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Document Type

Article

Publication Date

Fall 2017

Publication Citation

92 Indiana Law Journal 1283 (2017)

Abstract

Constitutional theory has hypothesized two distinct and contradictory ways in which judicial review may interact with external political and social support. One line of scholarship has argued that judicial review and external support are substitutes. Thus, “political safeguard” theorists of American federalism and the separation of powers argue that these constitutional values are enforced through the political branches, making judicial review unnecessary. However, a separate line of work, mostly composed of social scientists examining rights issues, argues that the relationship between courts and outside support is complementary—judges are unlikely to succeed in their projects unless they have sufficient assistance from political and social actors. The coexistence of these two different theories, which has gone unnoticed by scholars, has important implications for both U.S. and comparative constitutional theory. Close examination demonstrates that the simple classifications suggested in existing work—that the substitute logic applies to constitutional structure while the complement logic applies to rights, for example—are incorrect. Instead, courts face a much more complex reality, with both logics being distributed broadly across a range of issues, forms of support, and contexts. To be successful, courts must maximize their relationship with their external support structures, both by targeting issues where levels of support render review neither futile nor redundant, and by shaping their judgments to increase the amount of support they receive from political, civil society, and international actors. This Article draws on numerous examples drawn from both established and new democracies to demonstrate the plausibility of these tasks, and ultimately to highlight the utility of a theory of judicial review that emphasizes judicial consideration of external support.

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