Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model

2007 ◽  
Author(s):  
Jeffrey Segal ◽  
Chad Westerland ◽  
Stefanie A. Lindquist
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The Supreme Court

Japan

2021 ◽  
pp. 115-132
Author(s):  
Steven Gow Calabresi
Keyword(s):  
World War Ii ◽  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The Political ◽  
Bill Of Rights ◽  
Checks And Balances ◽  
Rubber Stamp ◽  
The Supreme Court ◽  
The Government

This chapter looks at the Japanese experience with judicial review. The Supreme Court of Japan does not enforce those parts of the Japanese Constitution, like Article 9, which prohibits war making; Article 21, which protects freedom of speech; or Article 89, which forbids taxpayer money from being used to hire Shinto priests. The Supreme Court of Japan thus refuses to enforce important articles in the Constitution of Japan. It does rubber stamp and thus legitimize actions taken by the political branches of the government. Why has judicial review of the constitutionality of legislation failed to take root in Japan? Japan does not need either a federal or a separation of powers umpire, since Japan is, firstly, a unitary nation-state with no need for a federalism umpire; and, secondly, a parliamentary democracy with a weak upper house of the legislature. Moreover, Japan has never atoned for the wrongs it committed during World War II nor has it truly admitted to even having done the horrible things that Japan did. A nation cannot get rights from wrongs judicial review and a Bill of Rights unless it admits it has done something wrong. Finally, the Japanese Constitution contains an inadequate system of checks and balances. As a result, the Supreme Court of Japan may not have the political space within which it can assert power.

Canada: From Privy Council to Supreme Court

2021 ◽  
pp. 183-228
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Direct Result ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Canadian History ◽  
British North America ◽  
Court Of Appeals ◽  
The Supreme Court

This chapter assesses the emergence of judicial review in Canada. Canadian judicial review emerged as a direct result of federalism and separation of powers umpiring by the Judicial Committee of the Privy Council (JCPC), which was Canada’s highest court from the adoption of the British North America Act in 1867 until Canada ended appeals to the JCPC in 1949. There was also, as Ran Hirschl would argue, an element of elite hegemonic entrenchment by imperial British colonial elites in the retention of the JCPC as the highest court of appeals in Canada from the creation of the Supreme Court of Canada in 1875 until Canada abolished appeals to the JCPC in 1949. Some Canadian elites tried and failed to end JCPC judicial review in Canadian cases in 1875. Canadian judicial review from 1867 to 1982 was exclusively concerned with federalism and separation of powers judicial umpiring because Canada had no constitutional Bill of Rights until 1982. There are thus two founding moments in the judicial review of legislation in Canadian history: firstly, the period from 1867 to 1982 when Canadian federalism and separation of powers law took shape as a result of federalism and separation of powers umpiring; and, secondly, the period from 1982 to the present, when the Supreme Court of Canada began vigorously enforcing the Canadian Charter of Rights and Freedoms. The emergence of judicial review from 1982 down to the present day is partly a rights from wrongs phenomenon, and it is partly the result of constitutional borrowing from the United States’s Warren Court.

Judicial Review (Departmentalism) vs Supremacy: The Connection to a 17th Century Debate and a Dilemma for Today

ICL Journal ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Boleslaw Z. Kabala
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Legal Scholar ◽  
State Of Nature ◽  
Judicial Supremacy ◽  
The Supreme Court ◽  
Legislative Branch ◽  
The Difference ◽  
Do So

AbstractProponents of judicial supremacy argue that the interpretation of the Constitution by the Supreme Court is authoritative for the two other branches of government, while advocates of judicial review (or departmentalism) argue that authority to interpret the Constitution resides in each branch. Both sides offer historical examples in which their understanding prevailed. How to resolve this impasse? I argue that Hobbes and Spinoza can inform the debate. To do so, I first unpack the terms: what is the difference between judicial review or departmentalism and judicial supremacy? I then show that a renowned legal scholar, Larry Alexander, specifically invokes Hobbes in defense of judicial supremacy. For Alexander, the Supreme Court functions as a Hobbesian sovereign. Spinoza presents a clear alternative to the Hobbesian solution of avoiding a state of nature by concentrating power in a unitary sovereign, namely, via a strategy of diffusing power throughout society. But Spinoza’s solution is not yet a formal separation of powers. This conception of power can therefore clarify the assumptions made by advocates of both judicial review or departmentalism and judicial supremacy. I close by considering instances in American history when the application of departmentalist logic did not lead to a Hobbesian state of nature. And what are the lessons for today? I suggest that it is perhaps time to consider an analog to the Canadian/Israeli notwithstanding clause. But rather than adopting verbatim their legislative override, which effectively designates the legislative branch to be supreme, we could require two of the three independent and equal branches to decide contended constitutional questions. Such an American notwithstanding clause would respect the design of our federal government.

scholarly journals ENTRE O ATIVISMO E (IN) OPERÂNCIA LEGISLATIVA: DELIBERAÇÃO E LEGITIMIDADE DAS DECISÕES DO SUPREMO TRIBUNAL FEDERAL EM SEDE DE CONTROLE DE CONSTITUCIONALIDADE EM UM CONTEXTO DE NOVOS ARRANJOS INSTITUCIONAIS E DE REVISÃO DA TEORIA DA SEPARAÇÃO DOS PODERES

2014 ◽  
pp. 104
Author(s):  
Bruno Denis Vale Castro ◽  
Paulo Roberto Barbosa Ramos
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Institutional Arrangements ◽  
Judicial Activism ◽  
Revision Theory ◽  
The Supreme Court ◽  
The Creation ◽  
New Devices

O presente artigo se propõe a analisar a deliberação interna e legitimidade das decisões do Supremo Tribunal Federal em sede de Controle de Constitucionalidade, observada uma conjuntura de revisão da Teoria da Separação dos Poderes e necessidade de criação de novos arranjos institucionais. Neste aspecto, tem-se como objetivo geral repensar o papel do Supremo Tribunal Federal em um modelo de controle de constitucionalidade, bem como sua legitimidade, justificação de suas decisões e deliberação interna, superando a dicotomia ativismo judicial/ deferência ao legislativo, tendo em vista a necessidade de readequação da Teoria da Separação dos Poderes, de modo que se leve a Constituição a sério e se responda ao anseio de desenvolvimento democrático-social brasileiro.Por fim, considera-se que a necessidade de que algum órgão delibere em sede de controle de constitucionalidade não significa que esta deva ser permanente ou que não possa haver alguma espécie de diálogo entre os poderes, concebendo assim, que Supremo Tribunal Federal não detém o monopólio da guarda da Constituição, havendo a possibilidade de um papel mais protagonista do legislativo, a partir da utilização dos mecanismos já existentes ou mesmo da criação de novos dispositivos que permitam diálogos institucionais.Palavras-chave: Ativismo judicial. Diálogos institucionais. Controle de constitucionalidadeBETWEEN THE ACTIVISM AND LEGISLATIVE (IN) EFFICIENY: DELIBERATION AND LEGITIMACY OF DECISIONS OF THE SUPREME COURT IN OFFICE OF JUDICIAL REVIEW IN THE CONTEXT OF NEW INSTITUTIONAL ARRANGEMENTS AND REVIEW OF THE THEORY OF SEPARATION OF POWERSABSTRACT: This article aims to analyze the internal deliberation and legitimacy of decisions of the Supreme Court in place of Judicial Review, observed a conjuncture Revision Theory of Separation of Powers and the need to create new institutional arrangements. In this respect, it has the general objective to rethink the role of the Supreme Court in a model of judicial review, as well as its legitimacy, justification of their decisions and internal deliberation, overcoming the dichotomy judicial activism /deference to the legislature, with a view the need to readjust the Theory of Separation of Powers, so that light the Constitution seriously and respond to the yearning of Brazilian democratic and social de-velopment. Finally, it is considered that the need for some body deliberates on seat of judicial review does not mean that it must be permanent or may not be some sort of dialogue between the powers, conceived so that the Supreme Court does not hold monopoly of safeguarding the Constitution , with the possibility of a more protagonist role of the legislature, from the use of existing or even the creation of new devices that allow institutional dialogue mechanisms.KEYWORDS: Judicial activism. Institutional dialogues. Judicial review.ENTRE EL ACTIVISMO Y LA (IN) OPERANCIA LEGISLATIVA: DELIBERACIÓN Y LA LEGITIMIDAD DE LAS DECISIONES DE LA CORTE SUPREMA EN LA SEDE DE CONTROL DE CONSTITUCIONALIDAD, EN UN CONTEXTO DE NUEVOS ARREGLOS INSTITUCIONALES Y LA REVISIÓN DE LA TEORÍA DE LA SEPARACIÓN DE PODERESRESUMEN: El articulo intenta analizar la deliberación interna y la legitimidad de las decisiones del Supremo Tribunal Federal en sede de Control de Constitucionalidad, observada una coyuntura de revisión de la Teoría de la Separa-ción de los Poderes y la necesidad de creación de nuevas relaciones institucionales. En ese aspecto, tiene como objetivo general pensar de otra forma el papel del Supremo Tribunal Federal en un modelo de control de constitu-cionalidad, y también su legitimidad, justificación de sus decisiones y deliberación interna, con la superación de la dicotomía activismo judicial/deferencia al legislativo, teniendo en vista la necesidad de readecuación de la Teoría de la Separación de los Poderes, de forma que se lleve a Constitución en serio y se presenta una respuesta a los deseos de desarrollo democrático-social brasileño. Al final, tiene en consideración la necesidad de que algún órgano delibere en sede de control de constitucionalidad no significa que este debe ser permanente o que no pueda haber alguna suerte de dialogo entre los poderes, concibiendo así, que el Supremo Tribunal Federal no detiene el mono-polio de la guardia de la constitución, habiendo la posibilidad de un papel más protagonista do legislativo, a partir de la utilización de los mecanismos ya existentes o mismo de la creación de nuevos dispositivos que vengan a permitir diálogos institucionales.PALABRAS CLAVE: Activismo judicial. Diálogos institucionales. Control de constitucionalidad

