Edited by Erin F. Delaney and Rosalind Dixon
Chapter 5: The origins and growth of judicial enforcement
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.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.