, a
meaning in present-day terms which reflect the value system
underpinning the Constitution. And that’s the proper
task of judging. That is to bring to the
surface what has been maybe underneath, hidden,
but very really there, and to make it live. I will never forget
the Connecticut case where Justice Goldberg said,
the penumbra of the Constitution to recognize the
right to privacy. Privacy was not even mentioned. Now, in Europe,
privacy is mentioned in the European
Convention on Human Rights but not yet personal
data protection. That’s mentioned in the
charter of Fundamental Rights of the European Union. So you see how things go. United States Constitution,
200 years old, a bit more, does not even have privacy. You’ve got it judicially. A much more recent text in
Europe has privacy, 1950. The 2000 Charter has privacy
plus personal data protection. So we must make
that living reality when interpretation goes on. VICKI JACKSON: Thank you. Who would like to go next? Professor Grimm? DIETER GRIMM: I’d really like
to answer all these questions. VICKI JACKSON: I know. You have 2 and 1/2 minutes. DIETER GRIMM: How do we
reconcile fundamental rights that conflict with each other? By using proportionality. Is your proportionality
an operation that is no longer
legal and political? I think if it is
correctly done, it remains in the realm
of a legal operation. I think we would all agree,
the limitation of a fundamental right that cannot even reach
its purpose cannot be upheld. A limitation of a fundamental
right for which milder means exist that reaches the
purpose in the same way. The old one cannot stay. So all criticism goes to the
final element of balancing, and then everything
depends on what we balance. Very often there are
misunderstandings. We balance the big values,
liberty versus security. This never happens in court. In court, these things
come in a small portion. We have one law that limits a
fundamental right a little bit in order to give a certain
gain for the purpose, for the legal good that
is behind the limitation. So if we identify these elements
as precisely as possible and then compare the
gain and the loss, the loss of the
fundamental right, the gain for the
other legal good, this can be done without
leaving the realm of the law and without politics. One word to China, only because
in the last three or four years, I taught
intensive courses of one week on comparative
constitutional law in China. In the last two years,
I think, the question mostly asked was, how can we
get a constitutional court in China? How can we convince The Party
that this would be a good idea? And my answer is,
I’m afraid, The Party will not be convinced
this is a good idea. But you can make it easier
for The Party to swallow that. And I said, it can’t occur. So to say, adopt the
Canadian rule then Parliament can
override the decision of the constitutional court. But I added, in
Canada, the government doesn’t make use of it. I’m not sure whether this
would be the case in China. VICKI JACKSON: Chief
Justice Ngcobo, yeah. SANDILE NGCOBO: The rights
that are in the Constitution will remain minimalist, unless
those who need them the most have access to court where they
can vindicate those rights. Two provisions in
our constitution which are critical. The first one
guarantees to everyone the right to go to court. The second one gives
any person to litigate on behalf of anyone who,
for any reason whatsoever, is unable to litigate
on his or her behalf. So in a sense, it makes
sure that interest groups, public interest
law organizations, are able to edge rights
on behalf of the poor and those who can’t access this. Sometimes matters come
to court, for example, where you feel that the person
requires representation. Everyone has a right
to legal representation if you can afford that. If the person cannot afford
it, the state must then pay for that. There was a question about the
precedent, which I wanted to– what was the question? Could you stop the
watch at the moment? It was about the precedent. AUDIENCE: So what are
some of the considerations that you have in mind
when you overturn constitutional precedent? SANDILE NGCOBO: I’ve never
overturned any precedent, and I hope no one
overturns mine. But let me tell
you about a case. This was decided in 1897. The issue in that case was
whether the courts have the power to review legislation
for constitutionality, whether Parliament,
Congress at that time, is bound by the Constitution, or
whether they can make it anew. The first decision was given
by Chief Justice [INAUDIBLE] I think it was. And he took the view
that the Congress is above the Constitution. They have no reason to
follow the Constitution. They can just amend it. Later on, he changed his
mind and said, I was wrong. The Constitution is supreme. Judges have the power to
review statute, and therefore by setting that part. He was fired thereafter. VICKI JACKSON: A
cautionary tale. A cautionary tale. Justice Cepeda? MANUEL JOSE CEPEDA
ESPINOSA: Thank you. Taking from your question,
in constitutional litigation in Colombia, we
took the decision of getting rid of the lawyers. So you will need a lawyer
to access court, even the Constitutional
