Conclusion
The case just presented depends on certain assumptions about the institutions and rights commitments of a political society that entail it is most centrally and generally applicable to mature democracies.
These assumptions are the same as those listed by Jeremy Waldron in presenting his case against judicial review: namely, a reasonably well-functioning legislature and judiciary, broad commitment to individual and minority rights in society, and persistent, good faith disagreement about what specific rights there are and what they amount to (Waldron 2006, 1359-69). Where these conditions obtain, as in many mature democracies, my normative argument, like his, is a general one: that is, the new model is a better institutional form of constitutionalism than the other two. Where they do not, as in many transitional, newer or fragile democracies, the normative case for one of the other models may be stronger - or, indeed, this entire design issue less important than certain others. If either legislatures or courts are not reasonably well-functioning, this should affect their relative allocation of power, so that contextual factors of this sort will be relevant to the issue of which legal regime will likely better protects rights.[165] Other contextual factors, such as the desire for radical regime change and a “new beginning” (Ackerman 1997), may also be highly relevant. So, for example, in the new constitutions of post-Nazi Germany and post-apartheid South Africa, judicial supremacy and strong-form review may have represented the sharper break with the past that was deemed necessary for expressive and practical reasons.Although the normative case I have presented does not generally apply to transitional, newer or fragile democracies, this does not rule out the possibility that weak- form judicial review might sometimes be preferable to strong-form in this context for purely pragmatic reasons. This might be so, for example, where robust or aggressive exercise of strong-form review in transitional or fragile democracies risks a wholesale political backlash against the courts that undermines the broader, and arguably more essential principle of judicial independence. Although strongform review in one sense exhibits the independence of the judiciary to its greatest extent, for that very reason it also poses the greatest practical threat to such independence - as evidenced by recent events in Hungary and Turkey - and in service of a function that is not an essential part of it.[166]