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Abstract:
This essay explores the problem of establishing the rule of law in the developing world. Democracies in the developing world have regular elections yet lack the rule of law. The solution, it is believed, lies in adopting the best practices of Western democracies by reforming judicial systems and strengthening constitutional judicial review. This argument rests on the view that new democracies lack the rule of law because political actors have the power to trump the legal system and the solution, therefore, is to strengthen the formal institutions that support judicial independence.

The essay argues that this view is incomplete because it fails to take into account the difficulties that new democracies face in implementing the rule of law. These polities enjoy the un-rule of law where nearly all power is given one individual. The un-rule of law is not an aberration but a logical response to the problem of development. For a poor nation faced with a myriad of social and economic difficulties, the logical response is to give nearly all power to one individual to deal with those problems. Rule of law reforms often fail, therefore, because there is considerable political support for this concentration of power.

The key to effectuating the rule of law lies not in adopting rules borrowed from developed democracies but in crafting a constituency for a legal system. Courts are the least dangerous branch. They lack power unless other actors are willing to implement judicial decisions. The reason why the rule of law has proven difficult to implement in the developing world is that there is little political support for the judicial system. Courts are marginal to the politics of developing nations. Developed nations, on the other hand, have effective mechanisms for implementing judicial decisions and political and economic actors, therefore, can use the courts to achieve their aims.

This essay argues that establishing the rule of law requires the construction of an effective transmission belt from courts to society. The conventional view that the developing world needs to borrow the best practices of the West by separating law from politics fails to comprehend the processes by which the rule of law is realized. Understanding the rule of law requires that we reverse this paradigm. It is not the developing world that needs to learn from the West but scholars in the developed world who need to study the un-rule of law. The rule of law does not rest on negating politics but on facilitating the development of the proper linkages between courts and society.

Rule of law, globalization, democratization

Abstract:
This Article explores the questions scholars ask about comparative constitutional judicial review and critically assesses the answers they provide. Scholars ask three, interrelated questions: (i) why has judicial review (almost) conquered democracy; (ii) whether empowering courts to construe constitutions has a democratic pay-off; and (iii) how best to make sense of the variation that judicial review exhibits around the world. The Article makes two principal conclusions. First, our scholarly maps of judicial review have for too long viewed the world through the prism of the exceptional American Supreme Court. Our understanding of judicial review would be improved if our maps were to deemphasize and contextualize the American experience. Second, the questions scholars ask about comparative judicial review implicitly rest on larger questions about democracy that need to be teased out and illuminated. In short, questions about the emergence and maintenance of democracy and the problematic relationship that American constitutionalism bears to other forms of constitutionalism around the globe lie at the root of our understanding of comparative judicial review.

judicial review, constitutionalism, democracy, comparative constitutional law

Abstract:
The conventional view is that the American model of judicial review largely conquered the world's democracies after the Second World War. This Essay questions that view by examining the following question: why do social movements contest constitutional meaning by fighting over judicial appointments in the United States and why would such a strategy make little sense in democracies that constitutionalized rights in the late twentieth century?

The short answer is that the United States has been both a model and an anti-model in the spread of judicial review around the globe. When the hope of Marbury (constitutionalized rights) traveled abroad in the second half of the twentieth century, it was joined with the fear of Lochner (courts run amok). As a consequence, polities abroad adopted stronger mechanisms of judicial accountability that make it difficult for social movements to wrangle over appointments as a means of resolving disputes over constitutional meaning. The political court model of judicial review, adopted in Germany and the democracies it influenced, relies on ex ante mechanisms of accountability. When supermajority appointment provisions are used to select members of a national high court, factions are forced to negotiate over appointments. The politicized rights model of judicial review, on the other hand, adopted in Canada and the democracies it influenced, relies on post facto mechanisms of accountability. When courts have the first but not the final word in interpreting the constitution, citizens will choose to overrule courts directly rather than fight over appointments. In short, popular constitutionalism, which originated in the United States, or the notion that citizens should play a role in construing their constitution has thrived abroad better than at home.

