Constitutional Courts Research Paper

In constitutionalist systems (constitutionalism) the constitution is considered to be the highest law with normatively binding force for political actors including the lawmaker. While one may detect antecedents in antiquity and in English common law the modern history of the ‘higher law’ nature of the constitution starts with the constitutions of the American colonies and the American and French revolutions. On a theoretical level, it is the distinction between pouvoir constituant and pouvoir constitue (Sieyes) that establishes the constitution’s binding force over the law-maker. In more recent constitutional theory the idea of the constitution as guaranty of the basic consensus and the protection of the democratic process and human rights against parliamentary majorities have become more important arguments. Today, most constitutionalist democracies use courts to guarantee the binding force of the constitution. While many countries follow the example invented by Marshall in Marbury v. Madison and give this function to the ordinary courts, others (and their number is increasing) use specialized CCs.

1. Constitutional Courts In Historical And Comparative Perspective

1.1 Democracy Without Judicial Review

Judicial control of the political system is not a necessary feature of a democratic society. In systems with ‘flexible constitutions’ like the UK and NZ the constitution is at the disposal of the lawmaker. But even in countries with ‘rigid’ constitutions that are not at the disposal of simple majorities, the binding force can be conceptualized as a sanctionless imperative for the lawmaker. This was, for example, the case in France until the constitution of the fifth Republic introduced a (moderate) form of constitutional control. In other constitutionalist democratic systems judicial review is expressly excluded (NL, Switzerland on the federal level until 1999), still others know only an organized self-control of the lawmaker during the lawmaking process (Finland). However, the prominent examples of constitutionalist democracies with-out any form of judicial control are disappearing rapidly: with the constitutional reform of 1999 Switzerland has given its Supreme Court constitutional functions, Finland is considering a similar step and even the bulwark of parliamentarianism, Great Britain, has introduced a (very modest) form of judicial control of Parliament with the 1998 Human Rights Act. Increasingly, some form of judicial control of the political system has become a defining element of modern democracies.

1.2 Constitutional Control As Function Of Ordinary Courts: The ‘American’ Or ‘Diffuse’ Model

The introduction of judicial control by the US Supreme Court in Marbury v. Madison (1803) is not based on a constitutional authorization but rather on a logical conclusion drawn from the higher law status of the constitution. This power is, therefore, shared by all courts; there are no special procedures or remedies in constitutional matters; and decisions have no erga-omnes effect. This system (called ‘diffuse’ in comparative constitutional law) has been adopted widely in legal systems whose constitutions are silent on judicial review, for example, common law countries and Scandinavia. Even though this system is regularly called the ‘American’ system, the US Supreme Court is in many ways an atypical case: it concentrates (through the certiorari system) on cases with constitutional implications, its judges are selected with their constitutional role in mind, and the stare decisis rule gives its judgments a quasi-erga-omnes-effect. In a socio-logical sense it acts very much like specialized CCs and is, therefore, included in many comparative works on ‘Constitutional Courts’ without being one in a technical sense. This is atypical for the ‘diffuse’ system because for ordinary courts (including supreme courts) in such systems (e.g., in Scandinavia) constitutional questions are only a minor part of their function and judicial review is rarely exercized. Outside the US only a few Supreme Courts of this type (perhaps most notably the Indian Supreme Court) have assumed an active constitutional role.

1.3 Constitutional Courts: The ‘Austrian’ Or ‘Concentrated’ Model

In contrast to the American model, CCs are the result of conscious constitutional design. Their history starts in 1920 with the Austrian Constitution based on a draft by Kelsen. The power to find laws unconstitutional was reserved to a special constitutional organ (there-fore, this system is called ‘concentrated’). In its original version only federal and state governments could appeal to the Court. It is no coincidence that CCs were invented by Kelsen. They are, on the one hand, a logical correlate to a hierarchical view of the legal system. On the other hand, Kelsen’s pure theory of law tries to shield law against politics and, therefore, Kelsen was an opponent of the American model. The monopolization of constitutional control by a specialized court which could only be mobilized by a limited number of state organs for a constitution that did not contain a bill of rights was as much a barrier to the development of generalized judicial review as the institutionalization of constitutional control. Here again the name-giving case of the ‘Austrian Model’ is not representative: the vast majority of CCs created later were given much broader powers in constitutional systems with extensive substantive provisions. From a beginning with a much more restricted role than in the American system, today most CCs are more active political players than most courts in diffuse systems. The rise of CCs began after WW II: CCs were important elements in the democratic reconstruction of Germany and Italy. Their model was influential in the third wave of democratization, beginning with Spain and Portugal followed by the transformation in East Europe in which CCs played an important role. Constitutional reforms in other parts of the world similarly introduced CCs (South Korea, Thailand). South Africa gave its CC the unique function of certifying compliance of the new constitution with the principles agreed to in the peaceful abolition of Apartheid. In addition, other countries without a tradition of judicial review introduced CCs in constitutional reforms (Cour de Arbitrage in Belgium 1980). France created a restrictive form of preventive judicial control through a Conseil Constitutionnel in 1958. It is no coincidence that the rise of the CC-model is closely connected with situations of constitutional transition. In this situation there is a conflict between values and interests protected by old law and the legitimacy of the new constitutional order. In this situation a CC has obvious advantages over the American model because the ordinary judiciary will often be compromized by its involvement in the old order. While it is extremely difficult to transform legal cultures completely just by introducing a new constitution, a specialized court composed specifically for this task and with an institutional commitment to the new constitution can play a decisive role in bringing the inherited legal culture in conformity with the new model.

1.4 Mixed Systems

Some countries have left constitutional cases to the ordinary courts but have recognized the special nature of constitutional litigation by concentrating it in a Supreme Court or special chambers, by creating special constitutional remedies and by decreeing the erga-omnes-effects of judicial review. Examples can be found especially in Latin America (because of the competing influences of civil law inheritance and north-American constitutionalism) but also in Europe (Ireland, Estonia, Switzerland after the reform of 1999).

1.5 International Constitutional Jurisprudence

Since the end of WW II judicial control of the political system has gained an international dimension. With a decisive innovative approach the European Convention for Human Rights allowed individuals to sue their governments for violation of human rights in an international forum (a model later followed by the American and recently the African human rights systems). For countries without a bill of rights the ECHR-Organs served as a kind of substitute CC (and the desire to create a local forum to precede inter-national proceedings has influenced the move towards judicial review, e.g., in GB).

With the European Communities, for the first time, an international organization created mandatory and binding court control over community organs and member states. The main function of the European Court of Justice is to safeguard the uniform application of European Law, but it also can be considered a CC of the European Union.

2. Organization And Powers Of Constitutional Courts: An Overview

There is a broad range of different solutions for the organization of constitutional control through CCs.

2.1 Composition

In general, the rules for the selection of judges tend to address more openly their political function than those of ordinary courts. They try to square the circle between providing for judicial independence and democratic legitimacy. A majoritarian solution (election by the majority of the day) creates the least theoretical problems for democratic legitimacy but endangers the control function. Attempts to reconcile the two aims include the election with super-majorities (Germany) leading de facto to equal appointment rights between government and opposition; the distribution of nominating rights among different constitutional organs (Austria, France); and the inclusion of professional bodies in the nominating process (Italy). As the political element is stronger, appointment to CCs tends not to simply consist of advancement in the judicial hierarchy. Law professors and former politicians are especially highly represented. A relatively strong political influence on the appointment process is counterbalanced regularly by strong guarantees for judicial independence. Appointment or election is either for life or long-term.

2.2 Jurisdiction

In contrast to the ‘American’ system in which the constitutional question can only be raised incidentally during a case, in a CC system the constitution and constitutional court acts circumscribe the jurisdiction of the Court. There is a broad range of models from very restrictive to very broad opening of constitutional control.

The power of abstract judicial review as a means of objective control outside concrete cases on application from privileged applicants (state organs, entities of federal systems, quorums of members of parliament) is perhaps the one most typical for CCs (and most distinctive compared to the diffuse system). In its most restrictive, purely preventive form, the French Conseil Constitutionnel must be engaged to in the short interval between parliamentary vote and promulgation, thus reconciling constitutional control with the maxim la loi est la loi. Much more common is repressive abstract review after the law has come into force.

Concrete judicial review allows other courts to refer constitutional questions raised in their proceedings to the CC which holds the monopoly in finding laws unconstitutional.

Access to the CC is most open where it can be mobilized by individuals (constitutional complaint, amparo) in case of violations of human rights (usually only after exhaustion of other remedies).

In addition, CCs adjudicate disputes between state organs, the components of federal systems, have quasi-penal functions (impeachment, prohibition of parties) and supervise the election process.

3. Constitutional Courts And Political System

In political theory the role of CCs remains controversial. Their power to overrule the decisions of elected representatives of the people is difficult to reconcile with the theoretical premises of majoritarian democracy. In countries with a CC the debate tends to be less heated than in systems where judicial review has been invented by judges because the constitution makes express provision for jurisdiction. With the extension of judicial control in the last decades, rigorous opposition against it in the name of democracy has declined. Despite the theoretical merits of the majoritarian argument against judicial control over parliament, practical experience has shown it to be a workable reconciliation of majority rule with safeguards against the dangers of majority rule. The international human rights discourse has provided additional legitimacy to control over elected governments exercised in the name of a higher legal order. There remains, however, a permanent tension between the power of CCs to interfere in the political process and the tenets of democracy. But the debate has shifted from the merits of judicial control in the abstract to its proper boundaries. In jurisprudence this discussion is led in the framework of concepts like ‘judicial restraint’ and ‘political questions’ while in social science perspective the political role of CCs and their impact are studied. For this debate one of the oldest contributions, Justice Stone’s footnote 4 in Carolene Products (304 US 144 [1938]), is still a valuable guide: the protection of the democratic process itself and that of ‘insular’ minorities not able to protect themselves in this process is easier to justify than the enforcement of competing value judgments.

