Research Paper Number

3/2007

Miguel Schor

Document Type

Article

Publication Date

2007

Keywords

comparative constitutional law; constitutionalism; democracy; Judicial Review

Abstract

This Article explores the questions scholars ask about comparative constitutional judicial review and critically assesses the answers they provide. Scholars ask three, interrelated questions: (i) why has judicial review (almost) conquered democracy, (ii) whether empowering courts to construe constitutions has a democratic pay-off, and (iii) how best to make sense of the variation that judicial review exhibits around the world. The Article makes two principal conclusions. First, our scholarly maps of judicial review have for too long viewed the world through the prism of the exceptional American Supreme Court. Our understanding of judicial review would be improved if our maps were to deemphasize and contextualize the American experience. Second, the questions scholars ask about comparative judicial review implicitly rest on larger questions about democracy that need to be teased out and illuminated. In short, questions about the emergence and maintenance of democracy and the problematic relationship that American constitutionalism bears to other forms of constitutionalism around the globe lie at the root of our understanding of comparative judicial review.

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