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The Political Origins of the New Constitutionalism

Over the past two decades the world has witnessed an astonishingly rapid transition to what may be called juristocracy. Around the globe, in numerous countries and in several supranational entities, fundamental constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. Most of these polities have a recently adopted constitution or constitutional revision that contains a bill of rights and establishes some form of active judicial review. National high courts and supranational tribunals meanwhile have become increasingly important, even crucial, policy-making bodies. To paraphrase Alexis de Tocqueville’s observation regarding the United States, there is now hardly any moral, political, or public policy controversy in the new constitutionalism world that does not sooner or later become a judicial one. This global trend toward the expansion of the judicial domain is arguably one of the most significant developments in late twentieth and early twenty-first century government. The global trend toward judicial empowerment through constitutionalization has been accompanied and reinforced by an almost unequivocal endorsement of the notion of constitutionalism and judicial review by scholars, jurists, and activists alike. As Ronald Dworkin—perhaps the most prominent constitutional