Detaining Non-Citizens: Political Competition and Weak v. Strong Judicial Review

By Rosalind Dixon & Brigid McManus

Outside the United States, many constitutional scholars have noted the rise of ‘weak’ or weakened models of judicial review, which give legislatures broad powers to determine the (final) scope and meaning of constitutional norms. Yet, the normative attractiveness of this model remains underexplored. Some scholars have suggested that to be desirable, models of this kind require the existence of at least some degree of political competition. This article, however, goes further and suggests that the normative desirability of weak, as opposed to strong, review depends on the degree to which political parties in fact compete over the protection of individual rights–or engage in actual processes of debate and contestation aimed at promoting both majority rule and the protection of individual rights. Competition of this kind also seems quite uneven across issues, even in systems with generally strong norms of political competition. In this sense the desirability of weak-form review, as a rival to United States style models of strongform review, is also ultimately quite contingent and context-specific in nature. The article makes these arguments drawing on case studies of the protection of the rights for noncitizens in immigration detention in three countries with weak-form systems of review for rights protections–i.e. the United Kingdom, New Zealand, and Australia. It also suggests the broader relevance of these findings for debates over judicial review in the United States, and elsewhere.

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