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Schor, Miguel --- "Constitutional dialogue and judicial supremacy" [2018] ELECD 97; in Jacobsohn, Gary; Schor, Miguel (eds), "Comparative Constitutional Theory" (Edward Elgar Publishing, 2018) 86

Book Title: Comparative Constitutional Theory

Editor(s): Jacobsohn, Gary; Schor, Miguel

Publisher: Edward Elgar Publishing

ISBN: 9781784719128

Section: Chapter 5

Section Title: Constitutional dialogue and judicial supremacy

Author(s): Schor, Miguel

Number of pages: 16

Abstract/Description:

Abstract: This chapter examines constitutional dialogue by comparing a constitutional system that (almost) entrenches judicial supremacy—the United States—with a constitutional system that seeks to reconcile judicial with legislative supremacy—Canada. This chapter makes two arguments. First, if judicial will is checked by dialogue in constitutional systems as different as the United States and Canada, then claims that constitutional courts inevitably arrogate too much power thereby undermining democracy sweep too broadly. All polities that enjoy constitutional supremacy have formal and informal mechanisms that allow democratic actors to trump courts in some fashion. Second, there is considerable institutional variation in the mechanisms by which judicial will may be checked. Weaker courts are less likely to engender social conflict as they are more likely to facilitate negotiation and consensus over constitutional meaning.