Assessing the New Constitutionalism

Abstract

Over past twenty-five years, turn that began in Europe in wake of World War II has spread to almost all corners of globe.' In established and emerging democracies alike, parliamentary sovereignty is in decline, and constitutional courts with broad powers have become commonplace.2 Although formal introduction of judicial review mechanisms does not necessarily translate into an energetic assertion of judicial authority in all places, it is that in many polities, courts have come to play an unprecedented role in policymaking process.3 Initially, this trend toward constitutionalism was met with great scholarly enthusi asm. Prominent figures such as Ronald Dworkin and Bruce Ackerman hailed expan sion of judicial review as an important step toward greater rights protection for citizens, and thus toward establishment or deepening of democracy around world.4 Dworkin, standard-bearer for active judicial rights protection, made his approval clear he wrote in favor of incorporation of European Convention on Human Rights into British domestic law and empowerment of British judges to interpret and apply it against statutes passed by parliament. He claimed that such incorporation would help cultivate (or reinvigorate) a culture of liberty in Britain, thereby bringing country closer to a true understanding of democracy.5 In a similar spirit, Ackerman claimed-that the Enlightenment hope in written constitutions is sweeping world and that future of liberal democracy looked bright since, when judges intervene, they tend to operate on behalf of internationally-recognized norms of human dignity.6 In recent years, however, a spate of more skeptical, in some cases downright dismis sive, works have been published, challenging earlier and rosier perspectives.7 Reviving older (and in some circles persistent) concerns about counter-majoritarian difficulty or gouvernement desjuges, authors of these works accuse liber al enthusiasts of, at best, naive idealism or, at worst, disingenuous elitism.8 Whether coming from left or right, these critical works offer a common assessment: spread of constitutionalism means power is being shifted out of hands of people and their representatives in legislature. Fundamental policy decisions are now increasingly made by an unrepresentative, unaccountable, and out-of-touch elite judges-who are only interested in or capable of serving privileged minorities. Hence,