Chapter 3- second book - Constitutional Judicial review:...

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Constitutional Judicial review: the Federalism- English Hypothesis Successful constitutional judicial review is caused by and may be requisite to successful federalism. The idea is that a federalism structure required an institution to police its complex constitutional boundary arrangements. The dispute between the states and the federal governments must be resolve by a third party- the independent judicial branch. This is hardly makes sense to the member states because the central government itself creates the supreme court- a federalized and centralized institutions. This flaw in hypothesis leads to the second point Second point: judicial review is caused by a peculiarly English allegiance to the rule of law plus the peculiar evolution of the British Empire in the eighteenth and ninetieth centuries. Because of the firmly held beliefs in judicial independence, neutrality , and fidelity to law prevalent in English speaking cultures, citizens were prepared to vest the enourmous power of the constitutional review in courts, and or member states were willing to allow a court nominally a part of the central government with which it was disputeing to resolve the dispute. Three of the four nations that move toward judicial reviews were germany, Italy and japan. Don’t speak English, one is federalist the other does not. Italian court uses judicial reviews to eliminate all these really old and fascists law to replace them with new and good ones. Connect the two hypothesis and about how Germany, Italy and Japan relates. The division of Powers hypothesis: According to Stone, French Constitutional Council as an enormous success that has become a very powerful participant in the French legislative process. Clearly, judicial review can
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flourish in non-English speaking environments. It is also time to modify the federalism portion of the hypothesis. French clearly adopted review in the face of a somewhat hostile political culture precisely because in the constitution of the fifth republic it had chosen to move from parliamentary sovereignty to a system of dividing power between parliament and presidency. The Constitutional Council is invented for no other purpose than to patrol the boundary between the two. If what French have actually conconcted is an innovative instutitional arrangement that strengthensthe capacity of the legislative body to make bona fide constitutional review but not judicial review and does not arise to trouble our federalism for such kind of review. The right Hypothesis The original English speaking judicial reviews concerned themselves little with individual rights until long after they have achieved institution legitimacy. The German court obviously was founded in part to protect individual rights and has done a flourishing rights business from the beginning. Yet, Germany’s highly complex federalism would have necessitatbed constitutional judicial reviews even if there had been no concern for constitutionalizing individual rights. The French Constitutional Council and the European
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This note was uploaded on 05/29/2008 for the course LEGALST 179 taught by Professor Shapiro during the Spring '08 term at University of California, Berkeley.

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Chapter 3- second book - Constitutional Judicial review:...

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