Political Malfunction and Weak Review: Blind Spots and Burdens of Inertia

Already in her earlier work (The Core Case for Weak Form Judicial Review, Cardozo Law Review 2017), Rosalind Dixon has argued that weak form judicial review can help counter blockages in the legislative process—such as legislative “blind spots” and “burdens of inertia”—that can otherwise impair the enjoyment of individual rights even of a kind recognized by democratic majorities. This, she has suggested, provides an important, if contingent, outcome-based case in favor of courts exercising powers of weak-form review. The case for weak judicial review of this kind may be combined with a theoretical case for strong, or even super-strong, judicial review in more pathological democratic cases, and must ultimately be assessed based on the actual history and practice of legislative and judicial constitutionalism in a particular country.

Self-Dealing and Malfunction: Attempting a More Minimalist Approach

Against the background of German constitutional practice and scholarship I take a more skeptical approach towards the virtues of political process review. As I see it the challenge is to refine and narrow down Ely rather than expanding on his ideas. In this vein, I take a closer look at the idea of political self-dealing and cases of institutional failure/dysfunction to investigate if it is possible to make these ideas judicially operable as a basis for more searching review while potentially leaving room for weak review in other cases, drawing on Dixon.

Comparative Political Process Theory

Expanding Ely's too limited view of what constitutes malfunction and adapting it to address constitutional practices and developments around the world, Gardbaum argues that a comparative political process theory (CPPT) can potentially make a valuable contribution to the discipline. It first isolates and focuses on the key and distinct function in all democratic constitutions of constituting not only the institutions and branches of government, but also the structures and processes of the system of representative democracy. CPPT also provides a vocabulary and conceptual framework for identifying the multiple ways that systems of representative democracy can be undermined and degraded. Thirdly, CPPT develops a normative theory of judicial review that is specifically geared towards this key function of constituting and maintaining a system of representative democracy, and the range of ways that courts can help to protect its structures and processes against the array of challenges.

Legislative Process Theory in the Age of Populism and Nationalism

Since the end of the 20th century, there has been a revival of legisprudence – legal scholarship dedicated to studying the theory and practice of legislation. Within this emerging body of scholarship there have been important contributions to the theory of the legislative process. My argument is that recent developments, including the rise of populism, as well as the rise of national and illiberal tendencies, pose significant challenges to the normative and descriptive theories of the legislative process developed within legisprudence. To develop this argument, I will highlight some of the main common features of theories of the legislative process in legisprudence, and explain how they are challenged by these developments. I will therefore end with the question of how legislative process theory might be adjusted, refined, adapted or updated to fit current challenges.

Defaults, not limits: how to globalize weak-form review and process theory across a fundamental constitutional divide

Recent efforts to generalize or globalize weak form review and process theory beyond their home contexts encounter, in my view, a fundamental problem. They come from systems where it is assumed that both constitutional law and the judicial role are limited to certain areas or contexts. Abroad, they often encounter systems who believe constitutional law applies, in principle, everywhere or almost everywhere, and that the judicial role extends, in principle, everywhere or almost everywhere the constitution does. In these circumstances, I suggest, it is better to rewrite the theories to preserve their core concerns in a paradigmatically different context, than to try and apply them in their original form. The result (which partly builds on existing work, especially on the older effort to globalize weak-form review) is theories of how to exercise broad judicial powers wherever possible, rather than theories that try to keep judicial powers narrow.