Unit 8 Flashcards
Judicial review of legislation
Define ‘strong’ and ‘weak’ judicial review and illustrate with examples.
Strong judicial review is characterised by courts that have a general authority in determining the meaning of constitution and their interpretation is binding on other branches of government. Legislation that is found unconstitutional is invalidated. Countries with strong judicial review are for example USA, Germany or Italy. Systems with strong judicial review can be either centralised or decentralised. USA has a decentralised system meaning that all courts can determine whether legislation is or is not in breach with the constitution. Centralised systems established specialised ad hoc body, constitutional court, which is tasked with deciding on constitutional issues.
Weak form of judicial review is also characterised by courts that have a general authority in determining the meaning of constitutions, however their decisions can be overridden by simple parliamentary majorities. This form of judicial review can be seen in UK, Canada and New Zealand. These systems are all decentralised. Out of these countries Canada has the strongest weak judicial review (because the power of parliament to override judgements is hardly ever used) and New Zealand has the weakest (courts cannot invalidate legislative acts, but can interpret it in order for it to be in line with constitution).
What are the arguments put forward in Federalist n. 78 and Marbury v. Madison to support judicial review of legislation? Why did Jefferson oppose it?
Hamilton in Federalist no.78 provides multiple arguments pro-judicial review. Argues that US Constitution is a limited constitution (sets boundaries to legislative power) and therefore these limitations need to be safeguarded. He develops ‘delegation argument’ in which he points out that governmental power has been conferred to it by people and if government exceeds it power and breaches the constitution it also breaches the general will of the citizens. By declaring unconstitutional legislation void, courts only enforce the people’s will. He also argues ‘on the nature and reason of the constitution’ saying that since constitution is silent on this topic, judicial review is an implicit prerogative of the judiciary. No one contests that judges can set aside legislation that is in conflict with each other and therefore setting aside legislation because it is contrary to constitution is not different.
John Marshall deciding Marbury v. Madison (judgement by US Supreme Court introducing judicial review of legislation in USA) builds on the arguments set forward by Hamilton. He affirms that constitution is the supreme law of the land and therefore legislation contrary to it should be void. He also adds a historical argument stating that founding fathers of the constitution did not mention judicial review in constitution specifically, but surely meant it. However this argument is not true and not convincing. He also points to textual arguments, judges have to take an oath to the constitution therefore it would be wrong to want from them use legislation clearly contrary to it. And he recalls Article 6 (supremacy clause) which states that only federal legislation complying with the constitution will prevail over state law.
Thomas Jefferson in letter to Jarvis explains his deep disagreement with judicial review of legislation. He deems judicial review as dangerous, because it can place USA under judicial oligarchy. He believes than in the silence of constitution judicial review is not allowed. All branches of government were made to have the same powers and no branch can elevate itself above others. As a remedy for unconstitutional legislation politicians should be held accountable in the election, because unsatisfied citizens wouldn’t elected them. Against the argument that people are not able to understand the unconstitutionality he arguments, that people should be educated and not replaced.
Illustrate the origins, evolution and the reason of the spread of strong judicial review of legislation in Europe.
Judicial review of legislation in Europe is strong and centralised.
During 19th century European countries weren’t open to adaptation of judicial review. European states had flexible constitutions and it did not seem important since parliaments were generally regarded as being the best in safeguarding constitutional rights (rights were goals for political power).
First experimentation after WWI were in Germany during Weimar republic where ordinary courts could directly enforce the constitution. And in 1920 in Austria first Constitutional Court was designed by H. Kelsen. This Court was tasked with resolving disputes between legislative competences of central government and federal states. Also 1931 Spanish constitution included rudimentary elements of judicial review. However in the 20s and 30s judicial review wasn’t used much.
After WWII first three European countries adopted constitution with judicial review stated. These were Germany, Austria and Italy. After that there were 3 main waves of expansion of judicial review into the rest of the Europe. In 1970s and 80s Mediterranean countries coming out of authoritarian regimes. After 1989 Central and Eastern European countries recovering from communism and then in 1980s and 90s spread also out of Europe to Canada, South Africa or Israel.
