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

By Mark Tushnet | Go to book overview

CHAPTER 7
Structures of Judicial Review, Horizontal Effect, and
Social Welfare Rights

CONSTITUTIONAL systems around the world have confronted the state action problem. The terminology differs. The doctrine takes its name in the United States from the specific wording of the Fourteenth Amendment, which prefaces its substantive provisions with the phrase “No State shall.” Elsewhere the problem is labeled horizontal effect. A constitution operates vertically when it regulates the relations between a government (usually envisioned as “on top”) and citizens, residents, and the like. It operates horizontally when it regulates the relations between private parties. The concerns that animate U.S. discussions—about avoiding conceptions of government that have totalitarian implications, about the proper role of the courts and legislatures— have been expressed elsewhere. For example, in the leading South African case, a dissenter referred to “an egregious caricature…that so-called horizontality will result in an Orwellian society in which the all-powerful State will control all private relationships.”1

Yet, constitutional courts outside the United States seem to have solved the state action problem more easily than the U.S. Supreme Court has. The German Constitutional Court's decision in the case of Erich Lüth has been enormously influential. I discuss the case in more detail later, but for present purposes it is enough to note that the Constitutional Court in that case rejected the proposition that Germany's Constitution, known as the Basic Law, directly regulated relations between private parties and simultaneously created a doctrine known as “indirect horizontal effect.” Under that doctrine, courts charged with construing and developing nonconstitutional law must take constitutional values into account as they do so, and constitutional courts will oversee them to determine whether they have been sufficiently respectful of those values. Constitutional courts around the world have followed the German Constitutional Court in solving the state action problem by using the doctrine of indirect horizontal effect.

1 Du Plessis v. De Klerk, 1996 (5) BCLR 658 (South African Constitutional Court), ¶ 120
(Kriegler, J., dissenting). The case was decided under South Africa's interim Constitution, which
provided, “This Chapter shall bind all legislative and executive organs of state at all levels of gov-
ernment.” Constitution of the Republic of South Africa, Act 200 of 1993, § 7 (1). The majority
interpreted this provision as establishing that the Constitution did not apply to decisions of the
courts in their lawmaking capacity.

-196-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law
Table of contents

Table of contents

Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
/ 272

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.