1. For preliminary assessments of these types of judge-made policy-making see Stone, A., The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (New York: Oxford University Press, 1992)Google Scholar; Kommers, D., The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed. (Durham, NC: Duke University Press, 1997)Google Scholar; Volcansek, M., Constitutional Politics in Italy: The Constitutional Court (New York: St. Martin’s Press, 2000)Google Scholar; or collections of predominantly single-country essays such as Tate, C. N. & Vallinder, T., The Globat Expansion of Judicial Power (New York: New York University Press, 1995)Google Scholar; and M. Shapiro & A. Stone, “The New Constitutional Politics of Europe” (1994) 26 Comp. Pol. Studies 397. For similar arguments in the Canadian context see Bakan, J., Just Words: Constitutional Rights and Social Wrongs (Toronto, ON: University of Toronto Press, 1997)CrossRefGoogle Scholar; Mandel, M., The Charter of Rights and the Legalization of Politics in Canada, 2nd ed. (Toronto, ON: Thompson Educational Publishing, 1994)Google Scholar; Manfredi, C., Judicial Power and the Charter. Canada and the Paradox of Liberal Constitutionalism (Toronto, ON: Oxford University Press, 2001)Google Scholar; Morton, F.L. & Knopff, R., The Charter Revolution and the Court Party, 2nd ed. (Toronto, ON: Broadview Press, 2000)Google Scholar; and Roach, K., The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto, ON: Irwin Law, 2001).Google Scholar

2. To these scenarios of active or direct judicialization of politics, we may add at least one significant indirect effect: the exercise of self-restraint or “auto-limitation” on the part of governments and parliamentary majorities in anticipation of eventual judicial scrutiny by national high courts. In spite of the embedded methodological difficulties of measuring self-restraint and “non-decisions” by legislatures and bureaucrats, it would be plausible to assume that the proliferation of judicial review in the world of “new constitutionalism” has had a significant indirect influence on politics and policy-making to the extent that governments and their parliamentary majorities may now be more likely to sacrifice policy preferences in order to avoid constitutional censure by courts. The potential threat of future judicial scrutiny is likely to alter the perceptions of the executive and legislative branches when reflecting on the context of their decisions. For preliminary assessments of this form of judicialization, see G. Vanberg, “Abstract Judicial Review, Legislative Bargaining, and Policy Compromise” (1998) 10 J. of Theoretical Pol. 299; A. Stone Sweet, “Rules, Dispute Resolution, and Strategic Behavior” (1998) 10 J. of Theoretical Pol. 327. See also Janet Hiebert, “Wrestling with Rights: Judges, Parliament, and the Making of Social Policy” (1999) 5 Choices 1.

3. Each of these modes has been advancing both at the national and supranational levels. For thorough surveys of the current proliferation of supranational courts and quasi-judicial tribunals, panels and commissions dealing with international governance, trade and monetary affairs, and international human rights issues, see, for example, Sands, P. et al., eds., Manual on International Courts and Tribunals (London: Butterworths, 1999 Google Scholar; C. Romano “The Proliferation of International Judicial Bodies: The Pieces of the Puzzle” (1999) 31 N.Y.U. J. Int’l L. & Pol. 709; Goldstein, J. et al., eds., Legalization and World Politics (Boston: MIT Press, 2001)Google Scholar; L. R. Hefler & A.M. Slaughter, “Toward a Theory of Effective Supranational Adjudication” (1997) 107 Yale L.J. 273.

4. On the “political question” doctrine in the United States, see, for example, A.M. Slaughter Burley, “Are Foreign Affairs Different?” (1993) 106 Harv. L. Rev. 1980; L. Fisler Damrosch, “Constitutional Control Over War Powers: A Common Core of Accountability in Democratic Societies?” (1995) 50 U. Miami L. Rev. 181; and “The Justiciability of Legislative Rules and the ‘Political Question’ Doctrine” (1990) 78 Cal. L. Rev. 1341; and M. Tushnet, “Principles, Politics and Constitutional Law” (1989) 88 Mich. L. Rev. 49.

5. See, e.g., Goldwater v. Carter, 444 U.S. 996 (1979); Dames & Moore v. Reagan, 453 U.S. 654 (1981).

6. Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441.

7. Ibid. at 472.

8. Ibid. at 459.

9. “Russian Court: Chechen War Legal” United Press International (31 July 1995).

10. Cited in P. Gaeta, “The Armed Conflict in Chechnya before the Russian Constitutional Court” (1996) 7 Eur. J. Int’lL. 563.

11. “Chechnya War Violated Constitution: Dissenting Judges” Agence France Presse (1 August 1995).

12. BverfGE 89,155. An abbreviated English version of the ruling appears in Kommers, supra note 1 at 182–86. The Federal Constitutional Court has been called upon several times during the past few decades to resolve controversies that, on the face of it, ought to have been resolved in the political sphere. See, e.g., the National Unity Election Case, BverfGE 82, 322 (dealing with the post-unification amalgamation of the different electoral systems of the two Germanies); the East-West Basic Treaty Case, BVerfGE 36, 1 (declaring justiciable a petition against the constitutional validity of a crucial cooperation treaty signed between West and East Germany); the Rudolf Hess Case, BverfGE 55, 349 (accepting a complaint charging the federal government with failure to take the necessary steps to secure the release of Hess from the Berlin-Spandau Military Prison (Hess had been sentenced to life imprisonment in 1945 by the Nuremberg War Crimes Tribunal).

13. Kommers, supra note 1 at 185–86.

14. Ibid. at 182.

15. See, e.g., Decision 43/1995, 30 June 1995. An abbreviated English translation of the ruling appears in Sólyom, L. & Brunner, G., Constitutional Judiciary in a New Democracy (Ann Arbor: University of Michigan Press, 2000)CrossRefGoogle Scholar at 322–32.

16. Sólyom & Brunner, ibid, at 327.

17. For a classic discussion of the U.S. Supreme Court as a national decision-making body, see R. Dahl, “decision-making in a Democracy: The Supreme Court as a National Policy-Maker” (1957) 6 J. Pub. L. 279.

18. In re Certification of the Constitution of the Republic of South Africa, 1996, 1996 (4) SA 744 (C.C.); In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996, 1997 (2) SA 97 (C.C.).

19. Reference re Secession of Quebec, [1998] 2 S.C.R. 217 [hereinafter Secession Reference]. See also Reference re Resolution to mend the Constitution, (The Patriation Reference) [1981] 1 S.C.R. 753; Reference re: Objection by Quebec to Resolution to Amend the Constitution (The Quebec Veto Reference) [1982] 2 S.C.R. 793; A.G. Quebec v. Quebec Protestant School Board [1984] 2 S.C.R. 66. On the lessons from these cases to constitutional theory, see S. Choudhry & R. Howse, “Constitutional Theory and the Quebec Secession Reference” (2000) 13 Can. J. L. & Juris. 143.

20. Decision released on 21 June, 2001. Virtue had 103 seats of Turkey’s 550 seat parliament. In its decision, the Court accepted the charge that the Virtue Party was violating the fundamental secular principles of the Turkish constitution by using religious symbols for political purposes. Moreover, the Court ordered the treasury to confiscate the party’s funds and property. In a similar fashion, in January 1998, the Turkish Constitutional Court ordered the dissolution of the Welfare Party (Rafah), Virtue’s predecessor as Turkey’s major Islamic opposition party. See “Is it wise to abolish Virtue?” The Economist 359:8228 (30 June 2001) 49.

21. In 1980, Article 2 of Egypt’s Constitution was amended to allow for principles of Muslim jurisprudence (the Shari’a) to become the main source of legislation in Egypt. This meant that no legislation could contravene Islamic legal principles. Following the establishment of judicial review in 1979 and the 1980 constitutional amendment, the Egyptian Supreme Constitutional Court has increasingly been called upon to determine the constitutionality of legislative and administrative acts on the basis of their adherence to the principles of the Shari’a. The question before the Court in all of these cases has been which principles of the Shari’a possess determinative and absolute authority. See, e.g., Wassel v. Minister of Education (the Niq ‘ab [veil] Case), No. 8 of the 17th judicial year (18 May, 1996); or the Riba [usury or interest] Case No. 20, 1st judicial year (4 May, 1986).

22. H.C. 264/87 Sepharadi Torah Guardians, Shas Movement v. The Population Registrar, 43(2) P.D. 723.

23. H.C. 1031/93 Pessaro (Goldstein) et al. v. Ministry of Interior, 49(4) P.D. 661.

24. H.C. 5070/95 The Conservative Movement v. Minister of Religious Affairs (decision released Feb. 20, 2002; not yet published).

25. Secession Reference, supra note 19.

26. Secession Reference, supra note 19 at para. 87.

27. Note that at least fourteen countries, most recently South Africa, have established truth commissions as a step in the process of coming to terms with their past. Truth commissions or other similar mechanisms have been set in place in Uganda, Bolivia, Argentina, Zimbabwe, Germany, the Philippines, Uruguay, Chile, El Salvador, Rwanda, Brazil, Haiti, and Guatemala, as well as South Africa. For further discussion, see A. Chapman & P. Ball, “The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa, and Guatemala” 23 (2001) Hum. Rts. Q. I.

28. See, e.g., R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. I), [1998] 4 All E.R. 897 (H.L.); R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2), [1999] 1 All E.R. 577 (H.L.); R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [1999] 2 All E.R. 97 (H.L.).

29. Over the past decade, most of the countries of the former Eastern Bloc have had to confront the consequences of the crimes and abuses of both the Nazi and Communist eras. The new regimes have resorted to a variety of restorative justice approaches: restitution of confiscated property; criminal prosecutions, purges and disqualifications from government (“lustration” or “purification”); and disclosure of past collaboration with secret services. Newly established constitutional courts in post-communist Europe have played a key role in these matters; the communist past was put on trial before the first Russian Constitutional Court in the landmark Communist Party Case of 1992; the Bulgarian Constitutional Court dealt with that country’s communist past in the so-called “Panev Law” Case of 1992, and in the Secret Police Files Case of 1997. In the War Crimes and Crimes against Humanity Case of 1993, the Hungarian Constitutional Court dealt with the conflict between the demand for just punishment of those who had committed politically motivated crimes against anti-communist activists during and in the aftermath of the attempted revolution of October 1956, and the questionable applicability of relevant criminal law provisions after the statute of limitations had run out. Some of these courts have also become primary loci for dealing with Holocaust-related restitution policies (e.g., the Hungarian Constitutional Court’s landmark rulings in the Restitution of Church Property Case of 1993, and the Restitution of Jewish Possessions Case of 1993—the former dealing with the constitutionality of a law aimed at returning some property to certain churches that had owned the property prior to its expropriation by the communist regime between 1948 and 1953; the latter dealing with Hungary’s appalling treatment of its Jewish community during and in the aftermath of World War 11).

30. A few notable examples of this trend are Mabo v. Queensland (No. 2) (1992), 175C.L.R. 1 (abandoning the terra nullius concept and establishing native title as a basis for proprietary interest in land); The Wik Peoples v. Queensland (1996), 187 C.L.R. 1 (holding that grant of pastoral leases to bona fides third parties did not necessarily extinguish native title)—two landmark rulings of the Australian High Court concerning Aboriginal land claims and title; Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, and R. v. Pamajewon [1996] 2 S.C.R. 821; R. v. Sparrow [1990] 1 S.C.R. 1075; R. v. Van der Peet [1996] 2 S.C.R. 507; R. v. Gladstone [1996] 2 S.C.R. 723; R. v. N.T.C. Smokehouse [1996] 2 S.C.R. 672; R. v. Badger [1996] I S.C.R. 771; R. v. Marshall I [1999] 3 S.C.R. 456; R. v. Marshall II [1999] 3 S.C.R. 533—all landmark Supreme Court of Canada decisions dealing with aboriginal title, right to self-government, and rights to fish, hunt, and harvest. For a comprehensive comparative survey, see Havermann, P., “Indigenous Rights in the Political Jurisprudence of Australia, Canada, and New Zealand” in Indigenous Peoples’ Rights in Australia, Canada, and New Zealand, Havermann, P., ed., (Auckland, NZ: Oxford University Press, 1999).Google Scholar

31. Azanian Peoples Organisation (AZAPO) v. President of the Republic of South Africa 1996 (4) SA671(C.C).

32. Ibid, at 672, 680–81.

33. Ibid, at 681.

34. Ibid, at 663–83.

35. Ibid, at 693–94.

36. Ibid, at 698.

37. See Treaty Tribes Coalition et al. v. Urban Maori Authorities et al. [1997] I N.Z.L.R. 513. The claims of the Ngai Tahu tribe were eventually settled in Ngai Tahu Claims Settlement Act 1998. In it, the Crown acknowledged and settled wrongs done in its name to the people of Ngai Tahu and made a fresh start. In early 1998, following an incident in late 1997 (in which a fishing boat reportedly landed several metric tons of snapper without commercial quota rights), it was announced that new regulations were to govern the management of “customary” fishing by tanagata whenua (people of the land), whereby the Maori are permitted to harvest an unlimited amount of seafood, provided it is not for pecuniary gain. It also interesting to note that a few months after the adoption of the Ngai Tahu Claims Settlement Act 1998, the Court was asked by another Maori tribe, the Ngati Apa, (whose people live in the same area as the Ngai Tahu) to determine whether a Parliamentary Act that had settled the Ngai Tahu Treaty claims had deprived its people of the capacity to raise their own claims. See Ngati Apa ki te Waipounamu Trust v. The Queen, [2000] 2 N.Z.L.R. 659.

38. Te Runanga o Muriwhenua v. Te Runanganui o Te Upoko o Te Ika Association Inc [1996] 3 N.Z.L.R. 10.

39. Te Waka Hi lka o Te Arawa v. Treaty of Waitangi Fisheries Commission [2000] 1 N.Z.L.R. 265.

40. Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000); Bush v. Gore, 531 U.S. 98 (2000).

41. For a description of the Estrada trial and its context, see “Estrada’s final scene” The Economist 357:8200 (9 December 2000) 45; “Courtroom drama” The Economist 357:8201 (16 December 2000) 46; see also “Impeachment in the Philippines” The Economist 357:8196 (11 November 2000) 53; “Impeached, but not yet impaled” The Economist 357:8197 (18 November 2000) 50; “Bomb justice” The Economist 358:8203 (6 January 2001) 40; “Enveloped” The Economist 358:8205 (20 January 2001) 36; “Estrada dreaming” The Economist 358:8207 (10 February 2001) 46; “Estrada arrested” The Economist (U.S.) 359:8219 (28 April 2001) 41.

42. See “Will Wahid be next?” The Economist 358:8206 (27 January 2001) 38; “Getting worse for Gus Dur” The Economist 358:8207 (3 February 2001) 42; “Sheriff Wahid talks tough” The Economist 358:8208 (10 February 2001)45; “Wahid says sorry, up to a point” The Economist 358:8215 (31 March 2001) 37; “President or princess?” The Economist 359:8219 (28 April 2001) 43; “Strike two against Wahid” The Economist 359:8220 (5 May 2001) 34; “Megawati makes her move” The Economist 359:8224 (2 June 2001) 37; “He isn’t going quietly” The Economist 360:8230 (14 July 2001) 40; “Who’s in charge?” The Economist 360:8231 (21 July 2001) 34; “But what will Megawati do?” The Economist 360:8232 (28 July 2001) 41–42.

43. On August 3, 2001, Thailand’s Constitutional Court acquitted elected Prime Minister Thaksin Shinawarta of corruption charges (primarily related to alleged concealment of assets while serving in a previous government) in a narrow 8:7 decision. Had Thaksin been found guilty, he would have been not only forced to resign but also barred from public office for five years. See “Thaskin gets his day in court” The Economist 359:8227 (23 June 2001) 3738; “Reform in reverse: Thailand’s prime minister has escaped censure for unexplained reasons” The Economist 360:8234 (11 August 2001) 11–12.

44. High Court Civil Action 217/2000 The Republic of Fiji v. Chandrika Prasad (decision released on March 1 st, 2001). A copy of the decision is on file with the author. The full text of the decision is available at www.vanuatu.usp.ac.fj (accessed: 11 August 2001). Various submissions by involved parties are available at www.law.mq.edu.au/Units/law309/Fiji_Prasad/ (accessed: 11 August 2001). For a detailed discussion of the Fiji v. Prasad saga see G. Williams, “The Case that Stopped a Coup? The Rule of Law and Constitutionalism in Fiji” (2001) I Oxford U. Commonwealth L.J. 73.

