Weak-Form Judicial Review and American Exceptionalism

Abstract:     
Recent Commonwealth rights charters, various scholars have argued, represent a new “weaker” model of constitutional rights protection than the U.S. constitutional model: unlike the U.S. Bill of Rights, they give legislatures broad formal power to override rights, and therefore also court decisions. The article argues, however, that in practice such powers have rarely if ever been used by Commonwealth legislatures, and therefore, that if judicial review is in fact weaker in Commonwealth countries, compared to the U.S., it is only because Commonwealth courts have been more willing than the U.S. Supreme Court to uphold ordinary legislative attempts to override court decisions. While this may be connected to the greater availability of a formal power of legislative override in the Commonwealth, it also far from given response by Commonwealth courts to the existence of such powers. This more limited – and contingent – view of the difference between Commonwealth and U.S. constitutionalism in this context also has clear practical implications for processes of constitutional “borrowing” across countries.

Number of Pages in PDF File: 31

working papers series