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Without judicial review, what is the point of the (Dutch) constitution?
Practical equivalent of judicial review permission stage in ScotlandHow could Congress legally abolish the death penalty in all states?How does modern Wall St. work in NYS gambling laws?Does the “natural born Citizen” requirement for presidency violate the ICERD?USA Supreme Court and Congress responseHow low is the bar for “legitimate government interest”?Is a supermajority requirement for raising taxes constitutional?Could the USA abandon common law?Could the Supreme Court prohibit abortion? (And other misconceptions about overturning Roe v Wade)What is prospective relief and executory decree?
I gather from various sources (note: most links are in Dutch) that no process of judicial review exists in the Netherlands.
In my understanding, most democracies have a process for creating, amending and removing ordinary legislation (requiring a simple majority vote in their various legislative bodies) and another for amending their constitution (requiring a two-thirds majority vote and/or additional restrictions, such as the Dutch procedure of voorstelwetten or the similar Belgian practice of 'unlocking' only certain Articles for editing by the next legislature). If a simple majority in the legislature decides they want to pass a law which violates the constitution, they could certainly do that if they really wanted to, but will quickly find that they have wasted their time - as every court case stemming from the new law will simply end in the relevant section of the constitution trumping the new law.
However, in the Netherlands, judges do not practice judicial review (in fact, Article 120 of the Constitution expressly prohibits it). It is my understanding that, even in the event that a law unambiguously violates a constitutionally-protected right, the judge will have no choice but to apply the law anyway.
Now - assuming that my understanding is correct - my question is this: leaving aside its symbolic value, what is even the point of the Dutch Constitution (at least those Articles that confer rights, rather than describing governmental functions)? Or more specifically, what is the point of placing safeguards upon the process of amending it above and beyond those placed on ordinary legislation?
For example, if I were to command a 52% majority coalition in the legislature and I would very much like to pass a certain law that happens to be blatantly unconstitutional - which seems like it is exactly the sort of situation that a constitution is supposed to protect against - in what way am I actually stopped? If all the members of my coalition just stick our fingers in our ears while the 48% complain about our bill's unconstitutionality, and we pass it anyway, won't the new law be enforced just as much as it would have if we'd jumped through all the hoops of amending the constitution?
(NB: I wasn't sure whether this should go on Law SE or Politics SE. On balance I went with Law, but I could understand if it would need to be moved.)
constitutional-law netherlands judicial-review
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DrubbelsDrubbels
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I gather from various sources (note: most links are in Dutch) that no process of judicial review exists in the Netherlands.
In my understanding, most democracies have a process for creating, amending and removing ordinary legislation (requiring a simple majority vote in their various legislative bodies) and another for amending their constitution (requiring a two-thirds majority vote and/or additional restrictions, such as the Dutch procedure of voorstelwetten or the similar Belgian practice of 'unlocking' only certain Articles for editing by the next legislature). If a simple majority in the legislature decides they want to pass a law which violates the constitution, they could certainly do that if they really wanted to, but will quickly find that they have wasted their time - as every court case stemming from the new law will simply end in the relevant section of the constitution trumping the new law.
However, in the Netherlands, judges do not practice judicial review (in fact, Article 120 of the Constitution expressly prohibits it). It is my understanding that, even in the event that a law unambiguously violates a constitutionally-protected right, the judge will have no choice but to apply the law anyway.
Now - assuming that my understanding is correct - my question is this: leaving aside its symbolic value, what is even the point of the Dutch Constitution (at least those Articles that confer rights, rather than describing governmental functions)? Or more specifically, what is the point of placing safeguards upon the process of amending it above and beyond those placed on ordinary legislation?
For example, if I were to command a 52% majority coalition in the legislature and I would very much like to pass a certain law that happens to be blatantly unconstitutional - which seems like it is exactly the sort of situation that a constitution is supposed to protect against - in what way am I actually stopped? If all the members of my coalition just stick our fingers in our ears while the 48% complain about our bill's unconstitutionality, and we pass it anyway, won't the new law be enforced just as much as it would have if we'd jumped through all the hoops of amending the constitution?
(NB: I wasn't sure whether this should go on Law SE or Politics SE. On balance I went with Law, but I could understand if it would need to be moved.)
constitutional-law netherlands judicial-review
asked 2 mins ago
DrubbelsDrubbels
1
New contributor
Drubbels is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
add a comment |
I gather from various sources (note: most links are in Dutch) that no process of judicial review exists in the Netherlands.
