Judicial Review and Protection of Constitutional Rights

Abstract

The role of constitutional courts in protecting constitutional rights cannot be captured by any simple formula: it cannot be declared that a robust power of constitutional review is necessarily an important ingredient of protection of human rights or that it inevitably damages such protection. The starting point for an assessment of the role of judicial review must be a careful calculus of gains and losses resulting from a system of judicial review in a given country. The gains and losses resulting from a set of specific decisions, and also those resulting from the very existence of judicial review in that country, must be assessed. This chapter offers such a matrix for comparing costs and benefits of entrusting the protection of constitutional rights to constitutional courts. The outcome of this complex calculation depends upon our preferred articulations of abstract rights, and people who disagree with particular articulations will also disagree with the final verdict concerning the role of judicial review in rights protection. While we may doubt the general net benefit of judicial review, we may nevertheless have some prudential reasons to support it; that is, it might be rational to support judicial review if the institutional particularities of judicial institutions, compared with those of the political branches, render courts more sensitive to rights considerations in general.