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9 - Calibrated Constitutional Review

from Part III - Judge as Partner

Published online by Cambridge University Press:  12 October 2023

Aileen Kavanagh
Aileen Kavanagh
Affiliation:
Trinity College Dublin
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Summary

This chapter points to a dilemma at the heart of the judicial role. How can courts robustly review legislation for compliance with rights without exceeding the limits of the judicial role? And how can they pay respect to the democratically elected branches of government without ceding their obligations to uphold rights? Presenting courts as a form of constitutional ‘quality control’, this chapter argues they solve this dilemma by engaging in calibrated constitutional review. This requires judges to carefully calibrate the grounds and intensity of review depending on a complex analysis of legal and institutional concerns.

Keywords

calibrated reviewdeferencerespectcomitymargin of appreciationvariable intensity of reviewproportionalityincommensurabilitycourts as quality controlcounter-terrorismcalibrating factorscanonical correlatives of public law adjudication
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Chapter
Information
The Collaborative Constitution , pp. 266 - 296
Publisher: Cambridge University Press
Print publication year: 2023

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