Suchergebnisse

Judicial review, invalidation and electoral politics : a quantitative survey / Russell Smyth and Vinod Mishra -- Judicial review and the politics of constitutional amendment / Michael Coper -- Judicial dissent and the politics of the High Court / Andrew Lynch -- The Griffith Court / John M. Williams -- The Knox Court / Anne Twomey -- The Isaacs Court / Tony Blackshield -- The Gavan Duffy Court / Gabrielle Appleby -- The Latham Court / Fiona Wheeler -- The Dixon Court / Helen Irving -- The Barwick Court / Brian Galligan -- The Gibbs Court / Nicholas Aroney and Haig Patapan -- The Mason Court / Paul Kildea and George Williams -- The Brennan Court / Patrick Emerton and Jeffrey Goldsworthy -- The Gleeson Court / Rosalind Dixon and Sean Lau -- The French Court / Anika Gauja and Katharine Gelber.

AbstractIn this article, we argue that the 2022 Chilean draft Constitution helps to articulate the distinction between a transformative constitutional project and a utopian one. Whereas a transformative project lays down markers for social change that will take time to achieve, a utopian project sets out goals that are unlikely to be achieved within any reasonable timeframe. Utopianism is a product of two relationships. The first is the internal relationship between the transformative goals laid out in a constitution and the institutional pathways through which changes will occur. The second is the external relationship between the goals in the text and the views and support of key groups. In Chile, both relationships were problematic. First, the Convention adopted a draft that was heavy on ambitious programmatic content but lacked a clear vision of how to implement it. Second, the Convention produced a draft that was supported by the ephemeral civil society groups galvanized by the 2019 protests but divorced from the vision of Chile's parties and public opinion. Some of this was a product of the peculiar electoral context in which the Convention acted, which has already been corrected. But some of it reflects deeper tensions within transformative constitutionalism.

AbstractThis brief essay contrasts two modes of constitutional change: abusive constitutional projects that seek to erode democracy and restorative constitutional projects that aim to repair eroded democratic constitutional orders. Constitutional democracies are eroded and restored via the same mechanisms: formal processes of constitutional amendment and replacement, legislative amendment, changes to executive policies and practices (or respect for conventions), and processes of judicial decision-making. Under the right conditions, abusive uses of these mechanisms for antidemocratic ends can be reversed by prodemocratic or restorative uses. The more difficult question is what kinds of political discourses are most likely to sustain successful processes of democratic rebuilding. In recent work, we have pointed to the role sometimes played by liberal democratic discourses as purported justifications for processes of abusive constitutional change: we label this the rise of "abusive constitutional borrowing." Less well understood are the kind of discourses likely to sustain successful democratic healing or rebuilding. Often, the most popular discourse is a restorative one, which focuses on repairing damage caused by authoritarians and returning to a constitutional status quo ante. In this essay, we discuss the advantages and disadvantages of restorative constitutionalism as a response to prior episodes of democratic erosion.