Shadow Constitutional Review: The Dark Side of Pre-Enactment Political Review in Ireland and Japan
International Journal of Constitutional Law, 2019, Forthcoming
36 Pages Posted: 22 Aug 2018
Date Written: July 6, 2018
Political constitutionalism is a major area of enquiry in contemporary constitutional discourse. A significant and increasingly central aspect of political constitutionalism is pre-enactment political review: laws being reviewed for constitutionality or rights-compliance by parliament or the executive. This institution is said to be a good augmentation of, or even replacement for, the institution of judicial review, and is said to bring with it a host of normative benefits. In this article, we wish to highlight an under-explored dark side to pre-enactment review. By undertaking a comparative analysis of functional pre-enactment review in several similar jurisdictions – Canada, New Zealand and the UK – we contrast these systems, and the ordinary failings they display, with the much deeper problems of pre-enactment review in Ireland and Japan. These latter jurisdictions, we argue, not only fail to instantiate the benefits of pre-enactment review but in fact show that, in the right circumstances, pre-enactment review can have negative effects that are antithetical to the goals and values of political constitutionalism. We call this phenomenon ‘shadow constitutional review’, and suggest that it adds a layer of complexity and nuance to contemporary discussions of political constitutionalism.
Keywords: Political Constitutionalism; Pre-enactment Review; Judicial Review; Constitutionalism; Constitutional Law; Ireland; Japan; Attorney General; Cabinet Legislation Bureau
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