POLS2010 Chap.3 Legislatures, Constitutions and Judicial Power
Legislatures, Constitutions and Judicial Power
This chapter covers the two institutions added in Week 3: legislatures and constitutions with the courts that guard them. It explains why the relationship to the executive separates parliaments from congresses, introduces the principal and agent idea that returns throughout the course, and ranks the tools legislatures use from consultation to initiation.
It compares Australia’s strong Senate with the House of Lords, then turns to constitutions as higher law, the spread of charters of rights and judicial review, the American and European models of review, and how rigid constitutions change, with Australia’s double majority as the worked case.
Two empirical studies anchor the week.
Renwick’s elite interviews show how electoral reform happened in four democracies, and Tripp and Kang’s regression across about 150 countries shows that gender quotas explain women’s representation better than wealth. Together they model the qualitative and quantitative designs introduced in Chapter 1.
What this chapter covers
- 01
Parliaments, congresses and fused or separated powers
- 02
Principal and agent relationships
- 03
Legislative tools from consultation to initiation
- 04
Symmetric and asymmetric bicameralism
- 05
The new constitutionalism and rights
- 06
American and European models of review
- 07
Entrenchment and the s128 double majority
Worked example · free
Which model of constitutional review?
- 1Only one specialised court can invalidate the law, so this is the European, centralised model rather than the American model in which any court may refuse to apply it.
- 1Ordinary judges are sending the question up from a live case, which is the concrete referral route; the other routes are abstract referral by officials and individual complaint.
Key terms
- Principal and agent
- A relationship in which one party hands work to another that has its own goals and better information, so the first must monitor and reward the second.
- Bicameralism
- The organisation of a legislature into two chambers, which may be symmetric or asymmetric in power.
- Judicial review
- A judicial check on whether laws conform to the constitution, organised either across all courts or in one constitutional court.
- Entrenchment
- The rule that a constitution is harder to change than ordinary law, which is what makes it higher law.
- Judicialization
- The growth of courts’ influence over policy where constitutional review is effective, so that lawmakers anticipate judicial reactions.
Legislatures, Constitutions and Judicial Power FAQ
Why does the power to dismiss a government weaken a parliament?
A parliament that can hire and fire the executive must keep a government majority in place, so that majority usually supports the government’s programme. Its members lose policy autonomy, whereas a congress elected separately from a president can amend and block legislation without bringing down the executive.
How does Australia change its Constitution?
Under section 128 a proposed law must be approved at a referendum by a majority of all electors voting and by a majority of electors in a majority of the states. This double majority makes the Constitution rigid; only 8 of 45 proposals have passed, and the 2023 Voice referendum failed.
What does the zone of discretion mean for courts?
It is the room judges have to make policy: the powers delegated to them minus the instruments other actors have to reverse their decisions. Because constitutions are hard to amend, courts acting as trustees often enjoy a wide zone, which drives the judicialisation of politics.
What is the difference between symmetric and asymmetric bicameralism?
In symmetric bicameralism the upper house has powers close to those of the lower house, as Australia’s Senate does. In asymmetric bicameralism the upper house is weaker and mainly revises or delays legislation, as the House of Lords does under the Parliament Acts.
Exam move
Draw two contrasting diagrams from memory: the five legislative tools from weakest to strongest, and the two models of judicial review. Then prepare short comparisons that you can drop into any essay, such as the Senate against the Lords, or Australia’s double majority against amendment by referendum in Ireland or Switzerland. Practise the s128 test with your own invented results so that you always check both majorities.
Finally, link this week forward: note where principals and agents reappear in bureaucracy and in Closing the Gap, because carrying a concept across weeks is what the final exam rewards.
A useful timed drill is to write one paragraph explaining why courts gain power where constitutions are hard to amend, then a second applying the idea to Australia, and finally a third comparing it with a country that amends by referendum more often. Check each paragraph names a mechanism, not just a description.
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