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Chapter
Rights-based Judicial Review, Constitutional Cultures and Expressive Freedom
DOI link for Rights-based Judicial Review, Constitutional Cultures and Expressive Freedom
Rights-based Judicial Review, Constitutional Cultures and Expressive Freedom book
Rights-based Judicial Review, Constitutional Cultures and Expressive Freedom
DOI link for Rights-based Judicial Review, Constitutional Cultures and Expressive Freedom
Rights-based Judicial Review, Constitutional Cultures and Expressive Freedom book
ABSTRACT
This chapter proceeds is the very modest one that proper respect for cultural and historical differences need not lead always to the wholesale rejection of other jurisdictions' insights into constitutional conflicts. In attempting to make some general points about the impact of judicial review across a number of liberal democratic states, it also addresses issues concerning the distinctiveness of national constitutional practice and culture. As the US First Amendment scholar Cass Sunstein has observed, the people's representatives do not mechanically convert constituents' preferences into legal form. The US Congress and subsequently the state legislatures have enacted laws in the knowledge that their provisions were susceptible to constitutional challenge. Whilst much debate has centred upon the question of how the power to review has been exercised by nine Supreme Court justices, few today question the fact of review. Waldron's objection to judicial review is that, ultimately, it is tied to an unconvincing account of human capacities.