A double-edged sword: Constitutional dialogue confined

Abstract

Dialogic judicial review is a dialectic interaction between supreme courts and legislatures regarding the constitutionality of legislation, in which each institution preserves its constitutional authority, and yet performs it while considering the other institution’s stance and its ability to respond. This interaction is based on reciprocity and upon the contribution of both institutions to the constitutional design and interpretation of legislation. This dialogic interaction has much value at the institutional and instrumental level. Unfortunately, constitutional dialogue sometimes has a negative influence on petitioners and similar groups, as their rights are being trampled under a dialogic veil. This article argues that constitutional dialogue can (and sometimes must) be restricted to avoid hindering human rights during the constitutional institutional interaction. It sketches a doctrine designed to prevent impairing human rights in the name of dialogic interaction, through three arguments: (i) the constitutional dialogue must be restricted, since reality shows that courts in many cases prefer legitimacy considerations over protecting human rights; (ii) in the case of under-represented groups, there is no reason to trust legislatures to take human rights into consideration while formulating a legislative response; and (iii) courts can restrict the dialogic interaction by declaring the constitutional purpose to be unconstitutional or by using judicial decisiveness which strives for full and coercive judicial constitutional review.