Constitutionalism, Rights, and Judicial Power

Abstract

This chapter compares the evolution of different national systems of constitutional justice since 1787. After introducing and defining key terms, it surveys different kinds of constitutions, rights, models of constitutional review, and the main precepts of 'the new constitutionalism'. The chapter then presents a simple theory of delegation and judicial power, focusing on why political elites would delegate power to constitutional judges, and how to measure the extent of power, or discretion, delegated. The evolution of constitutional forms is then presented comparatively. Beginning in the 1980s, the new constitutionalism took off, and today has no rival as a model of democratic state legitimacy. As constitutional rights and review have diffused around the world, so has the capacity of constitutional judges to control policy outcomes.