45. Since 1990 alone, Pakistan has known five regime changes: the demise of the first Benazir Bhutto government and the election of the first Nawaz Sharif government in 1990; the dismissal of Nawaz Sharif by President Ishaq Khan and the reelection of Benazir Bhutto in 1993; the election of the second Nawaz Sharif government in 1996; the 1999 ousting of the Nawaz regime through a military coup d’etat; and most recently, the transformation of General Pervez Musharraf’s military regime into a civilian regime in 2001. The Pakistan Supreme Court has played a key role in each of these radical transitions, as well as in the countless political manoeuvres that surrounded them. There have been a myriad of landmark judgments by the Pakistan Supreme Court pertaining to political transformation and regime change in that country. These include J Haiti v. Government of the Punjab, P.L.D. 1972 S.C. 139; Mohtarma Benazir Bhutto v. Chief of Army Stuff, P.L.D. 1977 S.C. 657; Muhammad Nawaz Sharif v. President of Pakistan and Others, P.L.D. 1993 S.C. 473; Mohtarma Benazir Bhutto v. President of Pakistan, P.L.D. 1998 S.C. 388; Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan (Pakistan Petitions Case), P.L.D. 2000 S.C. 869; and most recently a Supreme Court order that overturned the 1996 corruption convictions against former prime minister Benazir Bhutto (living abroad in self-exile) and her husband Asif Ali Zardari (jailed in 1996), as well as quashing a 1996 decree disqualifying the couple from holding public office, thereby paving the way for Benazir Bhutto’s return to public life in Pakistan (decision released on April 5, 2001).

46. Fiji v. Prasad, supra note 44.

47. The coup was precipitated by racial friction between Indigenous Fijians and Indian Fijians. By the mid 1960s, Indo-Fijians had become the majority population group, primarily due to the large-scale importing of indentured Indian workers and the migration of free laborers from India during the first few decades of the twentieth century. Today, Fiji’s population is just over 800,000, of which approximately 51 % are Indigenous Fijians and 44% Indo-Fijians (who are generally more affluent). These two communities lead a largely separate existence. The largely divided nature of Fijian society has given rise to significant tensions between the two major ethnic groups, and to a series of political crises over the past two decades.

48. See “For the Second Time” The Economist 355:8172 (27 May 2000) 44.

49. See “A Peaceful Change in Fiji” The Economist 351:8120 (22 May 1999) 40.

50. Cited in Fiji v. Prasad, supra note 44 at 3.

51. Fiji v. Prasad, supra note 44 at 1931, 33–35.

52. Ibid, at 9–14.

53. Ibid, at 16–19.

54. Ibid, at 31–33.

55. The Eighth Amendment was adopted in 1977 by General Ziaul Haq, Pakistan’s Chief Executive from 1977 to 1985.

56. For a comprehensive discussion of the 1993 Nawaz Sharif case and its political aftermath, see Maluka, Z.K., The Myth of Constitutionalism in Pakistan (Karachi: Oxford University Press, 1995)Google Scholar, at 27798; and Newberg, P. R., Judging the State: Courts and Constitutional Politics in Pakistan (Cambridge: Cambridge University Press, 1995)CrossRefGoogle Scholar at 219–20, 227.

57. Nawaz Sharif v. President of Pakistan, supra note 45.

58. Ibid, at 554–60.

59. Ibid, at 560–70, 799–801.

60. Ibid, at 560–70.

61. Prior to the Court’s ruling, it was widely assumed, on the basis that the National Assembly had been dissolved three times in the past, that the Eighth Amendment was a potent weapon the President could use to repeat such an act at will.

62. Aside from the courtroom battle over the constitutionality of the military coup, Nawaz Sharif was sentenced in April 2000 to life imprisonment by an anti-terrorist court in Karachi on charges of terrorism and hijacking. He was eventually granted permission to leave the country as an exile to Saudi Arabia.

63. Zafar Ali Shah v. Pervez Musharraf, supra note 45.

64. Ibid, at 1219.

65. Ibid, at 1219.

66. Ibid, at 1223.

67. Recognizing the crucial political significance of the Supreme Court, Pakistan’s political leaders have repeatedly tried to control the judicial appointments process. In late 1997, for example, a serious rift developed between Prime Minister Nawaz Sharif and the Chief Justice of the Supreme Court, Sajjad AH Shah, over the appointment of new judges to the court. The constitutional crisis came to a dramatic end on December 2, 1997, when the Chief Justice was suspended from office by rebel members of the Supreme Court. A crisis of a similar nature occurred in January 2000, when General Musharraf insisted that all members of the Supreme Court pledge allegiance to the military administration. The judges who refused to take the oath were expelled from the Court.

