Simone Lawson
Constitutional review, also known as constitutionality review or constitutional control, is the process of evaluating the constitutionality of laws within a country. While the term constitutional review is typically associated with civil law, some of its underlying principles originate from common law countries with written constitutions. Various methods of constitutional review exist, including the Supreme Court model, the constitutional council, and the constitutional court. The Supreme Court model, prevalent in the United States and some West African nations, designates the Supreme Court as the final arbiter of legal and constitutional matters. In contrast, countries like France have established a constitutional council, a body with a mixed judicial-legislative character, to address constitutional issues. Other nations, such as Germany, Italy, and South Korea, have opted for specialized constitutional courts to oversee constitutional matters. These courts are distinct from those handling general legal disputes. Some countries also incorporate pre-enactment constitutional review, where the constitutionality of a law is assessed before its enactment.
| Characteristics | Values |
|---|---|
| Purpose | To evaluate the constitutionality of laws and prevent violations of rights granted by the constitution |
| Nature | Civil Law concept with influences from Common Law countries |
| Rigidity | Written and rigid constitutions are difficult to update and represent the supreme norm |
| Judicial Control | Varies by country; may be attributed to a specific organ or court, such as a Supreme Court or Constitutional Council |
| Exceptions | Some countries, like the Netherlands, forbid courts from ruling on the constitutionality of laws passed by parliament |
| Pre-Enactment Review | Some nations allow the review of constitutionality before a law is enacted |
| Post-Enactment Review | Constitutional issues can be resolved by special courts, bypassing the normal judicial system |
| Influence | The US model of judicial review influenced many countries after World War II |
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What You'll Learn
Supreme Court model
Constitutional review, also known as constitutionality review or constitutional control, is the process of evaluating the constitutionality of laws within a country. The purpose of this process is to prevent violations of the rights granted by the constitution and to ensure its efficacy, stability, and preservation. While the term "constitutional review" is typically associated with Civil Law, some of its underlying principles originate from Common Law countries with written constitutions.
In the context of the Supreme Court model, the United States was the first country to adopt judicial review directly based on its constitution. Notably, in the landmark case of Marbury v. Madison, the Supreme Court established that the Constitution is the supreme law of the land and that the judiciary is responsible for upholding it. As a result, lower courts and governmental authorities are bound by the Supreme Court's rulings on constitutional matters.
The US Supreme Court has played a significant role in shaping constitutional law and expanding individual rights. For instance, in Brown v. Board of Education of Topeka (1954), the court ruled that racial segregation in schools was unconstitutional. Similarly, in Griswold v. State of Connecticut (1965), the court recognized a constitutional right to privacy, which later became the basis for a woman's right to abortion.
The Supreme Court's jurisdiction extends to politically sensitive cases as well. For example, in United States v. Nixon (1974), the court ordered President Richard Nixon to turn over tape recordings related to the Watergate scandal. Additionally, the court intervened in the 2000 presidential election, halting the recount of ballots in Florida and effectively confirming George W. Bush's victory.
While the US Supreme Court has primarily upheld the values of the prevailing political regime, it has also demonstrated independence in its interpretations and rulings, influencing the development of constitutional law in the country and serving as a model for other nations.
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Constitutional council
Constitutional review, also referred to as constitutionality review or constitutional control, is the process of evaluating the constitutionality of laws within a country. It serves as a mechanism to prevent violations of rights granted by the constitution and to ensure its efficacy, stability, and preservation. One body that plays a crucial role in this process is the Constitutional Council, specifically in the context of France.
The Constitutional Council (French: Conseil constitutionnel) is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on October 4, 1958, to uphold constitutional principles and rules. The Council is based in the Palais-Royal in Paris. Its primary role is to determine whether proposed statutes align with the Constitution after they have been voted on by Parliament but before they are signed into law by the President of the Republic. This process is known as a priori review. Additionally, since March 1, 2010, individual citizens involved in a trial or lawsuit have been able to request the Council to review the constitutionality of the law applied in their case, which is referred to as a posteriori review.
The Constitutional Council also supervises elections, including presidential and parliamentary elections, as well as referendums. It ensures the legitimacy and fairness of these democratic processes, including the enforcement of campaign spending limits. The Council has the authority to invalidate an election if it finds improper conduct, illegal methods employed by the winning candidate, or excessive campaign spending.
In France, new acts can be referred to the Constitutional Council through a petition before they are signed into law by the President. This typically occurs when 60 opposition members of the National Assembly or 60 opposition members of the Senate request such a review. The Constitutional Council has played a significant role in shaping French legislation. For example, in 1971, the Council ruled against certain provisions of a law that infringed on the freedom of association, a principle enshrined in the 1789 Declaration of the Rights of Man and of the Citizen. This decision set a precedent by prioritizing the protection of citizens' personal freedoms over technical legal principles.
