Abusive Judicial Review

2021 ◽  
pp. 81-115
Author(s):  
Rosalind Dixon ◽  
David Landau
Keyword(s):  
Judicial Review ◽  
Weak Form ◽  
Strong Form ◽  
Constitutional Change ◽  
Political Actors ◽  
Liberal Democratic

This chapter explains the concept of abusive judicial review: the use of courts by regimes to achieve anti-democratic constitutional change. Abusive judicial review involves abusive constitutional borrowing in two distinct senses: first, regimes lean on captured or cowed courts as a strategy to legitimate or advance authoritarian goals, and second, those courts often draw upon liberal democratic doctrines in abusive ways. It develops a typology of two different forms of the phenomenon—a weak form where courts uphold authoritarian moves by political actors, and a strong form where they act more directly to remove obstacles to authoritarian programs. Finally, it draws out two main examples: the Venezuelan Supreme Court’s repression of the opposition-held legislature using a doctrine of ‘legislative omission’ and other tools, and the wielding of militant democracy doctrines by the Cambodian and Thai apex courts to ban parties for authoritarian ends.

scholarly journals Alternative forms of judicial review

2021 ◽  
Vol 280 (3) ◽  
pp. 15-40
Author(s):  
Mark Tushnet
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Weak Form ◽  
The United States ◽  
Strong Form ◽  
Constitutional Design ◽  
Late Twentieth ◽  
Conceptual Problems ◽  
Late Twentieth Century ◽  
Allocation Strategies

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations — of the courts’ own decisions — to Strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. My conclusion is that these allocation strategies reproduce within strong- and weakform systems the issues that arise on the level of constitutional design. Weak-form systems and allocation may seem to alleviate some difficultiesassociated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.

scholarly journals Mandatory pre-enactment review of legislation; or should only one government branch be responsible for the protection of rights in the United States?

2021 ◽  
Author(s):  
◽  
Ayla Saroz
Keyword(s):  
United States ◽  
New Zealand ◽  
Judicial Review ◽  
Weak Form ◽  
The United States ◽  
Comparative Assessment ◽  
Strong Form ◽  
Made In

<p>This paper focuses on pre-enactment review of legislation as a constitutional tool for the protection of recognised rights. The paper first makes the distinction between strong- and weak-form judicial review, in order to analyse how pre-enactment review can be practiced within each constitutional model. Two countries are first looked at to illustrate the two models: the United States for strong-form review, and New Zealand for weak-form review. The absence of any formal pre-enactment review in the United States is noted, and evaluated through a more in-depth assessment of congressional practice. This observation leads to the main proposal of the paper: that pre-enactment review should be made mandatory in the United States. A comparative assessment is then made in order to discuss the proposal. The relevant constitutional practices in Australia, Canada and Japan are outlined. These comparative assessments are used to further delineate the appropriate form that mandatory pre-enactment review of legislation could take in the United States.</p>

scholarly journals Mandatory pre-enactment review of legislation; or should only one government branch be responsible for the protection of rights in the United States?

2021 ◽  
Author(s):  
◽  
Ayla Saroz
Keyword(s):  
United States ◽  
New Zealand ◽  
Judicial Review ◽  
Weak Form ◽  
The United States ◽  
Comparative Assessment ◽  
Strong Form ◽  
Made In

<p>This paper focuses on pre-enactment review of legislation as a constitutional tool for the protection of recognised rights. The paper first makes the distinction between strong- and weak-form judicial review, in order to analyse how pre-enactment review can be practiced within each constitutional model. Two countries are first looked at to illustrate the two models: the United States for strong-form review, and New Zealand for weak-form review. The absence of any formal pre-enactment review in the United States is noted, and evaluated through a more in-depth assessment of congressional practice. This observation leads to the main proposal of the paper: that pre-enactment review should be made mandatory in the United States. A comparative assessment is then made in order to discuss the proposal. The relevant constitutional practices in Australia, Canada and Japan are outlined. These comparative assessments are used to further delineate the appropriate form that mandatory pre-enactment review of legislation could take in the United States.</p>

scholarly journals “ÚLTIMA PALAVRA PROVISÓRIA”: DIFICULDADE CONTRAMAJORITÁRIA DA REVISÃO JUDICIAL E DEFERÊNCIA AO LEGISLADOR

2020 ◽  
Author(s):  
Taiz Marrao Batista da Costa
Keyword(s):  
Judicial Review ◽  
Weak Form ◽  
Strong Form

