Stephen Gardbaum’s research while affiliated with University of California, Los Angeles and other places

This volume of essays brings together a group of leading political scientists, legal scholars, and political theorists to describe and analyze the body of constitutional law and practice within and upon democratic institutions, in particular examining how constitutional law shapes electoral democracy. Constitutional law and practice on this question are complex and varied. This volume therefore takes a thematic and regional approach: it selects a range of key theoretical questions related to democratic constitutional design and offers a series of chapters featuring a diverse range of voices, as well as a blend of theory, qualitative studies, and quantitative methods. Readers will gain a multifaceted understanding of a phenomenon of growing importance. The volume will also be useful to students of comparative constitutionalism, who will gain a rich array of empirical evidence to stimulate further work. This title is also available as Open Access on Cambridge Core.

This article argues that courts in the United States are comparatively less likely to be captured than those of many other countries and more able to resist an authoritarian populist regime, but also somewhat more likely to facilitate democratic backsliding on their own account. In this way, they potentially could—and arguably already do—provide a relatively rare case of “abusive judicial review” by independent courts. The article also briefly considers whether the US experience provides any insights for the relationship of courts and democratic backsliding in other countries, and especially how the ability of courts to resist capture might be bolstered.

This article aims to continue the recent neo-Elyean turn in comparative constitutional scholarship by further exploring the role of the courts in supporting and protecting democracy. In so doing, it refines and develops my previous work on the topic, and applies this fuller version to a highly visible current dispute. The article first examines the underlying conception of democracy that comparative political process theory is designed to protect; namely, constitutional democracy. It asks what this is and what role courts have in supporting it. The article then introduces the idea of ‘semi-substantive review’ as an integral and output-oriented part of a comprehensive comparative political process theory, alongside and in addition to the types of more purely procedural review I primarily emphasized in my previous work. Finally, the article employs the recent, highly controversial judicial reforms in Israel as a case study in applying the criteria for, and limits of, court intervention in my account. It analyses whether, why and how, in the event that the deeply contested bills become law (as so far one did), judges would be justified in acting to support and protect constitutional democracy.

How Constitutional Rights Matter is a pathbreaking book that substantially advances our understanding of the relationship between “parchment barriers” and rights protection in practice. It provides the most comprehensive empirical analysis by far of whether and, importantly, which constitutionalized rights have a real-world impact, and presents a sophisticated explanatory theory of the resulting differences. This is a masterful work that exhibits, indeed showcases, the full promise of empirical scholarship in comparative constitutional studies. At the same time, perhaps, the book also suggests certain of the methodology’s limits. Adam Chilton and Mila Versteeg set out to answer the fundamental question of “when constitutional rights matter.”¹ That is, as they see it, do de jure rights translate into better rights protection de facto? They approach this question by employing the three main empirical methods: global statistical (or large-N) analysis, case studies, and survey experiments. The book focuses on the following eight specific constitutional rights, selected to reflect both the range of rights found in modern constitutions and those for which reasonably reliable evidence about compliance exists: freedom of speech, movement, and religion, education, healthcare, to form trade unions and political parties, and against torture.

1. Introduction It is a great honor for me, as rare as it is daunting, to have six distinguished scholars in the field respond to an article on initial publication. What might have been like standing in front of a firing squad without a blind review has instead been a rewarding collaborative experience that drives the perspective we have in common forward. So, I would like to begin by thanking all six colleagues for their generous and constructive contributions. Comparative political process theory (CPPT) grew out of two recent articles of mine on judicial review of specific legislative procedures, in South Africa and the United States,¹ as an attempt to develop a more general account of the role of courts in protecting the democratic political process, as distinct from rights on which much of the judicial review debate has focused. This attempt naturally led me back to Ely and began with the intuition that his work was both a valuable starting point and in need of significant adaptation for comparative purposes. When I wrote the article in the summer of 2019, I knew of course that I was not the first to explore these issues,² and one never expects to have the final word on anything. But I had no idea that so much work-in-progress on a similar theme was in the pipeline, much of it by the responders.

What, if anything, do recent constitutional court decisions requiring a legislature to create a customized presidential impeachment procedure, invalidating a government’s prorogation of parliament, rejecting the disbanding of an independent anticorruption unit, and striking down legislation for inadequate deliberation have in common? They are all examples of courts protecting the political processes of representative democracy against threats or failures. Yet none of these various types of failure appear in the work that is synonymous with a political process theory of judicial review: John Hart Ely’s Democracy and Distrust. This article argues that when we look beyond the United States and at the comparative context generally, a political process theory has a great deal of relevance and application to constitutional law and courts around the world, both descriptively and normatively. Especially now when the structures and processes of representative democracy are under assault in so many places. However, for comparative purposes, Ely’s account takes too narrow a view of what types of political process failures exist and are of concern, and what types of judicial review or other protective mechanisms they may call for. It is also an interpretive theory of one system, but what is needed in the comparative context is a broader, normative theory of the role of courts and other actors in protecting democratic politics. Accordingly, suitably expanded and adapted, a comparative political process theory can make a valuable contribution to the field of comparative constitutional law. This article seeks to explore and further develop such a theory.

O “novo modelo de constitucionalismo da Comunidade Britânica” se refere a uma estrutura ou abordagem geral comum subjacente às cartas de direitos introduzidas no Canadá (1982), Nova Zelândia (1990) e Reino Unido (1998). Como um experimento recente e contínuo em design constitucional, o novo modelo da Comunidade Britânica pode ser algo inédito. Ele representa uma terceira abordagem à estruturação e institucionalização de disposições constitucionais básicas que ocupa o ponto intermediário entre as duas tradicionais opções de supremacia legislativa e judicial, que se excluíam mutuamente. Ele também provê técnicas novas e – pode-se argumentar – melhores para proteger direitos dentro de uma democracia por meio da realocação de poderes entre cortes e legislaturas, o que estabelece maior equilíbrio que qualquer desses dois modelos assimétricos. Dessa forma, o novo modelo da Comunidade Britânica promete ser para os modelos de constitucionalismo o que a economia mista é para formas de organização econômica: uma terceira via distinta e atraente, entre dois extremos mais puros, porém falhos.

With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds.