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.
Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School. His many books include "The New Constitutional Order" and "Taking the Constitution Away from the Courts" (both Princeton). He is a fellow of the American Academy of Arts and Sciences.
Preface ix Acknowledgments xv Part I: Strong-Form and Weak-Form Judicial Review Chapter 1: Why Comparative Constitutional Law? 3 Chapter 2: Alternative Forms of Judicial Review 18 Chapter 3: The Possible Instability of Weak-Form Review and Its Implications 43 Part II: Legislative Responsibility for Enforcing the Constitution Chapter 4: Why and How to Evaluate Constitutional Performance 79 Chapter 5: Constitutional Decision Making Outside the Courts 111 Part III: Judicial Enforcement of Social and Economic Rights Chapter 6: The State Action Doctrine and Social and Economic Rights 161 Chapter 7: Structures of Judicial Review, Horizontal Effect, and Social Welfare Rights 196 Chapter 8: Enforcing Social and Economic Rights 227 Table of Cases 265 Index 269