The strange cases of marbury and lochner in the constitutional imagination

Texas Law Review

Volumn 87, Issue 7, 2009, Pages 1463-1497

  Schor, Miguel ^a  

^a SUFFOLK UNIVERSITY   (United States)

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EID: 69249152948     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (357)

1. 5 U.S. (1 Cranch) 137 (1803).
2. 198 U.S. 45 (1905).
3. See infra Part II.
4. See infra Part III.
5. See, e.g., William E. Nelson, Marbury v. Madisoa Democracy, and the Rule of Law, 71 TENN. L. REV. 217, 217 (2004) (identifying Marbury as the "progenitor of judicial review").
6. When its authority to integrate public schools was challenged, the Court cited Marbury as authority in Cooper v. Aaron, 358 U.S. 1, 18 (1958). While Cooper was met with widespread approval, the Court first cited Marbury as authority to strike down a federal statute in more dubious circumstances when it invalidated the federal income tax. Pollock v. Farmer's Loan & Trust Co., 157 U.S. 429, 554 (1895). Pollock was subsequently overruled by the Sixteenth Amendment.
7. See U.S. CONST, amend. XVI (granting Congress the power to collect taxes on incomes).
8. J.M. Balkin & Sanford Levinson, Constitutional Canons and Constitutional Thought, in LEGAL Canons 400, 418 (J.M. Balkin & Sanford Levinson ed., 2000).
9. See, e.g., Jack Knight & Lee Epstein, On the Struggle for Judicial Supremacy, 30 LAW & SOC'Y REV. 87, 113 (1996) (arguing that the outcome of Marbury can be better explained by the political environment in which the case was decided than by conventional legal analysis);
10. Sanford Levinson, Why I Do Not Teach Marbury (Except to Eastern Europeans) and Why You Shouldn 't Either, 38 WAKE FOREST L. REV. 553, 554-59 (2003) (arguing that Marbury is only significant in a historical context that most law students are entirely ignorant of).
11. See, e.g., MARK V. TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 154 (1999) (speculating on what would happen if the Court "end[ed] the experiment" of judicial review);
12. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J.I 346, 1406 (2006) (concluding that judicial review is the wrong way for a democratic society to decide rights disputes).
13. Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 DUKE L.J. 243, 252 (1998);
14. see also RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 71 (1996) (arguing that judicial review is America's "most distinctive and valuable contribution to democratic theory").
15. Anne-Marie Slaughter, A Brave New Judicial World, in AMERICAN EXCEPTIONALISM AND Human Rights 227, 301 (Michael Ignatieff ed., 2005) (noting how countries around the world have looked to judicial review in the Marbury tradition "for inspiration in protecting the rights of their own minorities and women against majority interference").
16. HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RJSE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE 46-48 (1993).
17. See David E. Bernstein, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 92 GEO. L.J. 1, 57 (2003) (observing that Lochner was correct "in establishing a strong judicial role in protecting unenumerated fundamental rights").
18. Balkin & Levinson, supra note 7, at 417. Ronald Dworkin, for example, writes that Lochner has become the "whipping boy" of American law. Dworkin, supra note 10, at 82.
19. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 861, 860-62 (1992) (distinguishing the Court's decision to affirm Roe's central holding from its overruling of Lochner and Adkins, cases which "rested on fundamentally false factual assumptions" about society and the free market);
20. Griswold v. Connecticut, 381 U.S. 479, 482, 481-82 (1965) (asserting that, since West Coast Hotel, the Court has consistently refused to look to Lochner as a "guide" when addressing the Due Process Clause of the Fourteenth Amendment).
21. See infra Part III.
22. ROBERT LOUIS STEVENSON, THE STRANGE CASE OF DR. JEKYLL AND MR. HYDE 126-127 (Pennyroyal Press 1990) (1886).
23. See infra Part II;
24. see also Miguel Schor, Judicial Review and American Constitutional Exceptionalism, 46 OSGOODE HALL L.J. 535, 537 (2008) ("The fear of providing constitutional courts with too much power played an important role in shaping judicial review outside the United States.").
25. See Cornell W. Clayton & J. Mitchell Pickerill, The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court's Criminal Justice Jurisprudence, 94 GEO. L.J. 1385, 1388 (2006) (asserting that "[wjhile the authority of American courts to strike down laws contrary to the Constitution has existed at least since Marbury" the concept of judicial review and any corresponding examination of the limits of judicial power "did not become a prominent or controversial feature of constitutional debate until the Lochner era").
26. See infra Part II.
27. See infra Part III.
28. See id.
29. See infra Part IV.
30. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893) ("[The Judiciary] can only disregard the Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one- so clear that it is not open to rational question.").
31. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 15-16 (1959) ("No legislature or executive is obligated by the nature of its function to support its choice of values by the type of reasoned explanation that I have suggested is intrinsic to judicial action-however much we may admire such a reasoned exposition when we find it in those other realms.").
32. See Miguel Schor, Mapping Comparative Judicial Review, 7 WASH. U. GLOBAL STUD. L. REV. 257, 263 (2008) ("[T]he U.S. model of diffuse review, which does not rely on specialized courts to exercise judicial review, proved more successful in Latin America than elsewhere.").
33. See Miguel Schor, Constitutionalism Through the Looking Glass of Latin America, 41 TEX. INT'L L.J. 1, 15 (2006) (noting that the framers of Latin America's constitutions and the drafters of its civil codes borrowed from both the United States and Europe).
34. See, e.g., Jeffrey Goldsworthy, Australia: Devotion to Legalism, in INTERPRETING Constitutions: A Comparative Study 106, 110 (Jeffrey Goldsworthy ed., 2006) (noting that Australians remain wary of constitutionally entrenched rights);
35. Kent Roach, Constitutional, Remedial, and International Dialogues About Rights: The Canadian Experience, 40 Tex. Int'L L.J. 537, 546 (2005) (pointing out that only since 1982 has Canada's Constitution "contained a supremacy clause that seems on its face to contemplate judicial enforcement of rights in the tradition of Marbury v. Madison").
36. In the early American republic, it was widely believed that popular majorities, not the courts, would shape the meaning of the Constitution.
37. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 71-72 (2004) ("For most, including most politicians and public leaders, the focus remained on traditional popular means of enforcing the constitution."). Although today we largely accept the idea that domestic courts may enforce rights, international human rights are largely programmatic.
38. See PAUL GORDON LAUREN, The Evolution of International Human Rights: Visions Seen 105-111 (2d ed. 2003) (noting the various governmental organizations and nongovernmental organizations that have pursued the worldwide expansion of human rights).
39. It is no surprise that sectors of the public first began to organize in a sustained, ideological fashion around the issue of judicial appointments during the Lochner Era. See Schor, supra note 18, at 545-551 (providing a historical, institutional account of how interest groups mobilized around the issue of appointments).
40. See Tom Ginsburg, The Global Spread of Constitutional Review, in THE OXFORD Handbook of Law and Politics 81, 88-89 (Keith E. Whittington et al. eds., 2008) (pointing out that a theory of judicial review associated with a "rights ideology" only became prevalent in industrial economies after the Second World War).
