scholarly journals Judicial Dictatorship: Potential Institutionalisations of the Constitutional Review Process

2021 ◽  
Author(s):  
◽  
Stephen Cranney
Keyword(s):  
Review Process ◽  
Weak Form ◽  
Executive Branch ◽  
Democratic Legitimacy ◽  
Constitutional Rights ◽  
Constitutional Review ◽  
Parliamentary Sovereignty ◽  
Judicial Supremacy ◽  
Comparative Constitutional Law ◽  
Stability Issues

<p>This paper concerns constitutional review of legislation, a widely discussed issue within comparative constitutional law. Specifically, this paper addresses the issue of the lack of democratic legitimacy that U.S. style judicial review has and the potential lack of stability that other weak form constitutional review mechanisms have. Three constitutional review procedures are proposed in this paper, with the commonly overlooked executive branch playing a central role in each review mechanism. These proposed procedures aim to solve democratic legitimacy and stability issues. While all three arguably accomplish the mentioned goal, the paper addresses the issues each proposed mechanism has before defending the leading mechanism. The paper offers a possible solution to the seemingly unresolvable tension within constitutional review of parliamentary sovereignty and judicial supremacy. The described mechanisms and the outcomes they produce seems to show that democratically based constitutional review is possible and it is not necessary to rely on unelected judges to ensure that constitutional rights are maintained. Ultimately, this paper aims to show that a redistribution of constitutional review power among all state organs is the best way to ensure that legislation conforms to constitutional norms.</p>

scholarly journals Judicial Dictatorship: Potential Institutionalisations of the Constitutional Review Process

2021 ◽  
Author(s):  
◽  
Stephen Cranney
Keyword(s):  
Review Process ◽  
Weak Form ◽  
Executive Branch ◽  
Democratic Legitimacy ◽  
Constitutional Rights ◽  
Constitutional Review ◽  
Parliamentary Sovereignty ◽  
Judicial Supremacy ◽  
Comparative Constitutional Law ◽  
Stability Issues

<p>This paper concerns constitutional review of legislation, a widely discussed issue within comparative constitutional law. Specifically, this paper addresses the issue of the lack of democratic legitimacy that U.S. style judicial review has and the potential lack of stability that other weak form constitutional review mechanisms have. Three constitutional review procedures are proposed in this paper, with the commonly overlooked executive branch playing a central role in each review mechanism. These proposed procedures aim to solve democratic legitimacy and stability issues. While all three arguably accomplish the mentioned goal, the paper addresses the issues each proposed mechanism has before defending the leading mechanism. The paper offers a possible solution to the seemingly unresolvable tension within constitutional review of parliamentary sovereignty and judicial supremacy. The described mechanisms and the outcomes they produce seems to show that democratically based constitutional review is possible and it is not necessary to rely on unelected judges to ensure that constitutional rights are maintained. Ultimately, this paper aims to show that a redistribution of constitutional review power among all state organs is the best way to ensure that legislation conforms to constitutional norms.</p>

scholarly journals El papel de los jueces en el marco de una carta de derechos: Una teoría de la contención judicial = The Role of Courts under a Bill of Rights: A Theory of Judicial Restraint

2017 ◽  
Vol 13 ◽  
pp. 80
Author(s):  
Aileen Kavanagh
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Weak Form ◽  
Constitutional Review ◽  
Derechos Humanos ◽  
Judicial Supremacy ◽  
El Sistema ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

