Tushnet, Mark --- "The Rise of Weak-form Judicial Review" [2011] ELECD 378; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 18

Section Title: The Rise of Weak-form Judicial Review

Author(s): Tushnet, Mark

Number of pages: 13

Extract:

18. The rise of weak-form judicial review
Mark Tushnet



1 INTRODUCTION
Constitutional review, known in the United States as `judicial review', originated in the
United States. It took the form of a practice in which upon finding a statute inconsistent with
constitutional norms a court gave the statute no legal effect in the case at hand and, because
of the operation of rules of stare decisis in US law, other courts subordinate to the deciding
court would similarly give the statute no legal effect in cases coming before them.1 For more
than a century this form of review, to which I have given the label `strong-form', provided
the only model for constitutional review. As parliaments increasingly rested on majoritarian
theories of democracy and as constitutionalism spread, the tensions between the two were
alleviated by accounts of parliamentary supremacy that stressed legislative responsibility for
adherence to constitutional norms. That responsibility could be `enforced' by political norms
regulating legislators' actions or more effectively by legislators' electoral responsiveness to
constituents who themselves cared about adherence to constitutional norms.
Proponents of strong-form constitutional review sometimes contend that that practice is
either compelled or strongly supported by the existence of a written constitution. Yet even
written constitutions can accommodate pure legislative responsibility for adherence to consti-
tutional norms, either in the large or with respect to specific provisions. The constitution of
the Netherlands specifically states that none of its provisions is judicially enforceable,
although the impact of that limitation is qualified ...