Download this publication - PULP

58 Chapter 4
supreme and final over all justiciable matters, unless you are willing
to amputate whole large limbs of law (I mean like private law, or
family law, or commercial law) from the body of law always
potentially subject to scrutiny in light of the norms of the
Constitution.
This amputatory way, I may note, has in fact been the American
way — a branch of what we call the ‘state action’ doctrine — of
preserving a last-resort domain for the supreme courts of the states
that is proof against United States Supreme Court review. 25 But of
course that method — of cordoning off (say) private law from federal
constitutional inspection, as the American ‘state action’ rule is meant
in part to do — may seem too high a price to pay for whatever benefits
(say, of focus, expertise, or administrative efficiency) one might
perceive in preserving multiple courts of last resort, each presiding
over some different branch of the country’s law. If you are resolved
to refuse absolute insulation of any part or particle of the law from
constitutional inspection, as has world-famously been true in South
Africa (your horizontality jurisprudence being continuing front-page
news in comparative constitutionalism circles), then to make your
constitutional court the sole appellate tribunal for matters
implicating the constitution would be, in effect, to make it the sole
appellate tribunal, period, and hence the sole tribunal of last resort
for all points of law arising in cases that enter the judicial system. Or
so the events recounted above suggest to me — and so, evidently, did
the drafters of the Final Constitution wisely conclude.
These events show that the question of restricting to
constitutional matters the tribunal that pronounces with finality on
such matters cannot usefully be addressed without simultaneously
facing the question of what fraction of all legal matters the category
of constitutional matters takes in — which really amounts to the
question of what sorts of norms you wish your constitution to contain.
At one extreme, call it the narrow one, the choice might be to restrict
constitutional-legal norms to those setting the formal rules and
protocols for electing the government and the legislature, for the
enactment of statutes, and the like, and leave everything else to the
free and unrestricted choice of Parliament. Limitation of a court’s
jurisdiction to constitutional matters would then really mean
something. At the other extreme, call it the sweeping one, the choice
might be to write into the Constitution broadly couched substantive
25 A signature decision is Flagg Bros. Inc. v Brooks 436 US 149 (1978)(holding, in
effect, that ordinary private and commercial law are not products of ‘state
action’ coming within the (allegedly strictly vertical) purview of the US
Constitution’s guarantees respecting individual rights, and calling ‘intolerable’
the thought that every case coming to court in the US is potentially a
constitutional case reviewable by the Supreme Court).