Resumen: Este trabajo tiene un doble objetivo. La primera parte ofrece una visión de conjunto del sistema de derechos configurado en el Reino Unido mediante la Human Rights Act de 1998, donde se trata de mostrar que, a pesar de haber sido descrito como un ejemplo destacado de la revisión judicial “débil” de constitucionalidad, el sistema británico muestra en realidad muchos rasgos de sutil fortaleza. En la segunda parte se toma como referencia la jurisprudencia de los tribunales británicos en el marco de dicha ley, con objeto de articular una teoría de la contención judicial. La conclusión es que, a la hora de determinar la fuerza o debilidad del poder judicial en un determinado sistema de revisión constitucional, necesitamos ir más allá de los mecanismos formales contenidos en los textos para analizar las doctrinas y los recursos que usan efectivamente los jueces cuando revisan la compatibilidad de la legislación con los derechos.Palabras clave: Revisión judicial en materia de derechos humanos, revisión judicial “débil”, supremacía judicial, contención judicialAbstract: The aim of this paper is twofold. First, it provides an overview of the system of the rights-based under the UK Human Rights Act 1998, trying to show that although it is often described as a leading exemplar of ‘weak-form’ constitutional review, in reality, the UK system displays many signs of subtle strength. Second, it adopts the decision making of the English courts under this bill of human rights to elaborate a theory of judicial restraint. The upshot is that when assessing any system of constitutional review in order to determine the strength or weakness of judicial power, we need to look beyond the formal textual mechanisms to explore the doctrines and devices judges use when reviewing legislation for compliance with rights.Keywords: Rights-based judicial review, weak-form judicial review, judicial supremacy, judicial restraint

Umpiring and Gerrymandering

2021 ◽  
pp. 15-30
Author(s):  
Jeffrey S. Sutton
Keyword(s):  
United States ◽  
State Legislatures ◽  
The United States ◽  
Executive Branch ◽  
Federal Courts ◽  
The Other ◽  
Constitutional Rights ◽  
Constitutional Review ◽  
Federal Level ◽  
Civil Laws

In the United States, the growth of judicial power started as a way to curb over-reaching, sometimes corrupt, state legislatures and manifested itself in allowing the judicial branch, as opposed to the other branches, to resolve more disputes over contracts, property, debts, and other distinctly nineteenth-century problems. For the last seventy-five years or so, however, something else has propelled its influence: the growth of constitutional review at the federal level, the power to invalidate state and federal civil laws and executive branch actions as well as state and federal criminal prosecutions. This chapter discusses what has become an acutely American dilemma, a fear that the courts will do too little in enforcing constitutional rights and a fear they will do too much. It considers the problems posed in each direction and the risks of politicizing the federal courts if they become the exclusive source of identifying constitutional individual and structural rights.

scholarly journals Constitucionalismo débil = Weak-form judicial review

2017 ◽  
Vol 13 ◽  
pp. 198
Author(s):  
Mariano C. Melero de la Torre
Keyword(s):  
Judicial Review ◽  
Institutional Design ◽  
Weak Form ◽  
Second World War ◽  
Distinctive Character ◽  
Constitutional Review ◽  
Judicial Supremacy ◽  
Constitutional Justice ◽  
Judicial Determinations ◽  
Second World

Resumen: Se suele denominar constitucionalismo “fuerte” al tipo de justicia constitucional predominante después de la segunda gran posguerra, el cual se caracteriza por otorga a los jueces (o a un tribunal especializado) el poder para inaplicar y/o invalidar aquellas leyes que los tribunales consideran contrarias a su interpretación de los derechos protegidos, pudiendo el legislador revocar o modificar las determinaciones judiciales únicamente mediante las mayorías cualificadas que se incluyen en un proceso formal de reforma constitucional. En esta entrada se presentan y discuten varias formas de constitucionalismo “débil”, cuyo rasgo distintivo común consiste en tratar de asegurar la primacía de los derechos básicos sobre el resto del ordenamiento jurídico (incluso mediante su “atrincheramiento” formal), sin asumir la supremacía de los jueces constitucionales en su interpretación. La discusión girará en torno a cuál es el significado preciso de la “debilitación” de los jueces constitucionales y, en consecuencia, cuál debería considerarse la forma más deseable para su articulación institucional.Palabras clave: Supremacía judicial, constitucionalismo débil, revisión judicial basada en derechos, deferencia debida.Abstract: The kind of constitutional justice which has been globally dominant since the end of the Second World War is usually termed ‘strong’ constitutionalism. It gives judges (or a specialized tribunal) the power to strike down legislation that they consider incompatible with their interpretation of those rights and, simultaneously, allows the legislature to override those judicial determinations only by gaining the qualified majorities included in a formal amending process. This entry expounds and discusses some ‘weak’ forms of judicial review, whose common distinctive character is aiming to ensure the supremacy of the basic rights over the rest of the legal system (even with their formal “entrenchment”), without assuming the judicial supremacy in their interpretation. The discussion will revolve around the precise sense of the “weakening” of the courts in a rights-based constitutional review, and which institutional design should be considered its most desirable form.Keywords: Judicial supremacy, weak-form judicial review, rights-based judicial review, due deference

