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

By Mark Tushnet | Go to book overview

CHAPTER 2
Alternative Forms of Judicial Review

ONE DOES NOT have to read deeply in recent scholarship on the U.S. Constitution to find assertions to the effect that the U.S. constitutional system has been widely emulated in other nations.1 Those assertions are plainly wrong when they refer to the constitutional system in the large. As political scientist Robert Dahl shows, the U.S. system is unique among the world's twenty-two long-standing and stable democracies.2 Only somewhat more defensible is the assertion that the U.S. system of judicial review of statutes to determine whether they are consistent with constitutional limitations has been widely emulated. As the Canadian constitutional scholar Lorraine Weinrib has emphasized, there surely is a “post-war paradigm” of constitutionalism, a central feature of which is some form of judicial review.3 Yet, even here the U.S. system of judicial review is hardly the dominant model. The German Constitutional Court probably has been more influential around the world than the U.S. Supreme Court. Many nations have created specialized constitutional courts on the German model, rejecting the older U.S. system of having the nation's highest court for ordinary law also serve as the highest court for constitutional law.4 Few nations indeed guarantee judicial independence by conferring life tenure on their judges.

Here I focus on another, more recent development in systems of judicial review—the emergence of what I call weak-form judicial review. Understanding weak-form review's attractions requires a short detour into fundamentals of modern constitutionalism. Today, constitutionalism requires that a nation be committed to the proposition that a nation's people should determine the policies under which they will live, by some form of democratic governance.5

1 For a representative example, see Lawrence G. Sager, Justice in Plainclothes: A Theory of
American Constitutional Practice 3–4 (2004) (“Our constitutional practice is increasingly the
object of admiration and emulation.”).

2 Robert Dahl, How Democratic Is the Constitution? (2001), ch. 3.

3 Lorraine Eisenstat Weinrib, “The Postwar Paradigm and American Exceptionalism,” in The
Migration of Constitutional Ideas (Sujit Choudhry ed., 2006).

4 Hans Kelsen, the jurisprude and constitutional scholar who designed and then served on the
first Austrian constitutional court, argued that a specialized constitutional court would better
understand the political component of constitutional law than would judges who dealt with ordi-
nary (and in Kelsen's view, largely nonpolitical) law.

5 As John Rawls and others have pointed out, nondemocratic, nonauthoritarian constitution-
alism is a conceptual possibility, but not, I believe, a practical one under contemporary circum-
stances. For Rawls's presentation, see John Rawls, The Law of Peoples (1999).

-18-

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