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date: 24 April 2019

Abstract and Keywords

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.

Keywords: constitutional review, ideas, institutions, constitutional courts, judicial review, federalism, rights, United States

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