Constitutional Review

Article from Tom Ginsburg, of the University of Chicago Law School, published in the Comparative Constitutional Review in July 30, 2008:

“Constitutional review is the power to examine statutes and government actions for conformity
with the constitution. From its origins in the American experience, the institution has spread
around the globe to become part of the standard institutional architecture of democracy. Some
systems (such as those of the United States and India) give the function of constitutional review
to ordinary courts; some (like Afghanistan) give it to a unified Supreme Court (but not
apparently to lower courts); some countries in the French constitutional tradition have designated
“constitutional councils” with more limited review authority. The trend in the past two decades
has been to create special bodies called constitutional courts to carry out the function of
constitutional review. This is the German model, adopted widely in new democracies.

Systems of constitutional review vary widely on a number of key questions of
institutional design, including who can bring a claim, what the claim can be based on, when
claims can be brought, and what the effect of such decisions is. These institutional details may
be set out in the constitution itself, in organic statutes on the courts, and in subsequent
interpretations by the court itself. This memo covers these issues in turn.

1. Standing: Who can bring a claim?
Constitutional review systems differ widely on the question of who is allowed to bring a
claim, a concept known as “standing.” One can array access to the court on a spectrum from
very limited access to very wide access. One model, associated first with Austria in the 1920s,
allowed only state and federal governments to bring cases, so the constitutional court served
mainly as a referee to protect federalism. The original design of the French Constitutional
Council in 1958 only allowed designated politicians, namely the President, Prime Minister,
leader of the Senate and leader of the National Assembly to challenge laws. 1974 Constitutional
amendments in France extended the right of petition to any group of 20% of parliamentary
deputies, allowing minority parties to challenge governmental action on constitutional grounds.
Some constitutions treat constitutional review as essentially legal in character, and so the
key question is whether one can bring a lawsuit.

This is the United States model. Anyone who
satisfies general “standing” requirements for litigation can raise a constitutional issue in court.
Such requirements typically include a concrete injury—one must have suffered actual or
imminent harm from the application of the law that one is challenging. One variant is that in
India, where the Constitution guarantees direct access to the Supreme Court on questions of
fundamental rights. This was done in part to ensure that lower courts did not hinder rights
protection by failing to exercise active review. It makes the Indian system a bit more open than
the US to rights litigation because those who claim their rights have been injured can go
immediately to the highest court, rather than having to potentially lose at the lower level and
incur the costs of appeal.

The most open systems of constitutional litigation allow a direct petition to the
constitutional court. This is exemplified by the German constitutional court, where not only
political bodies but individuals may enjoy direct access through constitutional petitions. In
addition, ordinary judges can refer constitutional questions to the Supreme Court as well.

(The) present Hungarian Constitutional Court has perhaps the widest access of any such body in the
world today, as the right of abstract constitutional petition is not even limited to citizens. (…)

2. What kind of claims can be brought?
Another distinction is whether the court can hear constitutional questions only in the
context of concrete legal cases (as in the U.S. Supreme Court), or whether it can consider
constitutional issues in the abstract. Concrete review requires litigation of constitutionality in the
context of a particular case. Abstract review determines the constitutionality of a statute or
government practice without a specific case. The French Conseil Constitutionnel may only hear
challenges to legislation in the abstract, though recent constitutional amendments promise to
change this. The U.S. Supreme Court may only hear concrete cases. The German and Spanish
Constitutional Courts may practice both abstract and concrete review. In these systems, certain
political institutions may challenge legislation as an abstract matter, while citizens who allege
that their constitutional rights have been violated can approach the court for relief, either through
a court or direct constitutional petition. In practice, the distinction between abstract and concrete
review is not as important as it may appear, but it is a widely used theoretical construct.

An issue arises in some countries with a designated constitutional court as to what actions
can be challenged. For example, in South Korea, the 1987 Constitution set up a constitutional
court that was empowered to make decisions on constitutionality, but left the supreme court
responsible for determining the constitutionality of administrative regulations and government
actions. This led to conflicts between the two courts, in which the constitutional court seems to
have had the last word, but it was a messy fight.

France features a separate administrative court, the Conseil d’Etat, staffed by bureaucrats
and responsible for ensuring the legality (including the constitutionality) of administrative
regulations and government action. In addition, the ordinary supreme court interprets the
constitution in the context of ordinary litigation. This system has functioned but probably only because the constitutional council has no jurisdiction over actual cases or laws once passed.
When two institutions have concrete review power, trying to separate review of administrative
action from review of legislation is difficult. It requires, for example, different suits to challenge
the constitutionality of a law delegating authority to a ministry, versus a regulation issued under
that authority. In real life, these questions can be closely related.

3. Timing: When can claims be brought?
A related issue concerns the timing of review. In the French system before July 2008,
review could only take place before promulgation of legislation. This meant that the law could
be modified by the legislature to conform with the decision of the Council and so never needed
to be formally struck after promulgation. This form of review made the Council more akin to a
third house of the legislature than a court.

More commonly, claims are brought after the law is passed. Systems differ on when and
how the cases can be brought. Typically there is some requirement of injury, leading to
interesting questions when the injury is only a potential one, and has not yet occurred. Courts
vary in the legal tests they employ to sort out issues like this—a typical requirement is that the
potential injury be about to occur.

