RESISTING NEO-LIBERALISM: DEVELOPING A NEW SOCIAL DEMOCRATIC CONCEPTION OF CONSTITUTIONALISM

Social democracy has traditionally been associated with an 'aspirational" or 'populist' paradigm in which the institution of judicial review has been perceived to constrain the reformist possibilities of the legislature. The principal concern of this paper is to challenge this 'aspirational' model and to reinstate the judiciary (and the institution of judicial review) into a contemporary social democratic framework. The paper extends this analysis by seeking to show that many contemporary constitutions-such as the Constitutions of South Africa, Venezuela and India-have justiciable socio-economic rights with the potential for resisting moves to neo-liberal or economic austerity measures and compromising the level of well-being and affluence in advanced nations. Three examples, in particular, will be discussed: the State Constitutionalism/ judicial federalism in America; the recent jurisprudence on South African Constitutional Bill of Rights (1996); and the Scandinavian Constitutions, whose provisions have explicitly rejected any notion of a neo-liberal politics emerging in these countries. Clearly, then, there is room to manoeuvre for the judiciary in a social democratic paradigm to resist the dominant neo-liberalism that pervades the ideology of advanced nations and reinstate a more progressive constitutionalism and politics.