The Counter-Majoritarian Difficulty and the Road not Taken: Democratizing Amendment Rules

2012 ◽  
Vol 25 (1) ◽  
pp. 53-78
Author(s):  
Joel I. Colón Ríos
Keyword(s):  
Judicial Review ◽  
Institutional Arrangement ◽  
Basic Feature ◽  
Constitutional Reform ◽  
Democratic Legitimacy ◽  
Judicial Decision ◽  
Constitutional Review ◽  
The Road ◽  
The People ◽  
Elected Representatives

Discussions about the democratic legitimacy of judicial review of legislation are usually framed in terms of the so called ‘counter-majoritarian’ difficulty, the idea that judicial review is a deviant institution in a democracy. How can a country be considered democratic if a group of non-elected judges have the faculty to strike down laws that have been adopted by a majority of the elected representatives of the people? In framing the question in those terms, however, we tend to forget that there is nothing in the counter-majoritarian difficulty suggesting that judicial review of legislation is necessarily problematic from a democratic perspective. An institutional arrangement that gives judges the faculty to strike down laws inconsistent with the constitution only creates a counter-majoritarian difficulty if the constitution cannot be amended by simple majorities. In not paying proper attention to the role played by a rigid amendment process in the existence of a counter-majoritarian difficulty, this article argues, we have missed the opportunity of democratizing processes of constitutional reform in important ways while at the same time maintaining in place a system of constitutional review in which judges retain the ability of striking down legislation.The idea of giving simple majorities the possibility of having the final word on the meaning and scope of rights is of course not new. In fact, it is the basic feature of the weak system of judicial review now present in several commonwealth countries. However, such a system does not go beyond courts and legislatures, and it is therefore open to the same types of critiques advanced by defenders of strong judicial review against systems of legislative supremacy. The article defends the view that in a democratic society, deliberation and decision-making about the meaning and content of the constitution should extend beyond the ordinary institutions of government. Under that conception, a more democratic approach to the counter-majoritarian difficulty would provide popular majorities (as opposed to legislatures) with the faculty of amending the fundamental law in order to respond to a judicial decision that invalidated (or validated) an ordinary law. For example, citizens could be able to engage in the activity of constitutional reform through non-constituent assemblies, triggered by popular referendum and having the specific mandate of deliberating about the judicial decision in question and the power to propose constitutional changes that would be subject to popular ratification.

Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’

ICL Journal ◽  
2015 ◽  
Vol 9 (2) ◽  
Author(s):  
Anneli Albi
Keyword(s):  
Rule Of Law ◽  
Public Discourse ◽  
National Level ◽  
Constitutional Rights ◽  
Eu Law ◽  
Constitutional Courts ◽  
Supreme Courts ◽  
Constitutional Review ◽  
European Arrest Warrant ◽  
Teleological Interpretation

