By Barnabas Johnson

25 February 1991

[This essay assumes the reader's familiarity with my essay on the foundations of constitutional law, published in Lietuvos Aidas in two parts on February 13 and 14, 1991, as well as familiarity with the draft constitution of the Republic of Lithuania that my wife Lowry Wyman and I have proposed.]

The idea of a "constitutional court" has come up often during the past three months, as I have discussed work on a new Constitution of Lithuania. Many favor some variation of this idea. Some believe, for example, that no statute adopted by the Seimas should enter into force unless it is first scrutinized by such a court. Some also believe that any legal controversy that implicates the Constitution should be decided by such a court. There are numerous other duties that some believe such a court should have, including determining whether a treaty is constitutional, whether an electoral district is fair, or even whether the President is competent to hold that office.

I am convinced that the idea of a "constitutional court" is foolish, indeed absurd. It is an invitation to constitutional crisis, and reflects dangerous confusion about how to achieve a government under law — about the proper role of constitutional law, statutory law, all other law, the judiciary, the legal profession, and everything else having to do with constitutional democracy. Because "absurd law" is not law at all, I believe that this idea, if implemented, would violate fundamental requirements of any constitutionalism worthy of the name. In attacking this idea, I will also address a penumbra of matters that might help clarify the constitutional conception proposed in our draft. The focus of this essay, however, is the second paragraph of Chapter I, Article 8, and all of Chapter IV.

The thesis I shall develop here is that all law necessarily forms an organic whole, and that a single jUdiciary should be empowered to decide all legal questions properly brought before it. The judicial branch described in Chapter IV of our draft Constitution comprises a single system of District Courts (courts of first instance, with major-case and minor-case divisions), Regional Courts of Appeals, and a Supreme Court.


Under this system, almost all questions should be decided within the context of real "cases and controversies" among real parties, not as abstract theoretical questions divorced from any real context. And under this system, every case should be decided according to all the law necessary to decide it.

I am well aware that several countries have a "constitutional court". For the most part, these countries have other serious problems with their constitutions, and should not provide a model for Lithuania. In any event, I beg those who favor this idea to reconsider it in light of the arguments propounded here. The conception of a constitutional democracy that I favor would have "We, the people of Lithuania" empower their legislative branch to make the law, their administrative branch to administer and enforce the law, and their judicial branch to hear and resolve all criminal and civil suits and, as a necessary corollary, to interpret the law — all the law relevant to any case or controversy properly brought before it. This tripartite division of labor, of "checks and balances" among the organs of state power, would be thrown off balance by a "constitutional court" that necessarily attempts to separate constitutional law from all the rest of law. If every ~ssue of every case came labeled "ordinary" or "constitutional", then perhaps the concept of a "constitutional court" would at least not be foolishly impractical; even so, it would be foolish in other respects.

As suggested, my argument starts with the fundamental proposition that law, properly understood, should form an organic whole — a living, evolving body of interpenetrating elements: every statute, every case, necessarily implicates the constitution as well as every other element. At the same time, law is not an exercise in abstract logic: no statute, no case, no question of law can be decided in a vacuum. Nothing that has a history can be adequately defined, and constitutional law is above all the embodiment of wisdoms derived from history -wisdoms focused upon resolution of a specific dispute, not an abstract proposition. To decide a constitutional question, a court needs to examine the question in light of the entire legal and factual context within which it arises.

In this connection, modern constitutionalism has developed two crucial doctrines, already alluded to, neither of which seems known in this part of the world — probably for the simple reason that communist constitutions are not real constitutions, and communist law is not real law, so that real constitutional and legal analysis and synthesis has become not only unnecessary but indeed harmful to operation of this absurd and tyrannical pseudo-government under fake-law. In a real government under real law, however, these two doctrines are precious indeed.

First, the "case and controversy doctrine": courts should ordinarily hear and decide only real cases or controversies in which real parties claim that they are involved in a concrete disagreement over the meaning or application of an element of


law. Second, the "overbreadth doctrine": statutes and regulations should, where possible, be interpreted and given effect according to their "narrow" terms; this "narrow" interpretation of the words and phrases of statutes and regulations should be assumed to be the proper interpretation, i.e., the meaning intended by those who adopted them.

Combining these two doctrines gives rise to the following general wisdom: tortured and "overbroad" interpretations that could result in unconstitutionality — but have not in fact resulted in any case or controversy — should be assumed to be interpretations that were not intended, and therefore have no legal force. Perhaps half the statutes adopted by the U.S. Congress could be interpreted to provide a basis for unconstitutional action, but so long as nobody has in fact thus interpreted them, who cares? For example, if no prosecution has ever been based on an overbroad or tortured interpretation of a statute, a finding that this statute is unconstitutional will do more harm than good, because perfectly appropriate prosecutions based on a narrow interpretation of the statute will have to be invalidated.

