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12 Touro Int'l L. Rev. 1 (2009)

handle is hein.journals/touint12 and id is 1 raw text is: [Vol. 12 2009] TOURO INTERNATIONAL LAW REVIEW 1 DELIBERATIVE DEMOCRACY AND WEAK COURTS: CONSTITUTIONAL DESIGN IN NASCENT DEMOCRACIES Edsel F. Tupaz OVERVIEW In this Article, I hope to show that a weak form of judicial review, as opposed to strong review, might well be taken to be the most congenial institutional apparatus for grassroots constitutional learning of civic responsibility, or civic-mindedness, under the Rule of Law. I have in mind as examples the present Canadian and U.K. models (the latter, in particular, in light of the innovations of the Human Rights Act). Following Choudhry and Howse, and to some extent, Holmes and Sunstein,2 I argue that weak courts, along with relatively loose requirements for constitutional amendment - but keeping an exceptionally deeply entrenched catalogue of core basic rights and institutions - encourage what might be termed as dialogical democratic * Adjunct Faculty, New England Law I Boston; Visiting Researcher, LL.M. ('08), Harvard Law School; Professorial Lecturer ('05, '07), Ateneo de Manila University; clerked for Chief Justice Hilario G. Davide, Jr. & Justice Ma. Alicia Austria-Martinez, Supreme Court of the Republic of the Philippines. I thank Professor Mark V. Tushnet for providing the inspiration for this Article, some of whose issues had been discussed in his Comparative Constitutional Law course as well as in his recent work, MARK V. TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW (2008). All leaps in logic are mine. I For a justification of the Canadian Court's resort to what might be called constructive or principled ambiguity, judicial minimalism, or theoretical modesty, see Sujit Choudhry & Robert Howse, Constitutional Theory and The Quebec Secession Reference, 13 CAN. J.L. & JURIS. 143 (2000). For a normative account of dialogical interpretative and comparative methodology, see Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 IND. L.J. 819 (1999). 2 For a normative argument that constitutions in Eastern Europe are relatively easier to amend, see Stephen Holmes & Cass R. Sunstein, The Politics of Constitutional Revision in Eastern Europe, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995). See also VICKI JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 354 (2006) (commenting on the notion of constitutional entrenchment and amendment in light of recent scholarship).