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This chapter responds to claims that the Supreme Court behaves lawlessly whenever it follows erroneous past decisions, by invoking and applying H. L. A. Hart's famous assertions that the ultimate foundation for all legal claims lies in a “rule of recognition” and that the rule of recognition owes its status to “acceptance.” It is argued that Article VI and other provisions of the written Constitution do not exhaust the pertinent American rule or practice of recognition; accepted rules or practices of recognition accord judicial precedent a sometimes authoritative status. In developing this argument, the chapter explores whether Hart's account requires adaptation to provide an adequate explanation of American constitutional practice—which is famously argumentative and not obviously rule-bound—and, if so, what forms the adjustments ought to take. The ultimate goal is to use Hartian positivist theory to illuminate American constitutional adjudication, and especially the role of precedent within it, while deploying American constitutional practice as a prism through which to examine some of Hart's ideas.

This chapter examines the influence of the idea that the modern system of government exists to protect the interests of the rights-bearing individual. It considers in particular the various claims made of these rights — as natural rights, civil rights, constitutional rights — and then examines how these basic rights given institutional status and protection through the constitutional arrangements of the modern state. It argues that as a consequence of modern constitutional development, rights are no longer conceived as defining a zone of individual autonomy but are treated as objective organizational principles of constitutional ordering.

This chapter briefly discusses the current state of affairs of constitutional adjudication in Europe. It remarks on a recent evolution in the enterprise of comparing constitutional adjudication—that of a truly global discourse on constitutional courts. Moreover, comparing institutions of constitutional adjudication in Europe today is part of an even deeper project: building a united Europe, and with it the legal framework for a European legal space. The chapter also looks at how Europeanization has reshaped courts performing constitutional adjudication and continues to do so, before turning to the European Verfassungsgerichtsverbund and how many domestic judges stay in lasting and sometimes close contact with colleagues from the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), the Union/Member States dimension of the Verfassungsgerichtsverbund, but also with those of other Member States. In addition, the chapter talks about the traditional ‘European model’ of constitutional adjudication and the great plurality of constitutional adjudication within the European legal space. Finally, the chapter turns to the backlash against constitutional adjudication before offering some final remarks regarding the purpose of this volume.

This chapter discusses the ways in which the Federal Republic of Germany and its constitutional court managed the difficult problem of organizing human rights and civil rights adjudication and constitutional adjudication in general. The first part of the chapter sketches the federal framework of constitutional adjudication in Germany, and the particular role and function of the Federal Constitutional Court (FCC) within this framework. The second part describes the relation between the FCC and constitutional courts of the 16 Länder that form the Federal Republic. The third part analyzes the challenges arising from international and supra-national law above the level of the constitution, namely the European Convention on Human Rights and EU law. More precisely, it focuses on how the human rights adjudication of the European Court of Human Rights influences the status and function of the FCC, and examines how the European Court of Justice's adjudication on European Community law affects the position of the FCC. Finally, the question of constitutional adjudication in the era of ‘Europeanization’ is addressed.

This chapter discusses the clash between originalism and living constitutionalism. It considers variants of originalism, with particular emphasis on unsolved problems and continuing disagreement. It suggests that originalism has limited capacity to stem a constant flow of contemporary values into the judicial decision-making process, while a living Constitution is effectively irresistible. It also examines judicial interpretation of the Constitution and the dynamics of constitutional adjudication, along with the views of many originalists regarding the authoritativeness of specific original intentions or meanings (or expected applications) that attended general constitutional language. The chapter concludes with the argument that living constitutionalism is inevitable, at least once a far-ranging judicial review is in place.

