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Minimalism: An Implication for American Judicial Review of Legislation in Deciding over Rights?

By Luz Helena Orozco y Villa

Abstract

The diverse theories of constitutional interpretation in the United States share one strong common purpose: to constrain the adjudicator. Whether is text, tradition, structure or democracy, the prevailing fear behind these reasons is the inescapable empowerment of the “least dangerous branch” that comes with judicial review. This anxiety can be explained through the analysis of the systemic and contextual factors in American constitutionalism. Furthermore, because of the constitutional structure of the United States, there is a permanent tension in judicial activity between certainty and legitimacy. Therefore, I defend a minimalistic approach for judicial review of legislation, particularly in cases dealing with fundamental rights under circumstances of disagreement

Topics: Judicial review of legislation, Legislation, Legislation
Publisher: Scholarship@Cornell Law: A Digital Repository
Year: 2009
OAI identifier: oai:scholarship.law.cornell.edu:lps_clacp-1067
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