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OXFORD COMPARATIVE CONSTITUTIONALISM

Series Editors
RICHARD ALBERT
William Stamps Farish Professor of Law,
The University of Texas at Austin School of Law
ROBERT SCHÜTZE
Professor of European and Global Law,
Durham University and College of Europe

Responsive Judicial Review

 OXFORD COMPARATIVE CONSTITUTIONALISM

Series Editors
Richard Albert, William Stamps Farish Professor of Law,
The University of Texas at Austin Law School
Robert Schütze, Professor of European and Global Law,
Durham University and College of Europe
Comparative constitutional law has a long and distinguished history in
intellectual thought and in the construction of public law. As political
actors and the people who create or modify their constitutional orders,
they often wish to learn from the experience and learning of others. This
cross-fertilization and mutual interaction has only accelerated with the
onset of globalization, which has transformed the world into an
interconnected web that facilitates dialogue and linkages across
international and regional structures. Oxford Comparative
Constitutionalism seeks to publish scholarship of the highest quality in
constitutional law that deepens our knowledge of local, national, regional,
and global phenomena through the lens of comparative public law.
Advisory Board
Denis Baranger, Professor of Public Law, Université Paris II Panthéon-Assas
Wen-Chen Chang, Professor of Law, National Taiwan University
Roberto Gargarella, Professor of Law, Universidad Torcuato di Tella
Vicki C Jackson, Thurgood Marshall Professor of Constitutional Law, Harvard Law
School
Christoph Möllers, Professor of Public Law and Jurisprudence, Humboldt-
Universität zu Berlin
Cheryl Saunders A.O., Laureate Professor Emeritus, Melbourne Law School
ALSO PUBLISHED IN THIS SERIES
Deliberative Peace Referendums
Ron Levy, Ian O’Flynn, Hoi L. Kong
Eternity Clauses In Democratic Constitutionalism
Silvia Suteu
Scales of Memory
Constitutional Justice and Historical Evil
Justin Collings
The Global South and Comparative Constitutional Law
Edited by Philipp Dann, Michael Riegner, and Maxim Bönnemann
City, State
Constitutionalism and the Megacity
Ran Hirschl
Constitutional Change In The Contemporary Socialist World
Ngoc Son Bui
Poland’s Constitutional Breakdown
Wojciech Sadurski
Abusive Constitutional Borrowing
Rosalind Dixon and David Landau
 Responsive Judicial Review
Democracy and Dysfunction in the Modern Age
ROSALIND DIXON
Professor of Law and Director of the Gilbert + Tobin Centre of Public Law, UNSW
Sydney
 Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford. It furthers the
University’s objective of excellence in research, scholarship, and education by publishing
worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in
certain other countries
© Rosalind Dixon 2023
The moral rights of the author have been asserted
First Edition published in 2023
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, without the prior permission in
writing of Oxford University Press, or as expressly permitted by law, by licence or under
terms agreed with the appropriate reprographics rights organization. Enquiries concerning
reproduction outside the scope of the above should be sent to the Rights Department,
Oxford University Press, at the address above
You must not circulate this work in any other form and you must impose this same
condition on any acquirer
Public sector information reproduced under Open Government Licence v3.0
(http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-
licence.htm)
Published in the United States of America by Oxford University Press
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Library of Congress Control Number: 2022934445

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DOI: 10.1093/oso/9780192865779.001.0001
Links to third party websites are provided by Oxford in good faith and for information only.
Oxford disclaims any responsibility for the materials contained in any third party website
referenced in this work.
 Acknowledgments

This book has been a long time in the making. In many places it
draws on work I did during my doctorate/SJD at Harvard under the
generous supervision of Frank Michelman, Martha Minow, Richard
Fallon, Richard Goldstone, and Jacqui Bhabha. It also reflects time
spent thinking and writing as an assistant professor and professor at
the University of Chicago and University of New South Wales
(UNSW) in Sydney, as well as during several visits as a visiting
professor/fellow at Chicago, Harvard, and Columbia Law Schools.
The attention in the book to the realities of democratic politics, and
various possibilities for democratic experimentalism, is largely due to
the intellectual influence of the University of Chicago and Columbia
Law School. The enthusiasm for ideas about responsive law and
regulation is shaped by many generous colleagues at UNSW,
especially Theunis Roux and Martin Krygier.
The comparative method, and sensibility, I owe to many people
around the world both near and far—including colleagues at UNSW
and Melbourne, many fellow members of the International Society of
Public Law. Many of the ideas have also been shaped by valuable
conversations over many years with colleagues such as Richard
Albert, Micaela Alterio, Gabrielle Appleby, Ori Aronson, Ben Berger,
Carlos Bernal Pulido, Nina Boughey, Sean Brennan, Dan Brinks,
Jessica Bulman Pozen, Lisa Buton Crawford, Cora Chan, Adam
Chilton, Mathilde Cohen, Victor Comella, Joel Colon Rios, Adam Cox,
Javier Cuoso, Grainne de Burca, Maartje de Visser, Sujit Choudhry,
Melissa Crouch, Erin Delaney, Evelyn Douek, Anna Dziedic, Richard
Fallon, James Fowkes, Stephen Gardbaum, Roberto Gargarella,
Conor Gearty, Claudia Geiringer, Jake Gersen, Tom Ginsburg, Mark
Graber, Jamal Greene, Michaela Hailbronner, Andrew Harding, Ran
Hirschl, Aziz Huq, Helen Irving, Samuel Issacharoff, Vicki Jackson,
Aileen Kavanagh, Tarunabh Khaitan, Madhav Khosla, Paul Kildea, Jeff
King, Heinz Klug, David Landau, David Law, Hanna Lerner, Daryl
Levinson, Sandy Levinson, Ron Levy, Peter Leyland, Vanessa
MacDonnell, Frank Michelman, Martha Minow, Sarah Murray, Jaclyn
Neo, Roberto Niembro, Aoife Nolan, Kate O’Regan, Will Partlett, Rick
Pildes, Iddo Porat, Eric Posner, David Pozen, Kent Roach, Yaniv
Roznai, Ruth Rubio, Wojciech Sadurksi, Adam Samaha, Cheryl
Saunders, Jeff Seton, Amelia Simpson, James Stellios, Scott
Stephenson, Kristen Stilt, Adrienne Stone, Lior Strahilevitz, David
Strauss, Julie Suk, Mark Tushnet, Mariana Velasco Rivera, Sergio
Verdugo, Mila Versteeg, Joseph Weiler, Lulu Weis, and Po Jen Yap,
among many others. I am especially grateful to David Dyzenhaus for
encouraging me to return to work on the book after a long delay,
and to Mark Tushnet for his encouragement and guidance at many
different stages of the project.
The book also reflects the intellectual debt I owe to a number of
close colleagues and co-authors. The book inevitably reflects and
has parallels with the work of many of those scholars who I most
admire in the field, and it draws explicitly at a number of points on
ideas developed in joint-authored work with Michaela Hailbronner,
Samuel Issacharoff, Richard Holden, Amelia Loughland, Theunis
Roux, Adrienne Stone, Mark Tushnet, and especially David Landau,
and I am particularly grateful to these co-authors for so many
helpful conversations and their permission to draw on those ideas as
part of this project.
The book also draws directly at various points on articles
previously published in the Cardozo Law Review,1 International
Journal of Constitutional Law,2 Federal Law Review,3 Law & Ethics of
Human Rights,4 Osgoode Hall Law Journal,5 and Virginia Journal of
International Law,6 as well as various edited volumes.7 Chapters 2
and 3 draw directly on developed in The Supreme Court of Canada
and Constitutional (Equality) Baselines, 50 Osgoode Hall L.J. 637
(2012) and Rosalind Dixon and Michaela Hailbronner, Ely in the
World: The Global Legacy of “Democracy and Distrust” Forty Years
On, 19 Int’l. J. Const. L. 427 (2021), and Rosalind Dixon and Amelia
Loughland, Comparative Constitutional Adaptation: Democracy and
the High Court of Australia, 19 Int’l. J. Const. L. 455 (2021). Chapter
3 draws on The Core Case for Weak-Form Judicial Review, 38
Cardozo L. Rev. 2193 (2016) and Rosalind Dixon and David Landau,
Abusive Constitutional Borrowing: Legal Globalization and the
Subversion of Liberal Democracy (2021). Chapter 4 draws on
Calibrated Proportionality, 48 Fed. L. Rev. 92 (2020) and
Constitutional Carve-Outs, 37 Oxford J. Leg. Stud. 276 (2017).
Chapters 4 and 5 incorporate and expand arguments made in
Creating Dialogue about Socioeconomic Rights: Strong-form versus
Weak-form Judicial Review Revisited, 5 Int’l J. Const. L. 391 (2007),
David Landau and Rosalind Dixon, Abusive Judicial Review: Courts
Against Democracy 53 U.C. Davis L. Rev. 1313 (2020), and Rosalind
Dixon and Rishad Chowdhury, A Case for Qualified Hope? The
Supreme Court of India and the Midday Meal Decision, in A Qualified
Hope: The Indian Supreme Court and Progressive Social Change
(Gerald N. Rosenberg et al. eds., 2019). Chapter 6 draws on The
Forms, Functions, and Varieties of Weak(ened) Judicial Review, 17
Int. J. Const. L. 904 (2019). Chapter 8 reproduces and extends prior
arguments made in Strong Courts: Judicial Statecraft in Aid of
Constitutional Change, 59 Colum. J. Trans. L. 299 (2021). And I am
indebted to various referees and editors for these publications for
their role in refining and improving the work.
Many colleagues have also given their time and intellectual
insights and read (sometimes multiple) versions of the book in draft,
and I am especially grateful to them. My special thanks in this
context to Lynsey Blayden, Cora Chan, Erin Delaney, Stephen
Gardbaum, Claudia Geiringer, Mark Graber, Michaela Hailbronner,
Ran Hirschl, Richard Holden, Madhav Khosla, Vicki Jackson, Martin
Krygier, David Landau, Brendan Lim, Roger Masterman, Christoph
Möllers Theunis Roux, Kent Roach, Reva Siegel, Adrienne Stone,
Mark Tushnet, and Po Jen Yap, and participants at the Melbourne
Institute of Comparative Constitutional Law, in December 2019 and
UNSW Comparative Constitutional Roundtable in December 2020. I
was also generously aided in understanding specific comparative
issues by Asli Bâli, Vicente Fabian Benitez Rojas, Siddarth Narrain,
Oren Tamir, Sergio Verdugo, and Po Jen Yap, and at various points
by a range of outstanding UNSW graduates and graduate students,
including Ariella Buckley, John Lidbetter, Karie Mayman, Dessislava
Otachiliska, Elizabeth Perham, Veronica Sebesfi, and Melissa Vogt.
Melissa Vogt in particular contributed outstanding research
assistance throughout the project, and in the context of many of the
articles that were a precursor to it.
To them all, I offer my sincerest thanks.
Finally, to Isobel and Hartley—thank you for always coming with
me to constitutional law conferences that help make my work better,
and for enduring my desire to be on my computer during every
spare moment during COVID, and to finish home-schooling on an
accelerated timetable. Without your understanding and flexibility, the
work would never have been possible—and certainly not nearly as
enjoyable or worthwhile!