There are many theories explaining the success of judicial review after WWII.
Jan Werner Müller says that experience of totalitarianism in Europe transformed democracies into highly constrained ones which necessarily entails also the judicial review of legislation.
Ran Hirschl proposes hegemonic preservation thesis. According to him judicial review emerged due to converging interest of 3 important actors. Politic elites (which feared illiberal drift and wanted to ground democracy with constitutional principles); economic actors (using courts to protect their interests) and judges (wanting greater influence and participation in global juridical networks).
‘Constitutional silence requires constitutional review.’ Discuss with a view to Marbury v. Madison and United Mizrahi Bank.
In Marbury v. Madison CJ Marshall pints out that Constitution does not expressly mention power of judicial review, however it is implicitly inherent in the nature and reason of the constitution. He argues that constitution as a supreme law of the land would be meaningless if ordinary legislation could disregard it without remedy.
CJ Barak in United Mizrahi Bank cases provides to possible remedies for unconstitutional legislation. Either sanctions would lie solely with the public on election day (as advocated by Thomas Jefferson), or the silence implied authorisation for courts to exercise judicial review. Barak draws parallels with Marbury v. Madison and chooses the second option. He affirms the elevated position of Basic Laws, justifying judicial intervention to safeguard their supremacy.
Both judgements also recall the dualist democracy to justify the introduction of judicial review. Constitution is ultimately the general will of the citizens therefore legislation breaching the constitution also is not aligned with the citizens will. Courts should safeguard people from legislative overreach.
What are the historical reasons justifying the preference for a decentralised or centralised system of judicial review of legislation?
In common law countries there is a historical context preferable to decentralised judicial review. Constitutional rights are viewed as inherent to all people even before the state. Constitutional rights are inviolable and constrain the function of government. Government is seen as the institution that could encroach on those rights. Judges also benefit from hight level of social legitimacy, therefore can be trusted with protecting individual rights.
In civil law countries traditionally individual rights are viewed as a policy agenda to be achieved by the political institutions. And judges are rather public servants that should only apply the law. Therefore specialised bodies were established than can be entrusted with the task to adjudicate on individual rights.
What are the arguments in favour of centralised constitutional review?
Centralised constitutional review is characterised by the establishment of Constitutional Courts, specialised ad hoc bodies entrusted with the specific task of interpreting constitutional provisions.
Constitutional courts have higher ex-ante democratic legitimacy, because political institutions participate in the appointment of constitutional judges providing more direct link between constitutional courts and electorate.
Constitutional courts are not staffed by regular judges, but there is higher professional diversity. Members can be also lawyers, legal scholars, former politicians or government officials. This can enrich the courts scope of competences and views on constitutional questions.
Since Constitutional Courts are highly specialised body their workload tends to be lower than that of ordinary courts. That gives more space for judges to focus on constitutional questions, that can have higher societal importance.
What are the advantages and disadvantages of life and limited tenure of constitutional judges?
Life tenure safeguards both functional and institutional independence of judiciary. Judges do not have to worry that if they make unpopular decisions they won’t be re-elected. They also don’t need to be compliant with legislative and don’t have ti fear invalidating legislative acts. Furthermore by granting judges life-long post it is possible to attract the best legal minds. However the disadvantages may be limited accountability. Judges are not accountable neither to public nor to other branches of government which could result in the overreach of their competences. It could also lead to judicial stagnancy and lack of fresh perspectives.
Limited tenure holds judges more accountable. With mechanism of reappointment or re-elections judges can be held accountable wither by public or by government. Judge may be more responsive to public opinion and their judgement more aligned with prevailing societal views. It also allows regular influx of new (younger) judges) providing new perspectives. However judges can be more susceptible to political pressures, particularly when facing reappointment or re-election. It can undermine judges to make unpopular decisions. Judges can also focus on short-term goals gaining immediate benefits rather than long-term issues and principles.
