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.

This is an important contribution to an important debate in the United States about the possibility and prospects for the courts to play a more modest role in politics and policy. Tushnet demonstrates that, by a nice twist, a more modest judicial role could lead to a more robust set of social rights. And his comparative cases show that this is not purely theoretical, but that it has worked out to some degree in other systems.

In this study of various theoretical issues of concern to students of comparative constitutional law, Tushnet has done a remarkable job of analyszing and comparing existing forms of judicial review....Tushnet's impeccable research leads us through varied constitutional systems including, for example, Argentina, Canada, Great Britain, and Ireland. This is constitutional scholarship at its best.

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