This chapter focuses on “Bivens actions,” or private suits for damages against federal officials who violate an individual's constitutional rights. Such actions are not mentioned in the U.S. Constitution, but the Supreme Court in 1971 held that they could be implied as an appropriate remedy to enforce constitutional rights. This chapter argues that the Supreme Court and lower federal courts have dramatically recast the role of the judiciary in adjudicating constitutional issues. In particular, it criticizes the Supreme Court for recently narrowing the scope of Bivens actions at the expense of civil liberties. It first traces the historical roots of affirmative constitutional adjudication in federal courts before discussing direct constitutional cases in equity and at law. It then examines the role of federal courts in constitutional adjudication in relation to constitutional text and separation of powers. Finally, it comments on the Supreme Court's continued recognition of three categories of direct constitutional claims: Supremacy Clause cases against state actors, dormant Commerce Clause cases, and suits against federal officers to enjoin allegedly unconstitutional federal laws.

This chapter explores the role of courts and how judicial review operates in practice within the wider political context of Asian states historically dominated by consolidated political power. Judiciaries in Malaysia and Singapore are empowered by their written constitutions to invalidate legislation and executive actions for rights violations. Yet these Asian courts have traditionally adopted an insular, rigidly formalistic approach toward constitutional review, marked by extensive deference to the political branches, stridently rejecting notions of implied constitutional principles or basic structures. This chapter consider why. Constitutional adjudication in practice is inextricably bound to constitutional politics. Courts facing a dominant political party operate within a challenging environment for exercising strong judicial review. In the 1980s, the government’s aggressive backlash to judicial decisions with which it disagreed resulted in constitutional crises in Malaysia and Singapore. Chastened, the courts retreated to a subdued position toward constitutional review. Over the next two decades the Malaysian apex court refrained from invalidating any federal statute, while its Singaporean counterpart has not once struck down any law. Recent displays of assertiveness by the Malaysian Federal Court, however, show signs of a reinvigorated judiciary. The chapter tells the story of the courts’ rise, fall, and uneven journey toward constitutional redemption in these Asian democracies.

This chapter examines constitutional adjudication as a mechanism designed to ensure that the constitution is properly observed. It begins with an overview of the development of constitutional review power and its prevailing modalities around the globe, focusing primarily on the emergence of specialized constitutional courts. It describes models and variations of constitutional review, along with the politics of apex courts. Turning to the constitutional review of legislation, the chapter considers what interpreting a constitution means in practice and whether fears of judicial self-aggrandizement through constitutional interpretation are justified. Finally, it discusses accusations of judicial activism and deference levelled against apex courts as well as the mounting opposition to judicial review.

The Copyright Act serves a combination of public and private interests. Where possible, conflicts between the two should be resolved in favor of the public interest. This approach would sort out some of the most pressing issues in copyright law today. The most troublesome aspects of copyright expansion over the past few decades include a longer copyright term, broad reproduction and derivative works rights, and digital rights in the Digital Millennium Copyright Act (DMCA) that prevent uses previously thought to be noninfringing. Yet, copyright doctrines such as the idea/expression dichotomy and fair use protect the rights of the public to use portions of copyrighted works. This chapter discusses how courts can use constitutional adjudication and statutory interpretation to define the scope of these provisions and resolve ambiguities among them in order to restore copyright's balance of incentives and access.

This chapter examines the political constraints of constitutional adjudication. It first discusses the five main political choices facing constitutional courts. These are tensions involved in the following: agenda-setting and docket-forming; in defining the degree of cohesion of the written decision (whether single or plural); in calibrating the width, depth, and tone of the decisional phrasing; in anticipating the degree of cooperation or resistance of the other branches; and in managing public opinion. The chapter further recommends that the virtues of prudence and courage should help a constitutional court to handle the political pressures it faces. It then characterizes what the political facet of constitutional scrutiny entails for the court's internal deliberation. The chapter considers the notions of prudence and courage as supplementary virtues that shape the ethics of deliberation and assist the court to handle those political constraints.

This chapter discusses the two questions that were posed by Suzanna Sherry, which can be viewed as posing two distinct challenges. The first question is ‘can we take natural rights into account today?’, while the second question is ‘do we want to?’. The first question can be considered as pragmatic or practical, while the second question can be considered as more purely normative than the first. Constitutional adjudication both can and should take natural rights into account.