Illustrate the structure of [constitutional questions/constitutional challenges/individual constitutional complaints].
Constitutional question arises during a ordinary court hearing when a judge finds that peace of legislation he wants to apply to resolve case at issue is unconstitutional. This constitutional question is raised by the judge to Constitutional Court. Judge is the one who decides whether the issue should be conferred to Constitutional Court or not therefore acting as a gatekeeper. This system of ex-post concrete review is used in Italy or France.
Constitutional challenges are usually abstract (do not emerge from a specific case). They are typically initiated by political actors to safeguard separation of powers. In some system parliamentary minorities have the power to constitutionally challenge legislation. Constitutional challenge is employed in France where the President, Prime Minister, Speakers of Parliament, and groups of legislators can refer legislation to the Constitutional Council for review before it is promulgated. Or in Germany where parliamentary minorities can challenge federal legislation in the Federal Constitutional Court.
Individual constitutional complaint is a type of concrete review employed in some constitutional systems. It provides direct access to constitutional court, individuals can directly challenge legislation that they believe violates their constitutional rights. It is typically centred on protection of individual rights that the individual believes have been infringed. This system is employed for example in Spain, Germany or Hungary.
What is the difference between abstract and concrete review? What are their respective advantages and disadvantages?
Abstract review is a review of legislative acts unrelated to their application in a particular case. It can be both ex-ante or ex-post abstract review. The former is employed for example in France or Germany, the latter in Italy where regions can challenge state legislation only after its promulgation. Abstract review is typically promoted by political institutions to protect vertical or horizontal separation of powers. In some systems constitutional challenges can be promoted by parliamentary minorities safeguarding interests of minority, however it can become a remedy of parliamentary minorities for what they did not achieve politically. It’s disadvantage is that not all constitutional flaws can be anticipated beforehand, politicians also have only limited time to come up with constitutional challenges. Some problems come after long time of the legislation being enacted due to changing social contexts. Secondly unpopular constitutional issues likely won’t be raised, parliamentary minority won’t want to deepen its disadvantaged position.
Concrete review is review undertaking constitutional issues arising in the actual adjudication of cases. There are two options to employ concrete review. Individual constitutional complaints which allows citizens to directly access the court. The second option is constitutional question which can be raised only by the judge adjudicating the case and parties of the case play only secondary role.
What is the impact of the establishment of constitutional courts on the ordinary judicial architecture?
Before the establishment of constitutional courts civil law countries operated based on legislative supremacy, where parliaments were viewed as the primary interpreters and guardians of the constitution.
In many constitutional systems ordinary courts play crucial role in filtering constitutional issues through the incidental procedure. Judges ensure that only significant constitutional issues reach the constitutional court. For constitutional court to function properly there is a need for mutual cooperation between ordinary and constitutional courts.
Activity of constitutional court can collide with the activity of supreme court. Conflicts arise on two occasions.
When constitutional court issues interpretative judgements. In these judgements court prescribes a way legislation should be interpreted in order to be in line with constitution. If this binding prescription conflicts with former judgements by Supreme Court problems can arise.
When Supreme Court applies the constitution directly. Problem arises when the application of the constitution by Supreme Court disregards the precedents of Constitutional Court.
Why is the legitimacy of strong judicial review of legislation contested? Are there constitutional guarantees against democracy-inhabiting judgements?
Problem of strong judicial review, mainly in common law countries, is “counter-majoritarian difficulty”, which arises from the ability of unelected judges to invalidate laws enacted by democratically elected representatives.
Since in some countries the constitution is silent on the problem of judicial review many opponents argue, that in the case of silence judicial review should not be allowed. The concerns also fear enhanced judicial power which is based on the experience of Lochner era in the United States, when Supreme Court invalidated legislation based on a specific economic ideology, which was clearly exceeded the mandate of judicial review.
