Constitutional Courts' Limited Impact on the Protection of Constitutional Rights

43 Pages Posted: 24 Jul 2017 Last revised: 3 May 2018

Adam S. Chilton

University of Chicago - Law School

Mila Versteeg

University of Virginia School of Law

Date Written: July 17, 2017

Abstract

Constitutional scholars have generally put faith in courts’ ability to improve the protection of constitutional rights. While courts have limited means to enforce their own decisions, the literature suggests that their decisions are implemented either when courts enjoy strong legitimacy or when they bring functional benefits to other branches. In this Essay, we call this conventional wisdom into question. We present data suggesting that the existence of independent courts does not increase the probability that governments will respect constitutional rights. We outline four reasons why this might be so. First, courts that too frequently obstruct the political branches face court-curbing measures. Second, courts avoid high-profile clashes with the political branches by employing various avoidance canons or deferral techniques. Third, courts protect themselves by issuing decisions that are mostly in line with majoritarian preferences. Finally, courts are ill equipped to deal with certain types of rights violations like torture and social rights. All these accounts offer a potential explanation for why courts’ ability to enforce constitutional rights is more limited than is commonly believed.

Keywords: Constitutional Rights, Comparative Constitutional Law, Comparative Law, Judicial Independence, Judicial Review

Suggested Citation

Chilton, Adam S. and Versteeg, Mila, Constitutional Courts' Limited Impact on the Protection of Constitutional Rights (July 17, 2017). University of Chicago Law Review, Forthcoming; Virginia Public Law and Legal Theory Research Paper No. 2017-34. Available at SSRN: https://ssrn.com/abstract=3004118

Adam S. Chilton (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

HOME PAGE: http://www.adamchilton.org

Mila Versteeg

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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