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Constitutional Courts and Democratic ValuesA European Perspective$
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Victor Ferreres Comella

Print publication date: 2009

Print ISBN-13: 9780300148671

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300148671.001.0001

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The Justification of Constitutional Review

The Justification of Constitutional Review

The Sketch of an Argument

Chapter:
(p.29) Chapter Four The Justification of Constitutional Review
Source:
Constitutional Courts and Democratic Values
Author(s):

Víctor Ferreres Comella

Publisher:
Yale University Press
DOI:10.12987/yale/9780300148671.003.0005

This chapter shows how easy it is to defend the institution of judicial review of legislation when it operates within the field of federalism. In politically decentralized polities, the laws enacted by the state legislative assemblies often clash with the laws of the federation. Since it is not reasonable to permit each level of government to decide the limits of its own authority, the intervention of an external institution like the judiciary seems justified. Constitutional review acquires “the utmost importance” in federal states, according to Hans Kelsen. Indeed, as in America, judicial review in many European nations emerged as a technical solution to the legislative collisions that decentralized political systems inevitably generate. In more modern times, however, judicial review came to play a key role in the domain of fundamental rights.

Keywords:   federalism, politically decentralized polities, state legislative assemblies, judiciary, technical solution, legislative collisions, fundamental rights

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