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In this brief response I address two issues raised by these generous comments. Rivka Weill and Margit Cohn prod me to provide a more theoretical underpinning for the historical account I offered, and all three commenters suggest that the U.S. experience does not shed much light on the normative case for constitutional review presented by Alon Harel in other work. I sketch a theoretical account of the historical narrative, grounded in the structure of U.S. government and politics. That sketch may have some implications for conceptualizing the course of constitutional development in other polities. Then I raise some questions about Harel's theory of constitutional review as a mechanism for providing individuals with a forum in which they can receive an explanation of why they are properly being subjected to treatment that harms them individually, if one is available. I end with a suggestion connecting the two components of this Rejoinder.
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- Symposium on Mark Tushnet's The Rights Revolution in the Twentieth Century
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009
References
1 See in this issue Weill, Rivka, Is it the Right Revolution? On Tushnet's The Rights Revolution in the Twentieth Century, 42 Isr. L. Rev. 483 (2009)CrossRefGoogle Scholar.
2 See in this issue Cohn, Margit, “Everything Flows”: Mark Tushnet's Rights Revolution and the Impact of Constitutional Dialogue, 42 Isr. L. Rev. 472 (2009)CrossRefGoogle Scholar.
3 See in this issue Harel, Alon, The Vices of Institutiona1 Instrumentalism: A Comment on Tushnet, The Rights Revolution in the Twentieth Century, 42 Isr. L. Rev. 465 (2009)Google Scholar; see, e.g., Eylon, Yuval & Harel, Alon, The Right to Judicial Review, 92 Va. L. Rev. 991 (2006)Google Scholar. See also Alon Harel & Tsvi Kahana, The Easy Core Case for Judicial Review, available at http://ssrn.com/abstract=1272493.
4 Shapiro, Martin, Fathers and Sons: The Court, the Commentators, and the Search for Values, in The Burger Court: The Counterrevolution that Wasn't 218 (Blasi, Vince ed., 1983)Google Scholar.
5 Harel, supra note 2.