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

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

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

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


Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced-not by increasing the power of the courts but by decreasing it. InWeak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.


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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