Written constitutions became a commonplace of political life by the end of the 19th century, but it was not until the Second World War that courts in much of the world began to use those constitutions as mechanisms of judicial empowerment. In many cases, this power has been exercised by constitutional courts that alone within a judicial system are empowered to exercise judicial review rather than through a diffuse system of judicial review familiar in the United States. But even where constitutions do not explicitly provide for judicial review and even where some courts are given this power and others within the same legal system are not, all courts can engage in judicial empowerment. And a surprising number of courts do exactly this, making even the recent activism of the US Supreme Court appear mild by comparison.

In my presentation, I will highlight some of the methods that judges in some of the most activist high courts outside of the United States have used to empower themselves, including (a) giving the preambles of constitutions legally enforceable meaning, (b) discovering a core set of principles in the constitution that cannot be amended, (c) finding that constitutional norms extend their reach into private law, (d) discovering suprapositive principles outside the constitutional text to give meaning to the constitutional order, and (e) modifying judicial procedure, particularly through the expansion of justiciability and standing. These are not the only methods that judges use in self-empowerment, but they are among the most audacious.

a. Activating Preambles

In most constitutions, preambles spell out the ambitions as well as the rationale of the text. As a legal matter, it is generally accepted that preambles do not have the force of law. But some high courts have ruled that the preamble of their countries’ constitutions provide a general framework within which the constitution operates, and through this, courts have expanded their powers substantially to find that statutes are unconstitutional.

Examples include:

-- The French Constitutional Council in the Associations Case (1971).

-- The Indian Supreme Court in Kesavananda Bharati v. State of Kerala (1973).

-- The Israeli Supreme Court’s use of the Declaration of Independence.

b. Unconstitutional Constitutional Amendments

When a constitutional court becomes very active, the elected branches may want to reign it in by amending the constitution and removing the provisions that judges have used to thwart parliamentary plans. But the court may then claim that it has the power to declare that even constitutional amendments can be unconstitutional. A number of courts have taken the view that unconstitutional constitutional amendments are possible, theoretically at least, even though no court has adopted a systematic strategy of declaring them to be so.

Examples include:

-- The Federal Constitutional Court of Germany in Southwest States Case (1951) and in the dissent in the Klass Case (1970).

-- The South African Constitutional Court in the Certification of the Constitution of the Republic of South Africa (1996).

-- The Indian Supreme Court in the Golak Nath case (1967) and (at least in principle) in Kesavandanda Bharati v. State of Kerala (1973).

c. Pervasive and General Legal Norms

Courts also increase their powers through finding that the whole of the legal order must comply with a set of general principles found in the constitution. This effectively extends the domain of constitutional law so that it infuses even private law. (This is also sometimes called horizontal application of the constitution.) Courts using this technique require that judges in all cases (even in cases that do not explicitly raise constitutional questions) take account of constitutional norms instead of understanding legal rules in isolation from the broader constitutional order.

Examples include:

-- The Federal Constitutional Court of Germany in the Lüth case (1958) and the Soraya case (1973).

-- The Spanish Constitutional Tribunal’s decisions on horizontal application.

-- The South African Constitutional Court in Du Plessis v. De Klerk (1996).

d. Supralegal (Metaconstitutional) Principles

In order to understand what a constitution means, courts sometimes elaborate principles that stand formally outside the constitutional text, but that are held to provide the rationale for the constitution’s existence. These extra-constitutional principles provide the background against which the constitution itself can be read by activist courts, providing justification for emphasizing certain parts of the constitution to the exclusion or diminution of others.

Examples include:

-- The South African Constitutional Court’s use of the principle of ubuntu, in the Death Penalty Case (1995).

-- The Hungarian Constitutional Court’s use of the idea of a “common constitutional law of Europe.”

-- The Indian Supreme Court use of the idea of “natural justice” in Maneka Gandhi v. the Union of India (1978).

-- The use of principles of Shari”a to understand Islamic constitutions.

e. Changing Procedure and Expanding Standing

Courts are particularly attentive to legal procedure and, in many legal systems, courts participate actively and officially in lawmaking on the subject of procedure. It is not surprising, then, that courts through their decisions can use their explicit or implied powers to develop rules of procedure to give themselves broader room for maneuver. Courts can relax standing rules or can alter their stance toward speculative or collective harms to greatly increase the number of cases that they can hear.

Examples include:

-- The Indian Supreme Court’s creation of standing for public interest groups to bring lawsuits on behalf of the poor, giving rise to a substantial practice of public interest litigation, in S.P. Gupta v. Union of India (1982) and in People’s Union for Democratic Rights v. Union of India (1982)

-- The Israeli Supreme Court has created constitutional jurisdiction out of a piecemeal set of Basic Laws through defining standing and justiciability broadly.

-- The Hungarian Constitutional Court’s decisions on living law and expanding its jurisdiction over treaties in Decision 4/1997: On the Review of International Treaties.

Getting Away with It

From this catalogue of tools, it is possible to see that judges can use their constitutions to empower themselves relative to the political branches. This gives them a strong sense of independence, provided that the political branches go along. But it is always possible that a strong grab for political power on the part of a court will cause the political branches to defend their prerogatives against court interference. What determines whether courts can get away with judicial empowerment (even radical judicial empowerment) or not?

With many seriously activist courts, the political branches or discontent elements of the society sooner or later fight back. In India, for example, some analysts claim that Indira Gandhi’s declaration of a state of emergency in the 1970s was at least in part due to the standoff between the court and the prime minister over the interpretation of property rights in the Indian Constitution. In Israel, where the Supreme Court has tended to side with liberal secularism, the Chief Justice of the Supreme Court has been received numerous death threats from right-wing religious adherents, and he must travel with bodyguards. In Hungary, the activist court was defanged when a center-right centralizing government was elected in 1998; the new prime minister took advantage of the fact that nearly all of the judges reached the end of their term at once to put in judges less likely to find objectionable anything that the government did. In Russia, the Constitutional Court was closed down by President Boris Yeltsin when he called out the tanks to attack the office building of the Parliament in 1993; the Court had sided too often, in Yeltsin’s view, with the Parliament.

But what is perhaps even more surprising, however, is the extent to which courts, once attacked, can regain their powerful role in political life. Usually, activist courts that are seen as the defenders of individual rights against government encroachment have enormous popular support and such support can manifest itself the election returns when politicians who have attacked the courts are thrown out of office. Since courts have neither the power of the purse nor of the army, they have as their only stock in trade moral authority. If courts use their powers to stand up for a compelling moral vision of the constitutional order, then they can often get the political license to go on being activist in the name of the individual rights.