41. Schor, supra note 26, at 261-265 (noting that judicial review was linked to federalism in the nineteenth century).
42. Tom Ginsburg & Zachary Elkins, Ancillary Powers of Constitutional Courts, 87 TEXAS L. REV-fig. 1(2009).
43. Constitutional scholars and judges around the globe, for example, liken cases that declare the power of judicial review to Marbury. Both of the leading comparative constitutional casebooks have sections dealing with this issue. NORMAN DORSEN ET AL., COMPARATIVE Constitutionalism: Cases and Materials 100-13, 157-160 (2003)
44. Vickic. Jackson & Mark Tushnet, Comparative Constitutional Law 451-63, 586-645 (2d ed. 2006).
45. There is also a considerable comparative literature attesting to Marbury's hold on the constitutional imagination. See, e.g., George A. Bermann, Marbury v. Madison and European Union "Constitutional" Review, 36 GEO. WASH. INT'L L. Rev. 557, 557 (2004) (observing that Marbury "specifically raises the question of the legitimacy of a 'horizontal' species of judicial review, that is, review by courts of the exercise of powers by the coordinate branches of government, " which is the less problematic dimension of review in EU courts).
46. James Crawford, Marbury v. Madison at the International Level, 36 GEO. WASH. INT'L L. REV. 505, 505 (2004) (noting that Marbury v. Madison "bears an interesting relationship to the history of constitutional review in other common law countries").
47. Daniel Halberstam, Constitutionalism and Pluralism in Marbury and Van Gend, in The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Miguel P. Maduro & Loic Azoulai eds., forthcoming Oct. 2009, on file at http://ssrn.com/abstract=l103253 (writing that the "highly relevant comparison between Van Gend, Marbury, and their respective progenies" relates to the separate American and EU systems of constitutional pluralism)
48. Wolfgang Hoffrnann-Riem, Two Hundred Years of Marbury v. Madisoa The Struggle for Judicial Review of Constitutional Questions in the United States and Europe, 5 GERMAN L.J. 685, 687 (2004) ("Marbury v. Madison was a velvet revolution, which did not claim its first victim for several decades.")
49. M.C. Mirow, Marbury in Mexico: Judicial Review's Precocious Southern Migration, 35 HASTINGS CONST. L.Q. 41, 43-44 (2007) ("Marbury now embodies a particular approach to constitutional law and decision making; it is emblematic of the doctrine of judicial review [and was] instrumental in the development of Mexican constitutional law.");
50. Kwasi Prempeh, Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in Contemporary Africa, 80 TUL. L. REV. 1239, 1241 (2006) ("Sub-Saharan Africa is one region of the world where Marbury'% legacy is enjoying a quiet resurgence.");
51. Yoram Rabin & Arnon Gutfeld, Marbury v. Madison and Its Impact on Israeli Constitutional Law, 15 U. MIAMI INT'L & COMP. L. REV. 303, 320 (2007) (observing that "[t]he power of judicial review declared by the Court in Bank Hamizrahi was not restricted to cases in which the ostensibly unconstitutional law conflicts with the specific provisions of the two new basic laws and the individual rights enumerated in them, " and was revolutionary in Israel in the same manner in which Marbury was in America).
52. Luc B. Tremblay, Marbury v. Madison and Canadian Constitutionalism: Rhetoric and Practice, 36 GEO. WASH. INT'L L. REV. 515, 522 (2004) (reporting that even prior to 1982, "the Judicial Committee of the Privy Council and the Canadian courts recognized the supremacy of the British North America Act and the legitimacy of judicial review on the basis of arguments quite similar to those of Chief Justice Marshall").
53. Mark Tushnet, Marbury v. Madison Around the World, 71 TENN. L. REV. 251, 258-259 (2004) (observing the effects of Marbury on the German judicial system).
54. Eric Engle, Constitutive Cases; Marbury v. Madison Meets Van Gend & Loos 15 (Jan. 23, 2009) (unpublished manuscript, on file at http://ssrn.com/ abstract=1331505) (observing that Marbury and Van Gend both "took risky positions to imply rights where no express right in the constitutive document existed").
55. William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review 72 (2000).
56. 35.Id. at 59.
57. In advocating the adoption of the Constitution, Hamilton assured those who feared the power of the Supreme Court that it exercised neither force nor will in invalidating legislation. THE Federalist NO. 78, at 464-472 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
58. See Mary Sarah Bilder, The Corporate Origins of Judicial Review, 116 YALE L.J. 503, 535 (2006) (asserting that between 1776 and 1787, the framers of the U.S. Constitution, Federalists and Anti-Federalists, federal judges, and Supreme Court Justices widely assumed that legislation could not be repugnant to the newly written Constitution).
59. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 177, 180 (1803).
60. Bilder, supra note 37, at 513-514
61. Id. at 535.
62. Marbury, 5 U.S. (1 Cranch) at 176.
63. Bilder, supra note 37, at 554.
64. See Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and THE Empire 10-11 (2004) (attributing the principles of repugnancy and divergence, which shaped early conceptions of judicial review, to the transatlantic legal culture of the seventeenth century).
65. Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? 12, 18-26 (3d ed. 2004);
66. JohnT. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism 3-8 (2002).
67. RUSSELL, supra note 44, at 23.
68. See Robert A. Sedler, Constitutional Protection of Individual Rights in Canada: The Impact of the New Canadian Charter of Rights and Freedoms, 59 NOTRE DAME L. REV. 1191, 1193 (1984) ("In Canadian legal theory, then, individual rights were not entrenched. The [BNA] provided the courts with no legal basis to override otherwise valid governmental actions which interfered with individual rights.").
69. The judicial committee of the Privy Council was one of the highest courts in the United Kingdom and served as the highest court of appeal for a number of commonwealth nations. Loren P. Beth, The Judicial Committee as Constitutional Court for the British Empire 1833-1971, 7 Ga. J. INT'L & COMP. L. 47, 47 (1977).
70. With the decline of the British Empire, the Privy Council no longer plays the role it once did in hearing appeals from abroad. Id. Its domestic importance will be greatly reduced by the creation of the Supreme Court of the United Kingdom pursuant to the Constitutional Reform Act of 2005. See, e.g., Kate Malieson, Judicial Reform: The Emergence of the Third Branch of Government, in REINVENTING BRITAIN: CONSTITUTIONAL CHANGE UNDER New LABOUR 133, 145 (Andrew McDonald ed., 2007) (stating that the Supreme Court will take on the devolution powers of the Privy Council). The new Supreme Court will begin its work in October 2009. United Kingdom Supreme Court, Ministry of Justice, http://www.justice.gov.uk/about/uksc.htm.
71. RUSSELL, supra note 44, at 42-43.
72. The debate is over whether judicial review is compatible with parliamentary supremacy. Jennifer Smith, The Origins of Judicial Review in Canada, 16 CAN. J. POL. SCI. 115, 118 (1983).This debate surfaced anew with the adoption of the Charter of Rights and Freedoms in 1982. While Section 52 of the Charter provides for constitutional supremacy and affords judicial review in Canada with a textual footing for the first time, the Charter also arguably preserves parliamentary supremacy by allowing for a temporary legislative override of judicial declarations of legislative invalidity.