1 Rosalind Dixon, The Core Case for Weak-Form Judicial Review, 38 CARDOZO
L. REV. 2193 (2016).
2
Rosalind Dixon, The Forms, Functions, and Varieties of Weak(ened) Judicial
Review, 17 INT. J. CONST. L. 904 (2019); Rosalind Dixon, Creating Dialogue about
Socioeconomic Rights: Strong-form versus Weak-form Judicial Review Revisited, 5
INT’L J. CONST. L. 391 (2007).
3 Rosalind Dixon, The Functional Constitution: Re-reading the 2014 High Court

Constitutional Term, 43 FED. L. REV. 455 (2015); Rosalind Dixon, Calibrated

Proportionality, 48 FED. L. REV. 92 (2020).
4
Rosalind Dixon, Proportionality and Comparative Constitutional Law versus
Studies, 12 L. & ETHICS HUM. RTS. 203 (2018).
5 Rosalind Dixon, The Supreme Court of Canada and Constitutional (Equality)

Baselines, 50 OSGOODE HALL L.J. 637 (2012).

6
Rosalind Dixon, Constitutional Design Two Ways: Constitutional Drafters as
Judges, 57 VA. J. INT’L L. 1 (2017).
7 ROSALIND DIXON, Functionalism and Australian Constitutional Values, in

AUSTRALIAN CONSTITUTIONAL VALUES (Rosalind Dixon ed., 2018).

 Table of Contents

1. Introduction
A. Courts and Democratic Dysfunction: Promoting Democratic
Responsiveness
B. Responsiveness to Context and Limits on Judicial Capacity
C. Responsive Judging: Responding to Litigants (and
Disappointed Parties)
D. A Sometimes View of the Promise of Judicial Review
E. Structure of the Book

PART 1 DEMOCRATIC FOUNDATIONS

2. Constitutions and Constructional Choice
A. Judicial Review and Constructional Choice
1. Abortion, sexual privacy, and same-sex marriage
2. Implied speech and equality rights
3. Structural social rights
4. An unconstitutional amendment doctrine
B. Constitutional Theory and Constructional Choice
1. Abortion
2. Sexual privacy and equality
3. Structural social rights
C. Why Courts? Constitutional Choice and Democracy
D. Ely’s Response
E. Criticism of Ely’s Approach
F. Representation-Reinforcement Beyond Ely
3. Defining Democracy and Democratic Dysfunction
A. Defining Democracy
B. Democratic Dysfunction: Antidemocratic Monopoly Power
1. Electoral monopoly
 2. Institutional monopoly
3. Monopoly: Intent versus effect
C. Legislative Blind Spots and Burdens of Inertia
1. Legislative blind spots
2. Legislative burdens of inertia
D. “Deliberate” versus Interconnected Democratic Blockages

PART 2 COURTS AND DEMOCRATIC RESPONSIVENESS

4. The Scope and Intensity of Responsive Judicial Review
A. The Legal and Political Legitimacy of Judicial Review
B. The Political Legitimacy of Constitutional Implications
C. Responsive Review in Practice
1. Abortion rights
2. LGBTQI+ rights
3. Implied rights to freedom of expression and equality
4. Structural social rights
5. Unconstitutional amendment doctrine
D. The Intensity of Judicial Review: Toward Calibrated
Proportionality or Scrutiny
1. Calibrating judgments about limitations on expression
2. Calibrating judgments about discrimination
E. Deference and a Legislative Action/Inaction Distinction
5. Democratic Dysfunction and the Effectiveness of Responsive
Review
A. Detecting Democratic Dysfunction
B. Countering Dysfunction
C. Responsive Judicial Review in Practice
1. Comparative LGBTQI + rights
2. Structural social rights
3. Unconstitutional amendment doctrine
D. Preconditions for Success
1. Judicial independence and a political tolerance interval
for judicial review
2. Litigation support structure
3. Jurisdiction and remedial toolkit
6. Risks to Democracy: Reverse Inertia, Democratic Backlash, and
Debilitation
A. Limits on Judicial Capacity and Legitimacy
B. Reverse Burdens of Inertia
C. Democratic Backlash
D. Democratic Debilitation
E. Judicial Prudence, Principle, and Pragmatism
7. Toward Strong–Weak/Weak–Strong Judicial Review and
Remedies
A. Weakened Judicial Review
B. Why (and How to) Weaken Review
1. The democratic minimum core and the pragmatic
argument for weak–strong judicial review
2. Blind spots and burdens of inertia: a principled and
pragmatic case for weak–strong review
C. Toward Strong–Weak/Weak–Strong Judicial Review
D. Conclusion

PART 3 RESPONSIVE JUDGING AND COMPARATIVE

CONSTITUTIONAL THEORY
8. A Responsive Judicial Voice: Building a Court’s Legitimacy
A. Why Responsive Judging—or a Responsive Judicial Voice
B. Judicial Framing and Responsive Judicial Review
1. Authorship
2. Tone: Respect or comity
3. Narrative
C. Responsive Judicial Review and Judging: Building Support
for LGBTQI+ Rights
D. Responsive Judging and the Democratic Minimum Core
E. Responsive Judging: Limits and Cautions
1. Limits on responsive judging
2. Democratic legitimacy versus legitimation
3. A responsive judicial voice beyond the bench
9. Conclusion: Toward a New Comparative Political Process Theory?
Index
 1
Introduction

Just over forty years ago, John Hart Ely published Democracy and
Distrust, one of the best-known works of constitutional theory of all
time.1 In it, he outlined the idea of a “representation-reinforcing”
approach to judicial review, in which the role of courts was to
counter various “malfunctions” in the democratic process, rather
than broadly substitute for democratic decision-making by the
political branches of government.2
Many leading scholars have questioned why Ely’s ideas have had
such lasting influence. Ely arguably sought to draw too sharp a
distinction between constitutional “process” and “substance.”3 He
had little to say about the preconditions for effective judicial
representation-reinforcement. Indeed, Democracy and Distrust
largely preceded contemporary social science understandings about
the necessary political and social conditions for effective democracy
protection or enhancement by courts. He also focused entirely on
the United States (US): as Doreen Lustig and Joseph Weiler have
noted, “in some form or another the Ely thesis underlies many
current regimes of judicial review within functioning democracies.”4
Ely, however, developed his ideas solely within a US constitutional
context. He purported to provide an “interpretive” account of the US
Constitution, and the Warren Court’s constitutional jurisprudence,
and did not consider the vast comparative constitutional experience
of courts seeking to protect and promote democracy.5 And, in part
because of this, Ely did not account for the full range of
contemporary threats to democracy and democratic values.
 Yet Ely’s focus on the relationship between judicial review and
democracy retains clear value: by linking the scope and intensity of
judicial review to the idea of democratic dysfunction, Ely helped
provide an important theoretical defense of the legitimacy of judicial
review in a democracy, while at the same time helping point to cases
in which more restrained or deferential forms of review by courts
may be appropriate. His work has also provided a common reference
point for constitutional theorists worldwide as they have grappled
with these same questions.
The challenge for contemporary constitutional theory, therefore, is
not to move beyond the idea of judicial representation-
reinforcement. It is to develop a truly comparative, sociologically
informed account of judicial representation-reinforcement that both
draws on comparative understandings of courts’ role in democracy
protection and promotion and acknowledges the potential limits and
contestability of this role.

A. Courts and Democratic Dysfunction:

Promoting Democratic Responsiveness
Several comparative constitutional scholars have begun to develop
exactly this kind of modern “comparative political process theory”
(CPPT).6 The aim of this book is also to contribute to this emerging
school of neo-Elyian thought by offering an account of judicial
representation-reinforcement focused on three distinct forms of
democratic dysfunction, namely the risks of:

(1) Antidemocratic monopoly power: political monopoly, in both an electoral and

institutional sense;
(2) Democratic blind spots: blind spots in the adoption of democratic legislation;
and
(3) Democratic burdens of inertia: additional blockages in the form of
unjustified delay in addressing democratic demands for constitutional
change.
At the heart of a theory of responsive judicial review is a
commitment to ensuring democratic responsiveness through: (i)
regular, free, and fair multiparty elections; (ii) political rights and
freedoms; and (iii) a range of institutional checks and balances as
constituting the “minimum core” of democracy.7 And any
accumulation of electoral or institutional monopoly power may
threaten this commitment to democratic responsiveness. In addition,
a responsive approach assumes that democracy should be
understood to entail thicker commitments to rights and reasoned
deliberation, but in ways informed by democratic majority attitudes
and understandings, and both democratic blind spots and burdens of
inertia can threaten this thicker form of democratic responsiveness.
Moreover, these various forms of political monopoly, blind spots,
and inertia are all sources of democratic dysfunction that courts are
relatively well placed to counter, at least under certain conditions—
that is, where judges enjoy a meaningful degree of independence,
political and civil society support, and remedial power.
Without these conditions being met, courts themselves may
become tools for eroding rather than buttressing democratic
constitutional commitments.8 But where they are satisfied, courts
can and do play a role in countering both risks of electoral and
institutional monopoly and democratic blind spots and burdens of
inertia. On the one hand, their role will be to slow down or deter
“abusive” constitutional change of this kind,9 and on the other, to
promote democratic “dialogue.”10 But in both the cases, the
underlying logic of judicial review will be the same—that is, a
commitment to representation-reinforcement that involves protecting
and promoting the capacity of a democratic system to respond both
to minority rights claims and considered majority understandings
under a range of real-world, non-ideal conditions.
Domestic courts are not the only institutions that can play this
role. Transnational institutions—including both courts and
commissions—can often play a role in monitoring and sanctioning
actions that threaten to erode democracy.11 In most democratic
constitutions, there are a range of other institutions that create
“vertical” and “horizontal” checks and balances against risks of
democratic erosion.12 And even some citizen-initiated processes—
such as plebiscites—may play a role in countering democratic
blockages, such as burdens of inertia.
But courts often have important institutional advantages—and
tools—that can allow them to counter blockages of this kind. This
does not mean that they will always, or even mostly, succeed in
performing this role. Courts must be structurally well placed to
undertake review of this kind. Judges must also have the requisite
mix of legal and political skills necessary to identify relevant
democratic blockages and determine how and when they can most
effectively be countered by judicial intervention. This is not a task
that every judge will be capable of. The hope is that, by providing a
clearer template and justification for review of this kind, this book
may increase the number of judges capable of doing so successfully.
But even so, it is not an approach that every judge or court will be
well placed to adopt. For some courts, the lesser evil may be a more
restrained or limited approach to judicial review, which has less
ambition but also less scope for misjudgment or error.
Similarly, democratic representation-reinforcement will not
exhaust the scope of courts’ role. The foremost responsibility of
courts in a democracy is to give effect to legal constraints and
requirements. In a constitutional context, this means giving effect to
the text of a written constitution. And, as Ely himself pointed out,
while constitutional language itself may often be open-ended and
indeterminate in scope, in some cases it may have a quite clear
semantic meaning.13 Constitutional history or case law may likewise
point to a specific role for a court—for example, in repudiating and
overcoming a history of Nazi rule, slavery, caste, or apartheid.14
Notions of judicial representation-reinforcement are thus relevant
only in cases where formal constitutional “modalities,” such as the
text, history, and structure of a constitution run out—and courts are
necessarily required to consider broader constitutional or political
values as part of a process of constitutional constructional choice.15
 Moreover, democracy is not the only value a constitutional court
can, or should, consider in this context: other values include
individual freedom, dignity (in both a Kantian and “capabilities”
sense), formal and substantive equality, and a commitment to the
rule of law.16 And courts can and should play a role in enforcing
these commitments—both as a necessary condition for the
legitimacy of democracy, and as a constraint on majoritarian
democratic decision-making.
Responsive judicial review is also predicated on courts doing
exactly this, namely giving effect to both the ordinary language of a
constitution and a range of constitutional values, including, but not
limited to, constitutional democracy. It simply aims to offer additional
guidance for courts in cases in which the scope or priority of relevant
constitutional norms is unclear or the subject of reasonable
democratic disagreement. In engaging in judicial review in these
contexts, this book argues that courts should consider the degree to
which particular constructional choices may be able to help counter
all three of these risks to democratic responsiveness—that is, the
risks of antidemocratic monopoly, democratic blind spots, and
burdens of inertia.17
For example, in determining the scope of implications under a
written constitution, courts should consider the degree to which
making an implication may help counter blind spots, burdens of
inertia, and especially forms of electoral or institutional monopoly on
the part of certain political actors.
Similarly, in applying both a US-style form of tiered scrutiny and
doctrine of structured proportionality, a responsive approach
suggests courts should take a carefully calibrated, contextual
approach—informed by the presence, or absence, of democratic
blockages; that is, they should consider the degree to which a law
threatens to undermine electoral or institutionalism pluralism or
reflects potential legislative blind spots or burdens of inertia. The
more a law reflects blockages of this kind, the more compelling the
case will be for heightened forms of judicial scrutiny, whereas the
more it preserves democratic pluralism, and reflects recent,
reasoned legislative deliberation on an issue, the greater the case
will be for relaxed or reduced forms of judicial scrutiny.
Underpinning this and other aspects of a responsive approach will
also be a concern about the degree to which, absent judicial
intervention, various sources of democratic dysfunction are likely to
be reversible by future legislative or executive action. “Activist” forms
of judicial review, for instance, will be more politically legitimate
where they respond to irreversible threats to the democratic
minimum core or individual dignity.18 Notions of reversibility also
inform the adequacy of different models of judicial remedy, and the
idea of reverse democratic burdens of inertia.
Another recurrent theme in this book is the idea that the intensity
and strength of judicial review should vary according to the degree
of recent and reasoned legislative deliberation on an issue.
Responsive judicial review is not wholly focused on prompting
legislative deliberation or “democracy forcing” in the sense
advocated by scholars such as Cass Sunstein; in some cases, it aims
to update constitutional meaning directly, by way of judicial review
itself.19 But it also has a semi-procedural dimension: it suggests that
legislatures should be encouraged to engage in, and rewarded for,
good faith efforts at democratic constitutional implementation.20
Why call the approach developed in the book a “responsive”
approach to judicial review? The key aim of doing so is to highlight
the role courts can play in promoting commitments to democratic
responsiveness in both at-risk and well-functioning constitutional
democracies, and to explore how and when they should do so. This
is also an account that is both conceptual and comparative in origin
and reach: the ideas behind it are derived from attention to
comparative insights and must also be applied in a manner that is
responsive to the specific constitutional context.
In addition, the idea of judicial “responsiveness” has important
continuities with existing theories of responsive law and regulation.
In their 1978 book, Law and Society in Transition, Philippe Nonet
and Philip Selznick famously argued that legal systems tend to
undergo a transition between three distinct phases: phases in which
law is “repressive,” “autonomous,” or “responsive,” and that a
responsive approach to law has the virtue of offering a flexible and
participatory approach to regulation.21 Nonet and Selznick further
suggested that to guard against the danger of a return to repressive
law, it is important for courts to guard against the dangers of
political repression and non-contestation.22
The idea of responsive law has also been the subject of attention
by a range of leading legal theorists over the last thirty years. In
Germany, the idea of responsive law has been adapted and
transformed as the basis of a theory of “reflexive law.”23 In the
United States and Australia, the idea of responsiveness has likewise
been the basis for a complex theory of regulation known as
“responsive regulation,” which emphasizes the idea of regulation as
flexible, participatory, and multipronged—or based on a mix of
“carrots and sticks” or “strong” and “weak” forms of intervention.24
Most notably, Ian Ayers and John Braithwaite suggest that regulation
should be based on a “pyramid” of sanctions, and shift from weaker
to stronger forms of intervention, based on the response of
regulated entities.25 And they emphasize the importance of listening
and giving voice to the perspectives of those subject to regulation,
and that regulators should: “engage those who resist with fairness;
[and] show them respect by construing the resistance as an
opportunity to learn how to improve regulatory design.”26
Similar ideas have been advanced by Michael Dorf and Charles
Sabel as part of a “democratic experimentalist” approach to judicial
review.27 The idea of democratic experimentalism itself draws on
theories of responsive law and regulation but proposes a distinctive
evidence-based, participatory approach to legal regulation, which
draws on information gained from the successes (and failures) of
local democratic experiences to create “rolling” best practice
standards or benchmarks for local and state democratic regulation.28
And while judges have an important role to play in articulating and
enforcing these benchmarks, their key role, in a democratic
experimentalist paradigm, is to insist on forms of law-making that
are participatory, evidence based, and consider relevant
alternatives.29
The book also aims to provide a distinctive adaptation of existing
ideas about legal and regulatory responsiveness to the constitutional
domain. Others have made important steps in this same direction
before me, including in adapting Nonet and Selznick’s work to a
comparative context and developing notions of responsive judging in
the context of synthesis of notions of responsive and reflexive law.
For example, in The Responsive Judge: International Perspectives
(2018), Tana Sourdin and Archie Zadarski bring together global
scholars to reflect on how judges across the world adapt to changing
legal and political contexts. Machteld de Hoon and Suzan Verberk
explore the idea of a responsive judicial approach to dispute
resolution, and how this favors a contextual approach to the
preferred tools and path for resolving individual disputes.30 And most
notably, in previous and forthcoming works, Malcolm Langford
highlights how judges can draw on responsive and reflexive ideas to
engage in democratically legitimate forms of social rights
adjudication.31
In my own account, the focus is on promoting the responsiveness
of a constitutional system as a whole to democratic majority
understandings, not just to underlying social realities or institutional
capacities. But it shares with responsive law, regulation and
democratic experimentalism, as well as these prior accounts of
responsive courts, a concern with underlying democratic realities,
weak and strong form review, regulatory defaults, and respect-based
forms of judicial engagement.

B. Responsiveness to Context and Limits on

Judicial Capacity
Indeed, one of the benefits of the label “responsive” in this context
is that it helps draw attention to the need for attention by courts to
the legal and political context for judicial review, and the potential
fallibility of their own judgments—both about what commitments to
democratic responsiveness require and the political “tolerance
interval” for attempts by courts to promote greater responsiveness.32
Judges, for instance, may overestimate the risks to competitive
democracy posed by certain legislative changes, or more often
underestimate them, by failing to appreciate their cumulative or
interconnected quality.33 They may also misjudge the evolution of
democratic majority opinion or the degree to which giving additional
protections to constitutional rights may be compatible with the
achievement of certain legislative objectives. This can mean that
judicial review itself creates two distinct democratic risks of:

(1) Reverse burdens of inertia, that is, legal changes that go beyond what
democratic majorities are willing to endorse or support, but which
legislatures cannot effectively override or modify; and
(2) Democratic backlash: forms of backlash against a court, which erode a
court’s capacity to implement democratic constitutional requirements.

Even if courts are perfectly accurate in identifying democratic

blockages, the act of countering those blockages may create a third,
distinct risk to democratic responsiveness, namely the risk of:

(3) Democratic debilitation: dynamics whereby legislators have limited incentive

actually to address constitutional questions.

In seeking to protect and promote the responsiveness of a

democratic constitutional system, this book argues that courts
should therefore be mindful of both the benefits to democracy of
attempts at judicial representation-reinforcement and the potential
risks—in the form of reverse burdens of inertia, democratic backlash,
and democratic debilitation. It further suggests that courts should
calibrate the scope and “strength” of their decisions to the nature of
the blockage they are seeking to counter and their own institutional
capacity and knowledge.
The concept of “weak review” was first introduced by Mark
Tushnet as a way of describing systems of constitutional review in
which courts do not enjoy formal legal finality.34 Stephen Gardbaum
has adopted similar terminology to describe the emergent system of
judicial review in countries such as Canada, the United Kingdom
(UK), New Zealand, and, more recently, various Australian states.35
But the term has been gradually expanded to describe any form of
judicial review that is less than final over the short to medium term
—or is de facto as well as de jure revisable in nature.36 Weakened
review, in this sense, can also take numerous forms: it can involve
narrow forms of judicial reasoning, the reliance on weakened
remedies such as suspended declarations of invalidity, engagement
remedies, or supervisory orders that leave broad scope for
governments to help craft the substance of the relevant remedy, or
even weakened norms of precedent or stare decisis.37 A responsive
approach suggests that courts should combine elements of strong
and weak review, sensitive to both the nature of the blockage they
are seeking to counter and concerns about the potential for reverse
burdens of inertia and/or democratic backlash.
Risks of electoral and institutional monopoly, for instance, will
generally require courts to engage in strong or even super-strong
forms of review. Even then, they may not be effective in countering
the risk of anti-democratic monopoly power because, in effect, a
court is being asked to constrain the concerted efforts of certain
political elites to erode democratic norms and structures. But any
attempt to do so will likely require the use of quite strong forms of
judicial review. Hence, courts should limit or weaken the immediacy
or coercive force of their rulings only for pragmatic or prudential
rather than principled reasons.38
Blind spots or burdens of inertia, in contrast, will often call, as a
matter of principle, for weaker, more provisional forms of review:
blockages of this kind are associated with ideas of democracy that
go beyond the democratic minimum core and, to that extent, are
more contestable. Courts in this context are not seeking to protect
the thinnest or most minimal notions of democracy but rather thicker
and more contested notions of democracy. And they are engaging in
judgments about evolving (considered) democratic majority opinion
that, by definition, are likely to be less objective and reliable. They
therefore run a greater risk of judicial over- as opposed to under-
enforcement. The democratic response to court decisions of this kind
can also point to whether a court has succeeded in advancing
democratic responsiveness. If courts have, in fact, helped overcome
democratic inertia, one could expect a democratic majority to
“approve” of the decision or be grateful to courts for facilitating the
expression of the popular will.39 Conversely, if a court misreads
democratic attitudes, this could be expected to lead to expressions
of popular disapproval. As a matter of principle, judicial review that
seeks to counter these sources of democratic dysfunction should
therefore be weak–strong in approach—that is, be sufficiently strong
to overcome relevant democratic blockages but weak enough to
allow scope for reasonable democratic disagreement. One way to
achieve this will be through a form of remedial “penalty default”
structure, whereby courts give broad freedom to legislative and
executive actors to help craft a constitutional remedy, but impose
real and enforceable consequences for any failure to do so.40
This also echoes a broader theme running through the idea of
responsive judicial review which is that courts should leave open
meaningful scope for substantive constitutional judgments by
legislators in response to court decisions: invitations to judicial-
legislative dialogue should be real not just rhetorical, and hence
courts should take a different approach to assessing the justifiability
of practices that are a product of legislative oversight or inaction, as
compared to recent and reasoned deliberation.

