Legislatures and the Phases and Components of Constitutionalism

It is often asserted that courts, especially supreme or constitutional courts, are the guardians of constitutions. Their unique role is dictated by the fact that an important function of entrenched constitutions is to limit the power of legislatures (the powers of government are checked by laws and courts under the ideal of the rule of law even in the absence of a constitution). Courts are thus presented as the most critical organs of constitutional regimes. I think this presentation is misleading and may have pernicious results.

In this chapter I argue that legislatures and courts have different roles in phases of constitutionalism. The role played by legislatures (or more accurately by the people representatives) is almost exclusive in the constitution-making, central in amending the constitution and then diminishes in the application/interpretation of the constitution. The role played by courts is marginal in the constitution-making, small in amending the constitution and central in application/interpretation of the constitution.

These “guidelines” have both empirical and normative dimensions. In the normative dimension, I argue that the roles played in these three phases should be such that the functions of structuring and legitimating government in its broad sense are achieved in the best way. In the empirical dimension, I suggest that a constitution is more likely to gain legitimacy if legislatures and courts act by these guidelines.

In addition, constitutions have three distinct elements in terms of structure and functions: credos, rules-of-the-game and bills of rights. Again, institutional roles differ when we look at these different parts of constitutions.

I argue that it is best that the central features of the constitutional framework be decided at the initial constitution-making stage, which will be comprehensive and provide a coherent system of checks and balances, and that will be negotiated and adopted with broad consensus. The natural candidates for performing these tasks are constituent assemblies or legislatures. Application and interpretation of the constitution are routine activities, in which all powers partake, with a special role granted to an independent judiciary. Constitutional amendments should be more celebratory and broadly-discussed than regular legislation, but they do not have to have the features of constitution-making itself. The primary organ of amendments is the legislature itself, using a special mode of legislation, and possibly aided by built-in guarantees of popular involvement. Usually, the legitimacy of the constitution is enhanced if the institutional implications of these distinctions are adhered to.

Effective constitutionalism does require enforcement of constitutional norms and finality in such decisions. Courts may serve as the final arbiters of disputes concerning separation of powers and federalism, but this is a part of the comprehensive system of checks and balances established by the constitution. Courts do have a special role to play in protecting individuals and groups when their constitutional rights are violated by legislative majorities. However, effective protection of rights requires a partnership between all organs of government. Sweeping rights-based or credo-based court supremacy, resulting in the courts imposing values which are deeply controversial in their societies and outside the core of blatant violations of human rights may in fact weaken constitutional regimes instead of enhancing them.

Since my argument addresses the entire 'lifecycle' of a constitution, it is relevant to all constitutional systems. In most constitutional regimes, legislatures as well as other constitutional powers operate under and within an agreed-upon constitution. Often, they are established by it and gain their legitimacy and stability, to a large extent, from it. The constitution is taken as a given. In rare cases it may itself be amended, but the idea is that the constitution sets the framework of activity of the other organs of government, including the legislature itself. This situation permits intense discussions of the roles of the various powers under the constitution, and systems may have constitutional crises when one or another of these powers challenges the limits of the power of the other. But these discussions all take place within the constitutional framework. Indeed, one of its main functions is to make such debates more structured and 'safer' than they would have been had all the rules of the game been vulnerable to 'normal' political exigencies. Indeed, we witness heated and persistent debates about constitutionalism and its implications in all stable constitutional regimes.

However, my argument – and its institutional implications - is especially important to constitutional systems in which the status and the basic contours of constitutional regime itself are quite controversial.[1] I argue that this fact does weaken the legitimacy and stability of the constitutional arrangements, and that in order to resolve controversies relating to the constitutional contours of a legal system itself, what is necessary is for the legislature to take a clear and firm position on constitutional issues, rather than letting the court be the driving agent of the process.

Institutional Implications of Phases of Constitution-Making
and of Components of Constitutions

A. Three Phases of Constitutionalism

A prime function of constitutions is to structure and legitimate the political system it regulates. Legitimacy may come from either the process through which the constitution was made and is implemented (formal legitimacy), from the content of its arrangements (material legitimacy), or from both. I will argue that there are important institutional implications to these aspects of gaining legitimacy. There should be a distinction in institutional competence between the three phases of constitutionalism – initial constitution-making; amendment of constitutions; and their routine application and interpretation. Similarly, the competence of different institutions depends on the parts of the constitution they deal with – rules-of-the-game, credos or Bills of Rights.

