Table of Contents

Rights-Based Constitutional Review

Rights-Based Constitutional Review

Constitutional Courts in a Changing Landscape

Studies in Comparative Law and Legal Culture series

Edited by John Bell and Marie-Luce Paris

Constitutional review has become an essential feature of modern liberal democratic constitutionalism. In particular, constitutional review in the context of rights litigation has proved to be most challenging for the courts. By offering in-depth analyses on changes affecting constitutional design and constitutional adjudication, while also engaging with general theories of comparative constitutionalism, this book seeks to provide a heightened understanding of the constitutional and political responses to the issue of adaptability and endurance of rights-based constitutional review. Providing structured analyses the editors combine studies of common law and civil law jurisdictions, centralized and decentralized systems of constitutional review, and large and small jurisdictions.

Chapter 1: The United States of America

Michel Rosenfeld

Subjects: law - academic, comparative law, constitutional and administrative law


In Chapter 1 (‘A comparativist critique of US judicial review of fundamental rights cases: exceptionalisms, paradoxes and contradictions’), Rosenfeld offers a critical account of US rights-based constitutional adjudication by emphasizing its exceptional features as well as its paradoxes. US exceptionalism resides in several reasons, namely the Supreme Court’s unique challenge posed by the need to interpret an eighteenth century bill of rights for a contemporary society, the controversy over originalism, the tendency to convert all important divisive political issues into constitutional ones, and the enormous powers of the Supreme Court in shaping fundamental rights aided by the extreme rigidity of the Constitution’s amendment provisions. In terms of paradoxes, one is ‘the politicization of constitutional law as an inextricable consequence of the systematic constitutionalization of divisive political issues’ such as abortion, assisted suicide, gay marriage, etc. Rosenfeld illustrates these traits with some of the most significant rulings of the Supreme Court including in the recent cases on same sex marriage in Hollingsworthy v Perry and United States v Windsor. He argues that these features render the comparison with other constitutional or highest courts in most common law and civil law countries barely relevant. However, he also suggests that the US example may yield some worthy comparative insights if issues are approached at a higher level of abstraction.