Against the New Constitutionalism

Against the New Constitutionalism

Elgar Monographs in Constitutional and Administrative Law series

Tamas Gyorfi

Ever since the Second World War, a new constitutional model has emerged worldwide that gives a pivotal role to judges. Against the New Constitutionalism challenges this reigning paradigm and develops a distinctively liberal position against strong constitutional review that puts the emphasis on epistemic considerations. The author considers whether the minimalist judicial review of Nordic countries is more in line with the best justification of the institution than the Commonwealth model that occupies a central place in contemporary constitutional scholarship.

Chapter 1: The New Constitutionalism

Tamas Gyorfi

Subjects: law - academic, comparative law, constitutional and administrative law, politics and public policy, constitutions

Abstract

The first chapter of the book has three main purposes. First, it defines what the New Constitutionalism is and documents how it has become the orthodox view in constitutional theory. In the terminology of the book, the New Constitutionalism refers to a particular institutional arrangement that comprises four tenets: (1) an entrenched and codified constitution; (2) a codified bill of rights; (3) constitutional judicial review with the power to strike down legislation; (4) the robust exercise of judicial review. However, the New Constitutionalism also refers to the view that the very idea of constitutionalism requires the aforementioned institutional arrangement. Second, the present chapter also addresses the question of why the New Constitutionalism has become the reigning paradigm of constitutional law and explores six possible explanations. Finally, Chapter One spells out the main methodological principles that underpin the book and provides the reader with an outline of the argument.