When National Actors Become Transnational: Transjudicial Dialogue between Democracy and Constitutionalism

Abstract

In this paper, after briefly explaining how constitutional dialogue works and has been elaborated for the most part, and the way in which it is encouraged and made possible by some institutional characters of the judiciary, a specific issue will be addressed: the link between the courts' position toward this practice and the different kinds of legitimation that they refer to, democracy or constitutionalism. Legitimacy may be based more on democracy, with the idea that national sovereignty is its almost exclusive source, or on the idea that, in matters of rights, universal standards may or have to pass through different democracies. Of course we usually speak of "constitutional democracies," thereby reconciling the potential opposition between the two aspects. However, globalization, with its challenges to national sovereignty, is strengthening that opposition, and pushing it toward the one or the other aspect. Thus, courts and especially constitutional courts become the place for decision-making on the ambivalence between the risk of de-nationalizing national constitutional law and the opportunity to take part in the creation of new cosmopolitan forms of law and universalization of constitutional protection for fundamental and human rights. Two possible answers to such ambivalence will be highlighted by focusing particularly on the example of two national constitutional courts, that of South Africa and that of the United States, starting from their different attitudes towards involvement in constitutional dialogue. Their different, even opposite ways of approaching transnational dialogue, lead to paradoxical results.