Constitutions are meta-laws in the sense that they structure law making itself, as well as the general contours of government and its constraints. This structuring and entrenchment of the framework rules create a special legitimacy for the constitutional order and its actors, so that it increases the stability of government in its broad sense. The legitimacy of the constitutional order is supposed to be sufficient to command obedience to laws and authorized decisions that would have otherwise lacked this legitimacy because they do not enjoy majority support on their merits. This legitimacy and stability is of special importance in divided societies, where there is deep controversy about the good life and the identity of the state. Agreement about policies is likely to be fragile or non-existent. The stability and the legitimacy of the constitutional order itself may be necessary to negotiate what would otherwise become an intractable political crisis, possibly leading to the collapse of the regime itself.[2]

The health and robustness of society then may depend on the commitment of all members and groups to the shared framework rules included in the constitution. These framework rules provide the security realm within which each of the groups can fight for its vision of the good life knowing that the framework will hold the joint enterprise together. The groups may not realize their full visions every time, but the system will guarantee that their constraints, as well as those of the others, are maintained. In divided societies, the rules of the game are of special importance since often it is clear that no substantive compromise can be reached, and the only shared element may be the willingness to adhere to a fair process.[3] Under such circumstances, the question of the identity of those deciding sensitive issues may be crucial. This may affect both the rules of the game and the arrangements themselves. In divided societies, therefore, constitutions may have the additional function of making otherwise disparate groups, with very different aspirations, members of the 'demos' which is the source of legitimacy of the state. Equal citizenship under the constitution may be a way to bridge, in the political context, the gaps between the various groups. Indeed, deep rifts within a society are likely to be reflected in all components of the constitutions, including election systems and in the structure of state organs. They may mean that credos will be especially hard to agree on. They may result in a lot of emphasis on the identity of law-makers and law interpreters, and on stronger interests in representation of the various groups and interests.

The need to cater to different interests and conceptions of the good means that constitutional schemes often involve 'great compromises', which permit each of the groups to subscribe to the shared framework despite the fact that it does not meet one's own ideal of governance. These great compromises need to be protected from regular partisan politics, because they are the basis for the willingness of the groups to join in that game and to see themselves as a part of the civic nation to begin with. It will undermine the agreement if the legislature or anyone else starts to erode the compromise once the moment of constitution-making is over. This is true for all societies, it is a must for federal nations, where the member states would not give up any of their power if the compromise is not entrenched against unilateral actions by the central government, and is very clear in deeply divided societies.[4]

Moreover, since the constitution sets up the rules of the game, it should include an elaborate structure of checks and balances. It is important to see these as a whole, because the effectiveness of the system may depend on the full range of constitutional arrangements. These should be seen as inter-related, so that piecemeal changes may endanger the overall balance. Naturally, it is much easier to design that kind of a system in a comprehensive enactment and not in a series of piecemeal statutes or arrangements, each enacted within a background of constraints. For example, a person who is apprehensive about judicial review of social and economic policy may agree to judicial review only if the Bill of Rights explicitly excludes social and economic rights; or she may agree to an expansive Bill of Rights if courts are denied the power of judicial review over all primary legislation; she may concede some judicial review over social and economic rights if judicial review is administered by a constitutional court whose judges are appointed by the political branches for a limited term and not by a professional judiciary with life tenure. Thus the leeway for flexibility and negotiation is greater if more of the basic arrangements are negotiable.

The need to reach great compromises and to uphold them suggests that it is good for constitution-making processes to involve both broad participation and some entrenchment against simple political change. While usual legislation may pass on the basis of a simple and even narrow parliamentary majority, constitutions should be acceptable to all major sectors of the population, with a special sensitivity to 'chronic' minorities. It is for them that issues of legitimacy of the system loom large. Majorities usually can rely on their political power to protect their interests.

These desiderata will usually be met by making the constitutional design comprehensive, so that the system of checks and balances is coherent, and so that the room for compromise and configuration is maximal. It is hard to change one element of government without touching on others. A comprehensive change may enable us to design institutions that can fit together and suit the powers and functions they are given. It is also healthy for constitutions to be made in a process of public debate, and to require broad participation in their enactment in the form of constitutional assemblies, ratification, or referenda. All these features, which are not essential for regular legislation, support the special legitimacy we hope the constitution will enjoy, which will in turn devolve upon elected governments and authorized organs acting within the constitution. It is almost impossible to achieve such a comprehensive set of checks and balances and 'big compromises' without a deliberate, transparent and deliberative process of both drafting and ratification. Constitution-making is thus an enterprise very different from regular politics.