73. Id. at 133-134
74. Id. at 116.
75. Id. Not surprisingly, Australia also shared in the understanding that courts could invalidate "colonial legislation inconsistent with local constitutions and other Imperial legislation." Goldsworthy, supra note 28, at 110.
76. See, e.g., Larry Kramer, Fidelity to History-and Through It, 65 FORDHAM L. REV. 1627, 1633-1634 (1997) ("[T]he American Revolutionaries developed and defended a conception of the constitution that differed sharply from the one subscribed by their English and Loyalist counterparts, [but i]t would be a mistake ... to assume that this new conception simply replaced the older one, rather than supplementing and transforming it.").
77. This idea was discussed during the Founding Era debates: It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. THE FEDERALIST No.1 (Alexander Hamilton), supra note 36, at 33.
78. Carl J. Friedrich, The Impact of American Constitutionalism Abroad 6 (1966) (noting the broad "enthusiasm" for the American Constitution in the nineteenth century).
79. Id. at 4.
80. See John Lynch, The Spanish American Revolutions, 1808-1826, at 29 (1973) ("In the years before and after 1810 the very existence of the United States excited the imagination of Spanish Americans .... The works of Tom Paine, the speeches of John Quincy Adams, Jefferson and Washington all circulated in Spanish America.").
81. See Helmut Steinberger, Historic Influences of American Constitutionalism upon German Constitutional Development: Federalism and Judicial Review, 36 COLUM. J. TRANSNAT'L L. 189, 190 (1997) (noting that while there was considerable fear of the French Revolution in Germany, educated Germans were "fascinated by the events in North America") The framers of Norway's 1814 Constitution had a "good knowledge of the Constitution of the United States of 1787 as well as the various state constitutions." Eirik Holmoyvik, Why Did the Norwegian Constitution of 1814 Become a Part of Positive Law in the Nineteenth Century?, http://blogit.helsinki.fi/reuna/holmoyvik-paper- Tartu.doc. American ideas played an important role in shaping the view that the Norwegian Constitution was not simply programmatic but part of Norway's positive law, which, in turn, facilitated the exercise of judicial review by the Norwegian Supreme Court in the mid-nineteenth century.
82. Id. at 1-2.
83. see also Rune Slagstad, The Breakthrough of Judicial Review in the Norwegian System, in CONSTITUTIONAL JUSTICE UNDER OLD CONSTITUTIONS 81, 102 (Eivind Smith ed., 1995) (recognizing that early literature regarding judicial review in the Nordic realms repeatedly references the American system).
84. Steinberger, supra note 57, at 193.
85. Id. at 194.
86. 60. Id.
87. Id.
88. Id. at 200 (quoting Stenographische berichte iiber die verhandlungen der deutschen Constituierenden [Stenographic Report on the Negotiations of the German Constitution], in IV NATIONALVERSAMMLUNG ZU FRANKFURT AM MAIN [NATIONAL ASSEMBLY AT FRANKFURT] 2726, 2928, 3614 (Franz Jacob Wiegand ed., 1848/49)).
89. Id.
90. MANUEL JOSE CEPEDA ESPINOSA, POLEMICAS CONSTITUCIONALES 94 (2007).
91. See Mirow, supra note 33, at 44 ("The [Marbury] decision was also instrumental in the development of Mexican constitutional law, leaving a legacy of constitutional jurisprudence and a broadly construed supreme court power in Mexico. The Mexican Supreme Court would not be the same institution today were it not for Marbury")
92. JUSTO PRIETO, Pleno de la Suprema Corte de Justicia [S.C.J.N.] [Supreme Court], Semenario Judicial de la Federation, Segunda Epoca, tomo III, Septiembre de 1881, Pagina 339 (Mex.).
93. See Mirow, supra note 33, at 41-42 (describing Justo Prieto, a judicial officer of a state court, who, in 1881, decided that a state statute could not be enforced because it violated the Mexican Constitution).
94. Id.
95. Id. at 52.
96. Mirow, supra note 33, at 42. While the case provides legal grounds for judicial review in the nineteenth century, the Mexican Supreme Court was, at best, a minor player in Mexican politics until the country democratized at the end of the twentieth century. Miguel Schor, An Essay on the Emergence of Constitutional Courts: The Cases of Colombia and Mexico, 16 IND. J. GLOBAL LEGAL STUD. 173, 178-79(2009).
97. Jonathan M. Miller, The Authority of a Foreign Talisman: A Study of U.S. Constitutional Practice as Authority in Nineteenth Century Argentina and the Argentine Elite's Leap of Faith, 46 AM. U. L. REV. 1483, 1486 (1997).
98. See id. at 1501 (pointing out that the 1853 Constitution emerged from the intellectual vision of a small number of Argentine thinkers who drew inspiration from the U.S. model).
99. Corte Suprema de Justicia [CSJN], 22/9/1887, "Sojo Eduardo/recurso de habeus corpus, " Fallos (1887-32-120) (Arg.) [hereinafter Sojo], available at http://www.biblioteca.jus.gov.ar/Fallo-SOJO.html.
100. Id.
101. See NELSON, supra note 34, at 58 (noting that Marbury v. Madison created the possibility of a direct confrontation between the Federalist Judiciary left over from the Adams Administration and the new Jeffersonian Congress).
102. Sojo, supra note 73.
103. Id.
104. Davison M. Douglas, The Rhetorical Uses o/Marbury v. Madison: The Emergence of a "Great Case, " 38 WAKE FOREST L. REV. 375, 377 (2003).
105. Id.
106. CHARLES R. EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE 45-47 (1998).
107. Id. at 45.
108. Groups such as the ACLU and the NAACP would subsequently use the template established by business interests in what has become known as the rights revolution.
109. Id.
110. Douglas, supra note 78, at 397.
111. Schor, supra note 18, at 545-51.
112. Id.
113. The police-powers analysis employed by the majority in Lochner has been much maligned, but it, along with Justice Holmes's famous dissent, helped shape the modern debate over how courts should construe rights.
114. See Lorraine E. Weinrib, The Postwar Paradigm and American Exceptionalism, in THE MIGRATION OF CONSTITUTIONAL IDEAS 84, 106 (Sujit Choudhry ed., 2006) (noting a "striking similarity" between the majority's analysis in Lochner and the modern-day Court's approach to "integrat[ing] traditional police power analysis into the complicated structure of constitutional law, including common law liberties").
115. Thayer's seminal article arguing in favor of judicial moderation helped launch this debate.
116. See Thayer, supra note 24, at 152, 146-55 (arguing that judges "must not step into the shoes of the law-maker")
117. see also Scott D. Gerber, The Court, the Constitution, and the History of Ideas, 61 VAND. L. REV. 1067, 1071 (2008) ("Scholars have been opining about the Supreme Court's role in the American constitutional order since at least 1893, when James Bradley Thayer published The Origin and Scope of the American Doctrine of Constitutional Law."). In response to the "spectre of illegitimate judicial activism in the mode of Lochner, " scholars devised a variety of "proposed safeguards that circumscribed judicial review."