C. Responsive Judging: Responding to

Litigants (and Disappointed Parties)
Finally, a responsive theory of judicial review suggests that judicial
capacity is not necessarily something that courts must take as given,
or treat as an immovable constraint on the scope for effective
representation-reinforcement. Rather, it will in part be endogenous
to how courts approach the task of judicial review, or something that
courts themselves have the power to influence through the choices
they make about how to engage with civil society, and questions
such as:

(1) Authorship, the identity of a judge who writes for the court;
(2) Tone, how they approach the motives of losing parties; and
(3) Narrative, the mix of “global” and “local” values relied on in their reasoning.

We currently have a limited understanding of how courts approach

these questions, and why. At the same time, they are clearly
dimensions of judicial decision-making that offer important
opportunities for courts to promote the actual and perceived
legitimacy of their decisions. For instance, courts can demonstrate
genuine respect for losing parties, and potentially increase the
willingness of those parties to abide by decisions that go against
their interests, if they show: (i) a concern to ensure that the
background and experience of a particular judge speaks to those
disappointed by a decision; (ii) reasoning that demonstrates a
posture of respect towards that party; and (iii) a narrative that
combines universal and context-specific—or “global” and “local”—
elements, or resonates in both localized and universal constitutional
identities and commitments. This also points towards courts
combining a responsive approach to judicial review with a form of
responsive judging or responsive judicial voice.
On one level, ideas of this kind are deeply pragmatic in nature—
that is, they seek to enhance the effectiveness of attempts by courts
to counter electoral and institutional monopoly, democratic blind
spots, and burdens of inertia.41 There is, however, another level on
which, at least if conducted in good faith, these approaches could be
seen as linked to another notion of judicial responsiveness—that is,
the idea that in engaging in judicial review, courts should be
responsive to the distinctive nature of adjudication as a practice, and
the responsibility of courts to provide citizens with a “right to a
hearing,” and in a way that shows respect for the fundamental
dignity of all parties, especially those disappointed by a decision.42
In this sense, they involve a true mix of principle and pragmatism, or
principled strategy, on the part of judges.43
 D. A Sometimes View of the Promise of
Judicial Review
Scholars often talk about “lumpers” and “splitters” in constitutional
theory—the difference between those that seek to find
commonalities in the face of divergence or distinction and difference
in the face of apparent similarity or convergence.44 But constitutional
scholarship can also be divided into what might be described as an
“everything” and “nothing” view of courts and judicial capacity. The
“everything” view tends to assume a heroic conception of individual
judicial skill and capacity, and even more ambitious view of what
courts can achieve as institutions. This, for example, is the image of
constitutional courts and judges often associated with Ronald
Dworkin’s hypothetical judge “Hercules,”45 and some of the leading
American constitutional theories developed during the Warren Court
era.46 Some might even suggest this was a feature of Ely’s own
theory of representation-reinforcing review.
In contrast, the “nothing” view posits that judges are deeply
unheroic in character and inevitably shaped by the broader political
context.47 On this view, courts have little capacity to protect and
promote democratic political processes or norms.48 They are either
almost entirely ineffective in creating social and political change: to
use Gerry Rosenberg’s famous expression, they offer a purely
“hollow hope” of such change.49 Or they tend simply to increase the
difficulty of such change—by adding to the perceived legitimacy of
deeply flawed existing democratic constitutional structures,50
perhaps by acting as agents of hegemonic preservation.51
The reality, however, will often lie somewhere between these two
poles: courts are the product of their time and political context and
have limited tools for achieving social and political change. They may
even be so closely aligned to a political regime that they become
instruments of the regime, and its antidemocratic aims or
tendencies.52 And they will almost certainly make errors in judging
current and evolving democratic constitutional understandings and
attitudes, and broader political currents. Whether they are even
willing to contemplate a form of democracy-reinforcing judicial
review will also depend on their own institutional role conception,
which will be influenced by history and contemporary sociopolitical
dynamics.53
But as I noted above, judges also have a distinctive institutional
training and vantage point which can allow them collectively to slow
down or deter certain attempts to erode the democratic minimum
core and to promote attention to, or action in response to, various
constitutional claims in ways that can help counter legislative blind
spots and burdens of inertia. To do so, courts must meet certain
minimal preconditions of at least implicit institutional realism,
political independence and support, remedial power, and support
within civil society. And they must engage in judicial review that is
quite carefully calibrated to respond to evidence of blockages within
a democratic constitutional system.
This “sometimes” view of judicial capacity, therefore, is
considerably more complicated than the binary everything/nothing
view. The constitutional academy also often tends to reward catchy
labels and binary categories over more qualified and complex
claims.54 I am fortunate, however, to be writing this book against
the backdrop of a large and growing literature on weak-form judicial
review, at the heart of which is a belief in the “sometimes” view of
courts and judicial capacity. Indeed, the premise of weakened
models of judicial review, as Gardbaum notes, is that they “provid[e]
a third alternative to either strong-form review or no judicial review
that may perform many of the former’s beneficial functions in the
transitional context, but in a less confrontational way that reduces
the risk of systematically counterproductive political attacks on
judicial independence.”55
My hope, as we embark on the collective task of developing a
truly modern and comparative political process theory, is that others
will come to embrace this same sometimes view. As constitutional
scholars in the 2020s, the challenge we face is to do justice to the
intellectual inheritance Ely has given us, but in a way that is fit for
purpose in a truly globalized constitutional universe, where the
threats to democracy are manifold and increasing by the day. In
doing so, our task is also to develop a theory of judicial review that
responds to both the promise of courts as potential guardians of
democracy and democratic values, and the inevitable limits on
courts’ capacity and legitimacy in performing this role.
Getting this balance right could not be more important, and
almost certainly depends on a “sometimes” view of judicial capacity.
Courts worldwide also vary in their capacity to engage in successful
forms of responsive review. And we are living in an era in which
courts are not just the guardians of democracy but increasingly tools
of democratic erosion—or agents of “abusive” as opposed to
“responsive” judicial review.56
In part because of this, the attractiveness of a responsive
approach to judicial review may itself turn out to be a “sometimes”
question. But for now, my claim is that it is an account of judicial
review that is almost always democratically defensible in theory,
even if only sometimes achievable in practice. This book also aims to
provide a roadmap for judges and scholars interested in building up
the capacity for courts to engage in review of this kind. The hope is
that with the benefit of this roadmap, over time more democracies
may become sufficiently responsive to democratic minority and
majority understandings to be worthy of public trust, and fewer will
fit the label of democracies characterized by dysfunction.
A responsive approach to judicial review, however, aims to elide
any sharp distinction between political and legal models of
constitutionalism. Instead, it aims to adopt a realistic account of the
potential institutional strengths and weakness of both legislatures
and courts, and accordingly to offer an account that combines
elements of weak and strong judicial review, and notions of judicial
constraint and capacity building. It also envisages that some courts
may promote all aspects of democratic responsiveness, while others
only a subset of commitments to overcoming blind spots and/or
burdens of inertia.
 It is thus cautiously and qualifiedly optimistic about the idea that
courts can help reinforce representation in a constitutional
democracy but equally realistic about the fact that this may be
possible in only a limited set of circumstances or cases. Just as Ely’s
account was in equal parts a defense and critique of US
constitutional jurisprudence during the Warren Court, the idea of
responsive judicial review offers both a reconstruction of, and more
critical roadmap for, a more democracy-enhancing form of judicial
review by courts on a global scale.

