
Contents
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1 Three Waves 1 Three Waves
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1.1 The Founding 1.1 The Founding
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1.2 The Second Wave 1.2 The Second Wave
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1.3 The Third Wave 1.3 The Third Wave
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2 Explaining Institutional Proliferation 2 Explaining Institutional Proliferation
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2.1 Federalism and Rights 2.1 Federalism and Rights
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2.2 Beyond Rights: The Domestic Logics of Constitutional Review 2.2 Beyond Rights: The Domestic Logics of Constitutional Review
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2.3 New Directions 2.3 New Directions
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3 Measuring Performance 3 Measuring Performance
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4 Conclusion 4 Conclusion
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References References
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6 The Global Spread of Constitutional Review
Get accessTom Ginsburg, Leo Spitz Professor of International Law and Professor of Political Science at the University of Chicago.
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Published:02 September 2009
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Abstract
Constitutional review, the power of courts to strike down incompatible legislation and administrative action, is an innovation of the American constitutional order that has become a norm of democratic constitution writing. Some political systems, such as the United States', have developed vigorous constitutional review, even without an explicit textual mandate. Judicial review originates as an expression of Anglo-American natural law tradition in an age of positive legislation. We can characterize the traditional theories for the spread of constitutional review as institutional–functional or ideational in character. Of course, the various theories are hardly mutually exclusive. In some cases, they clearly reinforce one another, such as the iconic German case that involved both federalism and rights rationales. This article traces the spread of constitutional review and evaluates the various political explanations for its establishment, development, and spread, focusing on the mutually reinforcing roles of ideas and institutions. It also examines why some constitutional courts fail and others succeed.
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