68. See Dionne, E.J. & Kristol, W., Bush v. Gore: The Court Cases and The Commentary (Washington, DC: Brookings Institution Press, 2001)Google Scholar; Gillman, H., The Votes that Counted: How the Court Decided the 2000 Presidential Election (Chicago, IL: University of Chicago Press, 2001)Google Scholar; J. Balkin, “Bush v. Gore and the Boundary Between Law and Politics” (2001) 110 Yale L. J. 1407.

69. For recent critiques of judicial review on democratic grounds, see, for example, Tushnet, M., Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1999)Google Scholar; J. Waldron, “Judicial Review and the Conditions for Democracy” (1998) 6 J. Pol. Phil. 335; J. Allan, “Bills of Rights and Judicial Power—A Liberal’s Quandary” (1996) 16 Oxford J. Legal Studies 337; J. Waldron, “A Rights-Based Critique of Constitutional Rights” (1993) 13 Oxford J. Legal Studies 18; Dahl, R., How Democratic is the American Constitution? (New Haven, CT: Yale University Press, 2001).Google Scholar

70. For recent examples of such works, see Shapiro, I., Democratic Justice (New Haven, CT: Yale University Press, 1999)Google Scholar; Waldron, J., The Dignity of Legislation (Cambridge: Cambridge University Press, 1999)CrossRefGoogle Scholar; Burt, R., The Constitution in Conflict (Cambridge, MA: Belknap Press, 1992)Google Scholar; Gutmann, A. and Thompson, D., Democracy and Disagreement (Cambridge, MA: Belknap Press, 1996).Google Scholar

71. See, e.g., F.L. Morton, “The Political Impact of the Canadian Charter of Rights Freedoms” (1987) 20 Can. J. Pol. Sci. 30; F.L. Morton, “The Effect of the Charter of Rights on Canadian Federalism” (1995) 25 Publius 173.

72. This is the thesis Knopff, R. & Morton, F. L. advance in Charter Politics (Scarborough, ON: Nelson Canada, 1992)Google Scholar, and in The Charter Revolution, supra note 1. According to Knopff and Morton, groups located primarily on the left of the political spectrum have been far more successful than so-called established interests in using the Charter to win political victories.

73. See, for example, Bork, R., The Tempting of America: The Political Seduction of the Law (New York: The Free Press, 1990)Google Scholar; and Bork, R., Coercing Virtue: The Worldwide Rule of Judges (Toronto, ON: Vintage Canada, 2002).Google Scholar

74. Coercing Virtue: The Worldwide Rule of Judges, ibid, at 3.

75. Ibid, at 16.

76. Dworkin, R., Freedom’s Law (Oxford: Oxford University Press, 1996)Google Scholar at 34.

77. Bickel, A., The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill, 1962)Google Scholar at 24. The discussion that follows draws in part on Ewing, K.D., “The Bill of Rights Debate: Democracy or Juristocracy in Britain” in Human Rights and Labour Law, Ewing, K.D. et al., eds. (London, UK: Mansel, 1994)Google Scholar at 159–57.

78. Ibid, at 25.

79. Ibid, at 25–26.

80. Ibid, at 25–26.

81. Ibid, at 26.

82. Ibid, at 55.

83. Ely, J. H., Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980)Google Scholar at 87. See also “The Bill of Rights Debate” supra note 77 at 163.

84. Ely, ibid, at 88.

85. Ibid, at 99.

86. Ibid. at 181.

87. J. Gibson et al, “On the Legitimacy of National High Courts” (1998) 92 Am. Pol. Sci. Rev. 343, at 343.

88. R. Hirschl, Towards Juristocracy: A Comparative Inquiry Into the Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, forthcoming (2003)), Chs. 2–3; R. Hirschl, “The Political Origins of Judicial Empowerment Through Constitutionalization: Lessons from Four Constitutional Revolutions” (2000) 25 L. & Soc. Inquiry. 91.