This chapter addresses the question of compatibility of judicial review with democracy. It considers how the relationship of democracy and constitutional adjudication has remained precarious and subject to heated debate throughout history. The chapter argues that judicial review is not indispensable for, but also not inconsistent with democracy. Constitutional democracy, by definition, entails a simultaneous commitment to the principles of democracy and constitutionalism. In this combination, the constitution tends to be the weaker part. Constitutional adjudication is an attempt to make up for this weakness. But it generates its own democratic problems which the chapter demonstrates, as well as provides some solutions for.

Whether or not judges use comparative arguments is determined by a complex interplay of a number of legal and extra-legal factors within each legal system. The chapter introduces and discusses a number of such factors, which influence the likelihood of the use of comparative reasoning within judicial decision-making at the national level. The factors are grouped into four areas: general, institutional, procedural, and human factors. The closing two sections of this chapter discuss two specific, domain-dependent issues: first, whether it makes any difference, for the likelihood of the use of comparative reasoning, if the dispute at hand pertains to the area of private law or public law. Secondly, the final section addresses the same question with respect to the area of constitutional adjudication and human rights.

By far, the most frequent argument given by courts and commentators for the constitutional protection of freedom of expression embodies a reference to the ‘free flow of commercial information’. The general form of the argument is clear: government regulation of commercial expression constitutes an interruption of the free flow of commercial information; the free flow of commercial information is good not only for the individual but also for society; interruption of the free flow of commercial information is therefore bad; and ceteris paribus, therefore, government regulation of commercial expression should be abolished. This chapter examines the free flow of commercial information, decision-making under uncertainty, failures of reasoning, utility rights, separation of powers with respect to commercial expression, the metaphor of the marketplace of ideas, and constitutional adjudication.

This chapter evidences that the Network Community assume judges (viz., themselves) to be morally superior to all other actors in a political context because of their sole reliance on intellect. The political ramifications of this assumption are analysed: the practically limitless power to expand the scope of legal texts through ‘activist’ interpretation (the ‘living constitution’); the power to superintend democracy; the power to silence all other voices asserting constitutional meaning, even the people themselves. The end goal is the power to reconstruct society in the Network Community’s own image, according to its presumptively superior norms and values. It is inferred that the hegemonic power of the intellectual-moral superiority assumption constitutes a (possibly the) major cause of judicial power over the nation-states of Europe, and the normative basis of the judicialization of politics.

The chapter examines the metaethical foundations of the argument from constitutional identity. This argument locates the source of value in a set of deep and self-identifying evaluative commitments that develop in a society in virtue of the fact that it has a constitution. Drawing on comparative constitutional practice, the chapter argues that constitutional identity has two dimensions: general constitutional identity relies on the notion that constitutions entail common evaluative commitments that are applicable in any constitutional system of government, and particular constitutional identity relies on specific values discernible from moral judgments that have been made in local constitutional practices. The chapter contends that the argument from constitutional identity incorporates the tension between the emotive-local and reasonable-universal dimension of moral value, and extends into other types of value-based arguments in constitutional reasoning. The chapter concludes that constitutional identity cannot be a self-standing source of value in constitutional adjudication.

This chapter discusses constitutional review in Islamic countries. It covers the basic models of constitutional review; composition of constitutional courts; powers of constitutional courts; and effects of constitutional court decisions. It shows that introduction of constitutional review in the Islamic world has largely been pattered after foreign models, particularly of France (namely in the Maghreb countries and Lebanon), the United States (in Egypt and the Arab peninsula), the United Kingdom (Pakistan, Nigeria, Malaysia), and Germany (Turkey, Indonesia), with modifications to the particular political and cultural contexts of the respective countries. While almost all constitutional review bodies practice some form of constitutional review of legislation or another, most constitutions in the Islamic world still do not provide for access of individuals to constitutional adjudication.