E. Structure of the Book

The approach of the book in this context is explicitly comparative,
empirical, and sociolegal, albeit in a limited sense: it aims to
illustrate the different democratic risks outlined at the outset of the
book by reference to a close contextual reading of judicial review in
a range of constitutional democracies—simply as “proof of concept,”
not in order to show the inevitability of any particular constitutional
outcome or dynamic.57
The specific cases relied on reflect a mix of well-known examples
of judicial review by leading constitutional courts, including courts in
the United States, United Kingdom, Canada, India, South Africa, and
Colombia.58 They are, in this sense, an example of what Ran Hirschl
calls a “prototypical cases” approach: they illustrate broader
comparative dynamics and possibilities through examples that are
broadly understood to typify certain models or dynamics in the
field.59 The South African and Colombian constitutional courts are
arguably some of the leading exemplars of courts that in fact (at
least at times) engage in responsive forms of judicial review. But
there are also traces or intimations of a responsive approach in
certain decisions of the Canadian, Indian, UK, and US supreme
courts. The book further draws on well-known cases of judicial
review from the United States as a “bridge” between Ely’s work and
comparative political process theory.
 The book also canvasses a wider range of cases in less detail,
including select aspects of the constitutional jurisprudence of courts
in Australia, Fiji, Hong Kong, Israel, and Korea. This reflects my
strong commitment to engaging with jurisdictions in the Global
South, as well as Global North, and going beyond the “usual
suspects” in comparative constitutional law.60 But it also reflects the
jurisdictional expertise, or limitations, of the author, as a
comparative scholar working in Australia, as well as prior work (with
Vicki Jackson) on “outsider” constitutional interpreters or foreign
judges on national constitutional courts (e.g., as is the case in Fiji).61
Australia is part of the economic “North” but geographic South, and
has strong economic and political ties to Asia. It is also part of the
Commonwealth and is strongly influenced by Anglo-American,
common law legal traditions.
My own view is that this form of “local” influence is more or less
inevitable in any approach to comparative constitutional studies, and
we should be both open and unapologetic about this, providing that
we strive to justify principles of case selection within these
constraints. It simply means that for any small-n qualitative work in
the field, we should be appropriately provisional and tentative about
the conclusions reached, and open to those conclusions being
revisited considering the work of other scholars on a broader range
of jurisdictions.62 This book is also offered in exactly this spirit—as a
work of constitutional theory and constitutional comparison, which
invites revision and refinement by others. And my hope is that
others will take up the challenge and extend and refine the ideas
offered in the context of current democratic conditions—in Latin
America, Asia, Africa, and Europe. I also hope to contribute to that
project through a process of ongoing scholarly dialogue and
collaboration.
The aim of the book, in this context, is to draw on specific
comparative examples as a means of developing “generic”
constitutional principles or guidance for courts worldwide but on the
understanding that guidance of this kind will inevitably need to be
applied with appropriate attention to, and modification to fit, the
specific constitutional context. The precise threats to democracy will
vary across countries and time, and how far courts are able to go in
countering them will likewise depend on a range of context-specific
factors. In some dominant-party democracies, for example, courts
might decide that there is little scope for countering electoral or
institutional monopoly, but greater scope for countering legislative
blind spots and burdens of inertia. By necessity, all judicial review in
such systems might, therefore, be strong–weak or dialogic rather
than strong in nature; and responsive to that—but only that—
extent.63 There may also be other key roles courts must play—in
resolving individual disputes, guarding against animus or outright
breaches of individual rights, or stabilizing or enforcing the original
constitutional compact, which take priority over these kinds of
democracy-protecting and promoting roles in certain cases.64
The book provides an account that is general and global, and
capable of both informing and explaining the role of constitutional
judicial review in a wide range of democracies worldwide—even as it
is informed by these understandings about the limits of judicial
capacity, and the ideal of democracy itself. This account is itself also
incomplete in a range of ways.
First, it does not explore how domestic courts can protect and
promote other constitutional values, other than in so far as they
intersect with or overlap with commitments to democratic
responsiveness.
Second, by “constitutional court,” the book means to refer to a
court charged with interpreting and enforcing constitutional norms,
whether as a specialized court or general court of appeal. There may
be some differences between specialized and generalized courts
when it comes to their ability to counter certain forms of democratic
blockage. But, in principle, all courts with constitutional jurisdiction
have the capacity to perform the forms of democratic protection and
promotion outlined in the book. The aim here is to provide an
account that is sufficiently general that it can speak to both common
law and civilian systems, and systems influenced by the Anglo-
American and Kelsenian constitutional tradition.65 In doing so, the
book focuses almost exclusively on domestic constitutional or
appellate courts and not on the potential role that transnational
courts and institutions may be able to play in countering democratic
blockages.66
Third, it largely sidesteps the question of whether courts can
effectively play a valuable role in the process of democracy building,
as opposed to democratic preservation or enhancement. It assumes,
in this context, that there is already a democratic constitutional
system in place that requires courts to make choices about
constitutional construction and implementation. This is a clear
simplification as well as omission: many democracies face difficult
questions about the balance between stabilizing an existing
imperfect system and destabilization in the interests of achieving
greater democratic quality or inclusion.67 Similarly, many
democracies are only partially consolidated, and may face periods of
both regression and progression before achieving true democratic
stability of consolidation.68 And while many of the same principles of
judicial craft and statecraft, that are identified in Chapter 8, may play
a useful role in processes of constitutional democracy creation, as
well as protection and promotion, the question of how and to what
extent is one left for another day.69
Fourth, by “judicial review,” the book largely means to refer to
court decisions purporting to review the validity of legislation or
interpret legislation in light of constitutional requirements. This is
another source of limitation of the analysis provided. The ideas
developed in the book certainly have potential relevance to courts’
review of executive action, or the practice of judicial review as it is
understood in countries such as the United Kingdom.70 Legislative
blind spots, for example, arise where legislators fail to consider the
impact of legislation on concrete cases, or potential legislative
alternative measures, but similar blind spots may arise in processes
of administrative decision-making: for instance, where a decision-
maker exceeds their power or jurisdiction by failing to take into
account a relevant consideration. Burdens of inertia also generally
reflect blockages in the legislative process, as opposed to processes
of executive decision-making. However, some forms of inertia have a
more hybrid character and reflect a failure by both the executive to
take the steps necessary to implement constitutional guarantees and
by the legislature to supervise or ensure the process of
implementation. And the threat of antidemocratic monopoly power
can come from the actions of a wide range of legislative and
executive actors, or attempts to engage in “abusive” constitutional
amendment, legislation, or executive action.71 But the focus of the
book is explicitly on legislative, and compound, as opposed to pure
executive forms of blockage.
The focus of the book is thus limited on at least four levels: it is
(i) on how courts can best give effect to democracy as a
constitutional value, not all relevant constitutional values; (ii) on
domestic rather than international or regional courts; (iii) on how
courts can advance commitments to democratic preservation and
enhancement, not democracy creation; and (iv) on judicial review of
legislative as opposed to executive action (alone). These are all
important parts of a fully fleshed out account of responsive judicial
review, but ones I leave to others, and another day.
The remainder of the book is divided into three broad parts. Part I
provides an overview of the key notions of democratic dysfunction
that form the core conceptual foundation for the book. Chapter 2
outlines the idea of constitutional constructional choice, and the role
of constitutional values (including democracy) as potentially
informing that process of choice. It discusses Ely’s own
understanding of these questions, as well as the limits of Ely’s
account, and suggests that democracy and sources of democratic
dysfunction need to be understood in ways that build on but go
beyond the ideas set out in Democracy and Distrust. Chapter 3
focuses on the three democratic risks to which a theory of
responsive judicial review is directed, namely the risks of
antidemocratic monopoly power, democratic blind spots, and
burdens of inertia.
Part II turns to the capacity of courts to help counter these
various sources of democratic dysfunction, as well as the inevitable
limits on the capacity and legitimacy of courts as they engage in
representation-reinforcing review of this kind. Chapter 4 explores
how the ideas set out in Part I translate into potential doctrinal
guidance for courts in the context of judgments about the intensity
and scope of judicial review. Specifically, it explores debates about
constructional choice and the making of constitutional implications,
the application of doctrines of proportionality and US-style tiered
review, and how attention to risks of electoral and institutional
monopoly, democratic blind spots, and burdens of inertia can
usefully inform the application of tests of this kind. Chapter 5 then
explores the degree to which courts are able effectively to identify
and counter the relevant three risks to democracy but also the
preconditions for judicial review of this kind—that is, the necessary
degree of legal authority, remedial power, judicial independence, and
political support for judicial review to be responsive in nature. It also
notes the additional challenges facing courts as they seek to counter
the risks of electoral and institutional monopoly.
Part III turns to the potential limits on a court’s actual and
perceived legitimacy as it engages in responsive forms of review.
Chapter 6 explores the inevitable limits to a court’s actual and
perceived legitimacy, and the risks this can pose to a constitutional
system’s overall democratic responsiveness—or the risks of reverse
burdens of inertia and democratic backlash in response to court
decisions. Chapter 7 considers the notion of strong versus weak
judicial review as a response to these limits, and the idea of
responsive judicial review as a combination of strong and weak
remedies and rights-based reasoning.
Finally, Part IV explores broader questions of responsive judging,
and the promise and limits to responsive review as a general
account of courts’ approach to constitutional construction. Chapter 8
explores the concept of a responsive judicial “voice,” or how choices
about judicial authorship, narrative, and tone may influence the
public reaction to a court decision, and thus both its political and
sociological legitimacy. Chapter 9 concludes by considering the
potential global reach or relevance of the ideas contained in Parts I–
III.
 1
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).
2
Id. at 103.
3 See, e.g.,
Laurence H. Tribe, The Puzzling Persistence of Process-Based
Constitutional Theories, 89 Yale L.J. 1063 (1980); discussion in Chapter 2, infra.
4
Doreen Lustig & Joseph H.H. Weiler, Judicial Review in the Contemporary
World: Retrospective and Prospective, 16 Int’l J. Const. L. 315 (2018).
5 Compare
Stephen Gardbaum, Comparative Political Process Theory, 18 Int’l J.
Const. L. 1429 (2020); Manuel José Cepeda Espinosa & David Landau, A Broad
Read of Ely: Political Process Theory for Fragile Democracies, 19 Int’l J. Const. L.
548 (2021).
6
Gardbaum, Process Theory, supra note 5 Samuel Issacharoff et al., The Law of
Democracy: Legal Regulation of the Political Process (1998); Samuel Issacharoff & Richard
H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stan.
L. Rev. 643 (1998); Niels Petersen, Proportionality and Judicial Activism: Fundamental Rights
Adjudication in Canada, Germany and South Africa (2017); Sujit Choudhry, “He Had a
Mandate”: The South African Constitutional Court and the African National
Congress in a Dominant Party Democracy, 2 Const. Ct. Rev. 1 (2009); Espinosa &
Landau, supra note 5; David Landau, A Dynamic Theory of Judicial Role, 55 B.C.L.
Rev. 1501 (2014).
7 See
Rosalind Dixon & David Landau, Competitive Democracy and the
Constitutional Minimum Core, in Assessing Constitutional Performance 268–69 (Tom
Ginsburg & Aziz Huq eds., 2016); Rosalind Dixon & David Landau, Abusive
Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy 25 (2021).
8
David Landau & Rosalind Dixon, Abusive Judicial Review: Courts Against
Democracy, 53 U.C. Davis L. Rev. 1313 (2020).
9 Compare, e.g., Rosalind Dixon & David Landau, Transnational
Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional
Amendment, 13 Int’l J. Const. L. 606 (2015); David Landau & Rosalind Dixon,
Constraining Constitutional Change, 50 Wake Forest L. Rev. 859 (2015). See also
Samuel Issacharoff, Constitutional Courts and Democratic Hedging, 99 Geo. L.J. 961
(2010); Choudhry, supra note 6.
10
Rosalind Dixon, Creating Dialogue about Socioeconomic Rights: Strong-Form
v. Weak-Form Judicial Review Revisited, 5 Int’l J. Const. L. 391 (2007); Kent Roach,
Dialogic Judicial Review and its Critics, 23 S.C.L.R. (2d) 49 (2004); Barry
Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993); Po Jen Yap,
Defending Dialogue, Pub. L. 527 (2012); Po Jen Yap, Dialogue and
Subconstitutional Doctrines in Common Law Asia, Pub. L. 779 (2013); Aileen
Kavanagh, What’s So Weak About “Weak-Form Review”? The Case of the UK
Human Rights Act 1998, 13 Int’l J. Const. L. 1008 (2015); Christine Bateup, The
Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional
Dialogue, 71 Brook. L. Rev. 1109 (2005); Peter W. Hogg & Allison A. Bushell, The
Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of
Rights Isn’t Such a Bad Thing After All), 35 Osgoode Hall L.J. 75 (1997); Christopher
P. Manfredi & James B. Kelly, Six Degrees of Dialogue: A Response to Hogg and
Bushell, 37 Osgoode Hall L.J. 513 (1999); Constitutional Dialogue: Rights, Democracy,
Institutions 161 (Geoffrey Sigalet et al. eds., 2019).
11 See, e.g., Tom Gerald Daly, Can International Organisations Help to Stem

