Fragile democracies. Contested power in the era of constitutional courts, by Samuel Issacharoff

Kneip, Sascha

doi:10.1080/13510347.2017.1310844

Cited by 3 publications

(3 citation statements)

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“…One of the striking features of this new process, and notable carry-over from the 2020-22 constitutionmaking process, is that it continues the newfound commitment to parity constitutionalism, at least in the organs in charge of drafting, discussing and approving the constitutional draft. 63 At the same time, parity constitutionalism without well-functioning and representative political parties and responsiveness to the views of the median voter 64 may lead to limited substantive change. It may contribute to a form of 'utopian' constitutional politics, whereby constitution-makers adopt a draft that is seen as too extreme to command the support of a democratic majority.…”

Section: Discussionmentioning

confidence: 99%

Parity constitutionalism

Dixon,

Prieto Rudolphy

2023

Glob. Con.

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In 2021, the Chilean Convention became the first constitution-making body with gender parity. However, the draft – which reflected many gender-related norms – was rejected by 61.89 per cent of voters in the exit plebiscite of 2022. In this article, we argue that although parity constitutionalism has promise and, in the Chilean case, was linked to gender-related outcomes in the constitutional text, parity’s promise may fail to materialize. We thus caution against a naïve view of parity constitutionalism as one of the key legacies of the 2020–22 Chilean constitution-making process.

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Section: Discussionmentioning

confidence: 99%

Parity constitutionalism

Dixon,

Prieto Rudolphy

2023

Glob. Con.

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“…Judges in these accounts oversee critical election rules, party bans and lustration laws; adjudicate dramatic election disputes and high-level separation of powers clashes; and deploy basic structure doctrines against dominant parties. 59 Transformative constitutional scholarship, in turn, typically is focused on the lack of adequate transformation in societies that badly need change, with the clear implication that the powers that be are not doing enough and so courts need to do more. 60 One also suspects that, often, transformative constitutionalism is court centric for the simple reason that the legal scholars who write about it tend to trust courts more.…”

Section: Distrust and Trustmentioning

confidence: 99%

Transformative process theory

Fowkes

2024

Glob. Con.

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Transformative constitutionalism and process theory are generally seen as worlds apart. But they may be more compatible than we think. A transformative understanding of process is very broad, but it represents a natural extension of the line already being taken by contemporary process accounts intent on expanding the theory to fit global practice. It can help us to understand why an expansion based on and including a wider set of justiciable process concerns has proved difficult to limit. Conversely, transformative constitutionalism badly needs a better account of judicial restraint to balance its preoccupation with judicial boldness. Since it shares with process theory a deep concern with democracy, it can naturally draw on process accounts to understand its own limits. Democracy-seeking review, in aiming to build as well as protect democratic capacity, needs to be as concerned with restraint as intervention, depending on the context. Working out a transformative process theory is therefore at least an exercise instructive to either side, and it can offer a way to overcome divides that hamper global engagement with these core constitutional issues.

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“…Firstly, while the quantity of rights cases does not make a court progressive or liberal, as cases need to be meaningful to highlight the power and legitimacy of the court, a growing number of cases can indicate its increasing activism. As the Thai Court is among the most cited for its aggressive activism, 117 this development might not help the reputation of the Court. On the contrary; the growing caseload could be a cause for concern.…”

Section: The Strategic Game Of Constitutional Jurisprudencementioning

confidence: 99%

Taking Rights Seriously? Recent Shifts in Procedural and Substantive Matters of the Thai Constitutional Court

Atipiboonsin

2023

TLS

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The Thai Constitutional Court has recently dealt with more cases concerning constitutional rights such as those involving abortion and same-sex marriage, gaining widespread public attention similar to its many cases on political issues. This new development may show that the Court has now performed its role as a constitutional guardian and bulwark of rights. But the expansion of the caseload on rights may promote judicial activism and thus indicate a new strategy for the Court to be more powerful. This article looks at both the substantive changes in the jurisprudence of the Court as well as the procedural adjustments in recent court cases to determine the extent to which the Court has transformed itself to the ideal image of a great constitutional court in a comparative context. The Article analyzes all constitutional rights cases decided since 2019 to gauge the overall performance of the Court. Moreover, the Article also provides some examples of cases that seemingly protect constitutional rights but simultaneously expand the powers of the Court in the future. The analysis then suggests that while the Court might have facially helped protect more rights, it comes with a cost of a potentially even more active and political Court.

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Fragile democracies. Contested power in the era of constitutional courts, by Samuel Issacharoff

Cited by 3 publications

References 0 publications

Parity constitutionalism

Parity constitutionalism

Transformative process theory

Taking Rights Seriously? Recent Shifts in Procedural and Substantive Matters of the Thai Constitutional Court

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