118. Weinrib, supra note 85, at 106.
119. See Gillman, supra note 12, at 147-50 (describing the Progressive and Conservative positions during the Lochner Era on how courts should effectuate rights).
120. See OWEN DIXON, TWO Constitutions Compared, in JESTING PILATE AND OTHER PAPERS AND ADDRESSES 100, 101 (1965) ("The [Australian framers] had the American document before them; they studied it with care; they even read the standard books of the day which undertook to expound it.").
121. J.A. LA NAUZE, THE MAKING OF THE AUSTRALIAN CONSTITUTION 24-28 (1972) (summarizing the Australian framers' discussions of the U.S. Constitution). For a more nuanced view of the knowledge that the Australian framers had of the American Constitution.
122. see John Williams, THE Emergence of the Commonwealth Constitution, in AUSTRALIAN CONSTITUTIONAL LANDMARKS 1 (H.P. Lee & George Winterton eds., 2003).
123. See LA NAUZE, supra note 88, at 27-28 (chronicling the debate over which system, American or Canadian, was more appropriate for distributing power between the Australian central government and the colonies).
124. Id. at 27-28.
125. Goldsworthy, supra note 28, at 108.
126. see also DIXON, supra note 88, at 103 (describing the Australian system as a combination of principles characteristically British with principles of American federalism).
127. Williams, supra note 88, at 25-27.
128. see also Goldsworthy, supra note 28, at 109-10 (explaining that the Australian framers ultimately rejected explicit protections for abstract rights- on the issue of race specifically, the Australian framers did not want to be prevented from discriminatory practices designed to protect the racial and cultural homogeneity of their communities).
129. Goldsworthy, supra note 28, at 115.
130. See id. at 109 (deducing that, with respect to rights, the Australian framers were influenced more by the British than by the American tradition).
131. The Australian High Court implicated free speech rights to exercise judicial review in Australian Capital Television v. Commonwealth (1992) 177 C.L.R. 106.See id. at 109 (deducing that, with respect to rights, the Australian framers were influenced more by the British than by the American tradition)
132. See JASON L. PIERCE, INSIDE THE MASON COURT REVOLUTION: THE HIGH COURT OF AUSTRALIA TRANSFORMED 157, 157-70 (2006) (highlighting the line of "implied rights cases" decided by the Australian High Court in the 1990s and acknowledging the criticism engendered by their approach); Goldsworthy, supra note 28, at 146, 144-46 (noting that this case, as well as others based on a theory of implied rights in the Australian Constitution, has "provoked a vigorous theoretical and critical commentary").
133. This Article advances a political definition of judicial activism. For a review of the various normative definitions of judicial activism proposed by legal scholars, see Robert Justin Lipkin, We Are All Judicial Activists Now, 77 U. ClN. L. REV. 181, 183 n.8 (2008).
134. Peter W. Hogg, Constitutional Reform in Canada: A Comment on the Canadian Constitutional Crisis, 6 YALE STUD. WORLD PUB. ORD. 285, 286 n.5, 287 (1980).
135. See RUSSELL, supra note 44, at 23 (noting that the British North Americans, seeing the Americans "in the throes of civil war, " made the "decision to give the residual power to the central rather than the local legislatures" in order to "revers[e] what many regarded as the most dangerously decentralizing feature of the American Constitution").
136. Id.
137. See id. at 41 (commenting that until 1949, the Privy Council decided "a steady stream of constitutional cases" that reversed the Canadian Supreme Court's constitutional approach).
138. Peter W. Hogg, Canada: From Privy Council to Supreme Court, in INTERPRETING CONSTITUTIONS: A COMPARATIVE STUDY, supra note 28, at 55, 75 (noting that the Lordships of the Privy Council were quite ignorant of the history, geography and society of Canada, as numerous faux pas in their opinions demonstrate").
139. See Hogg, supra note 99, at 63 (writing that the Privy Council showed a "relentless refusal to give significant content to the federal peace, order, and good government power whenever it came into potential conflict with the provincial power over property and civil rights").
140. See KENT ROACH, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE 42, 44 (2001) (arguing that the Privy Council's use of a constitutional mandate for a division of powers between the federal government and the provinces to strike down federal-marketing, unemployment-insurance, minimum-wage, and maximum-hours legislation allowed the Privy Council to effectively practice judicial review over economic regulatory legislation to the detriment of Canadian citizens).
141. Id. at 42.
142. see also SAYWELL, supra note 44, at 226-29 (relating that the constrictive delimitation of federal powers undertaken by the Privy Council in the 1930s spurred a backlash in favor of rewriting the Constitution and abolishing appeals to the Privy Council altogether).
143. Keith E. Whittington, Congress Before the Lochner Court, 85 B.U. L. REV. 821, 821 (2005).
144. See GILLMAN, supra note 12, at 145 ("For these critics, the problem was not that judges didn't read their social science carefully enough; rather, it was that in attempting to maintain the distinction between general welfare and class legislation the judiciary was preventing legislatures from responding to the unprecedented challenges associated with managing an advanced, industrial capitalist society.").
145. See JOHN HENRY MERRYMAN & ROGELIO PEREZ-PERDOMO, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 34-38 (3d ed. 2007) (pointing out that the constitutionalization of judicial review after the Second World War in civil law countries took a very different course owing to, inter alia, traditional civil law limitations on the role of judges and separation-of-powers concerns).
146. See infra notes 140-45 and accompanying text.
147. See infra subpart III(B).
148. MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (2001).
149. see also PAUL GORDON LAUREN, THE EVOLUTION OF HUMAN RIGHTS: VISIONS SEEN 200-27 (2d ed. 2003) (describing the efforts of several activists to use the UN Charter to advance international human rights).
150. Ginsburg, supra note 31, at 88-89.
151. Id. at 83-84.
152. Id. at 81-82.
153. Schor, supra note 26, at 259.
154. Schor, supra note 18, at 555-57.
155. See infra notes 140-45 and accompanying text.
156. The 1917 Mexican Constitution incorporated social rights that were "designed to subordinate individual rights to collective needs." Jonathan Hartlyn & Arturo Valenzuela, Democracy in Latin America Since 1930, in LATIN AMERICAN POLITICS AND SOCIETY SINCE 1930, at 3, 15 (Leslie Bethell ed., 1998).
157. Charles A. Hale, The Civil Law Tradition and Constitutionalism in Twentieth-Century Mexico: The Legacy ofEmilio Rabasa, 18 LAW & HIST. REV. 257, 278 (2000) (discussing Mexican scholar Emilio Rabasa's rejection of the "legislation by judges" implemented by the conservative U.S. interventionist courts of the early twentieth century).
158. MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW 28 (2008).
159. Id.
160. See infra notes 189-91 and accompanying text.
161. Schor, supra note 70, at 180-81.
162. Federico Fabbrini, Kelsen in Paris: France's Constitutional Reform and the Introduction of a Posteriori Constitutional Review of Legislation, 9 GERMAN L.J. 1297 (2008).
