Monday, April 13, 2009

You'll never beat the Irish

National Review's Mark Steyn finds a strange Ruth Bader Ginsburg claim --

She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.

“What happened in Europe was the Holocaust,” she said, “and people came to see that popularly elected representatives could not always be trusted to preserve the system’s most basic values.”

Steyn notes that the timeline, beginning with Austria in 1920, doesn't fit this theory. But here's one of the most reslilient examples of judicial review: the 1922 constitution of the Irish Free State (whose mechanisms are embedded in the modern 1937 Constitution) --

Article 64.

The judicial powers of the Irish Free State (Saorstát Eireann) shall be exercised and justice administered in the public Courts established by the Oireachtas by judges appointed in manner hereinafter provided. These Courts shall comprise Courts of First Instance and a Court of Final Appeal to be called the Supreme Court. The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal, and also Courts of local and limited jurisdiction, with a right of appeal as determined by law.

Article 65.
The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution. In all cases in which such matters shall come into question, the High Court alone shall exercise original jurisdiction.

Article 66.
The Supreme Court of the Irish Free State (Saorstát Eireann) shall, with such exceptions (not including cases which involve questions as to the validity of any law) and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court. The decision of the Supreme Court shall in all cases be final and conclusive, and shall not be reviewed or capable of being reviewed by any other Court, Tribunal or Authority whatsoever: Provided that nothing in this Constitution shall impair the right of any person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty in Council or the right of His Majesty to grant such leave.

Among the many interesting things about this Constitution is that it was written for a Commonwealth country. But it'll take a better historian than here to determine where the idea of constitutional review by the courts came from.

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