scholarly journals Notes on the Role of Judicial Review, the Expansion of Federal Power, and the Structure of Constitutional Rights

1990 ◽  
Vol 99 (7) ◽  
pp. 1711
Author(s):  
Douglas Laycock ◽  
Robert F. Nagel
Keyword(s):  
Judicial Review ◽  
Constitutional Rights

A Democratic Defense of Constitutional Balancing

2010 ◽  
Vol 4 (1) ◽  
pp. 79-106 ◽  
Author(s):  
Stephen Gardbaum
Keyword(s):  
Judicial Review ◽  
General Structure ◽  
Prima Facie ◽  
Constitutional Rights ◽  
Constitutional Democracy ◽  
First Order ◽  
Constitutional Right ◽  
Normative Justification ◽  
Inherent Part

We all live in the age of constitutional balancing. Abstracting away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can in principle be limited or overridden by certain non-constitutional rights premised on conflicting public policy objectives.It is not surprising, then, that a significant literature about balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: (1) describing and comparing first-order practices of balancing; (2) providing second-order conceptual analyses; (3) explaining balancing's rise to dominance; (4) advancing critiques of balancing; and (5) rebutting these critiques.In this article, I attempt to present one particular normative justification of constitutional balancing; namely a democratic justification. I argue that balancing appropriately bolsters the role of majoritarian decision-making about rights within a system of constitutional democracy. It thereby renders entrenched rights enforced by the power of constitutional or judicial review more consistent with certain enduring democratic concerns. I also explain the implications of this justification for how courts should exercise their powers of review.

The Rule of Law: The Role of Judicial Review in Promoting Human Rights and Social Reform

2016 ◽  
Author(s):  
Lauren Sampson
Keyword(s):  
Judicial Review ◽  
Review Process ◽  
Constitutional Rights ◽  
Same Sex ◽  
Political Debate ◽  
State Legislation ◽  
Same Sex Marriage ◽  
The Rule Of Law ◽  
Proportionality Test

The purpose of this paper is to investigate the expanded scope of judicial review after the introduction of the Canadian Charter of Rights and Freedoms in 1982 and the subsequent power of courts to strike down legislation that violates constitutional rights. Subsequent interpretations of the Charter have transformed such rights into litigation tools and sources of empowerment capable of mobilizing forces for social change. Through an analysis of major cases and rulings, the paper will argue that the adoption of the Charter and the constraints existent upon popularly controlled institutions have established  judicial systems as the primary guarantors of citizen and minority rights and the active instigators ofsocial reform in Canadian civil society. Each of the chosen cases bears monumental political and legal significance. R. v. Oakes created a proportionality test used to assess and potentially remove state legislation infringing on Charter‐protected liberties; R. v. Morgentaler decriminalized abortion and represented a definitive judicial foray into a contentious ethical and political debate; Vriend v. Alberta removed the last bastion of sanctioned discrimination against homosexuals, providing a foundation for The Same Sex Marriage Reference and finally Halpern v. Canada rendered Ontario the first jurisdiction in North America to recognize same‐sex marriage. The paper will also address the limited capacities of legislative bodies to meet demands for reform, leaving them to assume chiefly reactive roles. Finally, it will examine and evaluate criticism levied at the judicial review process, with particular attention paid toaccusations of anti‐majority and undemocratic tendencies.  

scholarly journals PERAN MAHKAMAH KONSTITUSI DALAM MENJAMIN HAK KONSTITUSIONAL WARGA NEGARA PADA PROSES DEMOKRATISASI DI INDONESIA

2009 ◽  
Vol 39 (4) ◽  
pp. 437
Author(s):  
Mutiara Hikmah
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Judicial Authority ◽  
Normative Messages

AbstrakThe Constitutional Court as the judicial authority is responsible for maintaining the constitution directly and participates in strengthening the rights of human rights. This is drawn directly from the nature of the understanding that the constitution itself as a political document that protects the rights of human rights of every citizen and people who live in the country. This began the constitutional functions of the most essential are the first, limiting the powers contained in the constitutional scheme of a nation, and second, to formulate protection constitutional rights of the citizens and the rights of human as a whole. That is why the role of the Constitutional Court directly correlated with the significance of the role of enforcement agencies of human rights in terms of "norms control". Embodiment of constitutional and judicial review is examining through compliance with the norms of the constitution messages that cannot be separated from the ·universality of normative messages of human rights.

WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?