In the United States, the courts will not hear a case which is “moot,” meaning that the
basis of the dispute is no longer present. Suppose for example someone challenges a government
decision to take their property. Before the court hears the case, however, the government returns
the property to the person. The courts might say that the case is moot because there is no reason
for the court to act. (Alternatively, if the issue is capable of being repeated, the courts might
allow it.)

In systems with a designated constitutional court, an issue arises as to how to treat
constitutional questions that come up in the context of ordinary litigation. This is an issue
because ordinary courts cannot interpret the constitution. A common solution developed in
Germany is to allow the courts to stay the litigation temporarily while they send the
constitutional question to the constitutional court. The constitutional court will then answer the
question, instructing the other court to apply the rule.

4. Effect: what is the impact of a decision of unconstitutionality?
Systems of judicial review also vary in the effect of their pronouncement on legislation in
concrete cases. American courts, as a technical matter, do not actually void laws that they find to
be unconstitutional. Rather, since subsequent similar cases must follow the rule in previous
cases, the voided law remains on the books, if dormant for all practical purposes because no
court will ever enforce it. In systems with a designated constitutional court, in contrast, the court
usually has the power to declare the laws unconstitutional and immediately void. The decision
means the law cannot be applied.

Courts in Latin America make use of a device called “amparo”, wherein a successful
constitutional complainant will be free from the application of the offending law or government
act, but the act will continue to apply to others. An unconstitutional act that affects 1000
different people might require 1000 suits, with all the expense they entail. This device is
desirable from the perspective or politicians who do not want much judicial constraint, a fair
characterization of many governments in Latin America during the 20th century. The “amparo” may work well to provide redress against government actions that provide substantial burdens on
small numbers of citizens, such as measures affecting property rights. But the device is less
effective in protecting people from unconstitutional actions that affect larger populations or those
less able to mobilize for legal action. One variation that seeks to have the benefits of amparo
without the costs is the Mexican system, in which the Supreme Court can declare a law or
practice unconstitutional after five amparo challenges are upheld.

Similarly, the Brazilian Senate
(Art. 52X of constitution) can choose to accept a decision rendered in a specific case as generally
binding, allowing it to convert a finding of unconstitutionality in one case into a general rule.
Sometimes the constitutional court may wish to limit the act in question, interpreting it to
be constitutional if applied in a particular way. The German Constitutional Court has two
choices in rendering a finding of unconstitutionality. It can find legislation null and void
(nichtig) or incompatible (unvereinbar) with the Basic Law. In the latter case, the Court declares
the law unconstitutional but not void, and usually sets a deadline for the legislature to modify the
legislation, during which period it might still be applied. Sometimes these decisions admonish
the legislature to modify the legislation within particular guidelines. The court becomes deeply
involved in “suggesting” to the legislature language that ultimately finds its way into the statute.
For example, in its 1975 decision voiding a statute that allowed abortion, the German
Constitutional Court engaged in extensive suggestions for rewriting of the statute. In other cases,
the Court will sustain a challenged statute but warn the legislature that it is likely to void it in the
future, or suggest conditions for the constitutional application of the statute.

In some systems with a legacy of parliamentary control of constitutionality, the decision
of the constitutional court as to unconstitutionality is not binding, but rather is advisory to the
legislature. The legislature retains some power to reject or accept the court’s finding, either by
majority or supermajority vote. A version of this model was extant in Poland during the life of
its first Constitutional Tribunal 1988-97, and remains intact in Mongolia, where the legislature
can reject an initial finding by a panel of the constitutional court. Afterwards, the Court can
rehear the case with its full membership and uphold its initial decision with a 2/3 vote.

Finally, a major innovation of the Canadian constitution allows provincial legislatures to
pass legislation, even if it violates the national constitution and has been struck by the Supreme
Court. Such legislation requires the provincial legislature to make an explicit declaration that it
is passing the law, notwithstanding its unconstitutionality. Such laws last for only five years, but
can be renewed. The logic is to allow provinces to enact popular but unconstitutional policies; in
practice, however, such declarations have only been used by one province (Quebec) and are now
very rare.

5. Other devices to interpret the constitution
At one level, the choice is stark between the supremacy of the constitutional court and the
supremacy of parliament. Systems with parliamentary sovereignty, such as contemporary China,
do not give courts the power to interpret the constitution or strike laws. Instead, that function is
kept within the legislature itself, in the standing committee. The Mongolian system mentioned
above reflects a kind of hybrid.

On the other hand, some argue that there is a distinction between reviewing legislation
and “interpreting” the constitution. Interpretation of the constitution, it is sometimes said, is the
duty of every government body and indeed the citizens. This has led to major controversies in
the United States, where some believe that President Bush has the authority to interpret the constitution independently within his own zone of competence. In other systems, such as
France, the Constitutional Council’s inability to engage in concrete post-promulgation review
has led the other top courts to “interpret” the French constitution in concrete cases.
Regarding the proposal for a Constitutional Implementation Commission under Article
157 of the Afghan Constitution, I want to learn more about the proposal before saying too much,
but would state that very careful consideration must be given to the relationship between this
commission and Article 121, empowering the Supreme Court to engage in interpretation. The
potential for conflict is great.”

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