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Gow Calabresi, Steven --- "The origins and growth of judicial enforcement" [2018] ELECD 764; in Delaney, F. Erin; Dixon, Rosalind (eds), "Comparative Judicial Review" (Edward Elgar Publishing, 2018) 83

Book Title: Comparative Judicial Review

Editor(s): Delaney, F. Erin; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN: 9781788110594

Section: Chapter 5

Section Title: The origins and growth of judicial enforcement

Author(s): Gow Calabresi, Steven

Number of pages: 15

Abstract/Description:

This chapter advances a theory of the emergence of judicial review that is predicated on two aspects of certain nation-state formation: the need for a federalism umpire and for rights protection due to the need to right historic wrongs. In the United States, for its first 70 years the Supreme Court acted as a federalism umpire in a manner consistent with the British system of judicial review that the colonies experienced before independence. However, it was not until the righting of the wrongs of slavery and the Black Codes that judicial review greatly expanded in scope. In Germany, in contrast, while federalism umpiring was an important role for the Constitutional Court, the much more important justification for its existence was righting the wrongs of the Holocaust and Nazism. Finally turning to India, the author argues that the same two motivations apply with the additional need for honest rule of law motivating a great expansion of judicial review.