Weak Courts, Strong Rights

Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law

Mark Tushnet
Copyright Date: 2008
Pages: 312
https://www.jstor.org/stable/j.ctt7s5kr
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  • Book Info
    Weak Courts, Strong Rights
    Book Description:

    Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. InWeak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law.

    Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.

    eISBN: 978-1-4008-2815-9
    Subjects: Political Science, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xiv)
  4. Acknowledgments
    (pp. xv-xvi)
  5. Part I: Strong-Form and Weak-Form Judicial Review
    • CHAPTER 1 Why Comparative Constitutional Law?
      (pp. 3-17)

      Recent Supreme Court opinions mentioning constitutional decisions by courts outside the United States have generated a strong—and grossly overstated—critique by conservative commentators.¹ The thrust of the critique is that these opinions portend inroads on the sovereign ability of the American people to govern ourselves, and the embedding in the U.S. Constitution—through judicial interpretation—of the values of a cosmopolitan elite that could not persuade the American people to adopt those values through purely domestic legal processes.

      Only a brief comment on these “arguments” is appropriate here.² First, Supreme Court mention of decisions by courts outside the United...

    • CHAPTER 2 Alternative Forms of Judicial Review
      (pp. 18-42)

      One does not have to read deeply in recent scholarship on the U.S. Constitution to find assertions to the effect that the U.S. constitutional system has been widely emulated in other nations.¹ Those assertions are plainly wrong when they refer to the constitutional system in the large. As political scientist Robert Dahl shows, the U.S. system is unique among the world’s twenty-two long-standing and stable democracies.² Only somewhat more defensible is the assertion that the U.S. system of judicial review of statutes to determine whether they are consistent with constitutional limitations has been widely emulated. As the Canadian constitutional scholar...

    • CHAPTER 3 The Possible Instability of Weak-Form Review and Its Implications
      (pp. 43-76)

      Weak-form review purports to promote a real-time dialogue between courts and legislatures. Two literary allusions suggest skepticism about how that dialogue might actually proceed.

      Shakespeare: Responding to Glendower’s claim that he could call the spirits from the vasty deep, Hotspur asks, “But will they come when you do call for them?”¹ The analogue: The courts try to get legislatures to respond to their constitutional interpretations, but the legislatures ignore them.

      Ring Lardner: “Are you lost daddy I asked tenderly? Shut up he explained.”² The analogue: The legislatures try to get the courts to respond totheirconstitutional interpretations, but the...

  6. Part II: Legislative Responsibility for Enforcing the Constitution
    • CHAPTER 4 Why and How to Evaluate Constitutional Performance
      (pp. 79-110)

      Weak-form review clearly should enhance the role legislatures and executive officials play in constitutional interpretation and development. One of its premises is the recognition that people can reasonably disagree over the proper interpretation of a constitution’s relatively abstract provisions. It follows from that premise that reasonable judicial interpretations have no intrinsic superiority to reasonable legislative and executive interpretations. And, it follows fromthatthat weak-form systems are designed to give legislatures and executive officials an open role in constitutional interpretation. They can engage in “dialogue” with the courts, responding to—and, in some versions, even replacing—the courts’ interpretations with...

    • CHAPTER 5 Constitutional Decision Making Outside the Courts
      (pp. 111-158)

      The previous chapter identified the criteria to use in evaluating constitutional decision making outside the courts. Studies using appropriate criteria to evaluate such decision making are rare. Here I offer several relatively informal case studies, with the hope of providing some information that will be useful in considering whether weak-form review’s confidence in nonjudicial constitutional decision making is justified. I do not contend, of course, that these case studies establish that weshouldrepose our confidence in such decision making. For one thing, I offer only a few case studies, whereas weak-form review implicates the entire range of constitutionally significant...

  7. Part III: Judicial Enforcement of Social and Economic Rights
    • CHAPTER 6 The State Action Doctrine and Social and Economic Rights
      (pp. 161-195)

      Consider the following cases: (1) A man employed by a private college informs his employer (in response to an inquiry) that he is gay. The employer fires him. The former employee sues the college, claiming that the college’s action violates the nation’s constitutional requirement that everyone be treated equally. (2) A hearing-impaired person seeks medical care from a hospital, which indicates its willingness to provide the care on the condition that the patient provide, and pay for, a sign language interpreter to assist in the delivery of the medical care. The patient sues the hospital, claiming that its refusal to...

    • CHAPTER 7 Structures of Judicial Review, Horizontal Effect, and Social Welfare Rights
      (pp. 196-226)

      Constitutional systems around the world have confronted the state action problem. The terminology differs. The doctrine takes its name in the United States from the specific wording of the Fourteenth Amendment, which prefaces its substantive provisions with the phrase “No State shall.” Elsewhere the problem is labeledhorizontal effect. A constitution operates vertically when it regulates the relations between a government (usually envisioned as “on top”) and citizens, residents, and the like. It operates horizontally when it regulates the relations between private parties. The concerns that animate U.S. discussions—about avoiding conceptions of government that have totalitarian implications, about the...

    • CHAPTER 8 Enforcing Social and Economic Rights
      (pp. 227-264)

      Writing in the immediate aftermath of the adoption of new constitutions in central and eastern Europe, Cass Sunstein characterized the inclusion of social and economic rights in those constitutions as “a large mistake, possibly a disaster.”¹ For Frank Cross, “reliance on positive constitutional rights is an ultimately misguided plan.”² These statements are merely representative of the common wisdom among U.S. constitutional scholars, and are occasionally echoed elsewhere. South African Constitutional Court judge Albie Sachs describes the primary objection to including social and economic rights in constitutions as resting on questions about the capacity of courts to enforce such rights.³

      Justice...

  8. Table of Cases
    (pp. 265-268)
  9. Index
    (pp. 269-272)