Randy E. Barnett
- 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 ...
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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 to nullify unconstitutional laws. According to Article III of the Constitution: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such Courts as Congress may from time to time ordain and establish.” The Constitution does not say explicitly that the “Supreme Court, and such inferior courts as may be established by Congress, shall have power to nullify a Law enacted by Congress and signed by the President if the Law is unconstitutional.” The absence of a clearly expressed grant of power has moved some critics of judicial review to question its legitimacy. The chapter also considers the concepts of judicial nullification and judicial supremacy as they relate to judicial review.Less
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 to nullify unconstitutional laws. According to Article III of the Constitution: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such Courts as Congress may from time to time ordain and establish.” The Constitution does not say explicitly that the “Supreme Court, and such inferior courts as may be established by Congress, shall have power to nullify a Law enacted by Congress and signed by the President if the Law is unconstitutional.” The absence of a clearly expressed grant of power has moved some critics of judicial review to question its legitimacy. The chapter also considers the concepts of judicial nullification and judicial supremacy as they relate to judicial review.
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 ...
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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 state constitutional law has no parallel in federal law (which bars federal courts from giving advisory opinions). Just ten states permit such advising (many others have rejected it), but advisory opinions have been attacked because they clash with fundamental doctrines of American constitutionalism, including separation of powers, due process, judicial review, judicial independence, and, especially, judicial supremacy. This book offers a narrative of the attacks on state supreme court advisory opinions, telling how the law of advisory opinions arose in response to the attacks, resulting in an elaborate but not entirely successful jurisprudence of advisory opinions. This book tells of the attempts to adopt and defend advisory opinions, including New Deal–era proposals to amend the U.S. Constitution to require the U.S. Supreme Court to issue them. It tells also of the persistent and uneasy relation between advisory opinions and the power of judicial review (arguing that advising is in fact a distinct political power in its own right), and tells as well of their effects on judicial independence and the ways that they reinforce judicial supremacy.Less
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 state constitutional law has no parallel in federal law (which bars federal courts from giving advisory opinions). Just ten states permit such advising (many others have rejected it), but advisory opinions have been attacked because they clash with fundamental doctrines of American constitutionalism, including separation of powers, due process, judicial review, judicial independence, and, especially, judicial supremacy. This book offers a narrative of the attacks on state supreme court advisory opinions, telling how the law of advisory opinions arose in response to the attacks, resulting in an elaborate but not entirely successful jurisprudence of advisory opinions. This book tells of the attempts to adopt and defend advisory opinions, including New Deal–era proposals to amend the U.S. Constitution to require the U.S. Supreme Court to issue them. It tells also of the persistent and uneasy relation between advisory opinions and the power of judicial review (arguing that advising is in fact a distinct political power in its own right), and tells as well of their effects on judicial independence and the ways that they reinforce judicial supremacy.
Mel A. Topf
- 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 ...
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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 jurisdiction, prominently in a 1924 article by Felix Frankfurter. The politicization and eclipse has been aggravated in recent years by the adoption in some advisory opinion jurisdictions of a public importance exception, by which the advising justices waive their own restrictions on rendering advice. The exception is so vaguely and loosely applied that it threatens to devour the restrictions altogether. With the failure of the nonbinding doctrine (discussed in Chapter 5), together with the public importance exception sabotaging the restrictions on issuing advisory opinions, the advising justices are increasingly free to impose “advice” on legislatures and governors without limit. This contributes, this chapter argues, to the politicization of the judiciary and to the withdrawal of political issues from the civic realm, resulting in a substantial contribution to the growth of judicial supremacy.Less
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 jurisdiction, prominently in a 1924 article by Felix Frankfurter. The politicization and eclipse has been aggravated in recent years by the adoption in some advisory opinion jurisdictions of a public importance exception, by which the advising justices waive their own restrictions on rendering advice. The exception is so vaguely and loosely applied that it threatens to devour the restrictions altogether. With the failure of the nonbinding doctrine (discussed in Chapter 5), together with the public importance exception sabotaging the restrictions on issuing advisory opinions, the advising justices are increasingly free to impose “advice” on legislatures and governors without limit. This contributes, this chapter argues, to the politicization of the judiciary and to the withdrawal of political issues from the civic realm, resulting in a substantial contribution to the growth of judicial supremacy.
Cristina E. Parau
- 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 ...
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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 brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.Less
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 brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.
