In recent years, legal scholars have paid a great deal of attention to the emergence of constitutional courts and judicial review in democracies worldwide, yet an intriguing parallel development in democratic constitutionalism has gone largely unnoticed: the establishment of independent bodies which, like constitutional courts, are concerned with foundational commitments of liberal democracy, but which advance these commitments mainly through investigations and advice-giving. Lacking de jure authority to block the implementation of unconstitutional laws and policies, the new advice givers instead make their contributions ex ante, identifying problems that warrant legislative attention and helping to craft laws and regulations that respond to foundational aspirations. This Article surveys the emergence of these "advisory counterparts" to constitutional courts and offers an account of their comparative advantage, relative to constitutional courts, as guardians of liberality. The Article also presents an initial treatment of the advisory counterparts' characteristic limitations. and, dangers, and explores some associated questions of institutional design.
Christopher S. Elmendorf,
Advisory Counterparts to Constitutional Courts,
56 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol56/iss4/1