Democratic Decay?, I-CONnect (Nov. 16, 2017),

<http://www.iconnectblog.com/2017/11/can-international-organisations-help-to-
stem-democratic-decay-i-connect-column/>; Kriszta Kovács & Kim Lane
Scheppele, The Fragility of an Independent Judiciary: Lessons from Hungary and
Poland—And the European Union, 51 Communist & Post-Communist Stud. 189 (2018);
Lukas Zamecki & Viktor Glied, Article 7 Process and Democratic Backsliding of
Hungary and Poland: Democracy and the Rule of Law, 34 Online J. Modelling the New
Eur. (2020); Tom Ginsburg, Democracies and International Law (2021); Daniel R. Kelemen
& Michael Blauberger, Introducing the Debate: European Union Safeguards Against
Member States’ Democratic Backsliding, 24 J. Eur. Pub. Pol’y 317 (2017); Anna M.
Meyerrose, The Unintended Consequences of Democracy Promotion: International
Organizations and Democratic Backsliding, 53 Comp. Pol. Stud. 1547 (2020).
12
Michael Pal, Electoral Management Bodies as a Fourth Branch of
Government, 21 Rev. Const. Stud. 87 (2016); Mark Tushnet, Institutions Protecting
Constitutional Democracy: Some Conceptual and Methodological Preliminaries, 70
U. Toronto L.J. 95 (2020); Vicki Jackson, Knowledge Institutions in Constitutional
Democracies: Preliminary Reflections, 7 Can. J. Compar. Const. L. 156 (2021).
13 Ely, supra note 1, at 13.
14
Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case
for Studying Cross-Constitutional Influence Through Negative Models, 1 Int’l J.
Const. L. 296 (2003).
15
Phillip Bobbitt, Constitutional Fate: Theory of the Constitution (1982).
16
Ely, supra note 1, at ch. 2. See further pp 36–38 infra.
17
Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const.
Comment 95 (2010); Lawrence Solum, Originalism and Constitutional Construction,
82 Fordham L. Rev. 453 (2013).
18
See Chapter 4, infra.
19
Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (2001).
See discussion in Neal Devins, Review: The Democracy-Forcing Constitution, 97
Mich. L. Rev. 1971 (1999).
20
Compare Ittai Bar-Siman-Tov, Semiprocedural Judicial Review, 6 Legisprudence
271 (2012).
21
Philippe Nonet & Philip Selznick, Law and Society in Transition: Toward Responsive Law
78 (1978).
22 Id. at 95.
 23 See, e.g., Gunther Teubner, Substantive and Reflexive Elements in Modern
Law, 17 L. & Soc. Rev. 239 (1983); Peer Zumbansen, Law After the Welfare State:
Formalism, Functionalism, and the Ironic Turn of Reflexive Law, 56 Am. J. Comp. L.
769 (2008).
24
Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation
Debate (1992).
25 Id. at 35–100.
26
John Braithwaite, The Essence of Responsive Regulation, 44 U.B.C. L. Rev.
475, 476 (2011).
27 See
Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic
Experimentalism, 98 Colum. L. Rev. 267 (1998).
28
Id. On comparative accounts of the virtues of experimentalist approaches to
constitutional decision-making by courts, see also Stu Woolman, The Selfless
Constitution: Experimentalism and Flourishing as Foundations of South Africa’s Basic Law (2013).
29 Dorf & Sabel, supra note 27, at 397, 399.
30
Machteld W. de Hoon & Suzan Verberk, Towards a More Responsive Judge:
Challenges and Opportunities,10 Utrecht L. Rev. 27 (2014).
31 Malcolm Langford, Why Judicial Review?, 2 OSLO L. REV. 36 (2015); Malcolm

Langford, Judicial Politics and Social Rights’, in The Future of Economic and Social Rights
(Katherine Young eds.,, 2019), 66–109, at 69–73; Malcolm Langford, Responsive Courts
and Complex Cases (forthcoming).
32
See, e.g., Lee Epstein et al., The Role of Constitutional Courts in the
Establishment and Maintenance of Democratic Systems of Government, 35 Law &
Soc’y Rev. 117 (2001); David Landau, Substitute and Complement Theories of
Judicial Review, 92 Ind. L.J. 1283 (2017).
33 Compare Dixon & Landau, Transnational Constitutionalism, supra note 9;
Kim
Lane Scheppele, The Rule of Law and the Frankenstate: Why Governance
Checklists Do Not Work, 26 Governance 559 (2013).
34
Mark Tushnet, Alternative Forms of Judicial Review, 101 Mich. L. Rev. 2782
(2003).
35
Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and
Practice (2013). See also Tom Hickey, The Republican Virtues of the “New
Commonwealth Model of Constitutionalism”, 14 Int’l J. Const. L. 794 (2016).
36 Tushnet himself has also welcomed this expansion and “continuization.” See

Mark Tushnet, Weak-Form Review: An Introduction, 17 Int’l. J. Const. L. 807 (2019);

Mark Tushnet & Rosalind Dixon, Weak-Form Review in Asia and its Constitutional
Relatives: An Asian Perspective, in Comparative Constitutional Law in Asia 102 (Rosalind
Dixon & Tom Ginsburg eds., 2014).
37
Rosalind Dixon, The Forms, Functions, and Varieties of Weak(ened) Judicial
Review, 17 Int’l. J. Const. L. 904 (2019).
 38 Compare Theunis Roux, Principle and Pragmatism on the Constitutional Court
of South Africa, 7 Int’l. J. Const. L. 106 (2009); Theunis Roux, The Politics of Principle:
The First South African Constitutional Court, 1995–2005 (2013).
39
Compare Ely, supra note 1, at 121.
40 Compare
Ian Ayres & Robert Gertner, Majoritarian vs. Minoritarian Defaults,
51 Stan. L. Rev. 1591–613 (1999). See further discussion in Chapter 7, infra.
41
Richard A. Posner, Law, Pragmatism, and Democracy (2005).
42
Alon Harel & Adam Shinar, The Real Case for Judicial Review, in Comparative
Judicial Review (Erin F. Delaney & Rosalind Dixon eds., 2018); Alon Harel & Tsvi
Kahana, The Easy Core Case for Judicial Review, 2 J. Legal Analysis 227 (2010). See
also Alon Harel & Adam Shinar, Between Judicial and Legislative Supremacy: A
Cautious Defense of Constrained Judicial Review, 10 Int’l J. Const. L. 950 (2012).
43
See Roux, supra note 38; Roux, supra note 38. See also Roni Mann, Non-ideal
Theory of Constitutional Adjudication, 7 Global Const. 14, 38–51 (2018); Langford,
supra note 31. Rosalind Dixon, Strong Courts, Judicial Statecraft in Aid of
Constitutional Change, 59 Colum. J. Transnat’l L. 299 (2021).
44 Compare
James N. Druckman & Lawrence R. Jacobs, Lumpers and Splitters:
The Public Opinion Information That Politicians Collect and Use, 70 Int’l J. Pub.
Opinion Q. 453 (2006); Lee Anne Fennell, Slices and Lumps: Division and Aggregation in Law
and Life (2019).
45
See Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution
(1999).
46 See discussion in
Mark Tushnet, Taking the Constitution Away from the Courts 66
(2000).
47
Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a
National Policy-Maker, 6 J. Pub. L. 279 (1957).
48 Compare
Tom Gerald Daly, The Alchemists: Courts as Democracy-Builders in
Contemporary Thought, 6 Global Constitutionalism 101 (2017).
49
Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (2008).
50
Compare Duncan Kennedy, A Critique of Adjudication: Fin de Siècle (1997).
51
Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New
Constitutionalism (2004).
52
Landau & Dixon, supra note 8. See also Madhav Khosla, With Freedom at
Stake, Courts Are Collapsing, N.Y. Times (Sept. 9, 2020),
<https://www.nytimes.com/2020/09/09/opinion/hungary-turkey-india-
courts.html>.
53 See
David Landau, Constituent Power and Constitution Making in Latin
America, in Comparative Constitution Making 567 (David Landau & Hanna Lerner eds.,
2019). For how this plays out in the post-socialist world in particular, see Ngoc Son
Bui, Constitutional Change in the Contemporary Socialist World (2020).
Exploring the Variety of Random
Documents with Different Content
 CHAPTER XX.
STUDIES INTERRUPTED.