Mark A. Graber
- 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 ...
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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 local garage band than the precision of a Mozart symphony. Some version of judicial supremacy has historically been the dominant theory but less often the actual practice. Supreme Court decisions influence official constitutional practice on such matters as crime and punishment, but so the attitudes of the local prosecutor, the availability of defense lawyers, the sympathies of the local juries, and whether the most recent appointments to the federal bench were made by a president determined to appear tough on criminals. This end result is hardly the pristine vision found in most civics books but may reflect the rough balance between fundamental law and popular sovereignty that underlies a functioning constitutional democracy.Less
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 local garage band than the precision of a Mozart symphony. Some version of judicial supremacy has historically been the dominant theory but less often the actual practice. Supreme Court decisions influence official constitutional practice on such matters as crime and punishment, but so the attitudes of the local prosecutor, the availability of defense lawyers, the sympathies of the local juries, and whether the most recent appointments to the federal bench were made by a president determined to appear tough on criminals. This end result is hardly the pristine vision found in most civics books but may reflect the rough balance between fundamental law and popular sovereignty that underlies a functioning constitutional democracy.
Eoin Daly
- 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 ...
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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 potential is vastly overstated, while its costs – particularly its tendency to stultify rights-discourse in the sphere of ordinary politics – go largely under-appreciated. consider how various familiar, principled objections to strong-form judicial review, of the sort typically aired in other Anglophone jurisdictions, may be borne out in the Irish context. Two arguments in particular are salient in the Irish experience. First, the understanding of strong-form judicial review as being ‘good for rights’ conceives of rights narrowly, ignoring the connection between individual freedom and citizenship, and overlooking problems of domination in social and political life. Secondly, rights-based review of legislation undermines democratic citizenship in the Irish context, not because it undermines majority decision-making as such, but rather, because it has meant that ever-increasing areas of political argument are framed in esoteric constitutional terms.Less
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 potential is vastly overstated, while its costs – particularly its tendency to stultify rights-discourse in the sphere of ordinary politics – go largely under-appreciated. consider how various familiar, principled objections to strong-form judicial review, of the sort typically aired in other Anglophone jurisdictions, may be borne out in the Irish context. Two arguments in particular are salient in the Irish experience. First, the understanding of strong-form judicial review as being ‘good for rights’ conceives of rights narrowly, ignoring the connection between individual freedom and citizenship, and overlooking problems of domination in social and political life. Secondly, rights-based review of legislation undermines democratic citizenship in the Irish context, not because it undermines majority decision-making as such, but rather, because it has meant that ever-increasing areas of political argument are framed in esoteric constitutional terms.
Sudhir Krishnaswamy
- 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 ...
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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 legitimacy (including moral legitimacy, legal legitimacy, and sociological legitimacy) of the basic structure doctrine by engaging directly with the normative arguments about legitimacy of the doctrine while building on arguments of legal doctrine carried out so far. It focuses on the mode of constitutional interpretation and the judicial role in creating and sustaining the use of the basic structure doctrine, and considers Richard Fallon's account of the concept of legitimacy in constitutional theory. It also discusses express constitutional meanings, implied constitutional meanings, the doctrine of implied limitations, the doctrine of necessary implication, structural interpretation, exclusivity of amending power, and judicial review. Finally, the chapter explores alternative accounts of the concept of sovereignty advanced by the Supreme Court and academic commentators as underlying the basic structure doctrine: judicial supremacy, popular sovereignty, and shared sovereignty.Less
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 legitimacy (including moral legitimacy, legal legitimacy, and sociological legitimacy) of the basic structure doctrine by engaging directly with the normative arguments about legitimacy of the doctrine while building on arguments of legal doctrine carried out so far. It focuses on the mode of constitutional interpretation and the judicial role in creating and sustaining the use of the basic structure doctrine, and considers Richard Fallon's account of the concept of legitimacy in constitutional theory. It also discusses express constitutional meanings, implied constitutional meanings, the doctrine of implied limitations, the doctrine of necessary implication, structural interpretation, exclusivity of amending power, and judicial review. Finally, the chapter explores alternative accounts of the concept of sovereignty advanced by the Supreme Court and academic commentators as underlying the basic structure doctrine: judicial supremacy, popular sovereignty, and shared sovereignty.
Louis Henkin
- 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 ...
