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Judicial Review: The Meaning of the Judicial Power

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

Published in print:
2013
Published Online:
October 2017
ISBN:
9780691159737
eISBN:
9781400848133
Item type:
chapter
Publisher:
Princeton University Press
DOI:
10.23943/princeton/9780691159737.003.0007
Subject:
Law, Constitutional and Administrative Law

This chapter applies the concepts of interpretation and construction to the contentious issue of judicial review and examines the originalist evidence that overwhelmingly supports the judicial power ... More


A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

Mel A. Topf

Published in print:
2011
Published Online:
January 2012
ISBN:
9780199756766
eISBN:
9780199918898
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199756766.001.0001
Subject:
Law, Constitutional and Administrative Law

This book is the only comprehensive treatment of the history and controversies, the law and theories, about U.S. state supreme court advisory opinions. This significant but little studied area of ... More


Advisory Opinions and Judicial Supremacy: Constitutionalism, a Politicized Judiciary, and the Eclipse of Civic Debate

Mel A. Topf

in A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

Published in print:
2011
Published Online:
January 2012
ISBN:
9780199756766
eISBN:
9780199918898
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199756766.003.0006
Subject:
Law, Constitutional and Administrative Law

This concluding chapter argues that advisory opinions have contributed to politicization of the judiciary and to the eclipse of civic debate. Both have long been complaints about advisory opinion ... More


Thesis and antithesis: To check or not to check the Judiciary

Cristina E. Parau

in Transnational Networking and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond

Published in print:
2018
Published Online:
May 2019
ISBN:
9780197266403
eISBN:
9780191879593
Item type:
chapter
Publisher:
British Academy
DOI:
10.5871/bacad/9780197266403.003.0005
Subject:
Law, Legal Profession and Ethics

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are ... More


Constitutional Authority

Mark A. Graber

in A New Introduction to American Constitutionalism

Published in print:
2013
Published Online:
January 2014
ISBN:
9780199943883
eISBN:
9780199369799
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199943883.003.0005
Subject:
Law, Constitutional and Administrative Law

Constitutional authority in the United States is a consequence of complex interactions between elected officials, political activists, and unelected justices that more resembles the chaos of the ... More


Reappraising judicial supremacy in the Irish constitutional tradition

Eoin Daly

in Judges, politics and the Irish Constitution

Published in print:
2017
Published Online:
September 2017
ISBN:
9781526114556
eISBN:
9781526124241
Item type:
chapter
Publisher:
Manchester University Press
DOI:
10.7228/manchester/9781526114556.003.0003
Subject:
Law, Legal History

In his chapter, Eoin Daly casts a sceptical eye on judicial supremacy. Daly argues that the doctrine goes almost unquestioned in Irish constitutional scholarship (and practice) and that its value and ... More


Legitimacy of the Basic Structure Doctrine

Sudhir Krishnaswamy

in Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine

Published in print:
2011
Published Online:
September 2012
ISBN:
9780198071617
eISBN:
9780199081455
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198071617.003.0005
Subject:
Law, Constitutional and Administrative Law

The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the ... More


The Courts in Foreign Affairs

Louis Henkin

in Foreign Affairs and the United States Constitution

Published in print:
1996
Published Online:
March 2012
ISBN:
9780198260981
eISBN:
9780191682193
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198260981.003.0020
Subject:
Law, Constitutional and Administrative Law

Foreign relations are political relations conducted by the political branches of the federal government. At times, however, they come into court. The ordinary business of courts, too, sometimes ... More


Sovereignty, Constitutional Dialogues, and Political Networks: A Comparative and Conceptual Study

Margit Cohn

in Sovereignty and the Law: Domestic, European and International Perspectives

Published in print:
2013
Published Online:
January 2014
ISBN:
9780199684069
eISBN:
9780191765865
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199684069.003.0013
Subject:
Law, Constitutional and Administrative Law, Philosophy of Law

This Chapter links two discourses: sovereignty and constitutional dialogue. Dialogue analysis is typically part of a normative attempt to alleviate concerns about the supremacy of the judiciary once ... More


Defending Dialogue

Po Jen Yap

in Constitutional Dialogue in Common Law Asia

Published in print:
2015
Published Online:
October 2015
ISBN:
9780198736370
eISBN:
9780191799969
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198736370.003.0002
Subject:
Law, Constitutional and Administrative Law, Comparative Law

This chapter explains why, as a constitutional theory, dialogic judicial review is normatively superior to the opposing alternatives of legislative or judicial supremacy. Lawmakers are vulnerable to ... More


