Comparative Constitutional Theory
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Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
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Chapter 5: Constitutional dialogue and judicial supremacy

Miguel Schor


Abstract: This chapter examines constitutional dialogue by comparing a constitutional system that (almost) entrenches judicial supremacy—the United States—with a constitutional system that seeks to reconcile judicial with legislative supremacy—Canada. This chapter makes two arguments. First, if judicial will is checked by dialogue in constitutional systems as different as the United States and Canada, then claims that constitutional courts inevitably arrogate too much power thereby undermining democracy sweep too broadly. All polities that enjoy constitutional supremacy have formal and informal mechanisms that allow democratic actors to trump courts in some fashion. Second, there is considerable institutional variation in the mechanisms by which judicial will may be checked. Weaker courts are less likely to engender social conflict as they are more likely to facilitate negotiation and consensus over constitutional meaning.

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