Courts are not created to discover abstract problems, but to resolve real problems. True, in the narrow area of "declaratory judgments" (discussed later), courts must decide whether to decide certain categories of "abstract" problems, but this is the exception that proves the rule that courts should ordinarily avoid resolving potential problems that have not yet ripened into real problems. The concept of "ripeness" is very important here: as a general rule, if there is no good reason to do something, then there is a very good reason not to do it; in law, if there is no compelling reason to adjudicate a problem, then adjudicating it is likely to be premature — and to create more problems than it solves. Courts are much more likely to explore the full ramifications of their decisions when real parties are arguing all the relevant points in controversy; judicial analysis of abstract issues that are not being contested before them tends to lead to shoddy analysis, unwise generalizations, bad interpretations, and eventual degradation of the whole body of law.

A "constitutional court" that determines the constitutional validity of all statutes before they enter into force will be required to decide numerous abstract questions without exploring their ramifications, and will inevitably cause far more harm than good. The worst harm it will cause is that, by sitting as a "super legislature" that second-guesses the Seimas, the "constitutional court" will become a fourth branch of government which is not itself subject to the system of checks and balances. If this court is also empowered to invalidate actions of the executive branch, or to override the judicial determinations of the Supreme Court, as some propose, then it will cause even further harm to the system of checks and balances.


countries that have such "constitutional courts" tend to generate great confusion concerning the distinctions between legislating, administering, and interpreting the law. This confusion is dangerous, and unnecessary. Granted, under a competent constitutional system the concept of "separation of powers" includes important elements of shared powers; our draft Constitution of Lithuania spells out numerous such areas — and indicates how each branch must interact with others to get a specific job done properly. That is what a good Constitution is for. But granting to a fourth body the right to go fishing for trouble in the waters of the other three invites constitutional crisis. The "constitutional court" idea does precisely that -it grants a special fishing license to a "super organ" to go looking for problems that are inevitably present in any system of shared power — and by looking for them, and "solving" them, this super organ will actually tend to make them worse. It provides a classic example of a cure that is worse than the disease.

Placing all judicial power in a single jUdiciary that is subject to constitutional checks and balances by the other two branches achieves the principal goal of a good constitution: ensuring a clear delineation of responsibility between — and among — the legislative, executive, and judicial organs. A "constitutional court" that can "trump" all three creates a grave danger of resolving the necessary tensions between the other three branches by, effect, rendering them powerless -under its control. Saving a constitutional system by inventing a new kind of dictatorship is very short-sighted. But the problem goes much deeper

Let us further explore the value of those two doctrines.

Law is nothing if it does not communicate; and communication depends on reasonable interpretations, within actual contexts, among real humans who for the most part are not trying to trip each other up on the basis of all the misunderstandings that each sentence and paragraph could create. Only insane people become distracted by the possible implications of other's words and phrases; unable to discern the proper context that gives meaning to all communication, they see hidden meanings lurking everywhere, and therefore find no genuine meaning anywhere.

That is what makes them insane. But law is nothing if it is not the embodiment of rationality, of sanity — the embodiment of words and phrases that gain their meaning from their immediate as well as historical contexts.

Obviously, the Seimas should take care that its statutes do not violate the constitutional authority given to it to make statutes. To this end, the Seimas should employ experts to help it draft only constitutional statutes, and to draft them as "narrowly" as possible to meet their intended goals. Such experts should also help the Seimas ensure that new statutes only modify old statutes to the extent intended — and to ensure that all statutes use words and phrases in a consistent way, so that all the law can be interpreted as a coherent whole. That


is the job of the Seimas. If it does this job well, then obviously the Judiciary will be relieved of having to sort through absurd statutory contradictions, toss out unconstitutional statutes, and otherwise correct errors that the Seimas ought to have avoided. But the mere fact that the Seimas might have made an error, or several categories of errors, does not imply that some special court should immediately go to work as a super-legislative body that second-guesses the Seimas at every step. Again, this will invite constitutional crisis, not avoid it.