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Special constitutional courts
Constitutional review, also known as constitutionality review or constitutional control, is the process of evaluating the constitutionality of laws in certain countries. It aims to prevent violations of constitutional rights and ensure the stability and preservation of those rights. One method of constitutional review is through special constitutional courts.
The United States, Canada, and Australia had also adopted the concept of judicial review by their courts before 1919, with the United States being the first country to adopt judicial review directly based on its constitution. The US Supreme Court, established by the Judiciary Act of 1789, has the power of judicial review, or the ability to declare a Legislative or Executive act in violation of the Constitution. The Supreme Court plays a crucial role in ensuring that each branch of the US government recognises the limits of its power.
Some countries have separate constitutional courts, while others delegate constitutional judicial authority to their ordinary court system, with the final decision-making power resting in the supreme ordinary court. For example, the Constitutional Court of Baden-Württemberg in Germany is the constitutional court for the state of Baden-Württemberg and has the power of judicial review, among other responsibilities. Similarly, several republics of Russia had their own constitutional courts before the 2020 amendments to the Constitution of Russia, which disestablished constitutional and charter courts of the federal subjects.
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Pre-enactment constitutional review
The idea behind pre-enactment constitutional review is to supplement or replace judicial review, enhancing government accountability and bringing normative benefits. In some countries, the constitution specifically assigns the task of constitutional review to a particular organ, such as the Supreme Court or a dedicated constitutional council. For example, in the United States, judicial review is based directly on its constitution, with the Supreme Court empowered to invalidate legislation enacted by Congress.
However, the effectiveness of pre-enactment constitutional review depends on the broader political culture and institutional framework. In reality, the process may fall short of its idealized version and exhibit a darker side. For instance, in Ireland and Japan, the pre-enactment review processes involving the Attorney General and the Cabinet Legislation Bureau, respectively, have been criticized for their opacity, lack of parliamentary and public involvement, and potential to undermine judicial review.
While pre-enactment constitutional review can provide benefits, it is important to recognize that it may also face challenges and limitations. The success of this process depends on various factors, including the political and legal culture of the country, the effectiveness of the reviewing institutions, and the level of public participation. Each country's constitutional review process must be tailored to its unique context to ensure the preservation of rights and the stability that the constitution aims to provide.
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Judicial review
The scope and procedure of judicial review vary between countries and their legal systems. Common law systems, like the United States, view judges as sources of law, capable of creating and rejecting legal principles. In civil law traditions, judges are seen solely as applicators of the law, without the power to create or destroy legal principles. The US was the first country to adopt judicial review directly based on its constitution, as seen in the Marbury v. Madison case.
Some countries, like the United Kingdom, do not permit the review of the validity of primary legislation. In contrast, countries like Austria, Germany, South Korea, and Spain can exercise judicial review after a law has taken effect, either in abstract or concrete cases. France, Germany, New Zealand, and South Africa have established specialised constitutional courts to hear claims of unconstitutionality.
After World War II, many countries felt pressured to adopt judicial review due to the influence of US constitutional ideas. This included countries like Czechoslovakia, which established a specialised Constitutional Court, and Austria, which adopted the Austrian System, both attributed to jurist Hans Kelsen. Russia has a mixed model, with courts at all levels reviewing primary legislation, similar to the US.
In summary, judicial review is a vital process in maintaining the balance of power between the judiciary, executive, and legislative branches of government. It ensures that the rights granted by a country's constitution are respected and protects against potential abuses of power. The specific methods and applications of judicial review vary globally, reflecting the unique legal and historical contexts of each country.
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Frequently asked questions
Constitutional review is the evaluation of the constitutionality of laws in a country. It is meant to prevent the violation of rights granted by the constitution and assure its efficacy, stability, and preservation.
Different countries have different methods of constitutional review, depending on how they choose to organise it. Some countries use a Supreme Court model, like the United States, where the Supreme Court is the final arbiter of legal and constitutional issues. Others use a constitutional council, like France, or a constitutional court, like Germany, Italy, and South Korea.
Judicial review is the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government to determine if they are consistent with the constitution. If they are inconsistent, these actions are declared unconstitutional and null and void.
Yes, a country can ban constitutional review. The Netherlands, for example, forbids courts from ruling on the constitutionality of laws passed by parliament. The reason for this ban is that constitutional review would put the judiciary in a legislative position, which goes against the separation of powers.
Pre-enactment constitutional review is when a country requires or allows the constitutional review institution to evaluate the constitutionality of a law before it is enacted. This is done to prevent an overpowered legislative branch by inserting provisions into the constitution that require judicial approval before any legislation can be adopted.
