![handle is hein.journals/touint12 and id is 1 raw text is:
[Vol. 12 2009] TOURO INTERNATIONAL LAW REVIEW 1
DELIBERATIVE DEMOCRACY AND WEAK COURTS:
CONSTITUTIONAL DESIGN IN NASCENT DEMOCRACIES
Edsel F. Tupaz
OVERVIEW
In this Article, I hope to show that a weak form of judicial review, as
opposed to strong review, might well be taken to be the most congenial
institutional apparatus for grassroots constitutional learning of civic
responsibility, or civic-mindedness, under the Rule of Law. I have in mind as
examples the present Canadian and U.K. models (the latter, in particular, in
light of the innovations of the Human Rights Act). Following Choudhry and
Howse, and to some extent, Holmes and Sunstein,2 I argue that weak courts,
along with relatively loose requirements for constitutional amendment - but
keeping an exceptionally deeply entrenched catalogue of core basic rights and
institutions - encourage what might be termed as dialogical democratic
* Adjunct Faculty, New England Law I Boston; Visiting Researcher, LL.M. ('08), Harvard
Law School; Professorial Lecturer ('05, '07), Ateneo de Manila University; clerked for Chief
Justice Hilario G. Davide, Jr. & Justice Ma. Alicia Austria-Martinez, Supreme Court of the
Republic of the Philippines. I thank Professor Mark V. Tushnet for providing the inspiration
for this Article, some of whose issues had been discussed in his Comparative Constitutional
Law course as well as in his recent work, MARK V. TUSHNET, WEAK COURTS, STRONG
RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL
LAW (2008). All leaps in logic are mine.
I For a justification of the Canadian Court's resort to what might be called constructive or
principled ambiguity, judicial minimalism, or theoretical modesty, see Sujit Choudhry
& Robert Howse, Constitutional Theory and The Quebec Secession Reference, 13 CAN. J.L. &
JURIS. 143 (2000). For a normative account of dialogical interpretative and comparative
methodology, see Sujit Choudhry, Globalization in Search of Justification: Toward a Theory
of Comparative Constitutional Interpretation, 74 IND. L.J. 819 (1999).
2 For a normative argument that constitutions in Eastern Europe are relatively easier to
amend, see Stephen Holmes & Cass R. Sunstein, The Politics of Constitutional Revision in
Eastern Europe, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF
CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995). See also VICKI JACKSON &
MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 354 (2006) (commenting on the notion
of constitutional entrenchment and amendment in light of recent scholarship).](ViewImageLocal?handle=hein.journals/touint12&div=1&collection=&method=preview&ext=.png&size=3)
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