Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law

THIS BOOK BRINGS together two of the important intellectual or theoretical issues of concern to students of comparative constitutional law as it has developed in the United States over the past decade. First, what is the proper role of courts in constitutional systems that generally comply with rule-of-law requirements? Second, what substantive rights do, should, or can constitutions guarantee? Should they protect second-generation social and economic rights and third-generation cultural and environmental rights, and if so, how, and in what venues? I argue that the comparative study of constitutions brings out underappreciated connections between the answers to these two questions.

The reason is that the “new Commonwealth model” of judicial review offers an important alternative to the form of judicial review familiar in the United States.^* In that new model, courts assess legislation against constitutional norms, but do not have the final word on whether statutes comply with those norms. In some versions the courts are directed to interpret legislation to make it consistent with constitutional norms if doing so is fairly possible according to (previously) accepted standards of statutory interpretation. In other versions the courts gain the additional power to declare statutes inconsistent with constitutional norms, but not to enforce such judgments coercively against a losing party. In still others, the courts can enforce the judgment coercively, but the legislature may respond by reinstating the original legislation by some means other than a cumbersome amendment process.

I call the new model of judicial review weak-form judicial review, in contrast with the strong form of judicial review in the United States. Strong-form review itself has numerous variants. At its heart is the power of courts to declare statutes enacted by a nation's highest legislature unconstitutional, and to make that declaration practically effective by using the standard weapons at a court's hands—injunctions against further enforcement of the statute by executive officials, dismissals of prosecutions under the statute, awards of damages on behalf of people injured by the statute's operation backed up by the potential to seize the defendant's property. (None of these weapons are powerful enough to defeat a recalcitrant legislature and executive backed by strong public opinion. The U.S. experience has never pushed strong-form review to the point where its exercise has provoked a real constitutional crisis when nonjudicial officials fight hard against a court's orders.)

^* The terminology originated in Stephen Gardbaum, “The New Commonwealth Model of
Constitutionalism,” 49 Am. J. Comp. L. 707 (2001).

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