163. Alec Stone Sweet, Le Conseil constitutionnel et la transformation de la Republique [The Constitutional Council and the Transformation of the Republic], 25 CAHIERS DU CONSEIL CONSTITUTIONNEL [PAPERS CONST. COUNS.] 65, 65 (2008) (Fr.), translated at http://works.bepress.com/alec-stone-sweet/23.
164. See THE FEDERALIST No. 78 (Alexander Hamilton), supra note 36, at 465 ("The judiciary... has no influence over either the sword or the purse ... and can take no active resolution whatsoever. It may truly be said to have neither force nor will but merely judgment....").
165. Citizens, not courts, were responsible for shaping the meaning of the Constitution. KRAMER, supra note 29, at 53.
166. The other mechanisms such as impeachment and jurisdiction stripping have fallen into desuetude because it is believed that such measures undermine judicial independence. CHARLES G. GEYH, WHEN COURTS AND CONGRESS COLLIDE 161-64 (2006).
167. U.S. CONST, art. II, § 2, cl. 2.
168. Id.
169. Schor, supra note 18, at 545-51.
170. The political ascendancy by Republicans in recent years has decisively shaped the ideology of the Court. A study ranking the Justices from 1937 to 2006 by ideology concludes that five of the ten most conservative justices are currently sitting on the Court (Justices Thomas, Scalia, Roberts, Alito, and Kennedy). William M. Landes & Richard A. Posner, Rational Judicial Behavior: A Statistical Study 46 tbl.3 (Univ. of Chi. John M. Olin Law & Econ., Working Paper No. 404, 2008), available at http://ssrn.com/abstract=l 126403.
171. U.S. CONST, art. V.
172. The United States has one of the most difficult constitutions in the world to amend. DONALD S. LUTZ, PRINCIPLES OF CONSTITUTIONAL DESIGN 171 (2006) ("Comparative cross-national data show that the U.S. Constitution has the second most difficult amendment process."). A supermajority approval is needed both in Congress and among the states. Id. at 169 (stating that a two-thirds vote by Congress and approval by three-fourths of the states is
173. The Supreme Court has been overruled by amendment four times. AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 334, 597 n.26 (2005).
174. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-23 (2d ed. 1986) (characterizing judicial review as countermajoritarian).Political scientists, on the other hand, argue that the Supreme Court is an anomalous majoritarian institution whose discretion is ultimately checked by appointments.
175. See, e.g., Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court As National Policy-Maker, 6 J. PUB. L. 279, 284-85 (1957) (arguing that the Supreme Court's policy views will eventually reflect those of the dominant political players because the President will appoint, on average, two Supreme Court Justices during a single term).
176. See MICHAEL COMISKEY, SEEKING JUSTICES: THE JUDGING OF SUPREME COURT NOMINEES 30-31 (2004) (asserting that an ideological review of candidates as they are appointed to the Court is more successful than attempts to overturn Supreme Court rulings by constitutional amendment).
177. Schor, supra note 26, at 261-70.
178. See Mauro Cappelletti, Repudiating Montesquieu? The Expansion and Legitimacy of "ConstitutionalJustice, " 35 CATH. U. L. REV. 1, 5-6, 6 n.5 (1985) (stating that several European countries adopted constitutional judicial review through independent constitutional courts, such as Austria in 1945, Italy in 1948, and Germany in 1949).
179. See id. (noting that Japan adopted constitutional judicial review through independent judicial courts in 1947).
180. see also TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 107, 168, 207 (2006) (chronicling that Taiwan's Council of Grand Justices was established in 1947, Mongolia's Tsets was established in 1992, and Korea's Constitutional Court was established in 1988).
181. Patricio Navia & Julio Rios-Figueroa, The Constitutional Adjudication Mosaic of Latin America, 38 COMP. POL. STUD. 189, 191-92 (2005).
182. Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. 707, 719 (2001).
183. Rosalind Dixon, Designing Constitutional Dialogue: Bills of Rights and the New Commonwealth Constitutionalism (2008) (unpublished S.J.D. dissertation, Harvard University) (on file with author and Harvard University).
184. David Oliver Erdos, Mace, Sword, and Scales: The Bill of Rights Debate in Westminster Democracies 97-102 (2007) (unpublished dissertation, Princeton University) (on file with author).
185. See Schor, supra note 18, at 555 (observing that when countries in the second half of the twentieth century sought to implement judicial review, they embraced the idea that constitutions are a type of political law and thereby rejected the American notion that constitutions should be analogized to ordinary law).
186. Scholars typically refer to the political-court model as the European model of judicial review, but this is a problematic term, as it has been adopted in a number of polities outside Europe.
187. Id. at 539 n.17.
188. The term used in this Article-the political-court model-is preferable as it captures the essential element of the model which is that qualified political minorities may bring claims directly before a national high court. Id. The other term used in this Article-the politicized-rights model-is preferable as it captures the key element of the model which is that rights are weakly entrenched.
189. Id. at 557-58.
190. Although judicial review did not take off in Europe until after the war, Marbury germinated in the period between the two world wars.
191. See generally PEDRO CRUZ V́ILLALÓN, LA FORMACION DEL SISTEMA EUROPEO DE CONTROL DE CONSTITUCIONALIDAD (1918-1939) (1987) (describing the experimentation and formation of constitutional review in the period after the First World War).
192. The Austrian Constitution of 1920, unlike the U.S. Constitution, has provisions on judicial review. Id.
193. see also Stanley L. Paulson, Constitutional Review in the United States and Austria: Notes on the Beginnings, 16 RATIO JURIS 223, 233 (2003) (describing the importance of the provisions on judicial constitutional review in the Constitution of 1920).
194. The constituent assembly that drafted Germany's Weimar Constitution in 1919, on the other hand, could not reach an agreement on judicial review, and consequently the Constitution was silent on the topic.
195. See CRUZ VILLALÓN, supra, at 80-85 (describing the assembly's differing opinions and final silence on the subject of judicial review).
196. The German national high court, or Reichsgericht, decided a case in 1925 that was immediately recognized as a "Marbury" decision. See id. at 86 (noting that this decision was widely recognized as signaling assumption of the right of judicial review).
197. While judicial review was of little practical importance in Weimar, that did not prevent scholars from sharply disputing its propriety.
198. See id. at 92-94 (noting and summarizing the arguments advanced in favor of and against judicial review)
199. see also JEFFREY SEITZER, COMPARATIVE HISTORY AND LEGAL THEORY: CARL SCHMITT IN THE FIRST GERMAN DEMOCRACY 73-97 (2001).
200. ALEC STONE, THE BIRTH OF JUDICIAL POLITICS IN FRANCE: THE CONSTITUTIONAL COUNCIL IN COMPARATIVE PERSPECTIVE 37 (1992).
201. Id.
202. EDUOARD LAMBERT, LE GOUVERNEMENT DES JUGES (1921).
203. see STONE, supra note 141, at 39 (describing Lambert's study of American judicial politics, which radically departed from traditional French public-law scholarship).
204. Michael H. Davis, A Government of Judges: An Historical Re-View, 35 AM. J. COMP. L. 559, 559 (1987) (describing how Eduoard Lambert single-handedly coined the phrase "government of judges").