Court, to raise your constitutional issue. Of course, lawyers collaborate. The second principle is free. You don’t have to pay anything. So we consider there is a
right to the Constitution, and that every
citizen has a right to control power and
make it accountable to the Constitution. This raises the issue, in
a society with inequality and poverty, on how
to handle cases that are very relevant for the poor. And even if they can access
the court, they rarely do so. So we have– of course,
we decide case by case when there are very
important powers involved. But where there are
poor people involved, we think that there is
an ethical dimension in the passage of time. So you have a very poor person,
an IDP, an Internally Displaced Person, that gets to the court. But there are
three million IDPs. Should you render a remedy
just to protect one, or should you
accumulate all the cases and protect the
3 and 1/2 million with a structural injunction,
as happened in Brown versus Board of Education? So there are things in
the US that we look at and that we value very much. So we have a lot of
structural remedies to protect simultaneously
a lot of people. And we have a doctrine. The doctrine is the state
of unconstitutional affairs. So we don’t look to
the administrative acts or to the statutes. We look to reality,
to the context. And we see even the context,
the effective enjoyment of the rights, effective in
reality are being affected. And so in this context,
the court intervenes. Of course, we look at policies. But not to change the
policy, but to draft a remedy that
protects a principle and throws the ball back
to the political process to design policies
that are aimed at the effective enjoyment of
the right for a lot of people not just the litigant. VICKI JACKSON:
Thank you very much. And we are going to give the
final word to Justice Abella here. ROSALIE ABELLA: And I want
a good mark from Professor Michelman when I finish. [LAUGHTER] Well, let me start
by talking about what we do like about the American
constitutional interpretation. It happens to be a
little bit far back. But what the Americans used
to do very well, I thought, in constitutional
interpretation, was the freedom from
jurisprudence, the freedom from an unreasonable state. And that’s part of your
political origins law, [INAUDIBLE]. They all came here with
the idea that the state was unreasonable, keep it out. So your criminal law
jurisprudence in the ’40s, ’50s, helping us figure
out when the state should be kept at bay, was
really, really helpful. Not so helpful, inequality,
because the 14th Amendment is also seen as a freedom from. And that means you treat
everybody the same, which means somebody
in a wheelchair gets treated as somebody
who is able-bodied. And we see equality as
a human rights, freedom from discrimination,
doctrine, which is more like your Title VII,
Griggs versus Duke Power approach. And we also see speech
very differently because we protect
people from hate speech, because we have the
civil libertarian and the human rights, the
rights of the individual, the rights of the
group, which seem to be an allergy for the courts here. They don’t like
protecting group rights. So they get nervous
about affirmative action, stuff like that. What will the court say, what
will happen in 200 years. I think they’ll
say “Abella who?” [LAUGHTER] Tradition. The role of tradition. It’s a very
interesting question. I was born in 1946. So I was born when the world
was looking at what should we do about international law. And Lemkin and Lauderback,
two law professors, came up with two brand-new
theories of international law, which would not have been
possible if we’d said, well, we’ve never done it that way. We have to adopt precedent. So they said there
should be genocide and there should be
crimes against humanity, even if it’s committed
against the citizens of your own country. Boom, there goes Grotius, 1625. Domestic sovereignty, bye. No more. So the law grows. And so we look to
tradition, but we’re not slaves to tradition,
which brings me to precedent. So precedent is very
important because I’d see courts as players. I think to pretend we’re not,
whether we say in Dred Scott that African-Americans don’t
have rights, you’re a player. And when you say they do in
Brown, you are a player too. And if you start
saying, is this going to be too provocative, you
might as well just resign, because you’re not going
to be doing your job. So Canada, in the
last five years, overturned 25-year-old
decisions on assisted suicide, prostitution,
and freedom to associate. I want to end with dissent,
because this is very important. I cannot imagine a court
that doesn’t have dissent. We have nine judges
on our court, the way the Americans do. I say it’s like being
married to eight husbands. And if you know how hard it
is to make a decision with one about where to go
for dinner, and then think that eight strangers, who
didn’t pick you and you didn’t pick them, have to discuss
the most important decisions of the country
together every day, I think it’s a marvel
that we have unanimity from time to time. VICKI JACKSON: I hope you
will join us in thanking our wonderful panel. [APPLAUSE]

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