[...]... welfare rights, show that the “capacity” objection to judicial enforcement of social and economic rights rests on the assumption that such enforcement must take a strong form, and argues that this assumption is weakened by the creation of weak- form judicial review, which might be an attractive method for enforcing social and economic rights Weak- form judicial review can recognize social welfare rights. .. some aspects of constitutional design in both strong- form and weak- form systems that affect legislative performance Part 3 then takes up social and economic rights themselves, connecting the institution of weak- form judicial review to those rights It addresses two arguments prominent in skeptical discussions of judicial enforcement of social and economic rights, particularly in connection with the U.S... Chapter 6 looks at the so-called state action doctrine in U.S constitutional law and the related doctrines of horizontal effect in other constitutional systems and demonstrates that, under the guise of enforcing that doctrine (or of considering whether to give constitutional provisions horizontal effect), constitutional courts already enforce such rights, thereby weakening the “novelty” objection Drawing... detail the different forms of judicial review, with particular attention to the less familiar weak forms Chapter 3 draws on the experience in weak- form systems over the past few decades to ask whether weak- form systems are stable, in the sense that they remain weak- form and do not have a tendency to become strong- form systems—and, if they are not stable in that sense, how such a transformation might... judicial review as having the strong form, and much of the public appears to agree.40 Exactly when we got strong- form judicial review is unclear, though Something like strong- form review seems to have been the target of James Bradley Thayer’s famous 1893 essay, “The Origin and Scope of the American Doctrine of Constitutional Law,”41 but Thayer’s position in support of a weaker version of judicial review... constitution of negative rights, in contrast to the positive social and economic rights contained in more recently adopted constitutions The second is that doing so is beyond judicial capacity, especially because coercive judicial enforcement of social and economic rights interferes with legislative prerogatives more substantially than judicial enforcement of classical liberal rights Part 3 argues that... institutional mechanism for the provisional identification and enforcement of social and economic rights Weak- form systems allow legislatures to respond to judicial decisions by saying that the courts misspecified the content of constitutional social or economic rights, or insisted on excessively expensive modes of realizing such rights I begin in chapter 1 by arguing for the value of comparative constitutional study,... the last word.”† This characteristic of weak- form judicial review is the bridge between it and the second question I mentioned earlier, that of the propriety of incorporating social and economic rights in constitutions Two arguments against doing so are widely accepted: courts, it is said, lack the capacity to give appropriate content to general social welfare rights in the context of particular controversies,... dialogue between those who study comparative constitutional law and those who study international human rights The idea is simple: constitutionalism itself entails— everywhere—some fundamental principles Some of those principles involve human rights: the protection of some universal human rights, such as rights to political participation, to equal treatment under the law, to freedom of 6 There is a sense... institutions and doctrines might not be “false” in some strong sense because they may be so tightly integrated that no significant changes are possible Expressivism suggests that a nation has a (single) selfunderstanding that its constitution expresses Yet, these challenges should not be given more weight than they properly bear Everything we know about the doctrines and institutions of law tells us that doctrines . w0 h1" alt="" WEAK COURTS, STRONG RIGHTS This page intentionally left blank WEAK COURTS, STRONG RIGHTS JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE. Oxfordshire OX20 1SY All Rights Reserved Library of Congress Cataloging-in-Publication Data Tushnet, Mark V., 1945– Weak courts, strong rights : judicial review