Rather than considering judicial review as an overarching mechanism to protect rights, democracy, or justice, or to promote other desirable ends, this chapter examines which institutional features facilitate the realization of non-instrumentalist concerns underlying judicial review. After first surveying various instrumentalist theories, the authors argue that these theories fail because they rest upon empirical conjectures which cannot be substantiated. They then defend a non-instrumentalist theory of judicial review: Individuals have a right to a hearing if there is an alleged rights violation, and it is the protection of the right to a hearing that ultimately justifies judicial review. Finally, the chapter aims to understand how the right to a hearing is implemented in various jurisdictions. It thus draws on examples from the United States, Israel, India, Columbia, and South Africa to explore the importance of three aspects of the right to a hearing: the opportunity to voice a grievance, the opportunity to be provided with a justification for a decision, and the duty to reconsider the initial decision giving rise to the grievance.
Alon Harel and Adam Shinar
Vicki C. Jackson
This chapter examines certain ways that proportionality—either as a structured doctrine or as a concept or principle—may affect constitutional adjudication, based on an examination of Australian, Canadian, South African, and US constitutional cases. It explores differences between proportionality as a doctrine and proportionality as a principle and looks at whether proportionality as an approach is experienced by judges as a choice or a necessity. It also explores a potentially significant analytical difference that exists between the principle of proportionality and the doctrine of proportionality review, raising the possibility that the minimal impairment (or “necessity”) inquiry, if always read as a stringent, less restrictive means test, may be at odds with the more general principle of proportionality as applied to democratic self-governing decisions and, if so, asking whether this circumstance should affect application of the doctrine or, rather, should affect the nature of the remedy required.
Steven Gow Calabresi
This chapter advances a theory of the emergence of judicial review that is predicated on two aspects of certain nation-state formation: the need for a federalism umpire and for rights protection due to the need to right historic wrongs. In the United States, for its first 70 years the Supreme Court acted as a federalism umpire in a manner consistent with the British system of judicial review that the colonies experienced before independence. However, it was not until the righting of the wrongs of slavery and the Black Codes that judicial review greatly expanded in scope. In Germany, in contrast, while federalism umpiring was an important role for the Constitutional Court, the much more important justification for its existence was righting the wrongs of the Holocaust and Nazism. Finally turning to India, the author argues that the same two motivations apply with the additional need for honest rule of law motivating a great expansion of judicial review.
Robert A. Kagan, Diana Kapiszewski and Gordon Silverstein
In recent decades, high courts in many nations have taken on dramatic new roles in governance. This chapter notes five recurrent domains of political conflict into which high courts have been pushed, or asserted themselves, to play new roles: disputes between political incumbents and challengers, intragovernmental disputes about who governs, challenges to government stasis and maladministration, cultural and religious cleavages, and disputes about rights and equality. Exploring these judicial roles, the authors provide examples from countries around the globe. The chapter then synthesizes three factors which affect increases (and retractions) in judicial assertiveness: national institutional and political structures, contemporary political dynamics, and court-related factors. Finally, the authors identify trends which help account for the expansion of judicial roles: the spread of constitutional democracy, globalization and economic liberalization, increases in government activism, and evolving conceptions of law.
Karen J. Alter
This chapter begins with a brief discussion of the how states delegated to international courts the jurisdictional authority to conduct constitutional review of international and state acts, but how effectively exercising this delegated authority depends on a domestic legal culture of constitutional obedience to international law. It then surveys different examples of national supreme courts embracing or rejecting the validity of international judicial decision, defining two different approaches to international judicial review: the luxury good optic, which suggests that although international courts (ICs) may exercise valid legal authority to generate binding legal rulings, IC rulings are external and domestically superfluous, providing neither binding nor guiding jurisprudence relevant in the national realm, and the fail-safe optic, which insists that IC rulings must guide and perhaps even bind national legal review. The author examines examples from the United States, Columbia and Germany to illustrate the luxury-good optic and examples from Nicaragua and Zimbabwe to illustrate the failsafe optic before concluding that there is an intermediate approach taken by the German Constitutional Court, which is superior to these two alternatives.
This chapter surveys processes of achieved or failed constitutional-cultural transformation in five societies. The United States and India, the chapter argues, have each undergone a significant shift from a legalistic to a more instrumentalist conception of the law/politics relation. Germany, Australia, and South Africa, on the other hand, have all faced moments in which such a shift was contemplated, but have retained a stronger commitment to a conception of law as autonomous from politics. After tracing the processes followed in each instance, the author accounts for these different outcomes by reference to two conditions, each of which is necessary but neither of which is on its own sufficient for a transformation of the sort contemplated: (1) an exogenous shock to the complex of legitimating ideas in which law’s claim to authority in a system of judicial review is understood, and (2) legal or political actors able and willing to exploit the shock to drive the transformation to a new conception of the law/politics relation.
Mila Versteeg and Emily Zackin
This chapter highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these un-entrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of judges and legislatures by drafting highly specific texts and by updating them in response to continually changing circumstances.
Salma Waheedi and Kristen Stilt
This chapter begins by providing a background to Islamic law and constitutions in the Muslim world. The authors then present a classificatory scheme that outlines the different institutional design models for constitutional interpretation in Muslim countries. These include a secular model, an Islamic model, and a hybrid model, with different countries falling along a spectrum of variations. The chapter considers several case studies, such as Kuwait and Egypt for the secular model, Iran and Saudi Arabia for the Islamic model, and Malaysia, Afghanistan, and Pakistan for the hybrid model. The chapter concludes by highlighting the ways in which the political context and certain choices in constitutional drafting can foster one system or another along the spectrum.
Tonja Jacobi, Sonia Mittal and Barry R. Weingast
This chapter argues that the United States Constitution is self-stabilizing. A self-stabilizing constitution creates incentives for all relevant actors to abide by the rules. Drawing on earlier work, the authors argue that to be self-stabilizing, a constitution must: (1) lower stakes in politics for both ordinary citizens and powerful elite groups; (2) create focal points that facilitate citizen coordination against transgressions by government officials; and (3) enable adaptation over time. The Supreme Court—through powers of judicial review and institutional practices—has assumed an increasingly important role in maintaining constitutional stability. The chapter contends that the Court can lower the stakes, facilitate coordination and enable adaptation—strengthening the self-stabilizing characteristics of the Constitution—though it has not always done so. In so arguing, the authors offer a new framework for understanding the Court’s opinions, and ultimately, the work of the nation’s top judges.
This chapter begins by outlining trends in comparative citation, when courts look to foreign courts’ rulings in making their own decisions. Such trends include borrowing in areas of constitutional structure, constitutional interpretation techniques and modes of analysis, and comparative jurisprudence. Courts attach varying weights to such precedent: some considering it mandatory, others advisable, and yet others as voluntary. The author notes a declining American hegemony in comparative citation and the ascendency of new jurisprudential authority in the area (e.g. Canada, Germany, the European Court of Human Rights). The chapter outlines explanations from history, public law, and social science for where, when, and how constitutional courts and judges engage in comparative reference, and identifies significant reasons for comparative citations such as necessity, a desire to effect change within one’s national constitutional regime, judicial quest for legitimacy and well-grounded reasoning, and appeals to external authority in fledgling democratic systems. It concludes by exploring epistemological and methodological challenges of comparative citation research such as a reluctance to admit its historical roots, its focus on the Western liberal-democratic constitutional settings, the selective deployment of reference to foreign precedent, and the difficulty of tracking implicit borrowing.