scholarly journals SUPREME COURT’S JUDICIAL REVIEW AUTHORITY VS. CONSTITUTIONAL SUPREMACY IN THE MALDIVES: DOES THE CONSTITUTION STILL REIGN SUPREME?

2019 ◽  
Vol 27 (2) ◽  
pp. 469-499
Author(s):  
Aminath Asfa Shafie ◽  
Shamrahayu Abdul Aziz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Checks And Balances ◽  
Effective Functioning ◽  
The Supreme Court

The Supreme Court of Maldives is entrusted with the responsibility of upholding the supremacy of the Constitution. However, within the last ten years, the Supreme Court has been criticized for the Court’s slow but steady progression to encroach on the powers of the parliament and as a result, undermine the supremacy of the Constitution. The objective and purpose of this article are to entail how the Supreme Court of Maldives had utilized its power to judicial review to undermine the supremacy of the Constitution over the years. This article uses library-based research. It analyses the principles of separation of powers, checks and balances and judicial review and how these principles are adopted in the Maldives. In addition, this article reviews and analyzes the decisions of the Supreme Court which are in contradiction to the Constitution. The findings of the article are evidential of how the Supreme Court had performed the constitutionally mandated legislative functions of the parliament through the Court’s power to judicial review. The Supreme Court had established guidelines, regulated the rights and freedoms specified in the Constitution, and determined procedures.  This article concludes by emphasizing the importance of exercising restraint when performing the constitutionally mandated functions of each branch, in order to ensure the supremacy of the Constitution as well the effective functioning of the three branches of government.

The Privy Council: The Umpire of the British Empire

2021 ◽  
pp. 35-96
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Supreme Court ◽  
British Empire ◽  
Judicial Review ◽  
North American ◽  
Prime Minister ◽  
Separation Of Powers ◽  
Privy Council ◽  
The Supreme Court ◽  
English Law ◽  
British Colonies

This chapter describes the history and workings of the Privy Council, which was the Supreme Court of both the First and Second British Empires from 1607 until the present day. The Judicial Committee of the Privy Council (JCPC), as it came to be called in 1833, provided vertical federalism judicial review in all British Imperial cases arising outside of England and Wales to ensure that English colonies were not adopting laws that were repugnant to English law. The British Empire from 1607 to the present day was and is a constitutional federal entity with centralized federalism judicial review vested in what is now called the JCPC. The JCPC, which still exists, does not have the power of horizontal judicial review, either over acts of the U.K. Parliament, or of the prime minister. The Privy Council between 1607 and 1776 reined in the thirteen North American British colonies when they enacted laws or decided cases in ways that were repugnant to the laws of England. The JCPC decided Canadian and Australian federalism and separation of powers case from 1867 on thereby habituating those countries to the practice of federalism and separation of powers judicial review, which both countries have followed since gaining independence.