Just as obviously, the President should veto statutes that are unconstitutional or otherwise foolish. Indeed, the President should force the Seimas to reconsider any statute -on whatever grounds, constitutional or otherwise — wherever the President believes that the public interest requires such reconsideration. This is a tried and true method of "checking and balancing" legislative mistakes at an early stage. And just as obviously, the President, as chief administrative officer, should furthermore ensure that all statutes (and rules and regulations made thereunder) shall be interpreted and implemented in a constitutional manner — so that no person is deprived of a constitutional right due to the application of any statute in every particular instance. Put differently, the President and the entire government should always exercise administrative discretion to ensure that overbroad statutes will be narrowly implemented so as to avoid constitutional controversies. That is the President's job. Again, if this job is done well, then the Judiciary will be relieved of having to sort through an impossible workload of complaints about unconstitutional statutes, contradictory statutes, idiotic rules and regulations, or the unfair implementation and administration of the law.

As a corollary, if at any time any person believes that a statute or regulation, or the way it has been applied in a particular case, deprives him or her of any legal or constitutional right, then that person should be able to object — that is, should be able to assert that a real case or controversy has arisen, for which judicial relief should then be available. This judicial relief should be available as a matter of course, in any court of general jurisdiction. In our proposed Constitution of Lithuania, such a case would be brought in the District Courts, and would ordinarily be appealable as a matter of right to the Regional Court of Appeals. Appeals from the appellate courts to the Supreme Court would be discretionary with the Supreme Court — that is, the Supreme Court would hear and decide cases it felt required further review. The Supreme Court should have absolute discretion in deciding when and how to intercede in order to ensure that the Constitution of Lithuania, and all laws made thereunder, are applied fairly, rationally, consistently, and coherently.

Now, back to the exceptional circumstance of "declaratory judgments". In law, few doctrines are absolute. Most wisdoms


are balanced by competing wisdoms. Therefore, in exceptional cases, a person or institution ought to be able to go to the District Court and assert that the very existence of a statute or regulation — even though it has not yet been implemented or applied — creates a sufficient likelihood of harm that it ought to be invalidated or at least judicially interpreted in order to avoid that likelihood of harm. The person or institution seeking the declaratory judgment should carry a heavy burden of having to demonstrate that such exceptional circumstances exist — that the potential harms of the statute or regulation outweigh the potential harms of providing the exceptional judicial remedy of a declaratory judgment. The analysis of when and how the judicial branch should intercede and provide the remedy of a declaratory judgment is a huge subject. This essay can only skim its surface.

Obviously, if any interpretation of a statute would render it unconstitutional — if the statute is "unconstitutional on its face" — then a declaratory judgment would be most appropriate. Also, if the statute immediately places many people in jeopardy, subjecting them to a sUbstantial risk of costly litigation, then a declaratory judgment will often be the best vehicle for doing justice. If Lithuania adopts the constitutional draft we propose, its courts will have to familiarize themselves with the wisdoms of the west on this important subject. The fact that the subject is complicated, however, should be no excuse for adopting a simplistic idea like the "constitutional court": the cure to life's complexities should not be a simplistic idea that in fact results in even greater complexity — a veritable tangle of avoidable confusion, waste of time, and worse.

The area where the idea of a "constitutional court" raises the greatest complexity is in litigation of actual disputes among real parties. Suppose that Petras and Jonas have a complicated business dispute, involving the meaning of various contracts, leases, and statutes on foreign investments in Lithuania. Suppose that they cannot resolve this dispute, and that Petras sues Jonas in the District Court. The first job of the judge will be to "manage" the "discovery process" whereby both Petras and Jonas examine documents in each other's possession, obtain sworn statements from each other's witnesses, and explain to each other — and the judge — the various points of law that they believe are relevant to their case.

All this happens before any trial begins. The judge's job at this point is to facilitate the process by which the parties clarify their dispute, narrow the issues they disagree on, and discover the legal basis of each other's positions. If the judge does a good job of managing this pretrial process, the case will probably not go to trial; it will be settled. In America, more than ninety percent of all cases get resolved in this way without a trial. As will be seen, the idea of a "constitutional court" would short-circuit this important pretrial process. I am an expert on American judicial


administration, and I can say with confidence that if America had a "constitutional court" our judiciary would need at least five times as many judges — perhaps ten times as many -because the "constitutional court would play havoc with the entire discovery and settlement process.

