Tushnet's 'Judicial Review of Legislation'

NB: Summary currently only includes pages 37-38 inclusive

A Summary.

Article can be found on pp. 37 - 45 of the Learning Guide.

Introduction

A residue scepticism about the ability of judicial review as a mechanism for protecting liberal democratic rights remains, but the contemporary debates are over the from that judicial review should take.
Although pure parliamentary supremacy has few defenders today, the precise contours of the constraints on legislative power are to some degree controversial. That courts should limit legislative power in the service to individual rights is uncontroversial; that they should enforce constitutional guarantees of social welfare rights is not.

Judicial Review and Parliamentary Supremacy

Judicial review of legislation came into being with the adoption of the US Constitution (1789).

Austrian legal theorist Hans Kelsen argued that there should be specialised constitutional courts so that the judges appointed to it could have strong knowledge on political and legal issues.
With minor variations, common law systems that adopted judicial review followed the US model (no specialised courts) and civil law systems followed the Kelsen model (specialised constitutional courts).

  • US model – involves ‘concrete review’ as the Supreme Court justifies judicial review as incidental to the application of law in actual cases
  • Kelsen Model – ‘abstract review’. Forms vary; sometimes a government may request the constitutional court to interpret the constitution. In their purest form, they deny courts the power to consider constitutional objections when pressed in actual cases.

Differences between these two courts are no longer matters of central scholarly concern as the differences are narrower now than when the systems were first put into place.

Reconciling Judicial Review and Majority Rule: Procedural and Substantive Accounts