Mark Tushnet, Scepticism about Judicial Review: A Perspective from the United States, in Sceptical Essays on Human Rights 359 (Tom Campbell, K.D. Ewing & Adam Tomkins eds., 2001).
Abstract: One might think that a United States perspective on entrenchment of human rights would be particularly valuable for states like the United Kingdom beginning to develop institutions for entrenchment. The US experience with the institution of judicial review of legislation for compatibility with some norms expressed in the constitution, dates at least to Marbury v. Madison, decided in 1803. Two hundred years' experience might provide a useful perspective on new institutions entrenching human rights. This chapter discusses several reasons why one might be sceptical about what precisely the US experience can contribute to a general understanding of entrenchment. The most fundamental sources of scepticism about the usefulness of a US perspective — the manner in which the judges who exercised the power of judicial review are chosen in the country, and the conception they have of their role — are discussed.