Shadow constitutional review: The dark side of pre-enactment political review in Ireland and Japan

• Kenny, David ^[1] ; Casey, Conor ^[1]
  1. [1] Trinity College Dublin

     Trinity College Dublin

     Irlanda

     
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 18, Nº. 1, 2020, págs. 51-77
• Idioma: inglés
• Texto completo no disponible (Saber más ...)
• Resumen

  • Political constitutionalism is a major area of inquiry in contemporary constitutional discourse. A significant and increasingly central aspect of political constitutionalism is pre-enactment political review: laws being reviewed for constitutionality or rights compliance by parliament or the executive. This institution is said to be a good augmentation of, or even replacement for, the institution of judicial review, and it is said to bring with it a host of normative benefits. In this article, we wish to highlight an under-explored dark side to pre-enactment review. By undertaking a comparative analysis of functional pre-enactment review in several similar jurisdictions—Canada, New Zealand, and the UK—we contrast these systems, and the ordinary failings they display, with the much deeper problems of pre-enactment review in Ireland and Japan. These latter jurisdictions, we argue, not only fail to instantiate the benefits of pre-enactment review but in fact show that, in the right circumstances, pre-enactment review can have negative effects that are antithetical to the goals and values of political constitutionalism. We call this phenomenon “shadow constitutional review,” and suggest that it adds a layer of complexity and nuance to contemporary discussions of political constitutionalism.