Similarly, the phases of constitutional amendment and normal life under the constitution and within it should be distinct. Usually, constitutional amendment is much less dramatic than making a constitution, since it is aimed at a particular aspect of the constitution, leaving most of it intact. It thus may lack the elements of comprehensiveness and major compromises required by constitution-making. [5] Nonetheless it is a deliberate change of the framework rules themselves. It will enjoy the supremacy and the entrenchment levels of the constitution itself. It will share in the special symbolic and legitimating functions of the constitution. It seems reasonable to expect that the process of constitutional amendment will be more formal and celebratory, and allow and even require more public participation, than that of regular legislation. The functions of the constitution may also suggest guidelines as to when constitutional amendments are proper and how they should be made. Stability is always a virtue in the law, but its weight is higher when the arrangement to be modified belongs to the constitution. It is hard to generalize on amendments to the constitutions because their background may be so varied. The more structural and comprehensive the amendment is – the more similar it is to constitution-making itself. Other amendments may be the simple result of the fact that the constitution originally included material that should not have been included in it to begin with.[6]

In principle, a constitution should be amended if it turns out with time that the original arrangement is not optimal. It is almost inevitable that with changing circumstances or with experience a society realizes that a constitutional arrangement does not serve its purpose. At times, the entrenchment means that an amendment deemed desirable by a majority cannot in fact be enacted.[7]

Once a constitutional regime is established, its test lies in the way it is applied and interpreted. No text speaks for itself. In some senses, the activity of interpretation is the same for all legal materials. The functions of the constitution, however, affect the way it should be interpreted. In a democracy, this is especially true if the interpretation resulted in the invalidation of a law passed by a large majority of the legislature. For all practical purposes, the law is what the authoritative interpreters say it is. So the identity of interpreters and the canons of interpretation they use are of cardinal importance. It is also crucial who has the last word. It is therefore not surprising that issues of review of the constitution, and especially of the power to invalidate primary legislation and the question of its finality are central in all constitutional designs. Again, this is of special importance in divided societies, where individuals and groups have radically different interests and visions of the good life.

The phases of constitutionalism are clearest and most distinct when constitution-making is a deliberate, conscious process, resulting in a constitutional document which specifies how it should be amended and implemented. But reality is rarely very clear. We can find debates about the characterization of moments in the constitutional history of many countries. The fuzziness of the distinctions results, as it should, in both theoretical and practical controversies.[8]

Most 'new' states use the constitution 'literally' – the document constitutes the polity and defines it.[9] In most of these countries, a constitution is the reflection of a great transformation, sometimes even a revolution.[10] Nonetheless, a constitution can never be enacted without a society and some political structure in place. Someone must have the power and the authority to prepare the document and supervise the process of its enactment and possible ratification. Even the most radical constitution-making involves some social and political continuity.

Moreover, some countries use a new constitution to achieve a major change in government and not to reflect a 'constitutional moment'. It follows that the identification of a constitution-making process (as distinct from an amendment of an existing constitution or creative interpretation of an existing one) is not necessarily connected to the establishment of a new state or even to a serious political transformation.[11] Rather, the best test of a process of constitution-making is its product. A constitution-making process is completed when a country that did not have an entrenched constitution has one. Once we can say that the country does have a formal, entrenched constitution – the phase of constitution making itself is ended.[12]

Once a country has a constitution, the usual processes are application, interpretation and amendment. All these take place within the constitutional order. In rare cases, a country with a functioning constitution chooses to deliberately replace (rather than amend) it, without a revolution. The change is a process of constitution-making (even if a lot of the old constitution has remained unchanged).[13]

Surely, the differences between these phases are not always clear and distinctions between them may be hard to make. Nonetheless, I will argue that there are good theoretical and practical reasons for maintaining the distinctions, and for checking constitutional processes in specific countries according to them.

B. Components of Constitutions

In addition to constitutional phases, there is a difference in institutional roles within the phase of application and interpretation, as state organs live under the constitution and invoke the three main parts of constitutions – rules of the game, credos and bills of rights. These parts have somewhat different functions within the constitutional regime, and the difference may affect plausible and desirable institutional roles within them.