AbstractThis two-part paper seeks to invite discussion on a deeply embedded narrative in the European scholarly and public discourse that reduces the protection of national consti­tutions to Eurosceptic, old-fashioned reluctance to relinquish sovereignty. The paper ar­gues that because of the simplistic ‘Eurosceptic’-‘Euro-friendly’ looking glass, the discourse has broadly been oblivious of, and given scholarly legitimacy to, the erosion of a range of classic constitutional rights and rule of law safeguards in EU law. Part 1 of the paper, docu­menting comparative case law in seven areas, posits an emergence at the EU level of the adoption of measures which, if attempted at national level without the constraints of EU law, would in a significant number of national legal orders prompt constitutional courts to voice serious concerns about core European constitutional values. The case studies start with some past criticisms regarding rights protection in the single market, moving then to EU measures that have affected core constitutional values, such as secret anti-terrorist measures, the Data Retention Directive, the European Arrest Warrant system with its nu­merous Kafkaesque elements, the broader move towards imposition of criminal and ad­ministrative sanctions on the basis of teleological interpretation and without a law, and the ESM Treaty. The paper also queries the reduced access to courts, the changing role of courts and an emerging gap in constitutional review. Against this background, Part 2 of the paper calls for recalibrating the discourse towards ‘substantive co-operative constitutional­ism’. The aim is to explore how to better uphold the standards of protection developed by national constitutional and supreme courts for classic, substantive constitutional values, in a context where EU constitutional law has brought about a shift towards a thin, weak, procedural version of constitutionalism, the rule of law and judicial review, with priority given to effectiveness, uniformity, trust and, after Melloni, supremacy over constitutional rights.

Constitutional Rights and Democracy: A Reply to Professor Bellamy

2013 ◽  
Vol 14 (8) ◽  
pp. 1039-1051 ◽  
Author(s):  
W.J. Waluchow
Keyword(s):  
Judicial Review ◽  
Constitutional Rights ◽  
Social Cooperation ◽  
Bill Of Rights ◽  
Political Equality ◽  
Constitutional Review ◽  
The People ◽  
Democratic Character ◽  
Self Rule ◽  
Elected Representatives

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.

Tanzanian demands for constitutional reform will grow

2018 ◽  
Keyword(s):  
Civil Society ◽  
Natural Resources ◽  
Review Process ◽  
Executive Branch ◽  
Constitutional Reform ◽  
Content Type ◽  
The Future ◽  
Unstable Environment ◽  
The Government

Subject Tanzanian constitutional reform Significance Political, religious and civil society leaders are calling for constitutional reform before the 2020 elections. These demands are underpinned by rising fears for the future of Tanzania’s multi-party democracy, which add to existing concerns over the concentration of power in the executive branch. Impacts A new constitution will be an opportunity to enshrine popular resource-nationalist principles behind recent natural resources legislation. The issue of Zanzibar's place in the union will come to the fore, creating an unstable environment for the 2020 elections there. The government will likely ease repression of dissenting voices in order to give a review process credibility.

scholarly journals Dimensi Judicial Activism dalam Putusan Mahkamah Konstitusi

2016 ◽  
Vol 13 (2) ◽  
pp. 406
Author(s):  
Pan Mohamad Faiz
Keyword(s):  
Decision Making ◽  
Decision Making Process ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Rights ◽  
Judicial Activism ◽  
Constitutional Review ◽  
Rights Protection ◽  
Strategic Role ◽  
Substantive Justice

A transformative amendment of the 1945 Constitution established a separate judicial institution called the Constitutional Court. This institution is believed to serve a strategic role within Indonesia’s plural legal  system  particularly  in  the area of constitutional review and constitutional rights protection. However, the performance of the Constitutional Court has attracted controversy. This controversy arises because the Court is concerned with introducing a sociological paradigm of law that embraces substantive justice with a fluid acknowledgment of procedural justice. A key criticism of the Constitutional Court is that the nature of Court decisions has developed into a practice of judicial activism. This article discusses the dimension of judicial activism used by the Constitutional Court on the grounds for protecting constitutional rights of the citizens through its decisions. It also analyses the extent of judicial activism that can be justified in the decision-making process   in the Constitutonal  Court.

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