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

By Mark Tushnet | Go to book overview

CHAPTER 3
The Possible Instability of Weak-Form Review
and Its Implications
WEAK-FORM review purports to promote a real-time dialogue between courts and legislatures. Two literary allusions suggest skepticism about how that dialogue might actually proceed.
Shakespeare: Responding to Glendower's claim that he could call the spirits from the vasty deep, Hotspur asks, “But will they come when you do call for them?”1 The analogue: The courts try to get legislatures to respond to their constitutional interpretations, but the legislatures ignore them.
Ring Lardner: “Are you lost daddy I asked tenderly? Shut up he explained.”2 The analogue: The legislatures try to get the courts to respond to their constitutional interpretations, but the courts ignore them.

In chapter 2 I suggested that weak-form review has the potential for both the Shakespearean degeneration into parliamentary supremacy and the Lardnerian one into strong-form review: the former when legislatures routinely invoke the override, for example, the latter when legislatures routinely amend statutes after a judicial declaration of incompatibility. There are other and more subtle possibilities, though, which this chapter examines. My discussions rely heavily on the more than twenty years of experience Canada has had with its system of judicial review, which I argue might be taken to exemplify the transformation of weak-form into strong-form review. I then qualify that argument by suggesting that the transformation, if it occurs, might arise not from some institutional dimensions of weak-form review but from the reflective choice of the people to shift their system from a weakform to a strong-form one. The chapter concludes with a discussion of several examples of the way in which strong-form review might emerge organically from weak-form review over an extended period. Time might push weakform review closer to strong-form review along the temporal continuum on which they differ.

1 William Shakespeare, The First Part of King Henry the Fourth, act III, sc. 1.

2 Ring Lardner, “The Young Immigrunts,” in The Ring Lardner Reader 411, 426 (Maxwell
Geismar ed., 1963).

-43-

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