4. The Sociology Of Constitutional Courts

CCs (and constitutionally activist Supreme Courts) hold a special place in sociology of law. Their distinguishing feature is almost banal: they are very small. Different from other sociolegal court studies, with CCs one is not dealing with a social group but individually known actors. CCs apply a body of law that typically is more open textured and politically more controversial than normal law. This contrasts with other courts both facilitates and impedes their sociological analysis. On the one hand, CCs offer case-studies of the relationship between law and politics that make the relationship between judicial values and decisions impressively obvious. Therefore, sociology of law treatises often use constitutional jurisprudence to illustrate this relationship. On the other hand, they are so distinct from other courts that the application of sociolegal findings about judicial behavior to them is difficult, and generalizations from constitutional cases to other courts are dangerous.

4.1 Actors

Because of the political role of CCs the politics of elections and appointments is an interesting subject of research that is in this case more directed to concrete selection processes than to generalized study of recruitment patterns. While there are correlations be-tween known judicial background (including party politics, religion, status) and decision there is no simple one-to-one relationship. The guaranteed independence (cf. 3a supra) of CC judges has often resulted in disappointment on part of selecting politicians. This can be explained with the self-image of judges and the institutional interests of CCs. For their impact in a political system CCs rely heavily on their perception as neutral arbiters and they would lose legitimacy if they appeared to be mere instruments of their selectors. The high prestige CCs enjoy in many systems (especially compared with politicians) very much depends on this aura of independence.

4.2 Mobilization

One of the major differences between courts and elected policy makers is the fact that courts are re-active, not active participants in the public arena. While this fact is often used as an argument by defenders of judicial review against majoritarians it appears to be of limited significance as a barrier for judicial involvement in politics. In systems with very restricted access to the court like in Kelsen’s original model or the French Conseil Constitutionnel where only few institutional actors can mobilize the court, it holds true. But access to most CCs tends to be much broader (3b supra) and the different avenues combine to bring most politically controversial matters before the courts. When the German Bundes erfassungsgericht accepts less than 2 percent of the ca. 5000 complaints received annually one may assume that the court does not so much react but rather selects actively those issues it wants to address. In addition, CCs are inventive in finding ways to involve themselves in politically sensitive subjects without regard to restrictions under procedural rules. In a related development the more active courts do not restrict themselves to decide the case before the court but use obiter dicta to make long exhortations on future political action, thus departing from the judge’s role of reactively deciding on the past for the politician’s role of actively influencing the future.

4.3 Decision-making

Similarly, the binding force of law cited (especially by lawyers) as a restriction of judicial power is less important for CCs than for other courts. Judicial decision-making always has a political dimension but it is subject to constraints intended to promote a specific juridical rationality and to hinder idiosyncratic decision making by judges. These constraints appear to be less effective with CCs. Their decisions are less strictly programmed by law. While some constitutional law provisions (organizational norms, e.g., on elections) can be very specific, those texts that are relevant today in most constitutional proceedings— fundamental rights or constitutional principles—are very open textured (and traditionally in constitutional jurispurdence have been expanded further, rather than narrowed). CCs have to balance broadly worded rights against similarly broadly worded infringement-clauses and find the solution regularly by balancing private rights and public interest against each other under extremely open concepts like the principle of proportionality which give widest possible room of interpretation.

CCs have transcended the classical boundaries of judicial politics in another way. In principle, courts are different from political actors because they are restricted to yes no decisions (lawful unlawful) over the past which is a powerful incentive for judicial restraint (e.g., if a CC had only the alternative of either declaring a tax law void and risking public bankruptcy or accepting the law as constitutional). CCs have found ways around this problem. For example, they refrain from declaring laws void but order the lawmaker to change them in a given time. Or, they use the interpretation of laws or obiter dicta to enforce political compromises between proponents and opponents of a law under scrutiny. Such flexible forms of judicial decision free the court from the stark yes no alternative and broaden its potential to actively involve itself in policy-making by influencing future policies, building coalitions, and instigating political compromises. A promising strategy for measuring judicial activism appears, therefore, to be the study to what extent CCs have given up the ideal-typical judicial style of decision making for a political one.

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