Battles over appointments have decisively shaped the United States Supreme Court and inadvertently resolved a long-standing scholarly debate between law professors and political scientists. Law professors believe that the Court is a countermajoritarian institution whose discretion is checked by law whereas political scientists believe that it is an anomalous majoritarian institution whose discretion is ultimately checked by appointments. It turns out that the law professors were right but for the reasons given by political scientists. For the first time in our nation's history, factions have succeeded in fashioning a countermajoritarian Court but they have done so through the politics of appointments.

judicial review, judicial appointments, judicial accountability, social movements, constitutional theory, comparative constitutionalism

Abstract:
The Article is part of a larger work in progress dealing with the problem of constitutionalism in the Americas. It explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government.

The conventional answer to this issue is that the Constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because law is subservient to politics. The conventional answer posits that the cure for the uncertain constitutional environment in Latin America lies in reforming the bits and pieces of democratic governance - the executive, the judiciary, the legislature, and state and local government - so that courts have the independence necessary to effectuate constitutional guarantees.

This Article argues, however, that the conventional view overly emphasizes the role of independent courts in making constitutions work while ignoring the role of the societal practices that make constitutionalism possible. Constitutions become entrenched against political inroads when citizens are willing to mobilize on behalf of the fundamental rules of the game. The key to successful constitutionalism lies not in the separation of law and politics, as the conventional view posits, but rather in the separation of constitutional politics from ordinary politics. Constitutions become entrenched from politics when the citizens share a belief that constitutional change requires a higher degree of consensus than changing an ordinary law. Such beliefs are constructed when broad social movements successfully entrench rights.

The issue of how constitutions become entrenched is an important one throughout the world as new democracies struggle with the problem of creating order. Democracies cannot establish order until constitutions have deep social moorings. The historical experience of Latin America is particularly instructive as it has a long experience with constitutions that lack citizen support or social moorings and the result was dictatorship, rather than republican government. In short, constitutions must be socially constructed if new democracies are to long endure.

Comparative constitutional law, constitutional theory, social movements, democratization

Abstract:
The current polarization in Supreme Court appointments illustrates a problem that I call the counter-constitutional difficulty. Constitutions, unlike ordinary legislation, can be made and changed only by supermajoritarian mechanisms. The United States Constitution, however, has an Achilles heel. Its meaning can be transformed by changing the membership of the Supreme Court. Appointments, unlike amendments, do not require the consent of a supermajority. A number of decisions by the Court mobilized religious conservatives to seek a voice in appointments as a means of transforming the meaning of the Constitution. The appointments battles that swirled around the nominations of John Roberts, Harriet Miers, and Samuel Alito illustrate the strategy and power of this social movement. Presidents pay attention to factions important to their coalition who care deeply about Supreme Court appointments. The counter-constitutional difficulty is that the appointments process for the United States Supreme Court allows factions to shape the meaning of the Constitution thereby undermining the protections afforded by Article V.

The counter-constitutional difficulty has less bite in the democracies of Western Europe or Canada. These polities adopted judicial review in the latter half of the twentieth century and learned from the American experience that a court with the power to construe a constitution is not only a court of law but also a powerful political actor. As a consequence, they created mechanisms of political accountability that democratized judicial review. The nations of Europe typically select justices by means of a legislative supermajority. Canada provides for a legislative override of constitutional decisions. If the United States required a legislative supermajority to select justices, then it would become difficult, if not impossible, for factions to transform the Constitution by changing the membership of the Supreme Court. If the United States allowed Congress to overrule the Supreme Court, then political factions angered by the Court would seek to override its decisions directly rather than indirectly by engaging in appointments battles. Democratizing judicial review, in short, reduces the power of factions to use the appointments process to amend the Constitution.

comparative constitutional law, judicial review, constitutional theory, constitutional politics

Abstract:
This Essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia are both troubled democracies in a region where courts have historically been marginalized from political disputes. Both nations undertook constitutional transformations in the 1990s designed to empower their respective national high courts as a means of effectuating democracy. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and constitutional maintenance. Both courts have undoubtedly been transformed into institutions with a sense of mission by vigorously construing their new constitutional powers.

