Title: Technocracy and Distrust: Revisiting the Rationale for Constitutional Review
Authors: Dyevre, Arthur # ×
Issue Date: 2015
Publisher: Oxford University Press
Series Title: International Journal of Constitutional Law vol:13 issue:1 pages:30-60
Abstract: Two hundred years after Marbury v. Madison, constitutional review has spread to all parts of the world. Yet it remains an eminently contentious practice, which has spawned a vast scholarly literature. Surprisingly, though, little has been done to make the normative debate conversant with comparative and empirical research on judicial behaviour and institutions. The present paper seeks to evaluate two distinct approaches to the justification of constitutional review which it takes to be implicit in the normative scholarship: (1) The Principal-Agent Model, which essentially views constitutional review as a means to enforce the choices of the constitutional framers over recalcitrant legislative majorities. And (2) the Trustee Model, which casts constitutional judges as trustees of the political system: their task is to ensure that the legislative process produces the “best” policy outcomes. In light of the courts’ organizational setting, incentive structure and actual impact on policy outcomes, the Trustee Model is found to provide both a more accurate picture of how judicial review of legislation works in reality and a more solid—albeit by no means problem-free—rationale for the institution. The Trustee Model shifts the focus from constitutional interpretation to the courts’ real impact on policy outcomes, such as de facto human rights protection. But while there is some empirical evidence that constitutional review may improve some policy outcomes some of the time, the analysis also makes plain that the best available justification for the practice rests on contentious normative assumptions.
ISSN: 1474-2640
Publication status: published
KU Leuven publication type: IT
Appears in Collections:Faculty of Law
× corresponding author
# (joint) last author

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