The Abusive Borrowing of Political Constitutionalism and Weak-Form Judicial Review

Abstract

This chapter explores the abusive borrowing of an important set of concepts associated with political constitutionalism, or the idea that political institutions such as legislatures, rather than courts, should be chiefly charged with interpreting and enforcing the constitution. It shows how regimes in Hungary and Poland have relied heavily (and erroneously) on these theories to justify attacks on their judiciaries without seeking to develop the set of political and social preconditions which would be necessary for political forms of constitutional interpretation to make sense. It also shows how allies of Prime Minister Benjamin Netanyahu, in Israel, have (so far unsuccessfully) attempted to import the ‘weak-form’, dialogic, or New Commonwealth model of judicial review instantiated in Canada, which allows for a legislative override, in a context where the chief goal was immunizing the Prime Minister from ongoing criminal prosecution.