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Cited by 311Comparative constitutional jurisprudence studiesJudicial and Constitutional StudiesAmerican Constitutional Law and Politics

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Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law

Tushnet, Mark·2009·Princeton University Press eBooks
DOI 10.1515/9781400828159
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Abstract

Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights , Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.

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Metadata

Authors
Tushnet, M.
Corresponding author
Tushnet, Mark
ORCID
Tushnet, Mark
Venue
Princeton University Press eBooks
Publisher
Princeton University Press
Published
2009-12-31
DOI
10.1515/9781400828159
OpenAlex
W1551820030
Cited by
311
References
0
Citations by year
2026: 16 · 2025: 11 · 2024: 13 · 2023: 10 · 2022: 25 · 2021: 16 · 2020: 24 · 2019: 29 · 2018: 49 · 2017: 12 · 2016: 16 · 2015: 17 · 2014: 19 · 2013: 17 · 2012: 8
FWCI
20.69
Type
book
Language
en
Open access
closed
Locations
Princeton University Press eBooks (publishedVersion)
Topics
  • Social Sciences › Political Science and International Relations › Comparative constitutional jurisprudence studies
  • Social Sciences › Law › Judicial and Constitutional Studies
  • Social Sciences › Political Science and International Relations › American Constitutional Law and Politics
Keywords
social welfare rights, constitutional rights, judicial review, state action, constitutional design, American constitutional law, British constitutional law, Canadian constitutional law, right to income, right to housing, right to health care

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