Weak Courts, Strong Rights: Judicial Review And Social Welfare Rights In Comparative Constitutional Law

WEAK COURTS, STRONG RIGHTS This page intentionally left blank WEAK COURTS, STRONG RIGHTS JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW Mark Tushnet princeton university press princeton and oxford Copyright © 2008 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, 3 Market Place, Woodstock, Oxfordshire OX20 1SY All Rights Reserved Library of Congress Cataloging-in-Publication Data Tushnet, Mark V., 1945– Weak courts, strong rights : judicial review and social welfare rights in comparative constitutional law / Mark Tushnet. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-691-13092-7 (hardcover : alk. paper) 1. Judicial review—United States. 2. Social rights—United States. 3. Judicial review. 4. Social rights. I. Title. KF4575.T873 2008 347.73⬘12—dc22 2007003095 British Library Cataloging-in-Publication Data is available This book has been composed in Goudy Printed on acid-free paper. ⬁ press.princeton.edu Printed in the United States of America 10 9 8 7 6 5 4 3 2 1 TO MY COLLEAGUES At the Georgetown University Law Center This page intentionally left blank Contents Preface ix Acknowledgments xv Part I: Strong-Form and Weak-Form Judicial Review Chapter 1 Why Comparative Constitutional Law? 3 Chapter 2 Alternative Forms of Judicial Review 18 Chapter 3 The Possible Instability of Weak-Form Review and Its Implications 43 Part II: Legislative Responsibility for Enforcing the Constitution Chapter 4 Why and How to Evaluate Constitutional Performance Chapter 5 Constitutional Decision Making Outside the Courts 79 111 Part III: Judicial Enforcement of Social and Economic Rights Chapter 6 The State Action Doctrine and Social and Economic Rights 161 Chapter 7 Structures of Judicial Review, Horizontal Effect, and Social Welfare Rights 196 Chapter 8 Enforcing Social and Economic Rights 227 Table of Cases 265 Index 269 This page intentionally left blank Preface This book brings together two of the important intellectual or theoretical issues of concern to students of comparative constitutional law as it has developed in the United States over the past decade. First, what is the proper role of courts in constitutional systems that generally comply with rule-of-law requirements? Second, what substantive rights do, should, or can constitutions guarantee? Should they protect second-generation social and economic rights and third-generation cultural and environmental rights, and if so, how, and in what venues? I argue that the comparative study of constitutions brings out underappreciated connections between the answers to these two questions. The reason is that the “new Commonwealth model” of judicial review offers an important alternative to the form of judicial review familiar in the United States.* In that new model, courts assess legislation against constitutional norms, but do not have the final word on whether statutes comply with those norms. In some versions the courts are directed to interpret legislation to make it consistent with constitutional norms if doing so is fairly possible according to (previously) accepted standards of statutory interpretation. In other versions the courts gain the additional power to declare statutes inconsistent with constitutional norms, but not to enforce such judgments coercively against a losing party. In still others, the courts can enforce the judgment coercively, but the legislature may respond by reinstating the original legislation by some means other than a cumbersome ame