Even where a public consensus exists about the appropriate bounds of constitutional action, citizens’ capacity to punish executive overreach is not guaranteed. People often lack information about possible constitutional transgressions, and imposing meaningful political penalties for overreach requires coordinated action among citizens. We argue that courts are key to overcoming these obstacles: under the right conditions, courts, through the use of judicial review, are uniquely positioned to alert the public of constitutional transgressions and thereby transform the public’s support for the rule of law into a guardrail against executive overreach. We suggest judicial independence enhances the ability of courts to signal that an executive has gone too far. By contrast, courts with low levels of judicial independence are impotent: their decisions are not credible enough to affect citizens’ attitudes. We also expect the rulings of independent courts to be most effective among citizens who have a high level of support for the rule of law and to persist even in the face of stark partisan polarization.

We open the book by discussing the rise of constitutional courts and judicial review, emphasizing their stated responsibility as guardians of the constitutional system. We discuss existing theories of judicial power and independence, highlighting the concept of judicial efficacy: the ability of courts to create political penalties for elites who fail to abide by the constitutional limits on their authority. We discuss different types of penalties courts might levy and explain why attitudinal costs – particularly a loss of public support – represent the cornerstone of judicial efficacy. We then provide a summary of our argument, contrasting our theory of judicial efficacy with existing accounts of judicial power and impact. The chapter concludes with a roadmap for the rest of the book and a summary of our key findings.

Does partisanship undermine the ability of courts to affect citizens’ attitudes? We introduce a dueling theoretical account to our own which suggests that citizens prioritize partisanship over constitutional rules when evaluating executive actions. We test these rival perspectives in Germany and the United States with a survey experiment that leverages the countries’ federal structures. We find that citizens of both countries are remarkably steadfast in their willingness to punish executives – including copartisans – for breaching constitutional limits and flouting court orders. Contrary to fears that partisanship is an overwhelmingly pernicious threat to the rule of law, we show that independent courts are resilient in their ability to cut through the binds of partisanship, to monitor executives, and coordinate public actions to reign in incumbent excess.

The public’s support for the rule of law is a key democratic value and a cornerstone concept in the study of public support for courts. We provide the most systematic analysis to date of its measurement, correlates, and stability. We validate an updated measure of the public’s support for the rule of law, drawing on original survey data. We demonstrate that support for the rule of law is highest among the most politically sophisticated and those with strong support for democratic values. Further, we draw upon thousands of survey responses in the United States and an original six-wave survey panel in Germany to demonstrate the temporal stability of the public’s support for the rule of law at both the aggregate and individual levels. Finally, we illustrate the predictive validity of our measure through the analysis of an original survey experiment.

Chapter 5, makes the case for labelling the period of 1979–1989 the ‘defining decade’ in the history of the Convention.

It shows how, after decades of hesitation, the courts sprang into action in the eighties and unleashed a veritable avalanche of legal activity. They were supported by the recently formed professional academic study of (European) human rights, and went further than had previously been considered possible.

Yet as European human rights emerged as legalized tools, they also lost the revolutionary appeal which had made them into a desirable action language. The shift in the 1980s was, in that sense, a limited expansion.

Even so, it was simultaneously the decade in which governmental support, which had been substantive in the previous decade, wavered. Although the government had been crucial in the activation of the system, a caution surrounding the activities of the European Court began to seep in during the eighties, not just in the Netherlands but also in the other signatory states. As the activities of the European Court of Human Rights seemed to be expanding the reach of European human rights, it is vital to note these were consistently met with brakes from the states.

Chapter 2 turns to the period directly after ratification, from 1954 to 1962, and shows how this was a remarkable lively period.

It makes two distinct claims. First, it contests the pervasive image that the Convention was ‘asleep’ in the domestic legal context. Rather, the Convention was immediately tried and tested and entered the domestic context in a flurry of heated activity, as litigants and other players set out their campaigns to define what the Convention would mean.

Second, it argues that the restrictive policy of the European Commission of Human Rights was a conscious legal strategy. Following the experiences of the Dutch member of the Commission and the national interaction with the European institutions, it can be argued how restraint was indeed part of a conscious effort to let states accept the right of individual petition. Simultaneously, however, the European Court embarked on campaigns to make the Court relevant.