Indonesia

2021 ◽  
pp. 251-266
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
Constitutional Court ◽  
Constitutional Democracy ◽  
Checks And Balances ◽  
American Perspective ◽  
The People ◽  
The Supreme Court

This chapter highlights the origins and growth of Indonesian judicial review. Indonesia today is a constitutional democracy that has attained surprising success in eliminating hyper-presidentialism by implementing important checks and balances on presidential power; by separating executive, legislative, and judicial power; and by attaining rapidly an astonishing amount of decentralization since 1998. That degree of checks and balances and of decentralization has undoubtedly made Indonesians much freer than they were under President Suharto’s dictatorship. The Indonesian Constitutional Court seems to function well and enjoys the confidence of the people. Looked at from an American perspective, however, Indonesia is a constitutional democracy, which does not yet fully protect freedom of expression, freedom of religion, or economic freedoms to the extent that those freedoms are protected by the U.S. Supreme Court. Indonesia’s Bill of Rights and its system of judicial review originated for rights from wrongs reasons, because of borrowing, and because power is sufficiently divided in Indonesia, as a result of the separation of powers and federalism, so that there is political space in which the Supreme Court can operate.

The (Un)Written Constitution

2021 ◽  
Author(s):  
George Thomas
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Freedom Of Speech ◽  
Public Understanding ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Political Actors ◽  
The Public ◽  
The Supreme Court

The late Justice Scalia relished pointing to departures from text as departures from the Constitution, but in fact his jurisprudence relied on unwritten ideas. As textualism has become more prominent with the elevation of Justices Gorsuch, Kavanaugh, and Barrett to the Supreme Court—jurists in the mold of Scalia—it is crucial to reveal the unwritten ideas that drive textualist readings of the Constitution. Our deepest debates about America’s written Constitution are not about constitutional text but about the unwritten ideas and understandings that guide our reading of text. This fact is obscured by the public understanding of textualism and originalism as put forward by its most prominent judicial advocates. The (Un)Written Constitution makes these ideas visible by turning to the practices of Supreme Court justices and political actors in interpreting the Constitution over more than two centuries. From founding debates about freedom of speech and religion to contemporary arguments about judicial review, the separation of powers, same-sex marriage, and partisan gerrymandering, this work highlights the too-often unacknowledged ideas that animate our debates about the written Constitution. Contrary to textual jurists, these recurrent debates are not about whether to follow the text; they are disputes about what fidelity to the text requires. How do we weigh and balance different textual provisions and see them as part of a constitutional whole? The text does not answer such questions. This book illustrates that moving beyond the text is an inescapable feature of interpreting America’s written Constitution.

Judicial Review (Departmentalism) vs Supremacy: The Connection to a 17th Century Debate and a Dilemma for Today

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 71-102
Author(s):  
Boleslaw Z Kabala
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Legal Scholar ◽  
State Of Nature ◽  
Judicial Supremacy ◽  
The Supreme Court ◽  
Legislative Branch ◽  
The Difference ◽  
Do So

AbstractProponents of judicial supremacy argue that the interpretation of the Constitution by the Supreme Court is authoritative for the two other branches of government, while advocates of judicial review (or departmentalism) argue that authority to interpret the Constitution resides in each branch. Both sides offer historical examples in which their understanding prevailed. How to resolve this impasse? I argue that Hobbes and Spinoza can inform the debate. To do so, I first unpack the terms: what is the difference between judicial review or departmentalism and judicial supremacy? I then show that a renowned legal scholar, Larry Alexander, specifically invokes Hobbes in defense of judicial supremacy. For Alexander, the Supreme Court functions as a Hobbesian sovereign. Spinoza presents a clear alternative to the Hobbesian solution of avoiding a state of nature by concentrating power in a unitary sovereign, namely, via a strategy of diffusing power throughout society. But Spinoza’s solution is not yet a formal separation of powers. This conception of power can therefore clarify the assumptions made by advocates of both judicial review or departmentalism and judicial supremacy. I close by considering instances in American history when the application of departmentalist logic did not lead to a Hobbesian state of nature. And what are the lessons for today? I suggest that it is perhaps time to consider an analog to the Canadian/Israeli notwithstanding clause. But rather than adopting verbatim their legislative override, which effectively designates the legislative branch to be supreme, we could require two of the three independent and equal branches to decide contended constitutional questions. Such an American notwithstanding clause would respect the design of our federal government.

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