205. STONE, supra note 141, at 39.
206. Id. at 40.
207. Kelsen played an important role in drafting the Austrian Constitution of 1920, particularly its provisions on judicial review. Paulson, supra note 140, at 232-35 (noting that for Kelsen, the provisions on constitutional review meant the most to him in his work on the Constitution of 1920 and describing his defense of centralized review).
208. Hans Kelsen, La garantie juridictionelle de la Constitution, 45 REVUE Du DROIT PUBLIQUE 197(1928).
209. Id. at 198-200.
210. Id. at 222-23.
211. Id.
212. Theo Ohlinger, The Genesis of the Austrian Model of Constitutional Review of Legislation, 16 RATIO JURIS 206, 217 (2003).
213. Kelsen, supra note 147, at 239, 241.
214. Id. at 241-42.
215. Id. at 241.
216. Id. at 224-25.
217. Kelsen was a realist on appointments; since "it is impossible to avoid political influence on the tribunal, it is preferable to accept... the participation of political parties in the formation of the tribunal such as by according a certain number of seats to parliamentary election.".
218. Id. at 225.
219. Id. at 222-25, 234-37.
220. The desire to deal with the horrors of the Second World War led Germany to draft a Constitution with a number of open-ended provisions that are judicially enforceable. Donald P. Kommers, German Constitutionalism: A Prolegomenon, 40 EMORY L.J. 837, 852 (1991).
221. The German Constitution, or Basic Law, begins by declaring that the dignity of man shall remain inviolate. GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GG] [Constitution] art. 1 (F.R.G.). Many of the constitutions adopted after the Second World War belong to this family of "dignity based rights instruments." GLENDON, supra note 108, at 175.
222. See Paulson, supra note 140, at 225 (describing Kelsen's role in the development of constitutional review in Austria as "monumental").
223. Mark Tushnet, Popular Constitutionalism as Political Law, 81 CHI.-KENT L. REV. 991, 992 n.5 (2006) ("Kelsen designed the Austrian constitutional court, the major institutional alternative to the U.S. model for a court exercising the power of judicial review, as he did, precisely because he understood constitutional law to be a special kind of law, in which the political played a large role.").
224. Schor, supra note 18, at 555-56.
225. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 641 (2000).
226. Cindy Skach, The "Newest" Separation of Powers: Semipresidentialism, 5 INT'L J. CONST. L. 93, 96 (2007).
227. CRUZ VILLALÓN, supra note 140, at 80-85. The desire to provide a neutral arbiter between political parties led Mexico, for example, to adopt provisions moving it towards the political-court model in 1995.
228. Schor, supra note 70, at 180-82.
229. Tom Ginsburg argues persuasively that the political-court model provides competing political factions with "insurance" against losing elected office as courts limit the power of politicians. GINSBURG, supra note 135, at 25.
230. See MERRYMAN & PEREZ-PERDOMO, supra note 105, at 34-38 (picturing the judicial process in civil law countries as routine activity and describing the function of civil law judges as analogous to an expert clerk).
231. Appointments in European courts are typically via legislative supermajorities. See ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE 46 (2000) (noting that Germany, Italy, and Spain appoint judges via legislative supermajorities, while France does not).
232. The idea of legislative election was attractive given that parliaments traditionally had the final word on constitutional meaning. See FRIEDRICH, supra note 54, at 86 ("As far as selection of the judges is concerned, the traditional European inclination to leave constitutional interpretation to the legislative bodies ... ha[s] led to giving the legislative authorities a major, if not the decisive voice in this selection.").
233. CINDY SKACH, BORROWING CONSTITUTIONAL DESIGNS: CONSTITUTIONAL LAW IN WEIMAR GERMANY AND THE FRENCH FIFTH REPUBLIC 128 (2005) ("In stressing the contingent nature of constitutional law, my argument... represents part of a growing effort to understand why certain clusters of institutions appear together throughout history-and why the relative success of one institution may be intimately tied to the presence and success of another, partner institution.").
234. See Lisa Hilbink, Beyond Manicheanism: Assessing the New Constitutionalism, 65 MD. L. REV. 15, 23-24 (2006) (describing the constitutional court appointment process as allowing "explicitly for negotiation" and, in many cases, requiring a supermajority vote).
235. See id. at 23 ("While never perfect, the appointment process has worked to provide rough proportionality in partisan, religious, and geographic representation on the court.").
236. See Schor, supra note 18, at 555 (stating that Germany and much of Western Europe adopted a political-court model after the Second World War).
237. See generally Erdos, supra note 137, at 1 (analyzing "the socio-political origins of national Bill of Rights institutionalization in advanced, industrialized democracies through a focus on divergent developments in four 'Westminster' democracies-the United Kingdom, Canada, Australia and New Zealand").
238. See TUSHNET, supra note 9, at 24 (discussing the "use of weak-form review in New Zealand, the United Kingdom, and Canada").
239. See Gardbaum, supra note 137, at 709 (noting that the model of countries like Canada, New Zealand, and the United Kingdom "decouple[s] judicial review from judicial supremacy by empowering legislatures to have the final word").
240. Adam M. Dodek, Canada as Constitutional Exporter: The Rise of the "Canadian Model" of Constitutionalism, 36 SUP. CT. L. REV. 309, 317-18 (2007).
241. EDWARD MCWHINNEY, CANADA AND THE CONSTITUTION 1979-1982: PATRIATION AND THE CHARTER OF RIGHTS 33 (1982).
242. See Hogg, supra note 99, at 81 (stating that the Canadian judges "drew on rich American case-law and commentary").
243. See RUSSELL, supra note 44, at 23 (noting that British North Americans departed from the American federal system because they viewed it as the "dangerously decentralizing feature of the American Constitution").
244. Hogg, supra note 99, at 80-81.
245. Sujit Choudhry, The Lochner Era and Comparative Constitutionalism, 2 INT'L J. CONST. L. 1, 15(2004).
246. ROACH, supra note 101, at 53.
247. See id. at 53-54 (chronicling how the two sides-political groups favoring judicial supremacy and those preferring legislative supremacy-"devised a creative compromise that combined the virtues of both judicial and legislative activism").
248. Part I of the Constitution Act §§ 1, 33, 1982, being Schedule B to the Canada Act 1982, ch. 11 (U.K.).
249. Canada was the first polity to adopt a general limitations clause, as the pattern in Europe had been to use "multiple explicit internal limitations clauses." Dodek, supra note 170, at 314-15.
250. see also Part I of the Constitution Act, § 1 ("The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.").
251. The Universal Declaration of Human Rights also contains a general limitations clause. Universal Declaration of Human Rights, G.A. Res. 217A, at 99, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948).
252. Id.
253. Janet Hiebert, The Evolution of the Limitation Clause, 28 OSGOODE HALL L.J. 103, 104 (1990).
254. Part I of the Constitution Act § 33.
255. Choudhry, supra note 175, at 48.
256. Peter H. Russell, Standing Up for Notwithstanding, 29 ALTA L. REV. 293, 297 (1992).
257. The "participants in the debates" over entrenching rights in New Zealand and the United Kingdom "were extremely well aware of. .. events in Canada, which as a fellow Commonwealth country with a similar legal culture and tradition of parliamentary sovereignty was viewed as a far more relevant example than either the United States or western Europe." Gardbaum, supra note 137, at 727.
