A Comparativist Critique of U.S. Judicial Review of Fundamental Rights Cases: Exceptionalisms, Paradoxes and Contradictions

John Bell and Marie-Luce Paris, eds., Rights-Based Constitutional Review – Constitutional Courts in A Changing Landscape (Edward Elgar Publishing, Forthcoming 2015)

Cardozo Legal Studies Research Paper No. 446

41 Pages Posted: 11 Feb 2015

See all articles by Michel Rosenfeld

Michel Rosenfeld

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: February 9, 2015

Abstract

The aim of this chapter is to place the longstanding controversy concerning the US Supreme Court (USSCt) adjudication of constitutional issues, and in particular those pertaining to fundamental rights, in comparative context. Moreover, two separate benefits are sought through approaching this familiar subject through a comparative perspective: on the one hand, to allow the foreign reader to obtain a better grasp of American exceptionalism in this area: and, on the other, to afford US constitutionalists with an “outside” look into familiar territory regarding a judicial practice that was once almost exclusively American, but that has become virtually universally adopted since World War Two. Particular attention is given to the most contentious and divisive fundamental rights decisions of the USSCt, and comparison concentrates on the contrast between the centralized hierarchical Kelsenian model followed in much of Europe and the common law approach implemented by the USSCt. Several paradoxes and contradictions are examined in light of foreign constitutional adjudication. Finally, the chapter seeks to shed further light, based on comparative insights, on the tension between ordinary and judicial politics as well as that between morals, mores, law and politics in the context of constitutional adjudication.

Keywords: comparative law, constitutional law, judicial review, Supreme Court, Kelsen, law and politics, law and morality

Suggested Citation

Rosenfeld, Michel, A Comparativist Critique of U.S. Judicial Review of Fundamental Rights Cases: Exceptionalisms, Paradoxes and Contradictions (February 9, 2015). John Bell and Marie-Luce Paris, eds., Rights-Based Constitutional Review – Constitutional Courts in A Changing Landscape (Edward Elgar Publishing, Forthcoming 2015) , Cardozo Legal Studies Research Paper No. 446, Available at SSRN: https://ssrn.com/abstract=2562717

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Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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