A few days after this conversation a considerable number of troops

traversed the country. The Germans were manœuvring on both
sides of the Loire, and were threatening Tours. A general officer was
quartered at M. de Gandelau’s who was acquainted with Eugène.
The latter was impatient at the inactivity to which he had been
condemned since the war had begun to take so fatal a turn.
In the evening he had a long conversation with this officer, and
next morning announced to M. de Gandelau that he was intending to
set out with the corps which was traversing the country; observing
that officers of the Engineers were wanting, and that he could at
need fulfil their functions; that his friend, the general, very much
approved his determination; and that in circumstances of such
gravity he thought it his duty not to hesitate to go, as he might
possibly be of some service. M. de Gandelau did not attempt to keep
him; he understood too well the sentiments by which his guest was
influenced.
“What shall we do with Paul?” said he to Eugène.
“I believe you have Vitruvius in the original in your library?”
“Yes.”
“Well, if you will let me have it for an hour before I go, I shall be
able to explain to Paul how he should set to work with this treatise:
that will prevent him from forgetting his Latin, and further him in the
studies we have commenced.”
“An excellent idea.”
“You will require Paul to give you, twice a week, the translation of a
chapter, with explanatory drawings: that will keep his hand in and
occupy his mind. I do not suppose his translation will supersede
even Perrault’s; but that does not matter, he will not be losing his
time absolutely. As soon as I can return you shall see me again.”
 Paul was disconsolate at his cousin’s departure, and at not being
able to accompany him; he would have greatly liked to follow up his
studies in the art of building by a course of military engineering in the
field, but this would have embarrassed his cousin, and Madame de
Gandelau would scarcely have survived her anxiety. Paul was
furnished with the edition of Vitruvius, and the work to which he was
to devote himself was explained to him.
Two hours after, Eugène, provided with a small portmanteau, was
on his way with his friend, the general; whose corps was en route for
Chateauroux. Promises to write as often as possible had been given
on both sides.
We can easily imagine the gloomy aspect which M. de Gandelau’s
house assumed after this hasty departure. At the very beginning of
the war he had equipped and despatched all his able-bodied
dependants. There remained only two or three old men-servants,
and some female domestics whose husbands or children were for
the most part in the army. Monsieur and Madame de Gandelau
ceased to use the drawing-room, in which beds had been placed for
the wounded in case any should come. The family used to assemble
in Madame de Gandelau’s room, and took their meals in a small
apartment that usually served for a pantry.
Paul, when his cousin was gone, went to pay a visit to the works.
They were deserted; snow covered the heap of walling stones, the
cut stones, and the scattered timbers. The walls, which had reached
a certain height, protected by straw and surmounted by a crest of
snow—their surfaces showing brown in contrast with the white veil
that mantled them—and some pieces of wood black with damp, gave
to these incipient constructions the aspect of the débris of a
conflagration.
Although at Paul’s age young people are not very accessible to
sombre thoughts, the poor boy could not restrain his tears in
presence of this scene of desolation. He recalled in thought this spot
so animated a month before with its bands of active workmen. All
were gone, and the soul of this habitation, which he had begun to
associate with all the joys of family life, had just quitted him.
 In spite of the cold he seated himself on a stone, his head in his
hands, overwhelmed with gloomy thoughts. This was the first deep
grief, the first severe disappointment, he had experienced: it seemed
to him that all was over, and that there was no more hope nor
happiness possible for him in this world.
A hand laid upon his shoulder made him start; he raised his head
—his father was behind him. Paul threw himself into his arms at
once, sobbing.
“Come, Paul, my boy, calm yourself,” said M. de Gandelau to him.
“We are living in a time of trials; who knows what are reserved for
us? For us, indeed, they have scarcely begun. Think how much
suffering there is in France now! What are our anxieties and griefs
compared with the anguish suffered by others! Reserve your tears;
perhaps you will have only too frequent occasion for them. We need
not be in a hurry to despond. I observed you going in this direction,
and followed you, anticipating your melancholy feelings. But, after
all, what is there to grieve over? Nothing, or only a trifle. Set to work
again courageously, alone, since our friend has been obliged to quit
us to fulfil a sacred duty. He will return; you have learned to love and
esteem him more: prove to him that you are worthy of the affection
he has exhibited to you by showing him some thoroughly good work
when he comes back.
“Certainly he would be touched by your grief, of which his absence
is to a great extent the cause; be assured that he would be still more
touched to see that you had scrupulously followed his last
instructions, and that his presence is not the only inducement to
make you like work.”
Father and son regained the house. The counsels of M. de
Gandelau, and the pains he took to give Paul a glimpse of brighter
days, had by degrees restored to him, if not gaiety, at least
tranquillity of mind and the desire to do his best. M. de Gandelau
most dreaded for his son a feeling of despondency—that vague and
sterile sadness on which youth sometimes loves to feed, and which
enervates the most gifted minds.
 He therefore entered Paul’s room, and taking up Vitruvius, which
had been left on the table, began to look through it. M. de Gandelau
was a good scholar, though he never made a parade of his
acquirements. They were a possession he reserved for himself.
Familiar with the classics, he could read the text of Vitruvius, if not
explain it architecturally in all its parts. “Stay,” said he to Paul, “here
is a chapter which must be interesting, and which may teach you
many things; it is Chapter VIII.: De generibus structuræ et earum
qualitatibus, modis ac locis. How would you translate this title?”
“Of the kinds of constructions, and their qualities, according to
customs and localities,” replied Paul.
“Yes, that is the translation. But on looking through this chapter, I
see that masonry only is considered; the author, in making use of the
word structura, seems to me to have wished only to treat of
constructions of brick or stone. It would be better, doubtless, to
render the passage thus: Of the different kinds of masonry, and the
properties of this structure according to local usages and
circumstances.
“Well, set to work to translate this eighth chapter. I see that the
author has described the kinds of masonry whose use he
recommends on such or such occasions. You will therefore have to
illustrate your translation by sketches. Come! take courage, and
imagine your cousin at hand ready to rectify your mistakes.”
Paul therefore set himself to work, endeavouring to embody in
sketches each of Vitruvius’s descriptions. This gave him no little
trouble, of course; many words were new to him, and the dictionary
helped him only very imperfectly when it was necessary to know
their exact sense. Nevertheless, by degrees the work acquired a
charm for him. To further his comprehension of the author he tried to
recall to mind buildings he had seen; he remembered some
instructions given by Eugène; and put on paper, to the best of his
ability, opposite the translation, sketches tolerably drawn, if they
were not the true expression of the descriptions in the original.
Thus, during the end of the month of December and the
commencement of January, he succeeded in translating a dozen
chapters which his father selected for him, giving illustrations of the
text. This gave him a great desire to become acquainted with the
buildings existing in his author’s times, and he examined attentively
a set of engravings by Piranesi descriptive of ancient Rome, and
which his father possessed. M. de Gandelau had advised Paul to
write down the questions which his reading suggested to him, so as
to submit them to Eugène on his return. Thus the days passed
rapidly away: and although sadness and anxiety darkened every
hour, yet, as M. de Gandelau was incessantly occupied in relieving
the misery around him and organizing the struggle against the
invaders, while Paul was working with energy and seeing his results
accumulating, and Madame de Gandelau had organized a workroom
in which the women of the village were engaged in providing linen for
our unfortunate and destitute soldiers, when the evening arrived, the
members of the family could still assemble with that feeling of secret
joy which duty accomplished procures. Towards the close of January
the inmates of the château learned from the newspapers that an
armistice had been signed. Though this news announced the end of
the struggle, it presaged the commencement of the severest
humiliations. It produced, therefore, a sad, rather than consolatory
impression.
A few days afterwards Eugène returned to the château. It need not
be said that he was welcomed with open arms, and that Paul
especially manifested his joy. They talked of resuming the works.
The last letters of Madame Marie announced that she would be
home again towards the end of the following winter. These letters,
filled as they were with expressions of the anxiety—the anguish—felt
by the writer in her absence from France, said nothing of the future
house. If then it could be finished, the surprise would be complete.
While Eugène was enjoying the rest he so much needed, he looked
through and revised Paul’s translation, and corrected his sketches. A
fair copy was made of the whole; and the first days of March drew
on, when it was decided to recommence the works.
 CHAPTER XXI.
BUILDING RECOMMENCED—THE TIMBER WORK.

Towards the middle of March, the weather being fine, the works were
resumed, and instructions for executing the floors and roofs had to
be given to the carpenter, that no time might be lost. Paul was
beginning to understand his cousin’s sketches more readily, and to
be able to make himself useful. Besides, he had acquired the
excellent habit of asking for explanations when he had reason to
suppose on a first view that he could not faithfully interpret a rough
sketch; and Eugène was not sparing of explanation and
commentaries. His patience was inexhaustible. Nevertheless, every
time Paul was embarrassed and was unable to solve a difficult
question, before putting him in the way to do so, Eugène used to let
him try for a reasonable time.
“Reflect,” he would say to him, “and you will be sure to find some
solution. If it is not the right one, I will help you; but you must get
some result for yourself. It is impossible to have a clear
understanding of a solution given by a person who understands the
matter, until we have thoroughly considered it, and made some
efforts to solve the given problem ourselves. This is a necessary
preliminary exercise, and one which puts the mind in a right state for
comprehending. Draw a general section of the main building through
the billiard-room and your brother-in-law’s study: I mean a transverse
section which will indicate the walls, the floors, the fireplaces, and
roofs. You have nearly all the necessary elements. Endeavour to
arrange the whole in proper order, that you may make all the parts of
the building clear to yourself. I do not wish to see this section till you
have finished it. Not till then shall I correct it; and that correction will
be of advantage to you.”
Making use, therefore, of the details already drawn, Paul drew the
transverse section, not without difficulty; but the roof-timbers were
singularly conceived,—their composition appeared to him difficult
and complicated. He did not know how to close the wide opening
between the billiard-room and the drawing-room. The dormer-
windows of the roof embarrassed him considerably. Besides, he had
much difficulty in realizing the junction of all these parts. In spite of
all his efforts he could not succeed in representing clearly their
relative positions. He was not satisfied, and frankly told his cousin
so.
“I am very glad,” replied the latter, “that you are not satisfied. It
would be a bad sign if you were, for it would prove that you had not
made any great effort. Your walls are fairly in their right place
according to the section we have taken. But the timbers, the dormer-
windows!—this could not hold together, and is wanting in simplicity.
Why so many pieces of wood?... Have you assured yourself of their
utility? We have walls; let us make use of them. Why not make use
of the wall which separates the billiard-room from the study to bear
the roofing timbers in part?—especially as this wall receives chimney
flues, which must surely be carried up through the roof. You did not
remember the chimneys; that is thoughtlessness, for you see them
marked in the plans of the ground floor and of the first and second
floors.”
“I certainly thought of them,” replied Paul; “but I did not know how
to carry them up through the roof.”
“And so you did not draw them; that is certainly a way of avoiding
the difficulty; but yet you know they must go up through the roof.
That I cannot approve of; putting aside a question is not solving it.
Come, let us revise all this together.”
 Fig. 46.—Transverse Section of the House.

The section was soon corrected (Fig. 46), and Eugène did not fail
to furnish it in detail, according to the uses of the apartments through
which the section was drawn; which pleased Paul greatly, as he
could thus realize the billiard-room completed, with its opening into
the drawing-room, his brother-in-law’s study, with its doors; then
above, his bedroom, dressing-room, and the two attic rooms. This
drawing appeared to him charming; he could fancy himself already
entering the apartments and enjoying his sister’s surprise on
examining these interiors. He was wanting to show all these pretty
things to Madame de Gandelau directly, but Eugène persuaded him
to have a little patience.
“All this,” he said, “is a mere trifle indeed—nothing but fancy; we
shall have to furnish the details of the woodwork and internal
arrangements, and when we come to study them we shall find much
to revise. Leave off looking at these interiors for a few minutes, and
let us examine the timber-work of the roof. Let us draw it in plan.”
(Fig. 47).

Fig. 47.
“The walls a b are the gables which are to support the purlins. We
have at c d two cross-walls, which also form gables, and will also
receive the purlins. But the spaces e c are too wide for purlins from e
to c. They measure 22 feet between; now the purlins must not have
a bearing of more than 13 feet if we would avoid their bending.
Intermediate principals are therefore necessary at g h, against the
sides of the middle dormers i. The purlins from a to g will not then
exceed 13 feet in length, and we shall be able to strengthen them by
means of struts from the end gables. From k to l there will be valley-
rafters at the penetration of the roofs. Let us first consider the
principals g h (Fig. 48).
 Fig. 48.
“The height between the floors of the story in the roof should be 10
feet. We will put two main supports a, fixed into foot-pieces
connected by a tie-rod, which will pass under the floor; upon these
supports a tie-beam b; then to secure the tie-beam to these
supports, clip-braces c. On the ends of this tie-beam will rest the
purlins d. The blades e will fasten into this tie-beam and into the
king-post f. Beneath the second purlins h, it will be necessary to put
clips g, forming a collar-beam. The ridge-pole i will be carried by the
king-post, with diagonal struts. The other ends of the purlins will rest
in the gables. Thus we shall be enabled to fix the rafters which will
receive the battens and the slates. These timbers (tie-beams, collar-
beams, and blades) may pass through the longitudinal wall k,
containing the chimney flues, and in turn the roof-timbers will stay
the wall, while the wall supports and stiffens the roof. As to the
middle of the building, having the two walls c d, it will suffice to rest
the ridge-pole l across, and relieve its bearing with two struts m,
tenoned into the ends of a beam n, which will prevent their
spreading. At the level of the latter we will place the beams a b (see
Fig. 47), which will receive the ridge-poles o of the cross-roofs.
These beams will also be relieved by struts r. On the ridge-poles o
will come the meeting of the valley-rafters s (shown in elevation at
s). Thus the raftering will be everywhere well supported; and,
relatively to the surface of the building, we shall use but a small
quantity of timber, since we take every possible advantage of the
support afforded us by the interior walls. The gables will enable us to
avoid the necessity of hip-roofs, which are difficult to contrive and
require a good deal of timber. There remains the roof of the
staircase. In order that you may understand how to construct it, I am
going to draw it for you in perspective. This roof is supported by
walls which rise above the cornice of the building, but it penetrates
the main roof at x (see Fig. 47). If you examine the drawing (Fig. 39),
you will observe that the walls of the staircase leave an angle without
any vertical support over the entrance-hall. It will be necessary then
to provide a bearing for the hip of the roof which comes over that
space. To effect this, we will place on the two wall ends a small
principal which shall receive the foot of the hip-rafter v, denoted in
Fig. 47. This arrangement is apparent in the perspective drawing
(Fig. 49), which gives the square tower of the principal stairs with its
roof-framing. We will raise the oblong newel a of this stairs up to the
level of the cornice. Upon the walls we will lay the wall-plates b; then
from the three angles to the newel, the foot-pieces c. On the ends,
halved together, of these foot-pieces we will erect the two king-posts
p, and the three hip-rafters e. The feet of the two king-posts will be
connected by the clips f. As to the back hip-rafter g, it will fix into the
front of the king-post of the little principal, as I show you at g´; and in
order to hinder the principal from being thrust out by this hip-rafter,
clips h will connect the head of the king-post of the little principal with
the king-post d of the roof. On the angles of the hip-rafters at i, it will
be necessary to fix some blocks to carry the ends k of the purlins,
which will support the bearing of the rafters.
 Fig. 49.

