Topic Main Ideas Explanation Examples Treaties/ Acts/ Cases ...
Topic
Main Ideas
Explanation
Examples
Treaties/ Acts/ Cases/ Reports
Global Bill of Rights Debate: CounterMajoritarian Difficulty
Strong’ Judicial Review
- some jurisdictions (e.g. US,
- Jeremy Waldron, ‘The
- US Supreme Court assumed such a
-
-
Germany, South Africa) courts have the power to decline to apply, or invalidate, legislation that doesn’t comply with individual rights (‘strong’ judicial review) in Australia… courts have power to invalidate legislation that doesn’t comply with individual rights, but not legislation that doesn’t comply with individual rights US Constitution does not expressly provide for Supreme Court to exercise power of ‘strong’ judicial review… assumed power in Marbury v Madison
Core of the Case Against Judicial Review’ (2006) 115 The Yale Law Journal 1346, 1354- 1355
-
power in Marbury v Madison 5 U.S. 137 (1803) s 167(5) of South African Constitution: “The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional…”
Topic
Main Ideas
Explanation
Examples
Treaties/ Acts/ Cases/ Reports
Contentions… The CounterMajoritarian Difficulty
- unusual in American system
- “The root difficulty is
- Roe v Wade 410 U.S. 113 (1973) - abortion legalised in all states of
(democratic)
- raises question of whether -
democratically legitimate difficulty of giving final say of what rights mean to judges (not elected by public)
that judicial review is a counter-majoritarian force in our system” (Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press, 2nd edn, 1962) 16
America
- single pregnant woman (Roe)
-
-
-
brought class action (action on behalf of people similar to her) challenging the constitutionality of the Texas criminal abortion laws, which prescribed procuring or attempting an abortion except on medical advice for the purpose of saving the mothers life court went on to decide the issue of the constitutionality of this abortion law on the basis of the 14th amendment: ’No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law’… not only procedural guarantee, but substantive Justice Blackman identified right to privacy (personal liberty) as being foundation in deciding this case state is saying that there will be a certain point in pregnancy where state can step in a regulate… Blackman decided that this point would be at end of first trimester preservation/ protection of maternal health can be interpreted in various ways abortion still issue in US because decided by court not with democratic legitimacy
Topic
Main Ideas
Explanation
Responses to Waldron
- do four assumptions hold in societies - JH Ely - Rosalind Dixon Waldron has in mind? - are most people strongly committed - “… we may note that -
Global Bill of ‘British’ Model of Rights Rights Debate: Protection Models of Rights Protection
to rights? Are democratic institutions in reasonably good working order? is judicial review necessary to protect rights of minorities? do legislatures suffer from ‘blind spots’ and ‘burdens of inertia’?
- Constitution does not possess high legal status than ordinary legislation
- Constitution can be amended
through ordinary Acts of Parliament
- judiciary is not authorised to set
aside legislation that conflicts with fundamental rights American’ Model of Rights Protection
- fundamental rights are granted higher legal status than legislation
- fundamental rights are entrenched -
Divergences Within ‘American’ Model
against ordinary legislative amendment or repeal higher legal status of fundamental rights is enforced by means of a judicial power to set aside conflicting legislation
- ‘concentrated’ vs ‘diffuse’ judicial review
- ‘concrete’ vs ‘abstract’ judicial review - priori vs posteriori judicial review
Examples
this sort of alignment is exactly what we should not expect under the core assumptions we are considering” (Jeremy Waldron)
Treaties/ Acts/ Cases/ Reports
Main Ideas
Explanation
Examples
Treaties/ Acts/ Cases/ Reports
Global Bill of Rights Debate: CounterMajoritarian Difficulty
Strong’ Judicial Review
- some jurisdictions (e.g. US,
- Jeremy Waldron, ‘The
- US Supreme Court assumed such a
-
-
Germany, South Africa) courts have the power to decline to apply, or invalidate, legislation that doesn’t comply with individual rights (‘strong’ judicial review) in Australia… courts have power to invalidate legislation that doesn’t comply with individual rights, but not legislation that doesn’t comply with individual rights US Constitution does not expressly provide for Supreme Court to exercise power of ‘strong’ judicial review… assumed power in Marbury v Madison
Core of the Case Against Judicial Review’ (2006) 115 The Yale Law Journal 1346, 1354- 1355
-
power in Marbury v Madison 5 U.S. 137 (1803) s 167(5) of South African Constitution: “The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional…”
Topic
Main Ideas
Explanation
Examples
Treaties/ Acts/ Cases/ Reports
Contentions… The CounterMajoritarian Difficulty
- unusual in American system
- “The root difficulty is
- Roe v Wade 410 U.S. 113 (1973) - abortion legalised in all states of
(democratic)
- raises question of whether -
democratically legitimate difficulty of giving final say of what rights mean to judges (not elected by public)
that judicial review is a counter-majoritarian force in our system” (Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press, 2nd edn, 1962) 16
America
- single pregnant woman (Roe)
-
-
-
brought class action (action on behalf of people similar to her) challenging the constitutionality of the Texas criminal abortion laws, which prescribed procuring or attempting an abortion except on medical advice for the purpose of saving the mothers life court went on to decide the issue of the constitutionality of this abortion law on the basis of the 14th amendment: ’No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law’… not only procedural guarantee, but substantive Justice Blackman identified right to privacy (personal liberty) as being foundation in deciding this case state is saying that there will be a certain point in pregnancy where state can step in a regulate… Blackman decided that this point would be at end of first trimester preservation/ protection of maternal health can be interpreted in various ways abortion still issue in US because decided by court not with democratic legitimacy
Topic
Main Ideas
Explanation
Responses to Waldron
- do four assumptions hold in societies - JH Ely - Rosalind Dixon Waldron has in mind? - are most people strongly committed - “… we may note that -
Global Bill of ‘British’ Model of Rights Rights Debate: Protection Models of Rights Protection
to rights? Are democratic institutions in reasonably good working order? is judicial review necessary to protect rights of minorities? do legislatures suffer from ‘blind spots’ and ‘burdens of inertia’?
- Constitution does not possess high legal status than ordinary legislation
- Constitution can be amended
through ordinary Acts of Parliament
- judiciary is not authorised to set
aside legislation that conflicts with fundamental rights American’ Model of Rights Protection
- fundamental rights are granted higher legal status than legislation
- fundamental rights are entrenched -
Divergences Within ‘American’ Model
against ordinary legislative amendment or repeal higher legal status of fundamental rights is enforced by means of a judicial power to set aside conflicting legislation
- ‘concentrated’ vs ‘diffuse’ judicial review
- ‘concrete’ vs ‘abstract’ judicial review - priori vs posteriori judicial review
Examples
this sort of alignment is exactly what we should not expect under the core assumptions we are considering” (Jeremy Waldron)
Treaties/ Acts/ Cases/ Reports
