Texas Law Review Association
This paper evaluates arguments made in Ran Hirschl's powerful and sobering book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard, 2004). Studying Canada, Israel, South Africa, and New Zealand, Hirschl aims to dispel what he views as the hollow hopes that constitutionalism and judicial review will bring about progressive change around the world. If Gerald Rosenberg, in his book, The Hollow Hope: Can Courts Bring About Social Change, focused on the hollow hopes of liberals for social change securing, e.g., racial equality (Brown) and women's reproductive freedom (Roe), Hirschl focuses on hollow hopes for progressive economic change furthering distributive justice and securing welfare rights. The paper offers three lines of critique of Hirschl's thesis. First, with respect to American constitutional theorists and jurists, we concede for the sake of argument that courts have not brought about progressive economic change, but question whether liberals and progressives in American constitutional law ever harbored any hollow hopes that courts would do so. Second, we concede that some American liberals and progressives have viewed the American Constitution as securing welfare rights, but we contend that they have conceived these rights, not as judicially enforceable, but as what Larry Sager calls judicially underenforced norms. These American liberals and progressives have looked to legislatures, executives, and citizens generally more fully to enforce these constitutional norms by taking the Constitution seriously outside the courts. Hirschl's court-centered analysis overlooks such discourse. Third, we suggest that Hirschl defines progressive change too narrowly, as concerned with economic change, distributive justice, and welfare rights. If he defined progressive change more broadly, to include challenges to traditional norms and institutions, including gender norms along with family law, we might find that constitutionalization and judicial review in the four countries he analyzes have been instrumental in bringing about some progressive social change, such as gains in gender equality. We support this argument by looking at constitutionalization in Canada and South Africa.
Linda McClain & James Fleming,
Constitutionalism, Judicial Review, and Progressive Change,
Texas Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/561