Edited by Tom Ginsburg and Rosalind Dixon
Chapter 18: The Rise of Weak-form Judicial Review
Mark Tushnet 1 INTRODUCTION Constitutional review, known in the United States as ‘judicial review’, originated in the United States. It took the form of a practice in which upon finding a statute inconsistent with constitutional norms a court gave the statute no legal effect in the case at hand and, because of the operation of rules of stare decisis in US law, other courts subordinate to the deciding court would similarly give the statute no legal effect in cases coming before them.1 For more than a century this form of review, to which I have given the label ‘strong-form’, provided the only model for constitutional review. As parliaments increasingly rested on majoritarian theories of democracy and as constitutionalism spread, the tensions between the two were alleviated by accounts of parliamentary supremacy that stressed legislative responsibility for adherence to constitutional norms. That responsibility could be ‘enforced’ by political norms regulating legislators’ actions or more effectively by legislators’ electoral responsiveness to constituents who themselves cared about adherence to constitutional norms. Proponents of strong-form constitutional review sometimes contend that that practice is either compelled or strongly supported by the existence of a written constitution. Yet even written constitutions can accommodate pure legislative responsibility for adherence to constitutional norms, either in the large or with respect to specific provisions. The constitution of the Netherlands specifically states that none of its provisions is judicially enforceable, although the impact of that limitation is qualified by another provision requiring judicial enforcement of international treaties to which the...
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