Edited by Erin F. Delaney and Rosalind Dixon
Chapter 3: Constitutions as political insurance: variants and limits
This chapter explores the strategic foundations of judicial review, by developing the idea of judicial review as a form of political “insurance”. Building on prior work on the insurance function of constitutions and courts, it develops a three-part typology of constitutions as a form of political insurance: first, the idea of constitutions as a form of power-based insurance; second, as a form of personal insurance for political leaders; and third, a form of policy-based insurance for elites facing a loss of internal or external political influence. Each type of insurance, the chapter suggests, implies somewhat different choices at the level of constitutional design—that is, in the design of constitutional language, amendment rules, constitutional courts, and procedural rules of access to judicial review. Each also raises distinct risks of “nullification” or “cancellation”. The chapter explores these risks, and offers new insights about how and when they are most likely to arise: Constitutional insurance, it ultimately suggests, is most likely to be effective where it is multi-sided in nature, offering some potential pay-off to all major political players. The chapter illustrates these arguments with examples from South Africa, Mexico, Italy, Japan, Taiwan and Romania, among other countries.
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