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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