Suppose that after eight ,weeks of this crucial pretrial process, Petras becomes convinced that part of his dispute with Jonas involves not merely the interpretation of Lithuania's foreign investment statutes, but also whether a provision thereof is constitutional. Jonas replies — in documents filed with the District court — that there is no constitutional issue, or that if there is, the case can in any event be decided without reference to it. Should the District Court judge, at this point, after having familiarized himself with so much of this complex dispute, stop all proceedings and send the case to the "constitutional court" for determination of the potential constitutional issue raised by Petras? What a waste of jUdicial time and resources! Now a completely different judge in a completely different court will have to familiarize himself with all those complicated contracts, leases, statements by witnesses, legal arguments, etc., in order to determine — as a threshold matter — whether a constitutional issue is involved, and if so, whether resolving it will be necessary to resolving the dispute. Suppose this new judge decides that the case does not involve the constitutional issue raised by Petras, so that the case bounces back to the District Court; suppose further, that a month later Jonas concludes that a completely different constitutional question now needs to be decided: what now?

The absurd fallacy underlying this "constitutional court" idea is that all the issues in a case are clear — or even knowable — at the very start of litigation, and that they can all be labeled either "ordinary" or "constitutional". Legal disputes do not come packaged and labeled that way! In most disputes, potential constitutional issues are "nested" within every issue; only in the course of pretrial proceedings, or perhaps the trial itself, will the issues become sufficiently clarified to permit a determination of which issues need to be decided, and whether some of those issues implicate the constitution, and if so, what to do about them. If Lithuania adopts the idea of a "constitutional court" that decides constitutional issues, most cases will have to go back and forth between two judicial systems, bouncing from one system to the other every time a new wrinkle of information enters in — and all this even before the process of actually trying the case has started!

I repeat: if only a "constitutional court" can decide constitutional issues, then that court will also have to familiarize itself with all the other issues, and decide them, because constitutional issues do not exist in an existential vacuum. The law is an organic body, a whole system, and no part can be understood without reference to the whole. Nothing makes sense without context. Nothing can be understood without


reference to the things it touches, the things that have molded it, the things that define it and make it real. Those who do not understand this fact have no understanding of the very essence of law, constitutionalism, and government under law. Abstract propositions do no resolve legal controversies. Only a fundamentally illogical system of law could operate on the illusion that legal problems can be resolved through mere logical derivations. Logos and nomos are fundamentally different categories of human activity.

Aristotle invented_logic, the fundamental "grammar" of thought and communicati6n, as a structure upon which the data of human experience could be analyzed into meaningful distinctions, synthesized into meaningful similarities, and categorized coherently in aid of further analysis and synthesis — i.e., to create science, a coherent body of knowledge based on observation, not mere abstract contemplation. without the foundation of logic, science would be impossible. with that foundation, the accumulated empirical knowledge of every generation could be passed on coherently to future generations.

As science requires logic, and then transcends it, so law requires science — and then transcends it. Law moves past the "is" of science to the "ought" of moral invention. The lawyer must become a student of the "is" in order to become a wise and creative advocate and architect of the "ought" — a participant in creating a better human society, a finer vehicle of human evolution. Francis Bacon added to Aristotelian empiricism the powerful tool of controlled experiment — the scientific method of "squeezing nature" so that it will reveal secrets not otherwise apparent. And modern legal method has consequently been the beneficiary of that "new science" — with far-reaching implications. The data of law that are "squeezed" are themselves earlier human creations; they are "in nature" but not entirely "of nature" — a new category of nomos, the result of conscious human participation in Creation.

Modern law is the result, in essence, of a slow-motion "controlled experiment" with human institutions like parliaments, presidents, police, copyrights, court systems, contracts, and corporations. These human institutions are not only based on the wisdoms of science and the disciplines of logic, however; they are also anchored by basic "truths" which, like the postulates of logic, are known a priori — without observation, experience, or science: the fundamental value of each individual, the fundamental rights of all humans, the fundamental capacity of the human spirit to evolve, and hence through government under law — to guide the evolution of our entire planet in ways the transcend mere "natural" evolution.

In summation, I must say that Soviet law has cut itself off from the intellectual, moral, and even practical postulates and wisdoms of law and of government under law. soviet law has badly infected the Lithuanian legal culture. The best way for Lithuania to free itself from the absurdity and tyranny of


soviet law is to embrace — without embarrassment or false pride — the best wisdoms of the Western legal tradition. The idea of a "constitutional court" is not one of those wisdoms. But the idea of a comprehensive and coherent constitution of Lithuania, based on checks and balances amongst the legislative, executive, and judicial branches, and based on all the rest of the best that the Western legal tradition has to offer, is a very good idea, an idea whose time has come for Lithuania.

I recommend that conception of a constitutional democracy with all my heart. Lithuania deserves the very best constitutionalism possible; Lithuania needs the very best constitutional ideas available; Lithuania should turn its back on the absurdities of its present lawless tyranny and get to work building a stable, rational, efficient, and prosperous constitutional democracy.



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