Foreword

Foreword

Description

Back in 2004, I published a lengthy article, entitled The Constitutionalization of Democratic Politics, as the Harvard Law Review’s major reflection on the United States Supreme Court’s most recent Term. A major aim was to bring wider attention to a fundamental transformation in the nature of judicial review and the role of constitutional courts that had begun in the US in the 1960s, a role that by the 2000s was becoming more and more prominent – not just in the US, but in courts around the world. Before the 1960s, at least in the US, much of our Supreme Court’s role in the area of constitutionalism centred on defining the boundaries of political authority between the various institutions of government: state v. national government, state v. state, Congress v. the President. Beginning in the twentieth century, the Court also began to protect individual constitutional rights and, eventually, ensure equal protection of the laws. Similarly, with the rise of post-World War II constitutionalism, constitutional courts in many countries also took on the role of protecting fundamental rights and ensuring equality under the law. But before the 1960s, constitutional courts did not define as a major aspect of their role the oversight of the structures and processes of democratic politics itself. Indeed, to the contrary: in the US, the courts dismissed such efforts by holding that claims about ‘political rights’ were off-limits to the courts – not the appropriate subject of judicial review. To be sure, in countries in which post-World War II constitutions explicitly banned anti-democratic practices or political parties, such as in Germany, constitutional courts enforced these specific bans. But absent such specific textual guidance, courts did not generally understand it to be their role to determine the normatively appropriate principles and foundations for democratic politics.

First Page

v

DOI

http://dx.doi.org/10.5040/9781509957910

Source Publication

Judicial Review and Electoral Law in a Global Perspective

Source Editors/Authors

Cristina Fasone, Edmondo Mostacci, Graziella Romeo

Publication Date

1-29-2024

Publisher

Hart Publishing

Foreword

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