All constitutions must have a rules-of-the-game part, in which they structure, legitimate and facilitate all organs of government. Furthermore, constitutions build a system of checks and balances by using some powers to check others. Seen in this way, all empowered organs are the guardians of the constitution, and all are legitimated by it. Effective government is not less important than an independent and courageous judiciary or from a conscientious and productive legislature. Constructing these different organs, each one with its own special form of legitimacy, is in fact an important part of the constitutional design itself. The details of the constitutional arrangements may differ. No real constitution adheres to a full separation of powers. Rather, legislative, executive and judicial powers and functions are divided among organs which are structured in way that fit their major and central function. All of them operate under the constitution, and this activity requires that they interpret the powers entrusted to them by the constitution, and the limits that it imposes on them.

What is special about the rules of the game part is that most of its provisions ate neutral. They talk of structures and powers and decision-making procedures and about elections and terms and age limits. Interpretation of these laws does not seem to be based on any specific ideology besides the fairness of a general law. Majority rule is a decision rule that gives legitimacy to those decisions made by the majority irrespective of their content. Similarly, a principle allocating power to decide between states and central government may be neutral in respect to the actual content of the decisions made by the parties.

This neutrality of the rules of the game is of course not accidental. It is what makes them a strong source of legitimacy, especially in divided societies. Division of labor and entrusting most of the power to the representative body is the best way of guaranteeing that we will have government of the people, by the people and for the people. Moreover, it is easier to accept a decision that runs against one's convictions if it comes from an authorized body of the whole community (which includes those who do not share my convictions) than to accept this decision as an alleged interpretation of one's convictions themselves.

Constitutions must include rules of the game but they do not have to have either credos or bills of rights. Indeed, divided societies may be attracted by 'thin' constitutions, consisting of rules of the game only; and at least some believe that a wisely designed system gives all the required protection to minorities and factions.[14] Thin constitutions permit agreement on procedures which are necessary and neutral, without talking about controversial conceptions of the good or values. Unified societies may enjoy lofty credos which contribute a sense of nation building and cohesiveness. For divided societies, the choice is between a universalistic credo which might do this at the cost of blandness, or a more particularistic credo very critical to some but which may well alienate others.[15]

The picture becomes even more complicated for bills of rights. On the one hand, one could well argue that every well ordered state, and especially deeply divided societies, should have a bill of rights with independent effective enforcement, since this is where democracy in the sense of majority rule must give way to the substantive values of human rights which should constrain all governments. These rights are universal and do not depend on the preferences of majorities. Their function is to protect minorities and individuals from majorities. And judicial independence is given so that protection is more effective. It is true that human rights often impose substantive constraints on government, and that these constraints may be controversial, but the very nature of human rights requires that they are given a status above the rules of the game. On the other hand, human rights rhetoric can become very expansive. It might mean that human rights are invoked to undermine the ability of the majority to enact its preferences where reasonable people may disagree whether a core human rights was violated. In such circumstances, a Bill of Rights may in itself become a divisive element, generating a crisis in the legitimacy of those who enforce it (if such enforcement is not left to the representative branches themselves).

As with constitutional phases, here too the dividing lines are not always clear. Are the political rights a part of the rules of the game, or are they parts of the Bill of Rights? Is a commitment to democracy a part of the rules of the game or of the credo of society? Yet here too, the distinctions are important, and we should attend to them when we look at the institutional implications of constitutionalism.

C. Institutional Implications

In the initial stage of constitution-making, the main contenders for the job are special constituent assemblies or regular legislatures, with a clear preference for the former.[16] Special assemblies can concentrate on the constitution without the need to work at the same time on current political issues. The main options and the great compromises can be negotiated without the 'noise' created by regular politics. If the members of the assembly are people who are not directly involved in day-to-day politics, it is likely that their judgment will be less clouded by their own immediate political interests. This is especially true if a major purpose of the constitution is to limit the powers of the legislature. Nonetheless, at times it is impossible or undesirable to let constituent assemblies enact constitutions, and the second-best candidate is the legislature. What these two bodies have in common, however, is crucial for the task: they are representative bodies, structured to include all or most of the major interests and views in the society to be regulated by the constitution. Furthermore, their mode of work is built on understanding political constraints and on negotiating compromises. They do not work on the basis of articulating principles set out elsewhere. They are the ones who set the rules and make the social compact. And they set the rules because they have the mandate to do so, given to them by those who have elected them for the job of creating the constitution (in the case of constituent assemblies) or representing their constituents (in the case of legislatures).

