Law - New Constitutionalism 2, Hirschl.docx

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Western University
Political Science
Political Science 3201F/G
Dan Bousfield

WHY IS THIS HAPPENING  Highlight the fact that neither a constitutional framework that is conducive to judicial activism nor power hungry judges or non-deferential constitutional courts are sufficient conditions for the judicialization of mega-politics  Like any other political institutions, constitutional courts do not operate in an institutional or ideological vacuum  An authentic, bottom up judicialization more likely to occur when judicial institutions are perceive by social movements, interest groups and political activists as more reputable, impartial and effective decision making bodies than other bureaucracy-heavy government institutions or biased majoritarian decision making arenas  The more dysfunctional or deadlocked the political system and its decision making institutions are in a given rule of law polity, the greater the likelihood of expansive judicial power in the polity  At times, opposition politicians may resort to litigation in an attempt to enhance their media exposure, regardless of the actual outcome of litigation  Empirical studies confirm that national high courts in most constitutional democracies enjoy greater public legitimacy and support than virtually all other political institutions  An increasingly common strategy undertaken by political power holders representing these voices has been the transfer of fundamental collective-identity or religion and state quandaries from the political sphere to the constitutional courts  It is also more likely to occur when the values protected in a given country’s constitution contrast with values prevalent among that country’s populace  The judicialization of politics may reflect the competitiveness of a polity’s electoral market or governing politicians time horizons  The judicialization of mega-politics may allow governments to impose a centralizing one-rule-fits-all policy upon enormous and diverse polities  The advancement of restorative justice through the courts has been, at best, incremental and lethargic  Perhaps the clearest illustration of the necessity of political support for the third face of judicialization is the political sphere’s decision reaction to instances of unwelcome judicial activism  In some instances, the actions taken as a part of this backlash have resulted in constitutional crises leading to the reconstruction or
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