
Contents
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I. Introduction I. Introduction
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II. Legal Bootstrapping II. Legal Bootstrapping
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III. Constitutional Review and the Right to a Hearing III. Constitutional Review and the Right to a Hearing
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IV. The Principle/Policy Distinction IV. The Principle/Policy Distinction
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V. Principles and Policies in Action V. Principles and Policies in Action
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A. Correlating tasks and institutional roles A. Correlating tasks and institutional roles
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B. Taking interaction on board B. Taking interaction on board
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1) The conflicting-allegiances problem 1) The conflicting-allegiances problem
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2) Are courts policy-blind? 2) Are courts policy-blind?
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VI. A Diagnosis VI. A Diagnosis
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VII. Conclusion VII. Conclusion
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3 Are Courts the Forum of Constitutional Principle?
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Published:July 2017
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Abstract
This chapter examines a number of positions that defend the legitimacy of constitutional review on grounds of a special connection between courts and fundamental rights. It starts by insisting that the issue cannot be settled by appeal to any constitutional logic but must make reference to political morality. It then critically assesses the view that sees in courts a forum for the realization of a general procedural right to lodge complaints against political decisions setting back our interests. Such a procedural right, though, is dubious and does not straightforwardly apply to constitutional design. The chapter then turns to Ronald Dworkin’s thesis that courts ought to decide questions of principle and not policy and are better suited for this purpose than legislatures. However, this thesis cannot account for the dependence of the judicial role on legislative decisions.
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