In my understanding, most democracies have a process for creating, amending and removing ordinary legislation (requiring a simple majority vote in their various legislative bodies) and another for amending their constitution (requiring a two-thirds majority vote and/or additional restrictions, such as the Dutch procedure of voorstelwetten or the similar Belgian practice of 'unlocking' only certain Articles for editing by the next legislature). If a simple majority in the legislature decides they want to pass a law which violates the constitution, they could certainly do that if they really wanted to, but will quickly find that they have wasted their time - as every court case stemming from the new law will simply end in the relevant section of the constitution trumping the new law.
However, in the Netherlands, judges do not practice judicial review (in fact, Article 120 of the Constitution expressly prohibits it). It is my understanding that, even in the event that a law unambiguously violates a constitutionally-protected right, the judge will have no choice but to apply the law anyway.
Now - assuming that my understanding is correct - my question is this: leaving aside its symbolic value, what is even the point of the Dutch Constitution (at least those Articles that confer rights, rather than describing governmental functions)? Or more specifically, what is the point of placing safeguards upon the process of amending it above and beyond those placed on ordinary legislation?
For example, if I were to command a 52% majority coalition in the legislature and I would very much like to pass a certain law that happens to be blatantly unconstitutional - which seems like it is exactly the sort of situation that a constitution is supposed to protect against - in what way am I actually stopped? If all the members of my coalition just stick our fingers in our ears while the 48% complain about our bill's unconstitutionality, and we pass it anyway, won't the new law be enforced just as much as it would have if we'd jumped through all the hoops of amending the constitution?
(NB: I wasn't sure whether this should go on Law SE or Politics SE. On balance I went with Law, but I could understand if it would need to be moved.)
constitutional-law netherlands judicial-review
asked 2 mins ago
DrubbelsDrubbels
1
New contributor
Drubbels is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
I gather from various sources (note: most links are in Dutch) that no process of judicial review exists in the Netherlands.
In my understanding, most democracies have a process for creating, amending and removing ordinary legislation (requiring a simple majority vote in their various legislative bodies) and another for amending their constitution (requiring a two-thirds majority vote and/or additional restrictions, such as the Dutch procedure of voorstelwetten or the similar Belgian practice of 'unlocking' only certain Articles for editing by the next legislature). If a simple majority in the legislature decides they want to pass a law which violates the constitution, they could certainly do that if they really wanted to, but will quickly find that they have wasted their time - as every court case stemming from the new law will simply end in the relevant section of the constitution trumping the new law.
However, in the Netherlands, judges do not practice judicial review (in fact, Article 120 of the Constitution expressly prohibits it). It is my understanding that, even in the event that a law unambiguously violates a constitutionally-protected right, the judge will have no choice but to apply the law anyway.
Now - assuming that my understanding is correct - my question is this: leaving aside its symbolic value, what is even the point of the Dutch Constitution (at least those Articles that confer rights, rather than describing governmental functions)? Or more specifically, what is the point of placing safeguards upon the process of amending it above and beyond those placed on ordinary legislation?
For example, if I were to command a 52% majority coalition in the legislature and I would very much like to pass a certain law that happens to be blatantly unconstitutional - which seems like it is exactly the sort of situation that a constitution is supposed to protect against - in what way am I actually stopped? If all the members of my coalition just stick our fingers in our ears while the 48% complain about our bill's unconstitutionality, and we pass it anyway, won't the new law be enforced just as much as it would have if we'd jumped through all the hoops of amending the constitution?
(NB: I wasn't sure whether this should go on Law SE or Politics SE. On balance I went with Law, but I could understand if it would need to be moved.)
constitutional-law netherlands judicial-review
constitutional-law netherlands judicial-review
asked 2 mins ago
DrubbelsDrubbels
1
New contributor
Drubbels is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
asked 2 mins ago
DrubbelsDrubbels
1
New contributor
Drubbels is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
asked 2 mins ago
DrubbelsDrubbels
1
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Drubbels is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
asked 2 mins ago
DrubbelsDrubbels
1
asked 2 mins ago
DrubbelsDrubbels
1
1
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Drubbels is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
New contributor
Drubbels is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
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