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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 involves or affects U.S. foreign relations. An independent judiciary applying the written constitution is a hallmark of government in the United States. The courts have successfully established ‘judicial review’ and ‘judicial supremacy’, their final and ‘infallible’ authority to impose their readings of the constitution on the political branches of the federal government as well as on the states, to monitor the separation of powers and the divisions of federalism, and to protect individuals, minorities, even majorities, against governmental excesses. Judicial review is the most dramatic function of U.S. courts, but it is not their principal or their most important activity.Less
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 involves or affects U.S. foreign relations. An independent judiciary applying the written constitution is a hallmark of government in the United States. The courts have successfully established ‘judicial review’ and ‘judicial supremacy’, their final and ‘infallible’ authority to impose their readings of the constitution on the political branches of the federal government as well as on the states, to monitor the separation of powers and the divisions of federalism, and to protect individuals, minorities, even majorities, against governmental excesses. Judicial review is the most dramatic function of U.S. courts, but it is not their principal or their most important activity.
Margit Cohn
- 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 ...
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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 judicial review of legislation is introduced. In this Chapter, it is argued that “dialogue” in fact connotes two distinct structural arrangements: formal and implied. True formal dialogue mechanisms create potential crises for those who wish to maintain the hierarchical vision of sovereignty as they transform the balance of powers. Other constitutional mechanisms such as limitations clauses have been defined as dialogic instruments, but are in fact are mere permutations of the classical form of judicial decision-making. The Chapter discusses the version of implied/political dialogue that has emerged in the US and offers a vision of multi-player networks that operate both in the legal and political spheres. The Chapter demonstrates how both formal and implied dialogue assist in rejecting hierarchical visions of domestic sovereignty.Less
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 judicial review of legislation is introduced. In this Chapter, it is argued that “dialogue” in fact connotes two distinct structural arrangements: formal and implied. True formal dialogue mechanisms create potential crises for those who wish to maintain the hierarchical vision of sovereignty as they transform the balance of powers. Other constitutional mechanisms such as limitations clauses have been defined as dialogic instruments, but are in fact are mere permutations of the classical form of judicial decision-making. The Chapter discusses the version of implied/political dialogue that has emerged in the US and offers a vision of multi-player networks that operate both in the legal and political spheres. The Chapter demonstrates how both formal and implied dialogue assist in rejecting hierarchical visions of domestic sovereignty.
Po Jen Yap
- 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 ...
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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 the whims of populist needs, while the Judiciary is composed of unelected officials who are unaccountable to the public and lack the information-gathering capacities of the legislature. Judges are less accountable to the public than lawmakers and that they are equally capable of making egregious blunders of moral judgment. On the other hand, legislative supremacists pay scant attention to the fact that legislators have every incentive to preserve their own incumbency and are open to neglecting the needs of the politically vulnerable. Given that both institutions are equally fallible, an ideal vision of constitutional democracy must provide a space for both the judiciary and the legislature to provide independent insights to the optimal specification of a human rights norm.Less
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 the whims of populist needs, while the Judiciary is composed of unelected officials who are unaccountable to the public and lack the information-gathering capacities of the legislature. Judges are less accountable to the public than lawmakers and that they are equally capable of making egregious blunders of moral judgment. On the other hand, legislative supremacists pay scant attention to the fact that legislators have every incentive to preserve their own incumbency and are open to neglecting the needs of the politically vulnerable. Given that both institutions are equally fallible, an ideal vision of constitutional democracy must provide a space for both the judiciary and the legislature to provide independent insights to the optimal specification of a human rights norm.
- 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 ...
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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 they who take such appeal are sure to lose their case, and pay the cost.” Lincoln had once called on Southerners to seek a judicial ruling on slavery in the territories rather than breaking apart the Union. The certainty of executive execution of the law, including rules of law articulated by the courts, is important both for the security of individual rights and for the supremacy of federal law. The strongest argument against the jurisdictional view of suspension is that in practice it would leave the executive as the sole judge of whether the writ was validly suspended.Less
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 they who take such appeal are sure to lose their case, and pay the cost.” Lincoln had once called on Southerners to seek a judicial ruling on slavery in the territories rather than breaking apart the Union. The certainty of executive execution of the law, including rules of law articulated by the courts, is important both for the security of individual rights and for the supremacy of federal law. The strongest argument against the jurisdictional view of suspension is that in practice it would leave the executive as the sole judge of whether the writ was validly suspended.
Brian E. Butler
- 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 ...