To make sure the product of their processes of deliberation enjoys the broad support of the people, it is often required that the constitution will not only be enacted in a celebratory way and with a special majority, but also be subjected to a broad public debate and possible ratification by a referendum. These processes may be based on presentations prepared by the government or by civil society groups, but the actual process of enactment and ratification should be conducted in ways that involve representatives of the people and the people themselves.[17] The courts as such should not have a role in this process. In fact, some may suggest that it is best for them to stay out of these negotiations as far as possible.[18] We do not have to go into the fascinating question of whether constitutions stem from 'We the People' directly (as distinct from regular legislation that is generated by the political game of representatives of various sorts). There is a consensus that this is an exercise of the powers of citizens. Courts, with their professionalism and their relative independence from government and the preferences of the majority, are not – as such – primary players in these constitution-making stages.[19]

Some systems require, or at least permit, the use of special assemblies for amendments as well. But mostly, amendments to the constitution move on a spectrum between full flexibility (same procedure as regular legislation) and very high levels of entrenchment, mostly using 'regular' modes such as special majorities, additional vote, requirement of two consecutive parliaments, or referenda. Usually, the mode of amendment is different from, and more relaxed, than the mode of comprehensive constitution-making. But in terms of the citizens, their representatives or the courts – the choice of formal procedures is clearly of the former. This is as it should be.[20] The picture can get more complicated, though, if courts have the power to review the constitutionality of constitutional amendments as well.

Once a constitution is in place, the constitution itself governs the ways the constitutional regime should operate. Seen in this way, all empowered organs are the guardians of the constitution, and all are legitimated by it. Effective government is not less important than an independent and courageous judiciary or from a conscientious and productive legislature. Concerning the rules of the game, therefore, each of the powers may and should act according to its own interpretation of the law and the constitution. No organ of government may act in a way that it itself concedes is unconstitutional. Rules of procedure and justiciability will determine which of these actions by the legislature and the executive may be subject to judicial review and in what form. The legislature and the executive are considered strong branches, and the courts are often granted powers to check their activities. The fact that supreme courts’ decision are not subject to review by any legal authority is often justified by saying that the court is 'the least dangerous branch'. This may be so, but it is no reason to give up on the basic insight that no power should come without some accountability. The accountability of supreme courts should thus be achieved through other forms of checks and balances.[21] More important, the centrality of courts as interpreters should not lead us to belittle the role of other organs in the interpretation and enforcement of the constitution.[22]

True, courts are seen as the authoritative interpreters of law when a provision of the law – including the constitution - comes to them. Their decision is final for the parties. The broader legal and social force of their decision depends on the status of the constitution itself, the rules of stare decisis and on future acts by the other constitutional players.[23] The constitutional design may also govern, formally or informally, the limit of the jurisdiction of courts and the nature of cases they can (and cannot) decide. Inevitably, these constitutional limitations will also be interpreted by the courts themselves. But courts do need legitimacy, and they cannot persist over time if their decisions lack a solid basis of support in society and the legal community.

There is no question that the role of the courts in the application and the interpretation of the constitution is pervasive and central, whatever the status and nature of the constitutional regime. But while there are constitutions that explicitly grant courts the power to invalidate primary legislation, there are those under which the power was inferred by courts from the supremacy of the constitution,[24] and there are those that explicitly denied courts that power.[25] Even when there is a judicial power to review primary legislation and invalidate it for inconsistency with the constitution, there is a variety of such institutions and regimes.[26] Be this as it may, most constitutions provide for legal enforcement of constitutions, and most see judicial institutions as the ones best suited to enforce them. Often, this is based on a deep reluctance to place full trust in legislatures and a wish to add an effective constraint on their power. There are a variety of ways of dealing with the counter-majoritarian difficulty which may then emerge.

