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6 - Constitutional ‘Dialogue’ and Deference

from Part II - Dialogue and Institutions

Published online by Cambridge University Press:  19 April 2019

Geoffrey Sigalet
Affiliation:
Stanford University, California
Grégoire Webber
Affiliation:
Queen's University, Ontario
Rosalind Dixon
Affiliation:
University of New South Wales, Sydney
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Summary

The idea of a constitutional ‘dialogue’ between courts and legislatures, the chapter argues, is at once potentially both useful and misleading: it is useful, in that it helps draw attention to the possibility that judicial review may be de facto ‘weak’ or non-final in nature. But it is also dangerous, if understood to suggest that judicial review is always, inevitably, de facto weak or non-final. The true finality of judicial review, the chapter suggests, ultimately depends on the willingness of courts to defer to certain kinds of legislative constitutional judgements in ‘second look’ cases. Deference of this kind is also inherently controversial both among judges and scholars, including many dialogue theorists. At least some uses of the dialogue metaphor, therefore, may downplay legitimate concerns in many constitutional systems about the ‘counter-majoritarian difficulty’ associated with strong forms of judicial review. Whether or not this is sufficient to point to a move away from the metaphor depends in part on volumes such as this, and whether they can encourage a more contingent, qualified view of the idea of dialogue – and one more closely connected to (certain limited kinds of) constitutional deference by courts.
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Chapter
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Constitutional Dialogue
Rights, Democracy, Institutions
, pp. 161 - 185
Publisher: Cambridge University Press
Print publication year: 2019

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