2010 ◽  
Vol 28 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Moral Rights ◽  
Constitutional Change ◽  
Principal Function ◽  
Fundamental Law

AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

scholarly journals The role of the constitutional complaint in the legislative process: Comparative legal aspect

2021 ◽  
Vol 39 (69) ◽  
pp. 833-850
Author(s):  
Nataliia I. Brovko ◽  
Liudmyla P. Medvid ◽  
Ihor Y. Mahnovskyi ◽  
Vusal A. Ahmadov ◽  
Maksym I. Leonenko
Keyword(s):  
Quality Assurance ◽  
State Government ◽  
Legal Aspect ◽  
Legislative Process ◽  
Constitutional Rights ◽  
State Legislation ◽  
The Subject ◽  
The Right ◽  
Heads Of State

The article deals with the role of constitutional complaint in the system of quality assurance of the state legislation, for protection of the rights and freedoms. Constitutional complaints, as well as their optimal models, require detailed research. Comparative analysis and survey are the main methods. The subject of a constitutional complaint in the model proposed by the authors may be laws or their individual provisions, regulations of heads of state, government, other statutes and regulations, individual administrative acts, judgements in specific cases. Citizens, foreigners, stateless persons, and legal entities are subjects who have the right to file a constitutional complaint. The authors attribute the following conditions of admissibility of a constitutional complaint: the presence and proof of violation of his/its constitutional rights and freedoms, the use of all other remedies to protect violated rights and freedoms, compliance with deadlines for filing a constitutional complaint in some countries, and payment of state duty. The model proposed by the authors is, however, universal, and further needs to be detailed for countries of interest.

scholarly journals The Role Of The Institution Of Judicial Review In Ensuring The Independence Of The Judiciary

2021 ◽  
Vol 03 (06) ◽  
pp. 67-73
Author(s):  
Dilshod Aripov Urinboevich ◽  
Keyword(s):  
Law Enforcement ◽  
Judicial Review ◽  
Fair Trial

This article discusses the role of the institute of judicial review in ensuring the independence of the judiciary; its importance in ensuring the rights and freedoms of citizens; its differences from fair trial; its types and forms of implementation; its subjects and objects; its purpose and content; its characteristics of execution through legal and disciplinary norms; its functions in law enforcement, regulation, organizational maintenance, education; as well as its prospects in strengthening the independence of the judiciary from other branches of government.

scholarly journals Jurisdição Constitucional como mecanismo de emancipação social: uma abordagem a partir de decisões da Corte Constitucional colombiana sobre direitos sociais

2020 ◽  
pp. 124-149
Author(s):  
Alessia Barroso Lima Brito Campos Chevitarese ◽  
Ana Borges Coêlho Santos ◽  
Camila Nascimento de Souza
Keyword(s):  
Judicial Review ◽  
Social Situation ◽  
Vulnerable Groups ◽  
Social Rights ◽  
Constitutional Court ◽  
The Social ◽  
Socially Vulnerable Groups

RESUMOO artigo tem por objetivo analisar a efetividade da jurisdição constitucional como mecanismo de emancipação social de determinados grupos a partir de decisões da Corte Constitucional colombiana. Nesse sentido, busca-se compreender a tutela dos direitos sociais, conforme o disposto na Constituição Colombiana de 1991, e os desafios de implementação dos direitos previstos, bem como o contexto de desenvolvimento de um protagonismo mais acentuado da Corte Constitucional colombiana. O estudo investiga se as progressistas decisões da citada Corte são capazes de modificar positivamente a situação social de grupos socialmente vulneráveis, com a finalidade de ponderar, nesse contexto, o papel da jurisdição constitucional na efetividade dos direitos sociais dos jurisdicionados.PALAVRAS-CHAVECorte Constitucional da Colômbia. Emancipação social. Efetividade dos direitos sociais. ABSTRACTThe article aims to analyze the effectiveness of judicial review as a mechanism of social emancipation of certain groups based on decisions of the Colombian Constitutional Court on social rights. In this sense, we seek to understand the protection of social rights, in accordance with the Colombian Constitution of 1991 and the challenges of implementing the rights envisaged, as well as the context of developing a more prominent role of the Colombian Constitutional Court. The study investigates whether if the progressive decisions of the aforementioned Court are capable of positively changing the social situation of socially vulnerable groups, in order to consider, in this context, the role of constitutional jurisdiction in the effectiveness of the social rights.KEYWORDSColombian Constitutional Court. Social emancipation. Effectiveness of social rights.

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