Na Constituição da República Federativa do Brasil, dotada de supremacia em relação às demais leis, está sedimentada a prerrogativa conferida ao Poder Judicial para analisar a constitucionalidade das leis, invalidando normas que repute incompatíveis com o texto constitucional. O Poder Judiciário brasileiro exerce controle de constitucionalidade ou poder de revisão judicial forte, com a guarda da Constituição atribuída ao Supremo Tribunal Federal. Neste artigo, objetivou-se, a partir de uma perspectiva crítica inspirada no clássico diagnóstico de tensão entre constituição e democracia e na dificuldade contramajoritária ínsita ao poder conferido aos juízes para invalidar atos do parlamento, analisar a postura de deferência ao legislador adotada pelo Supremo Tribunal Federal na ADI 5105 como alternativa à supremacia judicial. Através da análise dos fundamentos da decisão, à luz dos ensinamentos de Mark Tushnet acerca dos modelos de strong-form e weak-form judicial review, foi possível concluir que, embora a postura de deferência ao legislador não torne o regime de controle de constitucionalidade brasileiro fraco, esta técnica decisória deu cumprimento aos mandamentos da Constituição que compatibilizam a guarda atribuída ao Supremo Tribunal Federal com a não vinculação do legislador aos precedentes.

Positive and Negative Constitutionalism and the Limits of Universalism: A Review Essay†

2021 ◽  
Author(s):  
Adrienne Stone ◽  
Lael K Weis
Keyword(s):  
Review Essay ◽  
Weak Form ◽  
Well Being ◽  
Strong Form ◽  
Constitutional Theory ◽  
Full Potential ◽  
Essential Function

Abstract In The Principles of Constitutionalism, Nicholas Barber provides a sophisticated yet highly readable introduction to fundamental constitutional principles. At the same time, Barber seeks to reorient constitutional theory scholarship away from a mistaken ‘negative’ understanding of constitutionalism towards a ‘positive’ understanding. This essay examines that argument. We suggest that the idea of ‘positive constitutionalism’ has a weaker and a stronger sense. In its weak form, the argument calls for greater attention to what constitutions enable as well as what they restrict, and thus serves as a welcome reminder of the full potential of constitutional principles. However, it cannot be regarded as the correction of a widespread mistake. In its strong form, the argument calls for greater recognition that the state’s essential function lies in advancing the ‘well-being’ of its members. Although this amounts to a significant reorientation, it weakens the theory’s claim to universalism. These tensions indicate limitations to efforts to construct general theories of constitutionalism.

Weak-Form and Semi-Strong-Form Stock Return Predictability Revisited

2005 ◽  
Vol 51 (10) ◽  
pp. 1582-1592 ◽  
Author(s):  
Wayne E. Ferson ◽  
Andrea Heuson ◽  
Tie Su
Keyword(s):  
Stock Return ◽  
Weak Form ◽  
Return Predictability ◽  
Strong Form ◽  
Stock Return Predictability

WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?

2010 ◽  
Vol 28 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Moral Rights ◽  
Constitutional Change ◽  
Principal Function ◽  
Fundamental Law

AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

Shaping Presidential Powers in Hungary: Convention, Tradition and Informal Constitutional Amendments

2021 ◽  
Vol 46 (3-4) ◽  
pp. 307-320
Author(s):  
Attila Vincze
Keyword(s):  
Constitutional Court ◽  
Constitutional Change ◽  
Exact Role ◽  
Present Contribution ◽  
Constitutional Amendments ◽  
Political Actors ◽  
Fundamental Law ◽  
Constitutional System ◽  
Presidential Systems ◽  
Judicial Interpretations

Abstract There was no tradition of a republican president in Hungary before the fall of communism, and the transitory constitution of 1989 was unclear about the exact role the President should play in the constitutional system of Hungary. Some provisions even resembled those of presidential or semi-presidential systems; some ambiguities were clarified during the first two decades after the transition. Conventions, however, were established to some extent and sometimes very quickly. This period gave rise to guidelines as to how the powers of the President should be exercised. Some other powers were concretized and interpreted foremost by the Constitutional Court. These conventions and judicial interpretations formed the character of the Presidency to the extent of informal constitutional change. Some of these elements have even been incorporated into and formalized by the new Fundamental Law of Hungary. The present contribution will point out how the originally broad competencies of the President have been narrowed in the practice, and what role the Constitutional Court and political actors played in this process.

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