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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 form offered by Erwin Chemerinsky. Importantly, while Chemerinsky holds to this theory, his analysis actually highlights the failure of the United States Supreme Court to live up to the theory through a long list of antiprecedents. The chapter offers an alternate possibility, that of “popular constitutionalism,” as a critique of the narrow perspective offered by protection from majority theories of constitutional law. Ultimately, through an analysis of the pragmatism of John Dewey and an outline of Charles Sanders Peirce’s ways of fixation of belief, the chapter ends by proposing the construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism.” This conception is described as “law as a democratic means.” Law as a democratic means utilizes an experimental manner of reasoning that entails democratic community. This, in turn, better satisfies Dewey’s demand that democratic aims can only be properly pursued through democratic means.Less
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 form offered by Erwin Chemerinsky. Importantly, while Chemerinsky holds to this theory, his analysis actually highlights the failure of the United States Supreme Court to live up to the theory through a long list of antiprecedents. The chapter offers an alternate possibility, that of “popular constitutionalism,” as a critique of the narrow perspective offered by protection from majority theories of constitutional law. Ultimately, through an analysis of the pragmatism of John Dewey and an outline of Charles Sanders Peirce’s ways of fixation of belief, the chapter ends by proposing the construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism.” This conception is described as “law as a democratic means.” Law as a democratic means utilizes an experimental manner of reasoning that entails democratic community. This, in turn, better satisfies Dewey’s demand that democratic aims can only be properly pursued through democratic means.
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 ...
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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 the tyranny of the majority. This is examined in the form offered by Chemerinsky in The Case Against the Supreme Court. Using the pragmatist theories of John Dewey and Charles Sanders Peirce a construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism” is offered as an alternate. This conception requires law to be practiced as a democratic means because of Dewey’s demand that democracy can only be properly pursued through democratic means. The democratic aims outlined are also informed experimentalist procedure. Through utilization of work of Michael Dorf, Charles Sabel, Oliver Wendell Holmes and Richard Posner it is argued that a jurisprudence of democratic experimentalism can offer a version of constitutional law that is democratic “all the way down.” A jurisprudence of democratic experimentalism emphasizes a decentered conception of law based upon localized rulemaking, and sees the role of the court system as more about coordination and information pooling than ultimate and foundational rulemaking. A Court practicing democratic experimentalism would have avoided various mistakes exemplified in many of the Courts great antiprecedents. Finally, “sociable contract theory” was offered to conceptually frame the evolutionary and non-foundational qualities of a constitutional regime based upon democratic experimentalism. In democratic experimentalism law becomes a flexible and evolving tool engaged in the construction of ever more democratic practices.Less
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 the tyranny of the majority. This is examined in the form offered by Chemerinsky in The Case Against the Supreme Court. Using the pragmatist theories of John Dewey and Charles Sanders Peirce a construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism” is offered as an alternate. This conception requires law to be practiced as a democratic means because of Dewey’s demand that democracy can only be properly pursued through democratic means. The democratic aims outlined are also informed experimentalist procedure. Through utilization of work of Michael Dorf, Charles Sabel, Oliver Wendell Holmes and Richard Posner it is argued that a jurisprudence of democratic experimentalism can offer a version of constitutional law that is democratic “all the way down.” A jurisprudence of democratic experimentalism emphasizes a decentered conception of law based upon localized rulemaking, and sees the role of the court system as more about coordination and information pooling than ultimate and foundational rulemaking. A Court practicing democratic experimentalism would have avoided various mistakes exemplified in many of the Courts great antiprecedents. Finally, “sociable contract theory” was offered to conceptually frame the evolutionary and non-foundational qualities of a constitutional regime based upon democratic experimentalism. In democratic experimentalism law becomes a flexible and evolving tool engaged in the construction of ever more democratic practices.
Chintan Chandrachud
- 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 ...
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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 Constitution. Political practice shows that it is similarly burdensome to respond to declarations of incompatibility in the UK as it is to respond to strike-downs in India. In the Indian context, constitutional amendments of two kinds (referred to as ‘fundamental rights amendments’ and ‘Ninth Schedule amendments’) have been invoked by Parliament to respond to judgments striking down primary legislation. In the UK, Parliament has some room for manoeuvre when responding to declarations of incompatibility, and even though no such declaration has yet been rejected outright, such a rejection cannot be ruled out.Less
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 Constitution. Political practice shows that it is similarly burdensome to respond to declarations of incompatibility in the UK as it is to respond to strike-downs in India. In the Indian context, constitutional amendments of two kinds (referred to as ‘fundamental rights amendments’ and ‘Ninth Schedule amendments’) have been invoked by Parliament to respond to judgments striking down primary legislation. In the UK, Parliament has some room for manoeuvre when responding to declarations of incompatibility, and even though no such declaration has yet been rejected outright, such a rejection cannot be ruled out.