These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas Colombia fashioned a Constitutional Court whose task is to deepen the social bases of democracy by constructing rights. This Essay argues that the constitutional changes that occurred are a necessary but not a sufficient explanation for the role these two courts play. The agenda courts undertake is shaped both by short-term political bargains and long-term societal transformations. As a result of both the bargains that led to the adoption of a new constitution and broader intellectual transformations regarding the role of courts in effectuating constitutional guarantees, the Colombian Constitutional Court has pursued a more ambitious agenda than the Mexican Supreme Court.

In addition to exploring why these transformations occurred, this Essay examines their democratic pay-off and makes two conclusions. First, although judicial activism has become a normative and political bone of contention in the United States, critiques of judicial activism have less bite in the context of developing countries. Activist courts, such as the Colombian Constitutional Court, can play a key role in ushering in needed democratic transformations in transitional democracies. In a region such as Latin America where constitutions have been long been marginalized from regulating political conflict, a judiciary jealous of maintaining its position vis-a-vis other actors in constitutional construction is a promising change.

Second, this Essay challenges the externalist analysis that scholars employ in analyzing the judicialization of politics and contributes to the nascent literature on the emergence of balancing tests by placing Mexico and Colombia in the broad stream of global constitutionalism. Scholars of judicial politics emphasize why polities choose to empower courts. This Essay argues that we need to understand not only the conditions under which constitutional courts emerge but also how courts are transformed by the role they play in a democratic order. Courts whose agenda includes a broad mandate to effectuate rights are likely to employ balancing tests whereas courts that primarily effectuate separation of powers are more likely to utilize legal formalism. Legal formalism allows courts to hide legal innovation under the guise of constitutional interpretation. The shift from formalism to balancing marks, therefore, a key transition in the emergence of courts as self-confident actors that do not mask the creative role they play in constitutional maintenance.

constitutional courts, comparative constitutional law, judicial review, judicial activism, balancing, institutional emergence

Abstract:
Embedded deep in the constitutional imagination is the notion that courts can implement rights and effectuate the hope of Marbury v. Madison while avoiding running amok and falling into the abyss of Lochner v. New York. This Article challenges this belief and argues that the two cases are not opposites but fraternal twins. In this story, however, Marbury becomes Lochner’s twin not by the use of drugs, which is how Robert Louis Stevenson imagined that Dr. Jekyll became transformed into Mr. Hyde, but by exposing the workings of the constitutional imagination across space and time. The comparative and historical record evinces deep, albeit hidden, linkages between the two cases. Part I of this Article introduces the dichotomy between these two cases and argues that we need to uncover the linkages between them if we are to understand the jumble of ideas that comprise judicial review. Part II of this Article historicizes the relationship between the two cases and argues that Marbury and Lochner became linked in the nineteenth century as judicial review germinated in the constitutional imagination in the United States and abroad. Part III examines how Lochner shaped the political construction of judicial review around the globe in the twentieth century. When the hope of constitutionalized rights (Marbury) traveled abroad, it was joined with the fear that courts might run amok (Lochner). As a consequence, polities abroad adopted different and stronger mechanisms of political accountability than the United States as the price of granting courts the power of constitutional judicial review. Judicial review transformed not only politics but also courts that suddenly had to grapple with the problem of accommodating legislation to constitutional text. Part IV argues that the judicial elaboration of Marbury has had a perverse impact, as courts in civil law jurisdictions have become more like common law courts whereas the United States Supreme Court has become more like a civil law court. Part V concludes that the spread of judicial review is best understood as the story of Lochner, not Marbury, writ large around the globe. In exposing the workings of the constitutional imagination, debates over the fear of power are considerably more illuminating that those surrounding the hope of its exercise.

judicial review, comparative constitutional law