Constitutional Designs: Lessons We Can Learn from the Early American Republic
Romanian Journal of Comparative Law, vol. 2
27 Pages Posted: 29 Jun 2013 Last revised: 31 May 2014
Date Written: June 26, 2013
This article addresses the vexed question of who should have the “last word” in saying what a democratic constitution means in controversies between the Judiciary and the other Branches of government. The aim is to contribute to debates in post-Communist Central and Eastern Europe (CEE), which to date have been dominated by the paradigm of a Constitutional Court (CC) with monopoly power to expound the constitution. This institutional configuration sits uneasily with the separation of powers and checks and balances – shibboleths which are nonetheless poorly understood in CEE. It is believed that the American Founders, who invented these practical mechanisms in their modern and now universally accepted forms, may offer particularly fruitful insights which constitutional designers everywhere could learn from.
Keywords: judicialization, judicialisation, judicialization of politics, judicialisation of politics, separation of powers, checks and balances, judicial supremacy, judiciary supremacy, Constitutional Courts, constitutional interpretation, judicial review, Central and Eastern Europe, Romania
Suggested Citation: Suggested Citation