The chapter ends in 1962 with failure on both the domestic and the European levels to make the Convention into something more than a distant document. These failures were essential in setting the stage for the Convention’s perceived legal irrelevance in the following two decades.

The introduction introduces the key puzzle of the research: how and why did the European Convention turn in the Kingdom of the Netherlands from a barely used instrument, with an inactive Court tucked away in Strasbourg, into the primary means of legal protection for individuals seeking to protect their fundamental rights?

It posits how the Kingdom of the Netherlands forms a vital case study, as through its constitutional system and colonial history, it allows not just for a strong engagement with the Convention, but also to bring into focus the often forgotten colonial dimension of European human rights. As such, it offers a fresh narrative to the story of the history of the Convention.

Second, it lays out how the study goes about telling that story, namely through a reception history. It establishes what is meant by the ‘reception of law’, who are active in this process of receiving and how those actors have been studied.

Finally, it lays out the choices made in telling this story, from archival materials to periodization.

Finally, Chapter 6, ‘From permissive consensus to persistent critique’, turns to the most recent past of the Convention. It shows how the critique of the eighties became unsustainable by an unforeseen event: the end of the Cold War. This galvanized the earlier hesitant governments into accepting permanent supranational oversight. However, the signatory states’ caution had not suddenly disappeared. The concerns of the 1980s may have been briefly interrupted in the 1990s, but remained a constant factor.

The Convention also became a topic of public debate in the Netherlands from 2010 onwards: in order for that debate to flourish, a fundamental change in the previous, rather self-evident acceptance of human rights as inherently desirable was brokered, as the Court got caught up in wider debates surrounding national identity and migration.

Finally, the chapter sheds light on the persistent challenges the Convention keeps posing to the Kingdom. Caught between Dutch and Caribbean unwillingness, sensitivities and financial limitations, human rights standards occasionally lose out. The Convention has come to serve as a reminder of the shared responsibility of all in addressing those problems, but remains tied to historical grown discrepancies.

The conclusion pulls together the threads of the substantive chapters and summarizes the new narrative it has put forward of how the Convention developed over time in the Dutch context. It sets this narrative in broader European context and makes the argument how via the actions of a variety of actors in many different fields, the Convention took on different meanings over time, and its position can only be understood as the result of an intricate interaction between the national and European spheres. It sketches the continuities of the colonial elements in the Convention and ties its findings into present-day debates on the perceived overreach of the European Court.

Chapter 1 begins its historical reconstruction of the Convention in the immediate post-war period and focuses on the peculiar connection it establishes between human rights and the concept of Europe. It runs from 1945 to 1954, the moment the Convention became legally binding in the Kingdom of the Netherlands.

First, the chapter shows the impact of non-governmental activists, in particular European Federalists, on how two distinct concepts, namely ‘Europe’ and ‘human rights’, became connected in a legal sense, instead of the more current moral or cultural meaning.

Second, it highlights how those involved in linking the concepts drew upon distinct conceptions of ‘Europeanness’. European human rights were distinctively not universal values. Instead, they were inspired by a very peculiar idea of what Europeanness entailed, and restrained by pervasive civilizational, colonial and racial considerations.

Third, the chapter shows how European human rights were drafted into law and how they were perceived by the Dutch government. It sheds light on what the government expected by signing up to the Convention in 1950 and makes clear how the ‘European’ character of these human rights fits with the notion that the Kingdom of the Netherlands was not solely a European country.

Chapter 4 builds on the fourth, as it shows how European human rights were transformed in ‘the age of activism’, 1968–1979.

Crucially, it shows how these grassroots developments predated the legal revolution and formed a necessary precondition for the legal changes which followed later. This follows individual activists, lawyers and academics in their turn to Strasbourg. As some of their cases got into the European system, it provoked a reaction within the Committee of Ministers which had a lasting impact on the system as whole.

For as an answer to the complaints coming in from below, the Dutch government itself set out on a remarkable campaign to energize the European Court. It set out to change the referral policy of the Commission which, famously restrictive, almost never sent cases to the European Court.

Yet with the rise in prominence of human rights, also the question of the ‘overseas territories’ returned. In the lead-up to the independence of Suriname, human rights were deliberately kept at bay. European human rights emerged as points of contention in the Kingdom, with the Antilles embracing a close connection to the European system and Suriname eager to break free from it.