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’ ...
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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’ model for the protection of rights, which conferred courts with a limited power of review over legislation. Under this new model, rights-based decision-making was expected to be balanced amongst courts and legislatures, rather than lopsided in favour of either. Indian courts, on the other hand, have always been constitutionally entrusted with the power to strike down primary legislation enacted by the Union and state legislatures. This book examines the promise of the new model against its performance in practice by comparing judicial review under the HRA to an exemplar of the old model of judicial review, the Indian Constitution. It argues that although the HRA fosters a more balanced allocation of powers between legislatures and courts than the Indian Constitution, it does so for a novel reason. Balanced constitutionalism is not achieved through the legislative rejection of judicial decision-making about rights. Instead, the nature of the remedy under the HRA enables British courts to assert their genuine interpretations of rights in situations in which Indian courts find it difficult to do so.Less
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’ model for the protection of rights, which conferred courts with a limited power of review over legislation. Under this new model, rights-based decision-making was expected to be balanced amongst courts and legislatures, rather than lopsided in favour of either. Indian courts, on the other hand, have always been constitutionally entrusted with the power to strike down primary legislation enacted by the Union and state legislatures. This book examines the promise of the new model against its performance in practice by comparing judicial review under the HRA to an exemplar of the old model of judicial review, the Indian Constitution. It argues that although the HRA fosters a more balanced allocation of powers between legislatures and courts than the Indian Constitution, it does so for a novel reason. Balanced constitutionalism is not achieved through the legislative rejection of judicial decision-making about rights. Instead, the nature of the remedy under the HRA enables British courts to assert their genuine interpretations of rights in situations in which Indian courts find it difficult to do so.
Oliver Gerstenberg
- 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 ...
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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 most promising route towards redeeming fundamental social and personal rights under modern conditions of deep moral dissensus and complexity. But this step would indeed amount to an abdication of judicial role and responsibility—as both these critiques fear—unless it goes hand in hand with a moral-practical emphasis on the proceduralizing—that is, forum-creative and agenda-setting—role of courts in the process of a progressive clarification of the meaning of a right. But ongoing deliberation does not mean indefinite postponement of substantive resolution because the underlying proceduralist consensus is robust enough to express a commitment to mutual recognition of participants as stakeholders with legitimate interests. This proceduralist move addresses uncertainty in encouraging joint learning about unforeseen possibilities and limits. It helps legitimize decisionmaking in pluralism by authorizing the participation in the undertakings that concern them and by making a best-practice consensus routinely corrigible. Outcomes are legitimate as long as procedures are sufficiently inclusive to allow citizens whose interpretive views do not prevail to (re-) initiate scrutiny and revision of shared constitutional understandings in the light of new experience. Courts require attentions to relevant reasons. Over time, when interpretive answers have crystallized in the light of experience and mutual reason giving, courts can then shift towards stronger forms of judicial intervention that consolidate best practice. It is this proceduralizing move that Euroconstitutionalism epitomizes.Less
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 most promising route towards redeeming fundamental social and personal rights under modern conditions of deep moral dissensus and complexity. But this step would indeed amount to an abdication of judicial role and responsibility—as both these critiques fear—unless it goes hand in hand with a moral-practical emphasis on the proceduralizing—that is, forum-creative and agenda-setting—role of courts in the process of a progressive clarification of the meaning of a right. But ongoing deliberation does not mean indefinite postponement of substantive resolution because the underlying proceduralist consensus is robust enough to express a commitment to mutual recognition of participants as stakeholders with legitimate interests. This proceduralist move addresses uncertainty in encouraging joint learning about unforeseen possibilities and limits. It helps legitimize decisionmaking in pluralism by authorizing the participation in the undertakings that concern them and by making a best-practice consensus routinely corrigible. Outcomes are legitimate as long as procedures are sufficiently inclusive to allow citizens whose interpretive views do not prevail to (re-) initiate scrutiny and revision of shared constitutional understandings in the light of new experience. Courts require attentions to relevant reasons. Over time, when interpretive answers have crystallized in the light of experience and mutual reason giving, courts can then shift towards stronger forms of judicial intervention that consolidate best practice. It is this proceduralizing move that Euroconstitutionalism epitomizes.
