Alito, NSA, filibusters, and the nuclear option

[Miguel Schor]

I have some serious misgivings about posting this on Christmas but 
fortunately I have some quiet time this morning and I couldn't resist 
responding to Bobby's question.  Is there empirical evidence that courts 
are not the sole mechanism to check the executive?  Sure and one only 
has to look abroad to find plenty of evidence.
The UK did a pretty good job of checking power without judicial review 
prior to the introduction of the Human Rights Act in 1998.  A good 
argument can be made (and Stephen Gardbaum makes it) that there is a 
commonwealth flavor of constitutionalism that allows courts to declare 
that an action is constitutionally infirm but the remedy is left to the 
majoritarian branch of government.  How does this work?  Well, there has 
to be sufficient popular support for limited government for elected 
officials to find it in their interest to respect judicial decisions.
Another way at getting at this question is to ask why presidentialism in 
the US has historically been different than say presidentialism in  
Latin America (a similar argument could be made for many of the polities 
in Africa as well).  Before Bush made his somewhat unusual claims that 
he was given a blank check to do what he saw fit in the wake of  9/11, 
one important differences between presidentialism in the US and in many 
of the nations of Latin America (there are important exceptions such as 
Costa Rica) is that elected presidents were given a blank check to solve 
their nation's problems.  The power wielded by Hugo Chavez (an 
intellectual soulmate of George Bush when it comes to visions of 
presidential power) is, I think, the exception today in the region, but 
is certainly close to the historical norm.  The question in the 
developing world (and one that obviously resonates today in the US) is 
how might the social bases of constitutionalism be constructed.  It 
shouldn't be any surprise that dictatorship can only be deterred by the 
social construction of democracy even if courts can be a fairly 
efficient tool for translating a popular desire to limit power into 
action.  In any case, there is fortunately no rule against shameless 
self-promotion on Christmas and I have a piece coming out on this topic 
that provides a broad, historical (and empirical) argument as to why 
constitutionalism took a different path in the US than in Latin America. 
And with no apologies to Bill O'Reilly, I wish all a happy holiday. Miguel

RJLipkin at aol.com wrote:

> In a message dated 12/25/2005 8:00:46 AM Eastern Standard Time, 
> mgraber at gvpt.umd.edu writes:
>
>     I am not sure the below is quite right.  The claim "only courts can
>     deter the executive" strikes me as an empirical claim that ought to be
>     examined empirically. 
>
>         Is there any empirical examination of this precise question?
>  
> Bobby
>
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Delaware