The Rule of Law in Dark Times

in Lincoln's Constitution

Published in print:
2003
Published Online:
March 2013
ISBN:
9780226237930
eISBN:
9780226237954
Item type:
chapter
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226237954.003.0009
Subject:
History, American History: Civil War

The relation between the Civil War and the rule of law seems paradoxical. Lincoln's goal was to prove that “among free men, there can be no successful appeal from the ballot to the bullet; and that ... More


Proportionality and Constitutional Governance

Alec Stone Sweet and Jud Mathews

in Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach

Published in print:
2019
Published Online:
July 2019
ISBN:
9780198841395
eISBN:
9780191876912
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198841395.003.0002
Subject:
Political Science, Political Theory

The chapter explains why enforcement of the proportionality principle has become the central procedural component of constitutional governance in the world today. Part I argues that proportionality ... More


The Democratic Challenge to Constitutional Law

Brian E. Butler

in The Democratic Constitution: Experimentalism and Interpretation

Published in print:
2017
Published Online:
January 2018
ISBN:
9780226474502
eISBN:
9780226474649
Item type:
chapter
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226474649.003.0002
Subject:
Law, Constitutional and Administrative Law

This chapter identifies and critiques a dominant explanation for judicial supremacy in constitutional law. This theory, the “protection from the tyranny of the majority” story, is examined in the ... More


The Democratic Constitution: Experimentalism and Interpretation

Brian E. Butler

Published in print:
2017
Published Online:
January 2018
ISBN:
9780226474502
eISBN:
9780226474649
Item type:
book
Publisher:
University of Chicago Press
DOI:
10.7208/chicago/9780226474649.001.0001
Subject:
Law, Constitutional and Administrative Law

This book takes the greatest democratic challenge for law to be the virtually unquestioned belief in the need for judicial supremacy in constitutional interpretation in order to protect society from ... More


Judicial Review and Political Responses

Chintan Chandrachud

in Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom

Published in print:
2017
Published Online:
March 2017
ISBN:
9780199470587
eISBN:
9780199088867
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199470587.003.0002
Subject:
Law, Constitutional and Administrative Law

This chapter begins developing the negative claim made by the book: the HRA does not enable legislatures to assert their understandings of rights more freely than judicial supremacy under the Indian ... More


Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom

Chintan Chandrachud

Published in print:
2017
Published Online:
March 2017
ISBN:
9780199470587
eISBN:
9780199088867
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199470587.001.0001
Subject:
Law, Constitutional and Administrative Law

The Human Rights Act (HRA) of the UK, enacted in 1998, provoked particular interest amongst scholars. Unlike systems of parliamentary sovereignty and judicial supremacy, it promised a new, ‘balanced’ ... More


Conclusion

Oliver Gerstenberg

in Euroconstitutionalism and its Discontents

Published in print:
2018
Published Online:
February 2019
ISBN:
9780198834335
eISBN:
9780191872433
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780198834335.003.0004
Subject:
Law, Constitutional and Administrative Law

By engaging with democratic-minded objections and rule-of-law based critiques of constitutionalism, this book has suggested that, counterintuitively, a retreat from judicial supremacy becomes the ... More


Conclusion

Chintan Chandrachud

in Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom

Published in print:
2017
Published Online:
March 2017
ISBN:
9780199470587
eISBN:
9780199088867
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780199470587.003.0006
Subject:
Law, Constitutional and Administrative Law

This chapter ties together the arguments made in preceding chapters of the book. It explains that the book offers an alternative account for the superiority of the HRA in terms of ensuring balanced ... More


Consolidation, 1951–1959

Justin Collings

in Democracy's Guardians: A History of the German Federal Constitutional Court, 1951–2001

Published in print:
2015
Published Online:
October 2015
ISBN:
9780198753377
eISBN:
9780191815003
Item type:
chapter
Publisher:
Oxford University Press
DOI:
10.1093/acprof:oso/9780198753377.003.0001
Subject:
Law, Constitutional and Administrative Law, Philosophy of Law

Chapter 1 has three major themes: (1) the Court’s battle for institutional independence vis-à-vis the executive and the ministry of justice, a battle that played out against the backdrop of a ... More


Where Our Protection Lies: Separation of Powers and Constitutional Review

Dimitrios Kyritsis

Published in print:
2017
Published Online:
September 2017
ISBN:
9780199672257
eISBN:
9780191751295
Item type:
book
Publisher:
Oxford University Press
DOI:
10.1093/oso/9780199672257.001.0001
Subject:
Law, Constitutional and Administrative Law, Human Rights and Immigration

In this book Dimitrios Kyritsis advances an original account of constitutional review of primary legislation for its compatibility with human rights. Key to it is the value of separation of powers. ... More


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