Constitutional Courts' Limited Impact on the Protection of Constitutional Rights
36 Pages Posted: 24 Jul 2017
Date Written: July 17, 2017
Constitutional scholars have generally had faith in the ability of courts to improve the protection of constitutional rights. While courts have limited means to enforce their own decisions, the literature has suggested that their decisions are complied with when courts enjoy strong legitimacy or when they bring functional benefits to the political branches. In this paper, we discuss existing empirical research and present new data that calls this conventional wisdom into question. We show evidence suggesting that constitutional courts do not increase the probability that constitutional rights will be respected. We then outline four reasons why constitutional courts are not systematically associated with increased protections of constitutional rights. First, courts that frequently stand in the way of the political branches may face court-curbing measures. Second, courts may avoid high-profile clashes with the political branches by employing various avoidance canons, such as passive virtues or deferral techniques. Third, courts may protect themselves by issuing decisions that are mostly in line with majoritarian preferences. Finally, we suggest that courts are institutionally ill-equipped to deal with certain types of rights violations, such as torture or social rights. All these explanations suggest that courts’ ability to enforce constitutional rights might be more limited than is commonly suggested.
Keywords: Constitutional Rights, Comparative Constitutional Law, Comparative Law, Judicial Independence, Judicial Review
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