The New Constitution and the Judicialization of Pure Politics Worldwide

Abstract

Over the last few decades the world has witnessed a profound transfer of power from representative institutions to judiciaries, whether domestic or supranational. The concept of constitutional supremacy—one that has long been a major pillar of the American political order—is now shared, in one form or another, by over one hundred countries across the globe. Numerous post-authoritarian regimes in the former Eastern Bloc, Southern Europe, Latin America, and Asia have been quick to endorse principles of modern constitutionalism upon their transition to democracy. Even countries such as Canada, Israel, Britain, and New Zealand—not long ago described as the last bastions of Westminster-style parliamentary sovereignty—have gradually embarked on the global trend towards constitutionalization. Almost every day newspaper headlines report on issues such as constitutionalization processes in the European Union (EU) and Iraq, trials of ousted despots before international tribunals, and landmark constitutional jurisprudence in the United States, Germany, or South Africa. One of the main manifestations of this trend has been the judicialization of politics—the ever-accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies. Armed with newly acquired judicial review procedures, national high courts worldwide have been frequently asked to resolve a range of issues, from the scope of expression and religious liberties, equality rights, privacy, and reproductive freedoms, to public policies pertaining to criminal justice, property, trade and commerce, education, immigration, labor, and environmental protection. Bold newspaper headlines reporting on landmark court rulings concerning hotly contested issues—same sex marriage, limits on campaign financing, and affirmative action, to give a few examples—have become a common phenomenon.