8: Courts and Judicial Review Flashcards
definition of constitutionalism
refers to the commitment of governments to accept the legitimacy of and be governed by a set of authoritative rules and principles that are laid out in a constitution
definition of constitution (codified, uncodified, entrenched, unentrenched, legislative supremacy, higher law)
constitution provides the formal source of state authority - more recent constitutions contain a list of guaranteed rights and lays out where powers stem from
codified vs uncodified
- codified constitution as one that is written in a single document
- uncodified as one that has several resources and may be written or unwritten (e.g. UK, NZ, Israel)
entrenched vs unentrenched
- entrenched constitution can be modified only through a special procedure of constitutional amendment (different from changing regular law)
- unentrenched means that there is no special amendment procedure and that it can be modified at any point in time with the support of a legislative majority (e.g French constitution of the III)
legislative supremacy constitution has no constitutional review, no bill of rights and is not entrenched
higher law constitution has constitutional review, a bill of rights and is entrenched
definition of constitutional review (abstract, concrete, a priori, a posteriori)
authority of an institution to invalidate legislation, administrative decisions, judicial rulings and other acts of government that violate constitutional rules like rights
abstract vs concrete
- abstract review involves constitutional review of legislation in the absence of a concrete legal case
- concrete review involves constitutional review with respect to a specific legal case (e.g. US)
a priori vs a posteriori
- a priori constitutional review occurs before a law is formally enacted
- a posteriori means that it occurs only after a law is formally enacted
definition of judicial review
when constitutional review can be conducted by ordinary judges and there is no special court designed to review the constitution
definition of new constitutionalism
situation that almost all countries now have a higher law constitution -> historically moving from legislative supremacy
European vs American model of constitutional review
differences in the jurisdiction of constitutional review
European model - centralised constitutional review where only one court can conduct constitutional review
- centralised court is separate from common judiciary to decide constitutional cases
- Hans Kelsen created this
American model - decentralised constitutional review where more than one court can interpret the constitution
- constitutional review done by regular courts instead of having a separate constitutional court
- US supreme court equivalent to the cour de cassation in France except that they can choose which cases to rule on and essentially choose the ones that are related to the constitution whereas the cour de cassation is required to rule on every case
various direct benefits of judicial review to the ruling coalition: informational, blame-shifting, enforcement of boundaries
informational benefits
- common law precedence comes from courts that decide cases which then become precedent
- if the ruling coalition faces uncertainty about the effects of a certain policy but rewriting/repealing that legislation is costly
- judiciary can improve the legislation through review which would be of benefit
blame-shifting benefits
- courts have the legal obligation to decide legal cases
- ruling coalitions can face difficult policy decisions which could anger constituencies
- they would then on purpose adopt vague and incomplete laws to shift responsibility to courts
enforcement of boundaries of legislative and executive powers
insurance theory of judicial review
indirect benefit of judicial review
judicial review places a constraint on the policies that a ruling coalition can implement when in power
- when in power, you cannot do whatever you want
- current power holders feel this is a negative aspect
but judicial review also constrains the policies that can be implemented by the opposition in the future
- so in this way, the current power holders are less worried about losing the elections
- judicial review acts as insurance against the opposition getting into power
under insurance theory, judicial review does not provide the current ruling coalition with direct benefits but imposes costs on the ruling coalition - tradeoff is that the constraints imposed on you by the court when you are in power against the indirect benefits you get when you are out of power
but
- judicial review can only be sustained if the political system is sufficiently competitive (if a party is in power for a long time, there is no reason for that party to respect it)
- each party has to care about the future enough (why respect it if you don’t believe you will be part of the political game?)
- judiciary needs to adjust decision-making to reflect overall political power structure
implications for judicial review of the argument that judicial review is about coordinating behaviour of citizens to protect democracy against power grabs by the rulers
argument that it’s not the legislative and executive that accept judicial review but rather the citizens who impose judicial review and authority on the legislative and executive powers
democracy sustainable in the long run only if the citizens are willing to act collectively against a government that will transgress its constitutional powers
- main function of the judiciary would be to provide information about when to coordinate behaviour
- constitutional review is valuable because it creates a coordinating power (tells citizens when rights are not being protected by the government)
- force of judicial decisions is not from expertise but from the decisions’ coordinating function (ability to motivate citizens)
- judges derive power from coordinating function which is independent of the content of their decisions (how much citizens trust the court)
2 implications
- judiciary issues decisions that by large follow public opinion because they need public support to have power
- judges try to appear impartial and apolitical by making as much as possible appeal to legal texts and norms
do constitutional judges simply follow the law?
courts have to listen to public opinion, so they shouldn’t follow the constitution to the letter (since public opinion may be different from the constitution), but while they do this, they still have to appear as an actor very much rooted in legal texts