When a particular judgement is not liked legislative still has the power to amend the constitution so that its provisions would be clearer and not so open to judicial discretion. Furthermore legislative has the power to impeach judges, which may misbehave or abuse their position.
Describe the structure and actual operation of weak judicial review of legislation with a view to the experiences of Canada, New Zealand and the United Kingdom.
Weak judicial review of legislation means that courts have a general authority to interpret the meaning of constitution, however their judgements can be overridden by simple parliamentary majorities. The defining elements of weak form of review are the existence of Bill of Rights, which can have either constitutional or statutory status. Judges have enhanced judicial power, which extend varies from country to country. And possibility of parliament to override judicial decisions.
The functioning of this systems gives key role to parliament which is trusted to implement and respect the constitutional rights while drafting new legislation. In order to strengthen the duty to take constitutional rights seriously specialised bodies have been established within the parliament. Judges then should assume that legislation was drafted while take into consideration constitutional rights and should use their enhances judicial power only in case of fundamental disagreement. The same then applies to parliaments which should override the court’s decision only in case of fundamental disagreement.
Canada was the pioneering country in weak form of judicial review. Bill of Rights in Canada has a constitutional status. Canada’s weak judicial review comes closest to strong from other weak judicial systems in the world. All courts have the general authority to invalidate legislation. Parliament can use its prerogative either ex-post (to maintain the invalidated legislation in force) or ex-ante (adopting legislation which deliberately breaches the constitution, but in declaration state that it will operate notwithstanding that). In reality however Parliament hardly ever uses its prerogative to override decisions on Supreme Court, which has high reputation.
In New Zealand on the other hand weak form of judicial review is the weakest from weak. Here courts cannot invalidate legislation. Judges has the prerogative to choose the possible interpretation of an act that is in line with the constitution. Bill of Rights (which has statutory status) rather steers the interpretation than acting as a constraint. If the judicial interpretation is disliked it can still be overridden by the Parliament. However to ensure that legislation will respect the Bill of Rights, Attorney General is fully involved in the law-making. In reality courts when they have to apply legislation in breach with constitution they awards compensatory damages. Furthermore through activist and consistent interpretation of legislation, they achieve similar outcomes to invalidation. And courts can issue a ‘declaration of incompatibility’ which signals to Parliament that that legislation should be amended.
In United Kingdom Human Rights Act is a legislation adopting ECHR as a matter of domestic law. Courts have the duty to interpret legislation in the light of ECHR, they can also review the acts, but cannot invalidate them. In case of conflict they can issue a declaration of incompatibility, which flags the breach to parliament. In reality when declaration of incompatibility is issues Parliament follows up and amends the legislation. However courts don’t issue declaration of incompatibility frequently, because even though they signal the breach they still have to use the legislation to adjudicate the case at issue. Therefore courts rather stretch their prerogative of interpretation.
‘Weak judicial review of legislation offers a valuable alternative to both strong judicial review of legislation and parliamentary sovereignty in that it secures the protection of Constitutional rights while placating the legitimacy concerns for judicial supremacy.’ Discuss.
Weak judicial review departs from the strong form by allowing legislative majorities to override judicial interpretations of constitutional rights. Its evolution can be traced to two requests of constitutional systems: legal protection of constitutional rights and at the same time averting the counter-majoritarian difficulty.
Weak judicial review has higher democratic legitimacy, because the final say about constitutional rights lies in the end on the elected officials. Judges, knowing that they can be overridden, will be cautious in interpreting Bill of Rights and it prevents the usurpation of power by judiciary. And public trust can be enhanced knowing, that both judiciary and legislature are safeguarding the constitutional rights.
However parliamentary override mechanisms may weaken the deterrent effect of judicial review, emboldening legislatures to enact laws infringing on rights. The effectiveness of right protection becomes dependent on the political majority at force, which can leave minorities vulnerable and without protection. But in reality so far we could see the culture of compliance and mutual respect of judiciary and legislative.
