@article{2015:tushnet:questions_,
title = {Questions About Michelman’s Second Proceduralization},
year = {2015},
note = {I agree with so much of Professor Michelman’s argument that I feel
somewhat churlish in raising some questions about both the content and
scope of the “second proceduralization” he argues is a key
component of “legitimation by constitution” (LBC). The second
proceduralization, without which “[p]olitical-liberal
constitutionalism cannot make do,” is “a distinct and dedicated
institutional site for pronouncements on disputed questions of
constitutionality.” Such a site might be “a committee of the
Parliament - or even the Parliament sitting from time to time in
committee of the whole - specifically commissioned to pronounce upon
the constitutional compliance of legislative bills and agendas.”
But, “[t]he fact is … that courts and adjudication are the site
and the process that are cemented into those positions by our
currently dominant political cultures.” Those cultures accepted
courts as the dedicated sites with respect to “a regime’s
deviations from a due regard for core components of the classical
liberal ‘negative’ liberties (of the person, of conscience,
though, expression, association, privacy, and so on)” and the thrust
of Professor Michelman’s argument is that they can (should?) do so
with respect to social and economic rights. He addresses the
“standard worry” that courts lack the capacity to do so by
advocating the use of experimentalist or weak-forms of review in
connection with such rights.},
journal = {KritV Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft},
pages = {220--223},
author = {Tushnet, Mark},
volume = {98},
number = {3}
}