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10 - Nonjudicial Constitutional Interpretation: The Netherlands

from IV - Constitutional Adjudication and Interpretation

Published online by Cambridge University Press:  17 February 2022

David S. Law
Affiliation:
University of Virginia
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Summary

This chapter will focus on the manner in which non-judicial actors engage in constitutional guardianship, using the Netherlands as a case study. Article 120 of the Dutch Constitution explicitly prohibits courts from examining the constitutionality of Acts of Parliament. Accordingly, it has fallen to other institutions to ensure that constitutional rules and values are duly taken into account, especially when new legislation is under consideration. The chapter will focus in particular on the role that governments and civil servants play in verifying a bill’s constitutional conformity during the drafting stage; on the Council of State, which is tasked with providing non-partisan advice to the government on new bills; and on how Parliament itself goes about confronting constitutional issues during legislative debates. The Dutch experience shows that it is possible to successfully ensure constitutional supremacy even when judges are not available to act as ultimate protectors of the national constitution.

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Publisher: Cambridge University Press
Print publication year: 2022

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References

Primary Sources

De Visser, Maartje, Constitutional Review in Europe: A Comparative Analysis (Hart, 2014), ch. 1.Google Scholar
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Hiebert, Janet, ‘Legislative Rights Review: Addressing the Gap Between Ideals and Constraints,’ in Hunt, Murray, Hooper, Hayley and Yowell, Paul (eds.), Parliaments and Human Rights: Redressing the Democratic Deficit (Hart, 2015) 39.Google Scholar
Levinson, Sanford, ‘Constitutional Engagement “Outside the Courts” (and “Inside the Legislature”),’ in Bauman, Richard and Kahana, Tsvi (eds.), The Least Examined Branch: The Role of Legislatures in the Constitutional State (Cambridge University Press, 2006) 378.CrossRefGoogle Scholar

Secondary Sources

Besselink, Leonard, et al. (eds.), Constitutional Law of the EU Member States (Kluwer, 2014) 12031239.Google Scholar
Kraan, Karel, ‘The Kingdom of the Netherlands,’ in Prakke, Lucas and Kortmann, Constantijn (eds.), Constitutional Law of 15 EU Member States (Kluwer Law International, 2005) 591.Google Scholar
Voermans, Wim, ‘Constitutional Law,’ in Chorus, Jeroen, Hondius, Ewoud and Voermans, Wim (eds.), Introduction to Dutch Law, 5th ed. (Wolters Kluwer, 2016) 317.Google Scholar
Zoethout, Carla M., ‘On Blasphemy, an Idealistic Constitutional Provision and Militant Democracy: Constitutional Topics in the Netherlands’ (2016) 22 European Public Law 461.Google Scholar

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