“At l you see the gable which has to join the roof of the staircase;
and do not forget that stone filletings m must be built into the walls
against which roofs abut, forming a weather-moulding above these
roofs, to hinder the rain-water from getting in between the slating and
the wall. Filletings are most commonly made with mortar or cement,
on the roofing itself; but as that is subject to movement, these
filletings break away and have to be constantly renewed. Built into
the masonry above the slope of the roofing, they cover the junction
of the slate or tile with the walls, and, being independent of the roof,
they cannot suffer from any giving in the timbers.
“You will draw the roofs to a scale of a quarter of an inch to a foot;
I will correct your drawings, and we will give them to the carpenter, in
order that he may prepare his timbers as soon as possible. We will
figure the scantlings of these timbers. Thus, the blades on the
principal rafters should be 8 inches × 7 inches, the collar-clips 3½
inches × 7 inches, the king-posts 7 inches × 7 inches, the tie-beam
the same, the main supports 8 inches × 8 inches, the rafters 3
inches × 4 inches, the purlins 8 inches × 8 inches, without sap or
flaws.”
“What do you mean by flaws?”
“Depressions; deficiencies of material apparent at the corners
when timbers are squared which are rather crooked, and which
thereby leave sap visible on these corners and even a hollow place,
such as I mark here at a (Fig. 50). You will be careful not to allow
flaws in timbers which the carpenter may employ for the roofs and
joists.

Fig. 50.
 Fig. 51.
“In considering our floors, I see that for the billiard-room, the
dining-room, and the drawing-room, we shall do well to have in each
of these apartments two beams to take the joists, on account of the
width of bearing, and the partitions which come over these floors.
You remember that we deferred this question, and that in the detail
(Fig. 42), and in the section (Fig. 46), we have supposed the
existence of these beams. The joists in these three rooms, instead of
bearing from one side wall to the other, will bear from the gable walls
on to the beams. But these beams, though cut from the best oak,
invariably deflect sooner or later; which, to say the least, looks very
bad. We will therefore make them each in two pieces, sawn through
in the manner I showed you for lintels, and between the two pieces
we will interpose a thin plate of iron. That will enable us to treat the
beams like the wall bearers, and fit the joists into their sides, instead
of laying them on the top, and consequently avoid a too great
projection below the ceiling. Thus (Fig. 51), having two pieces of
timber a, 12 inches × 6 inches, we will put between them a plate of
iron ⅛th of an inch thick. We will bolt the whole together at regular
intervals as marked at d, and, in the notches c, we will fix the ends
of the joists e. A few iron straps will be nailed across to connect
these ends one to another, and we shall obtain in this manner
perfectly rigid floors. The beams will be supported in their bearings
by corbels, and will not go more than six inches into the wall. This
then is another detail to be got ready for the carpenter. Mind and see
that the ends of the beams within the wall have a coat of red lead,
and are enclosed in a box of sheet zinc, No. 14, to prevent the
moisture of the wall from penetrating the grain of the wood. Well! that
is something done: draw it all out neatly. To-morrow, when I have
looked over your drawings, we will send for Jean Godard, and we
will go and select the wood in your father’s timber-yard.”
Next day Paul presented his drawings. Many corrections were,
indeed, necessary, still on the whole his cousin congratulated him on
the result. Paul was taking pains, and was endeavouring to
understand everything thoroughly; and though he could not always
find the simplest and most natural solutions, he showed at least that
he had reflected before putting anything on paper.
Jean Godard having been summoned, the drawings were
presented to him. Some explanations were given him, after which
Eugène asked him if he had any observations to make. Jean Godard
was scratching his head, but said nothing.
“Is there anything in all this that you do not clearly understand, or
that seems faulty?” said Eugène to him.
“No, sir; but yet these are floors that are out of the common way; it
will be difficult—we are not accustomed—and you see—it isn’t what
we generally do in carpentry.”
“Which means that you must be paid more than for floors made in
your way.”
“Yes, to be sure—you understand—there is labour to be
considered—all these timbers here must be sawn—planed,
perhaps.”
“Consider well, Jean. The joists must be sawn on two faces only—
the two faces that are seen; but all joists are sawn out. If we asked
you to supply the wood, you might say that you would not find joists
of this kind; but in this case you have to select from our wood. If you
use small timber it will be enough to saw two faces thus (Fig. 52):
you may, if you like, leave the faces a roughly squared and only
cleared of sap. If you cut your joists out of large timber (Fig. 53) you
will only have to run the saw-cuts as I have sketched here at b. But I
prefer to use small timber, because it does not crook in drying, as
timber which is quartered is sure to do; and I think we shall have
enough of the former to prevent us from being obliged to employ this
last method. We shall have, then, to pay you only for the sawing of
the two faces, as for the joists you usually employ. As for the beams,
they will be also sawn on two faces only, for if we cut them from a
single trunk we shall put the two sawn faces outside (Fig. 54), and
the plate of iron being interposed at d we shall put below a moulded
board c, to cover the joining, and the flaws, should there be any.
With regard to the triangular notchings to be made at e, they are less
difficult to fashion than mortises, and as the joists bear in full they
have no tenons. It is the same with the bearers which, along the
walls, receive the ends of the joists, and take the place of cornices.
—Well, what do you say about it?”

Fig. 52. Fig. 53. Fig. 54.

“Why—still it isn’t flooring such as we see everywhere.”

“What does that matter, if it gives you no more trouble to make?
We shall take account of the time you spend, as we furnish the
wood; consequently you are secured against loss. Make a careful
estimate, and if you like we will make a bargain. We will pay you by
the cubic foot as for ordinary flooring, or take account of the time
employed in working and pay you for that time. Make your choice!”
Jean Godard twirled his cap about some time, looked at the
drawings in every possible way, scratched his right ear again, then
his left, and after a good half-hour declared that he consented to be
paid for floors of this kind at the same rate as for ordinary floors
according to measurement.
“And you are right,” said Eugène; “for if you manage your work
well, if there is no bungling, you will gain more by this bargain than if
we paid you according to time, because there is less work in flooring
of this kind for the same quantity of material than in those you are
accustomed to make, especially in this neighbourhood.”
Jean Godard, however, asked for an additional consideration for
the bearers that were to be substituted for the rough fixing in the
walls.
“Granted,” said Eugène; “we save plaster cornices, and it is right
that we should make you an allowance on that account.”
It was therefore resolved that they should make a separate
payment for the labour on the bearers, that is, for their notches and
chamfers.
Next day four pit-saws were at work, cutting up the timber that had
been stored. The scene of labour had resumed all its activity. In the
masonry department a design for a dormer-window remained to be
furnished, but which was soon supplied (Fig. 55), and besides this
the direction of the chimney flues.
Eugène on giving Paul the particulars of the dormer-windows,
section a and exterior elevation b, drew his attention to their
construction. Raised on a gutter-wall 20 inches thick, they were to
consist of two jambs of three courses each. On the first two courses
would be left a string-course c, designed to cover the slate of the
roofing and to form a filleting. These two jambs would carry the lintel
and two stones forming corbels. Two pieces on this lintel would
receive the gable knees, and would form the jambs of the higher
opening designed to ventilate the attics. The gable would consist of
two courses surmounted by a finial. The section indicated how the
slopes of the coping would form a filleting on the small roofs of these
dormer-windows behind, and a drip in front, to hinder the rain-water
from running down the faces of the stone-work.
Fig. 55.
 CHAPTER XXII.
THE CHIMNEYS.

“Why do chimneys smoke?” asked Paul of his cousin.

“You mean rather to ask me,” replied the latter, “why some
chimneys smoke. Many causes contribute to make chimneys smoke,
while there is only one condition which must be observed if they are
not to smoke. We must therefore do our utmost to fulfil that
condition, viz. a flue proportioned to the fireplace, and the supply of a
quantity of air to the latter proportioned to the combustion. If the flue
is too narrow for the amount of smoke given off by the combustion,
this smoke does not rise easily enough, its advance in ascending is
checked by friction, and the discharge being insufficient for the
production, the smoke comes out into the room. We can stimulate
the combustion, and consequently the ascent of the smoke by a
current of external air directed towards the wood or coal. When the
fire is well lighted it warms the column of air that fills the chimney,
and the warmer this column is the lighter the air is, and the more it
tends to rise.
“That is why in some ill-built chimneys a certain time is required
before the smoke will take its proper course—that is to say, the
column of air must be warmed. And until it is so, the smoke passes
not into the flue, but into the room; then we open a window to supply
the fire with air, which brightens it up so as to warm the flue and
allow the smoke to take its proper course. For the same reason all
new chimneys smoke. Flues carried up in masonry are damp and
cold, and the air they contain is heavy; it takes some time to warm
and lighten it.
“Instead of opening a window to stimulate the fire (which is a
rather primitive method), we supply each grate with an air draught—
that is, we give it a channel which conducts the external air to the
combustible as soon as the least heat is developed, that, e.g. of a
piece of paper lighted. Immediately this exterior air is called in to fill
the vacuum produced by the commencement of combustion, and it
stimulates the fire by bringing it oxygen. The livelier the fire the more
rapid is the draught; and the more rapidly the air comes in, the more
brightly does the wood or coal burn. The air-channel is to a grate
what a pair of bellows are to a forge fire. But the air-channel, as well
as the flue, must bear a due proportion to the fireplace. If the flue is
too narrow, the smoke is obstructed, and comes out into the room; if
it is too wide, it is not uniformly heated, and the external currents of
air—the winds—exert a pressure at its upper extremity which
neutralizes the effect of the draught, and the smoke is beaten down.
If the air-channel is too small for the extent of the grate, it does not
bring the quantity of air necessary for combustion; the fire
languishes, it heats the flue imperfectly, and the lukewarm smoke
does not ascend rapidly enough. If the air-channel is too large, or
brings in too considerable a volume of air, the oxygen of which is not
completely taken up, then a part of the cold air enters the flue and
does not stimulate the draught; or, if there are changes in the
temperature, the air-channel attracts the air from the chimney
instead of bringing in air from the outside. The process is reversed,
and the chimney smokes dreadfully.”
It was in the evening, after dinner, and when the family were
seated around the hearth, that Eugène was propounding this theory.
“That appears to me simple enough,” said Madame de Gandelau;
“but then why does the chimney in my room, which I have had
altered several times, smoke on certain days?”
“Because your room, Madame, is situated in the new wing of the
house, the roof of which is lower than that of the older part. They
could not carry the flue high enough to rise above the ridges of the
roof of the old building, for that isolated chimney would not have
resisted the squalls. When the wind comes on your side it finds the
obstacle presented by the loftier building, and rebounds: an eddy is
formed, and whirling about on itself it becomes engulfed in your
chimney-flue, or at least obstructs for a time the passage of the
smoke. In such a case the flues should bifurcate; as the pressure of
the wind is never exerted equally in both orifices, the air rushing into
one makes the smoke issue violently through the other. I know of no
other plan: I have already proposed it to you; but you have thought,
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