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Federalism and SubsidiarityNOMOS LV$
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James E. Fleming and Jacob T Levy

Print publication date: 2014

Print ISBN-13: 9781479868858

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9781479868858.001.0001

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The Constitutional Entrenchment of Federalism

The Constitutional Entrenchment of Federalism

(p.332) 11 The Constitutional Entrenchment of Federalism
Federalism and Subsidiarity

Jacob T. Levy

NYU Press

This chapter examines the institutional arrangements surrounding federalism. It begins with an overview of the concept of “constitutional entrenchment,” with particular emphasis on one potentially important distinction concerning entrenchment: between the entrenchment of a constitutional provision and its enforceability by means of judicial review. The chapter assumes that entrenchment and judicial enforcement go together—whether the enforcement is by a regular court or a specialized constitutional one, and whether the judiciary has the last word (prior to constitutional amendment) or it may be overridden by other actors. It discusses key critiques of and complaints against constitutional entrenchment as well as federalism and argues that the core of constitutional entrenchment is the defense of procedural, rule of law rights against executive action.

Keywords:   federalism, constitutional entrenchment, constitutional provision, judicial review, judicial enforcement, judiciary, rule of law, executive action

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