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61 Ark. L. Rev. 205 (2009)
Dialogic Judicial Review

handle is hein.journals/arklr61 and id is 209 raw text is: THE HARTMAN HOTZ LECTURE Dialogic Judicial Review Mark Tushnet* Innovations in constitutional design are rare-proportional representation in the late eighteenth century, centralized and specialized constitutional courts invented by Hans Kelsen in the 1920s, the French semi-presidential system in the 1950s, and a few others constitute my list. This Essay deals with a recent innovation in the design of judicial review, which I call dialogic judicial review. For present purposes I take dialogic judicial review to have been invented in the Canadian Charter of Rights in 1982. The Charter explicitly authorizes judicial review without any special provisions dealing with the Supreme Court. Dialogic review emerges from two provisions, one substantive and one procedural. The substantive provision is a general- limitations clause applicable to all constitutional rights. The rights are, in the terms of the general-limitations clause, subject to restrictions imposed by law that are demonstrably justified in a free and democratic society.' The procedural provision is the so-called notwithstanding or override clause, section 33. This section authorizes the legislature (national or provincial) to make its legislation effective for a five-year period notwithstanding the possibility (or certainty) that the legislation * William Nelson Cromwell Professor of Law, Harvard Law School. The remarks on which this Essay is based were delivered at the University of Arkansas School of Law, as a part of the Hartman Hotz lecture series. I thank the Law School for inviting me to give the lecture and Steven Sheppard for his role in the event. Some of the points made here are developed in greater detail in MARK TUSHNET, WEAK COURTS, STRONG RIGHTS: JUDICIAL REVIEW AND SOCIAL WELFARE RIGHTS IN COMPARATIVE CONSTITUTIONAL LAW (2008). 1. See Part I of the Constitution Act, being Schedule B to the Canada Act 1982, ch. 11, sec. 33 (U.K.). This language resembles terms used in the European Convention on Human Rights, but is generalized to all constitutional rights. See Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms art. 8-11, Nov. 4, 1950, 213 U.N.T.S. 221.

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