Chintan Chandrachud
- 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 ...
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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 constitutionalism. The explanation derives from the ability of British courts to express their genuine understandings of rights by making declarations of incompatibility in situations in which Indian courts are reluctant to do so. It speculates about the future of the HRA, and explains that external instability is the price that the new models of judicial review like the HRA pay for ensuring a more balanced allocation of powers between legislatures and courts than models of judicial supremacy.Less
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 constitutionalism. The explanation derives from the ability of British courts to express their genuine understandings of rights by making declarations of incompatibility in situations in which Indian courts are reluctant to do so. It speculates about the future of the HRA, and explains that external instability is the price that the new models of judicial review like the HRA pay for ensuring a more balanced allocation of powers between legislatures and courts than models of judicial supremacy.
Justin Collings
- 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 ...
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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 controversy surrounding the constitutionality of the proposed European Defence Community; (2) the Court’s struggle for supremacy within the judiciary—that is, its conflict with the ‘ordinary’ German courts; and (3) the Court’s establishment of a fundamental rights jurisprudence that conceived of basic rights not merely as defensive rights against the state, but as objective values whose ‘radiating influence’ permeated all spheres of public and private law. The chapter also visits various causes celebres—the Court’s banning of the German Communist Party, its injunction of an atomic weapons plebiscite, its early landmark decisions on gender equality, etc. The chapter stresses the fundamentally anti-Nazi orientation of the early Court, as well as the anti-Nazi credentials of its justices.Less
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 controversy surrounding the constitutionality of the proposed European Defence Community; (2) the Court’s struggle for supremacy within the judiciary—that is, its conflict with the ‘ordinary’ German courts; and (3) the Court’s establishment of a fundamental rights jurisprudence that conceived of basic rights not merely as defensive rights against the state, but as objective values whose ‘radiating influence’ permeated all spheres of public and private law. The chapter also visits various causes celebres—the Court’s banning of the German Communist Party, its injunction of an atomic weapons plebiscite, its early landmark decisions on gender equality, etc. The chapter stresses the fundamentally anti-Nazi orientation of the early Court, as well as the anti-Nazi credentials of its justices.
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. ...
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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. When the relationship between courts and the legislature realizes this value, it makes a stronger claim to moral legitimacy. Kyritsis steers a path between the two extremes of the sceptics and the enthusiasts. Against sceptics who claim that constitutional review is an affront to democracy he argues that it is a morally legitimate institutional option for democratic societies because it can provide an effective check on the legislature. Although the latter represents the people and should thus be given the initiative in designing government policy, it carries serious risks, which institutional design must seek to avert. Against enthusiasts he maintains that fundamental rights protection is not the exclusive province of courts but the responsibility of both the judiciary and the legislature. Although courts may sometimes be given the power to scrutinize legislation and even strike it down, if it violates human rights, they must also respect the legislature’s important contribution to their joint project. Occasionally, they may even have a duty to defer to morally sub-optimal decisions, as far as rights protection is concerned. This is as it should be. Legitimacy demands less than the ideal. In turn, citizens ought to accept discounts on perfect justice for the sake of achieving a reasonably just and effective political order overall.Less
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. When the relationship between courts and the legislature realizes this value, it makes a stronger claim to moral legitimacy. Kyritsis steers a path between the two extremes of the sceptics and the enthusiasts. Against sceptics who claim that constitutional review is an affront to democracy he argues that it is a morally legitimate institutional option for democratic societies because it can provide an effective check on the legislature. Although the latter represents the people and should thus be given the initiative in designing government policy, it carries serious risks, which institutional design must seek to avert. Against enthusiasts he maintains that fundamental rights protection is not the exclusive province of courts but the responsibility of both the judiciary and the legislature. Although courts may sometimes be given the power to scrutinize legislation and even strike it down, if it violates human rights, they must also respect the legislature’s important contribution to their joint project. Occasionally, they may even have a duty to defer to morally sub-optimal decisions, as far as rights protection is concerned. This is as it should be. Legitimacy demands less than the ideal. In turn, citizens ought to accept discounts on perfect justice for the sake of achieving a reasonably just and effective political order overall.