One can discuss these questions analytically or study the way the relationships between legislatures, executives and courts develop in various legal systems. Both approaches yield similar results. Judicial review of primary legislation has been the norm in a growing number of jurisdictions. It is especially salient in societies which emerge from dictatorial regimes and seek to entrench the hard-won commitment to democracy and freedom. While there are serious political limits of various sorts to the effectiveness of courts as defenders of rights or as movers of social change,[27] judicial review over primary legislation has in general provided an important avenue to check local excesses within political systems. Against this background, countries that have struggled with these questions in recent times and decided against such judicial review are of special interest.[28] They point to the fact that while there are many powerful reasons for giving courts such powers over primary legislation, there are also reasons against this. These reasons are tied, among other things, to the distinction between different components of constitutions.

Before returning to these, let me summarize the thesis about institutional implications of the phases of constitutionalism. As I noted above, the dividing lines between the phases are often not very bright and clear. The distinction between regular or normal politics and constitutional debate may well be a matter of degree. Regular politics constantly challenge constitutional limits. One does not have to endorse Ackerman's theory of constitutional moments to claim that the US constitution has in effect been amended many times without invoking the formal process of constitutional amendment.[29] In such amendments, which are instances of constitution-making rather then application and interpretation, courts naturally take an important part. At times, they may be the movers or the consolidators of such processes. At others, they may well undermine, by their interpretation, the practical effects of proposed constitutional amendments.[30] Moreover, due to the finality of adjudication and to the prestige of courts as defenders of the rule of law, it is often politically quite difficult to use legislation to change a law or a practice or an interpretation ruled by courts as inconsistent with constitutional values.[31]

Nonetheless, with all this inevitable and immanent ambiguity, the field in processes of constitution-making and in amending constitutions should mainly belong to representatives of the people. By contrast, in processes of interpretation and application of constitutions and their amendments – courts are serious and central players, seen by some as supreme. This division of responsibilities is not merely a universal description of the realities in legal systems. It is a natural outcome of the different bases of the legitimacy of the various organs of government and the different functions of constitutional frameworks, normal politics and adjudication.

Most of the time, systems operate within regular politics under the constitutional regime. We can assess the institutional implications of constitutionalism in this phase better when we attend to the different components of constitutions and their different rationales.

Divided societies may be tempted to use credos in order to give celebratory force to the vision of the enacting powers and to remove their vision from the contingencies of future controversy. This, of course, may be very problematic for the groups whose visions are excluded or silenced. It may well reduce the legitimacy of the constitution for them since it may appear not to include them fully. In terms of constitutional design, credos and human rights are particularly tricky when interpreted and enforced by a court that has the power to invalidate statutes. The inevitable ideological and abstract nature of these parts of constitutions means that decisions by unelected courts may be, and appear to be, not sufficiently responsive to self-government. The fact that courts are seen as 'the forum of principle', and do not engage in negotiation and compromise may mean that important social and political debates will be resolved without the give-and-take needed when a complex society works out its positions. The results may be either loss of legitimacy by the courts, and of the constitution they purport to invoke, or pressure to politicize them, or both.[32]

The privileging of particularistic credos in an entrenched constitution governing a society a part of which resents that credo is problematic. Judicial interpretation of this credo may run one of two risks, both of which may weaken the court's standing. The first is that the court echoes the sentiments and aspirations of the majority that had entrenched the credo, and can be challenged for preferring that vision of the good life to a neutral commitment to the welfare of all citizens. The second is that the court will indeed prefer the universalist interpretation and seek to define away the controversial credo. In that case the court may risk being perceived as an organ seeking to undermine the constitutional consensus.[33]

In the case of human rights, as we saw, the basis of the court's mandate to protect those rights even against the majority is stronger than it is in the case of most credos, because it is the essence of human rights that they have pre-legal force. Nonetheless, once the courts protect rights that have not been clearly incorporated into laws, and whose scope is deeply controversial, they are likely to be seen by those whose views are different as an organ imposing its own values on the majority of its society.[34] As we saw, human rights talk tends to become very expansive with some people and groups, so that everything that one wants very badly is translated into a right. Most of the democratic discourse and debate may easily be reformulated in terms of rights.[35] So the question again becomes not 'what are one's rights?' but 'who decides?' It is to be expected that bills of rights are vague and will require interpretation. The real question to be decided here is that of the structure of the commitment to rights and its institutional implications. This question in itself may be seen as a part of the rules-of-the-game, because it goes to the supremacy and the enforceability of the constitution, and to the powers of courts vis-à-vis the government and the legislature. It follows that even where there is no debate about the existence of judicial review over primary legislation, courts should beware of 'legislating' where the issue is not a clear violation of a core right of an individual or group.

A further guideline follows: Si