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Beyond Manicheanism: Assessing the New Constitutionalism
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1
BEYOND MANICHEANISM: ASSESSING THE NEW CONSTITUTIONALISM
LISA HILBINK
*
**A version of this article is forthcoming in the MARYLAND LAW REVIEW (2005 or 2006).**
This version prepared for delivery at the Annual Meeting of the American Political Science
Association, Sept. 1-4, 2005, in Washington, DC.
Please direct any comments to the author at
## email not listed ##
.
Do not cite without permission.
Over the past twenty-five years, the “judicial turn” that began in Europe in the wake of
World War II has spread to almost all corners of the globe.
1
In established and emerging
democracies alike, parliamentary sovereignty is in decline and constitutional courts with broad
powers have become commonplace.
2
Although the formal introduction of judicial review
mechanisms does not necessarily translate to an energetic assertion of judicial authority in all
places,
3
it is true that in many polities, courts now play an unprecedented role in the policy
making process.
4
*
Assistant Professor of Political Science, University of Minnesota, Twin Cities. B.A., University of
Wisconsin-Madison; Ph.D., University of California, San Diego. I thank Daniel Brinks, David Erdos, Tamir Moustafa, Miguel Schor, and fellow participants in the workshop on Juristocracy held at the University of Maryland Law School for their thoughtful comments on an earlier draft of this essay. I also thank Daniel Levin for his invaluable editorial assistance.
1
M
AURO
C
APPELLETTI
, J
UDICIAL
R
EVIEW
IN
THE
C
ONTEMPORARY
W
ORLD
(1971); C. N
EAL
T
ATE
and T
ORBJÖRN
V
ALLINDER
, eds., T
HE
G
LOBAL
E
XPANSION
OF
J
UDICIAL
P
OWER
(1995).
2
See K
IM
L
ANE
S
CHEPPELE
, C
ONSTITUTIONAL
I
NTERPRETATION
AFTER
R
EGIMES
OF
H
ORROR
available at
http://papers.ssrn.com/paper.taf?abstract_id=236219
, (last visited May 2005); A
LEC
S
TONE
S
WEET
,
G
OVERNING
W
ITH
J
UDGES
: C
ONSTITUTIONAL
P
OLITICS
IN
E
UROPE
(2000); T
OM
G
INSBURG
, J
UDICIAL
R
EVIEW
IN
N
EW
D
EMOCRACIES
: C
ONSTITUTIONAL
C
OURTS
IN
A
SIAN
C
ASES
(2003); R
AN
H
IRSCHL
, T
OWARDS
J
URISTOCRACY
: T
HE
O
RIGINS
AND
C
ONSEQUENCES
OF
THE
N
EW
C
ONSTITUTIONALSIM
(2004).
3
See, for example, D
AVID
M. O’B
RIEN
AND
Y
ASUO
O
HKOSHI
, T
O
D
REAM
OF
D
REAMS
: R
ELIGIOUS
F
REEDOM
AND
C
ONSTITUTIONAL
P
OLITICS
IN
P
OSTWAR
J
APAN
(1996); J
AVIER
A
NDRÉS
C
OUSO
, T
HE
P
OLITICS
OF
J
UDICIAL
R
EVIEW
IN
L
ATIN
A
MERICA
: C
HILE
IN
C
OMPARATIVE
P
ERSPECTIVE
, Ph.D. dissertation, University of California, Berkeley
(2002).
4
S
TONE
S
WEET
, see supra note 2; K
IM
L
ANE
S
CHEPPELE
, D
EMOCRACY
BY
J
UDICIARY
(O
R
W
HY
C
OURTS
C
AN
S
OMETIMES
B
E
M
ORE
D
EMOCRATIC
THAN
P
ARLIAMENTS
), Paper presented at conference on Constitutional Courts,
Washington University, November 1-3, 2001, available at
http://law.wustl.edu/igls/Conconfpapers/Scheppele.pdf
; C
ARLO
G
UARNIERI
AND
P
ATRIZIA
P
EDERZOLI
, T
HE
P
OWER
OF
J
UDGES
(2002); Ran Hirschl, Restituating the Judicialization of Politics: Bush v. Gore as a Global Trend,
15 T
HE
C
ANADIAN
J
OURNAL
OF
L
AW
& J
URISPRUDENCE
191 (July 2002).
