Rights as the Domain of Weak-Form Review
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Description
Mark Tushnet has shown great interest in the contrast between weak-form and strong-form judicial review of legislation. In a system of weak-form review, courts scrutinize legislation for its conformity to a Bill of Rights, but courts do not have final power to strike down legislation that is incompatible with the Bill of Rights. They may have power only to issue a Declaration of Incompatibility or they may be constrained, as in Canada, by a “notwithstanding” clause. This chapter examines the domain of weak-form judicial review of legislation. We are familiar with its operation in cases involving possible violations of rights. But constitutional objections to legislation may also be made on structural grounds, such as separation of powers or federalism requirements. Are these instances of judicial review—when they happen—also subject to a weak-form/strong-form distinction? The chapter argues that they are not—that weak-form structural review is more or less unheard of—and it examines the reasons for this discrepancy. Is it because (as Tushnet has argued) rights-based considerations are less determinate? Or is it because structural issues need determinate and timely resolution that weak-form judicial responses cannot provide?
First Page
242
DOI
https://doi.org/10.1093/9780191996344.003.0017
Source Publication
Redefining Comparative Constitutional Law: Essays for Mark Tushnet
Source Editors/Authors
Vicki C. Jackson, Madhav Khosla
Publication Date
11-19-2024
Publisher
Oxford University Press
Recommended Citation
Jeremy Waldron,
Rights as the Domain of Weak-Form Review,
Redefining Comparative Constitutional Law: Essays for Mark Tushnet
242
(2024).
Available at:
https://gretchen.law.nyu.edu/fac-chapt/2129
