Unlike many other countries, the United States has few constitutional
guarantees of social welfare rights such as income, housing, or
healthcare. In part this is because many Americans believe that the
courts cannot possibly enforce such guarantees. However, recent
innovations in constitutional design in other countries suggest that
such rights can be judicially enforced--not by increasing the power of
the courts but by decreasing it. In Weak Courts, Strong Rights, Mark
Tushnet uses a comparative legal perspective to show how creating weaker
forms of judicial review may actually allow for stronger social welfare
rights under American constitutional law.
Under "strong-form" judicial review, as in the United States, judicial
interpretations of the constitution are binding on other branches of
government. In contrast, "weak-form" review allows the legislature and
executive to reject constitutional rulings by the judiciary--as long as
they do so publicly. Tushnet describes how weak-form review works in
Great Britain and Canada and discusses the extent to which legislatures
can be expected to enforce constitutional norms on their own. With that
background, he turns to social welfare rights, explaining the connection
between the "state action" or "horizontal effect" doctrine and the
enforcement of social welfare rights. Tushnet then draws together the
analysis of weak-form review and that of social welfare rights,
explaining how weak-form review could be used to enforce those rights.
He demonstrates that there is a clear judicial path--not an
insurmountable judicial hurdle--to better enforcement of constitutional
social welfare rights.