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1
BEYOND MANICHEANISM: ASSESSING THE NEW CONSTITUTIONALISM
LISA HILBINK
**A version of this article is forthcoming in the MARYLAND LAW REVIEW (2005 or 2006).**
This version prepared for delivery at the Annual Meeting of the American Political Science
Association, Sept. 1-4, 2005, in Washington, DC.
Please direct any comments to the author at
Do not cite without permission.
Over the past twenty-five years, the “judicial turn” that began in Europe in the wake of
World War II has spread to almost all corners of the globe.
In established and emerging
democracies alike, parliamentary sovereignty is in decline and constitutional courts with broad
powers have become commonplace.
Although the formal introduction of judicial review
mechanisms does not necessarily translate to an energetic assertion of judicial authority in all
it is true that in many polities, courts now play an unprecedented role in the policy
making process.
*
Assistant Professor of Political Science, University of Minnesota, Twin Cities. B.A., University of
Wisconsin-Madison; Ph.D., University of California, San Diego. I thank Daniel Brinks, David Erdos,
Tamir Moustafa, Miguel Schor, and fellow participants in the workshop on Juristocracy held at the
University of Maryland Law School for their thoughtful comments on an earlier draft of this essay. I also
thank Daniel Levin for his invaluable editorial assistance.
1
M
AURO
C
APPELLETTI
, J
UDICIAL
R
EVIEW
IN
THE
C
ONTEMPORARY
W
ORLD
(1971); C. N
EAL
T
ATE
and T
ORBJÖRN
V
ALLINDER
, eds., T
HE
G
LOBAL
E
XPANSION
OF
J
UDICIAL
P
OWER
(1995).
2
See K
IM
L
ANE
S
CHEPPELE
, C
ONSTITUTIONAL
I
NTERPRETATION
AFTER
R
EGIMES
OF
H
ORROR
available at
, (last visited May 2005); A
LEC
S
TONE
S
WEET
,
G
OVERNING
W
ITH
J
UDGES
: C
ONSTITUTIONAL
P
OLITICS
IN
E
UROPE
(2000); T
OM
G
INSBURG
, J
UDICIAL
R
EVIEW
IN
N
EW
D
EMOCRACIES
: C
ONSTITUTIONAL
C
OURTS
IN
A
SIAN
C
ASES
(2003); R
AN
H
IRSCHL
, T
OWARDS
J
URISTOCRACY
: T
HE
O
RIGINS
AND
C
ONSEQUENCES
OF
THE
N
EW
C
ONSTITUTIONALSIM
(2004).
3
See, for example, D
AVID
M. O’B
RIEN
AND
Y
ASUO
O
HKOSHI
, T
O
D
REAM
OF
D
REAMS
: R
ELIGIOUS
F
REEDOM
AND
C
ONSTITUTIONAL
P
OLITICS
IN
P
OSTWAR
J
APAN
(1996); J
AVIER
A
NDRÉS
C
OUSO
, T
HE
P
OLITICS
OF
J
UDICIAL
R
EVIEW
IN
L
ATIN
A
MERICA
: C
HILE
IN
C
OMPARATIVE
P
ERSPECTIVE
, Ph.D. dissertation, University of California, Berkeley
(2002).
4
S
TONE
S
WEET
, see supra note 2; K
IM
L
ANE
S
CHEPPELE
, D
EMOCRACY
BY
J
UDICIARY
(O
R
W
HY
C
OURTS
C
AN
S
OMETIMES
B
E
M
ORE
D
EMOCRATIC
THAN
P
ARLIAMENTS
), Paper presented at conference on Constitutional Courts,
Washington University, November 1-3, 2001, available at
ARLO
G
UARNIERI
AND
P
ATRIZIA
P
EDERZOLI
, T
HE
P
OWER
OF
J
UDGES
(2002); Ran Hirschl, Restituating the Judicialization of Politics: Bush v. Gore as a Global Trend,
15 T
HE
C
ANADIAN
J
OURNAL
OF
L
AW
& J
URISPRUDENCE
191 (July 2002).
|
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