The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions

TLDR

The article argues that existing theories of constitutional transformation fail to explain the trend toward constitutionalization in culturally divided polities such as Israel, Canada, New Zealand, and South Africa. Elites with disproportionate legal influence counter peripheral threats by entrenching rights in the constitution, a strategy that succeeds when the judiciary is perceived as impartial and likely to rule in line with elite preferences. The study finds that judicial empowerment often results from a deliberate elite strategy to preserve hegemony, shifting power from majoritarian decision‑making to national courts that favor elite preferences.

Abstract

Drawing upon an analysis of the political vectors behind constitutional reform in Israel (1992), Canada (1982) New Zealand (1990), and South Africa (1993), the article suggests that the trend toward constitutionalization in culturally divided polities has not been adequately delineated by extant theories of constitutional transformation. An examination of the political origins of these four constitutional revolutions suggests that judicial empowerment is in many cases the consequence of a conscious strategy undertaken by threatened political and economic elites seeking to preserve their hegemony vis-a-vis the growing influence of “peripheral” groups in crucial majoritarian policymaking arenas. In response to perceived threats by peripheral groups, elites who possess disproportionate access to and influence upon the legal arena often initiate a constitutional entrenchment of rights in order to insulate policymaking from popular political pressure. Power is transferred from majoritarian decision-making arenas to national high courts, where they assume their policy preferences will find greater support. This process of conscious judicial empowerment is likely to occur (a) when the judiciary's public reputation for political impartiality and rectitude is relatively high and (b) when the courts are likely to rule, by and large, in accordance with the cultural propensities and policy preferences of the traditionally hegemonic elites.