Comparative Judicial Review
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Comparative Judicial Review

Edited by Erin F. Delaney and Rosalind Dixon

Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.
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Chapter 17: Judicial review and Public Reason

Wojciech Sadurski

Abstract

After a brief introduction to Public Reason, this chapter discusses the interconnection between Public Reason and judicial review. Canvassing examples from Canada, the United States, Germany, and Australia, the author argues that Public Reason can be, and in fact has been in certain cases, used to examine the constitutionality of motives behind legislation under review. After highlighting the evidentiary difficulties of identifying and proving motives within such a framework and outlining the clashes this can create between the judiciary and the legislature, this chapter concludes by arguing that Public Reason can help identify or “objectify” which motives are acceptable and which are not to allow review to work backwards from effects to impermissible motives. Such an approach would avoid the evidentiary issues presented above and put the legislature on notice of what would be required of future legislation.

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