258. See id. at 742-43 (comparing Canadian courts, which may decline to apply a statute that conflicts with fundamental rights, with courts in New Zealand and Britain, which may not decline to apply legislation when it violates fundamental rights but are encouraged to find interpretations that avoid violation).
259. Dodek, supra note 170, at 327.
260. New Zealand Bill of Rights Act 1990, 1990 S.N.Z. No. 109, §§ 4, 6.
261. Human Rights Act, 1998, c. 42, § 3(1) (Eng.).
262. Id. §4(2).
263. TUSHNET, supra note 116, at 28.
264. Schor, supra note 26, at 545-51.
265. See supra Part III.
266. Thomas C. Grey, Judicial Review and Legal Pragmatism, 38 WAKE FOREST L. REV. 473, 474-76 (2003).
267. Chief Justice John Roberts, for example, noted this change when he stated that the Court has adopted '"a more legal perspective and less of a policy perspective.'" Adam Liptak, Roberts Sets Off Debate on Judicial Experience, N.Y. TIMES, Feb. 17, 2009, at A14.
268. Grey, supra note 194, at 476-77.
269. Id. at 476.
270. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 948 (1987).
271. Id. at 960, 954-60.
272. Grey, supra note 194, at 474.
273. John Henry Merryman, The French Deviation, 44 AM. J. COMP. L. 109, 109 (1996).
274. Id.
275. Id. at 111-12.
276. Id.
277. See MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS 29-30 (1981) (discussing "the brute fact of judicial discretion" and observing that the study of the "political psychology of judging ... has fairly convincingly demonstrated that many judges are not entirely 'neutral' thirds but instead bring ... distinct public policy preferences, which they seek to implement through their decisions")
278. id. at 115-16 ("[E]fforts to make the law judge-proof. .. dwindled under the pressure of necessity and the natural tendency of lawyers and judges to do what seems reasonable, fair and effective in their work.").
279. See David S. Law, Generic Constitutional Law, 89 MINN. L. REV. 652, 688 n.133, 689-91 nn. 135-38 (2005) (discussing proportionality review and its application by British, German, French, and EU courts, and by the European Court of Human Rights).
280. See Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 COLUM. J. TRANSNAT'L L. 73, 113 (2008) ("In post-1989 Central and Eastern Europe ... virtually every constitutional court had adopted [proportionality analysis] on the German model; most did so all but immediately, citing the case law of the [German Federal Constitutional Court]... as authority.").
281. SCHOR, supra note 70, at 189, 189-91.
282. DIEGO EDUARDO LÓPEZ MEDINA, TEORIA IMPURA DEL DERECHO: LA TRANSFORMACIÓN DE LA CULTURA JURIDICA LATINOAMERICANA 118-20 (2004) (describing classical formalism in Latin America and noting that it continued in full force even when European formalism was in crisis).
283. See LISA HILBINK, JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE 54-55 (2007) (asserting that judges deferred "almost completely to the authority of the conservative legislators").
284. See CEPEDA ESPINOSA, supra note 64, at 159-66 (describing the Colombian Supreme Court's use of proportionality analysis to prevent the legislature or executive from disproprotionately harming fundamental individual rights varying from freedom of the press to habeas corpus).
285. See Schor, supra note 27, at 18-19 ("[T]he framers of [Latin America's] constitutions ... were clearly worried about the possibility of civil unrest" and thus "designed constitutions that placed too much power in one central figure, namely the president.").
286. Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 MICH. L. REV. 391, 430 (2008).
287. Weinrib, supra note 85, at 84.
288. Id.
289. Id. at 87.
290. Id. at 98.
291. See supra Part III.
292. See Alec Stone Sweet, Why Europe Rejected American Judicial Review and Why It May Not Matter, 101 MICH. L. REV. 2744, 2780, 2779-80 (2003) (noting that while in the "past three decades, the French, German, and Italian courts have ... invalidated more national laws than has the U.S. Supreme Court-in its entire history, " European theorists do not question the legitimacy of the exercise of judicial power);
293. see also Justice Manuel José Cepeda-Espinosa, Judicial Activism in a Violent Context: The Origin and Impact of the Colombian Constitutional Court, 3 WASH. U. GLOBAL STUD. L. REV. 529, 668-69 (2004) (noting that the framers of Colombia's 1991 Constitution feared the activism of the U.S. Supreme Court and fashioned, therefore, stronger mechanisms of political accountability for the Colombian Constitutional Court).
294. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 21 (2006).
295. DWIGHT WILEY JESSUP, REACTION AND ACCOMMODATION: THE UNITED STATES SUPREME COURT AND POLITICAL CONFLICT, 1809-1835, at 128, 172-73 (1987);
296. WILLIAM G. ROSS, A MUTED FURY: POPULISTS, PROGRESSIVES, AND LABOR UNIONS CONFRONT THE COURTS, 1890-1937, at 6-7 (1994);
297. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373, 381-87 (2007).
298. Schor, supra note 18, at 545-51.
299. Aleinikoff, supra note 198, at 948-49, 952-54.
300. Schor, supra note 18, at 547-51.
301. Mark Tushnet, Heller and the New Originalism, 69 OHIO ST. L.J. 609, 610 (2008);
302. see also Keith E. Whittington, The New Originalism, 2 GEO. J. L. & PUB. POL'Y 599, 599-601 (2004) (discussing the initial development of originalism as a reaction to the Warren Court, noting the widespread conservative support for originalism, Justice Rehnquist's defense of it, and the Rehnquist Court's continued adherence to judicial restraint).
303. See JOHNATHAN O'NEILL, ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY 1-2, 7-9 (2005) (describing the formalistic approach of originalism and its emergence as a response to theories advocating an evolutionary approach to constitutional meaning).
304. The U.S. Supreme Court is exceptional in its reliance on originalism. Jamal Greene, On the Origins of Originalism, 88 TEXAS L. REV. (forthcoming 2009-2010) (manuscript at 2, on file with Texas Law Review);
305. see also O'NEILL, supra note 226, at 137-41 (discussing how early originalists relied on the term "originalism" to argue that they, unlike their detractors, relied on a close reading of the Constitution that left no room for policy making);
306. Mary Ann Glendon, Comment in ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 101 (Amy Gutman ed., 1997) (noting a rise in U.S. regulation and contrasting this tendency with a decrease in the significance of codes in civil law systems).
307. SCALIA, supra note 227, at 3.
308. See id. at 13, 38-41 (questioning whether the "attitude" of the common law is appropriate).
309. Id. at 8.
310. Id. at 12-14, 38-41.
311. Id. at 39.
312. See id. at 44-46 (cautioning that judicial evolutionism is not a practicable constitutional philosophy).
313. See id. at 13-15, 23-25 (contending that every issue of law resolved by a federal judge involves the interpretation of text and articulating a "science of statutory interpretation" designed to adhere to its fair and reasonable meaning).
314. 128 S. Ct. 2783 (2008).
