Non-Judicial Constitutional Interpretation: The Netherlands

Abstract

The Netherlands merits attention as one of the shrinking number of countries that continue to resist assigning principal responsibility to the courts for ensuring constitutional supremacy. Responsibility for evaluating the constitutionality of legislation is instead entrusted to both houses of parliament, ministerial bureaucracies, the Council of State, quasi-autonomous entities, and civil society as well as the courts. A case study of the Netherlands yields several important insights into the practice of constitutional interpretation. First, judicial review of legislation is not essential to the success of liberal democracy or the protection of constitutional rights. The absence of judicial review has not led to anything resembling constitutional failure or underenforcement in the Netherlands compared to other liberal democracies. Second, while an institution like the Council of State may not exist or operate in identical form elsewhere, one encounters functional equivalents that can provide ex ante advice on the constitutional implications of potential legislation. The reality across all constitutional democracies is that responsibility for constitutional interpretation is shared across multiple institutions, including the executive writ large and non-partisan bodies. Third, and following from the previous point, this sharing of interpretive responsibility across multiple institutions means that some form of what we might call inter-institutional dialogue is unavoidable. To be sure, the legislature and the executive may not always play the starring role in constitutional interpretation, as they do in the Netherlands. But even in countries with strong courts that assertively perform constitutional review, they are always a part of the picture.