315. Interestingly, Justice Breyer used the term "proportionality" rather than balancing in his dissent, which may herald an attempt on his part to shepherd the U.S. Supreme Court into the fold of European constitutionalism.
316. See Moshe Cohen-Eliya & Iddo Porat, The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law, 46 SAN DIEGO L. REV. (forthcoming 2009) (manuscript at 2-5, on file at http://ssrn.com/abstracrH317833) (arguing that Breyer's focus on "proportionality" marks an important step in bringing American constitutional law closer to the mainstream of global constitutionalism).
317. See Heller, 128 S. Ct. at 2788 ("In interpreting [the Second Amendment], we are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.'") (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)).
318. See, e.g., id. at 2791-92 (searching for the original meaning of the word "arms" to elucidate the meaning of the Second Amendment);
319. id. at 2797-99 (looking at the historical background of the Second Amendment to confirm the Court's interpretation and noting that historical background is particularly important in interpreting the Second Amendment, since the Amendment codified a preexisting right at the time of its adoption).
320. See id. at 2816 (concluding that "nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment");
321. id. at 2845 n.38 (Stevens, J., dissenting) ("The majority appears to suggest that even if the meaning of the Second Amendment has been considered settled by courts and legislatures for over two centuries, that settled meaning is overcome by the 'reliance of millions of Americans' 'upon the true meaning of the right to keep and bear arms.'").
322. See id. at 2822 (stating that the "enshrinement of constitutional rights necessarily takes certain policy choices off the table").
323. See MERRYMAN & PÉREZ-PERDOMO, supra note 105, at 39 (asserting that in a pure civil law system "authoritative interpretation by the lawmaker [is] the only permissible kind of interpretation" and describing the duty of civil law judges to refer problems of statutory interpretation to the legislature so that these problems can be resolved through code revision rather than judicial subjectivity).
324. Mitchell Lasser, Anticipating Three Models of Judicial Control, Debate and Legitimacy: The European Court of Justice, the Cour de Cassation, and the United States Supreme Court 8 (The Jean Monnet Program, Working Paper 1/03, 2003), available at http://www.jeanmonnetprogram.org/papers/03/030101.html;
325. see also Jay Tidmarsh, Pound's Century, and Ours, 81 NOTRE DAME L. REV. 513, 544 n.138 ("[A]ll French courts have traditionally taken a very limited view of their ability to strike down legislative or executive action or to create new legal principles.").
326. See Michael Stokes Paulson, Does the Constitution Prescribe Rules for its Own Interpretation?, 104 Nw. U. L. REV. (forthcoming 2009) (manuscript at 24, on file at http://papers. ssrn.com/sol3/papers.cfm?abstract-id= 1301706) (arguing that the Constitution provides a general interpretative instruction to abide by its objective, original public meaning).
327. See SCALIA, supra note 227, at 9, 4-9, 13-14 (criticizing the common law practice of pulling together policy considerations, precedent, and statutes to varying degrees to "discern the best rule of law for the case at hand" and arguing that in the modern statutory environment the common law method should give way to the strictures of statutory interpretation).
328. See, e.g., Cohen-Eliya & Porat, supra note 236 (manuscript at 2-3, 27) (noting the German Constitutional Court's use of proportionality, which since the 1970s has become a defining feature of global constitutional law).
329. See id. (manuscript at 13) (describing the stages of proportionality analysis, the last being a determination of whether the benefits to be achieved from the government objective will be proportionate to the contemplated right's violation).
330. District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008).
331. See MERRYMAN & PEREZ-PERDOMO, supra note 105, at 39 (describing a judge's role in a pure civil law system, which, if followed, would prevent the judge from making law).
332. JULIO CUETO RUA, FUENTES DEL DERECHO 161-62 (1982) (contrasting the civil law with the common law and noting thatcommon law systems generally yield fewer contradictory verdicts in similar cases because of their use of precedent);
333. see also id. at 169-70 (asserting that in countries of the Roman civil law tradition, the law is found only in the statute itself and precedents are merely instructive in that they provide examples of the application of the statute to concrete cases).
334. See, e.g., Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 CONST. COMMENT. 257, 259 (2005) ("If precedent trumps original meaning, then the Constitution would truly be what the Supreme Court says it is, rather than the Supreme Court itself being bound to adhere to the Constitution.");
335. Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 AVE MARIA L. REV. 1, 17, 19-21 (2007) (opining that the Supreme Court should rarely defer to its own precedent because virtually all existing precedent was not reached through an originalist inquiry).
336. The majority did not seek to plumb the meaning of the Second Amendment by using precedent but rather asked "whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment." Heller, 128 S. Ct. at 2812.
337. For a critical review of the literature, see generally Schor, supra note 26.
338. See, e.g., LAUREN, supra note 29, at 297 (concluding that the progress of international human rights has been punctuated with numerous failures and false starts).
339. See generally Kim Lane Scheppele, The Agendas of Comparative Constitutionalism, 13 LAW & CTS. 5, 5 (2003) (recounting the broad historical context in which modern constitutionalism developed).
340. See RAN HlRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM 12 (2004) (arguing that constitutional arrangements, including "timing, extent, and nature of constitutional reforms, " result from the self-interests of political, economic, and judicial elites);
341. see also MARTIN SHAPIRO & ALEC STONE SWEET, ON LAW, POLITICS, & JUDICIALIZATION 61-64 (2002) (articulating dyadic and triadic theories as to how parties with divergent interests engage in the rule-making process).
342. See, e.g., Rogers M. Smith, Historical Institutionalism and the Study of Law, in THE OXFORD HANDBOOK OF LAW AND POLITICS, supra note 31, at 46, 57 (discussing the growth of historical institutionalist scholarship in public law).
343. See Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225, 1286 (1999) (comparing constitution making to bricolage).
344. See, e.g., GINSBURG, supra note 135, at 261-63 (concluding that although the formal power of judicial review is now nearly universal in new democracies, courts have had varying levels of success in actually applying it, so that protection of substantive human rights has expanded only incrementally over time).
345. See HIRSCHL, supra note 255, at 12, 213-17 (describing the use of judicial review by "hegemonic sociopolitical forces" who perceive that their interests will be "less effectively contested" in courts than in "majoritarian decision-making arenas").
346. See supra Part III.
347. See supra note 33.
348. See supra Part II.
349. See KRAMER, supra note 29, at 232 (noting the change in public sentiment during the latter part of the twentieth century toward supporting judicial supremacy over popular constitutionalism).
350. See supra Part III.
351. See supra Part II.
352. Id.
353. See supra Part III.
354. See supra Part IV.
355. See KRAMER, supra note 29, at 7 (explaining that the Court was not intended to be responsible for ensuring proper constitutional interpretation and implementation-the people were entrusted with this task: "[t]he idea of turning this responsibility over to judges was simply unthinkable").
356. See supra subpart IV(B).
357. See Peter W. Hogg et al., Charter Dialogue Revisited-Or "Much Ado About Metaphors, " 45 OSGOODE HALL L.J. 1, 7-13 (2007) (outlining legal issues for which the Supreme Court of Canada recognizes the importance of dialogue between it and the legislature).