Isabella Carter
The US federal judiciary is comprised of two main types of courts: legislative courts and constitutional courts. Constitutional courts are a type of high court that deals primarily with constitutional law. They are responsible for ruling on whether challenged laws are unconstitutional, i.e. whether they conflict with constitutionally established rules, rights, and freedoms. The US Supreme Court is the highest court in the United States and is considered a constitutional court. Constitutional courts are also present in other countries, such as Germany and Russia, where they serve similar functions.
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What You'll Learn
Constitutional courts vs legislative courts
The US federal judiciary system is made up of two main types of courts: legislative courts and constitutional courts. These courts are distinct in their purpose, jurisdiction, and functions.
Constitutional courts are specialized courts with broad judicial powers and jurisdiction over constitutional matters. They review legislation and actions under the Constitution, interpret the law, and protect citizens' rights and the balance of power between the legislative, executive, and judicial branches of government. Constitutional courts also set important legal precedents and make decisions that guide lower courts. Examples of constitutional courts include the US Supreme Court and other federal courts, where judges are appointed for life.
Legislative courts, on the other hand, are established by Congress under Article I of the US Constitution to address specific areas of federal law. These courts have focused jurisdiction and handle cases that require specialized knowledge in particular areas of law. Judges in legislative courts serve fixed terms as determined by Congress and can be removed by the President. Legislative courts include the US Court of Appeals for Veterans Claims, the US Court of Appeals for the Armed Forces, and the US Tax Court.
The distinction between constitutional and legislative courts was first made in the case of American Ins. Co. v. Canter, which involved the admiralty jurisdiction of the territorial court of Florida. Chief Justice Marshall clarified that legislative courts are "incapable" of receiving the same judicial power conferred by the Constitution on constitutional courts.
While the US system has a clear separation between constitutional and legislative courts, other countries may have different approaches. For example, countries like the United Kingdom and New Zealand have flexible constitutions where the constitution is at the disposal of lawmakers, while countries like Israel have developed general principles, such as human dignity, to control the lawmaker.
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The US Supreme Court
Constitutional Courts (CCs) are specialised courts with jurisdiction over constitutional matters. The US Supreme Court is the highest court in the United States. It was established by Article III of the US Constitution, which states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
The Supreme Court has original jurisdiction over certain cases, such as suits between states or cases involving ambassadors. It also has appellate jurisdiction, allowing it to hear cases on appeal that involve constitutional or federal law. The Court has the discretion to decide whether to hear a case, and it agrees to review around 100-150 cases out of the more than 7,000 requests it receives annually.
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Constitutional courts in Germany
Germany's Federal Constitutional Court (FCC) is the country's supreme constitutional court. It was established by the constitution or Basic Law (Grundgesetz) of Germany after World War II, reflecting lessons learned from the Nazi era when federal government power went unchecked. The FCC is headquartered in Karlsruhe, Baden-Württemberg, and has been regarded as one of the most interventionist and powerful national courts in the world.
The FCC's jurisdiction is focused on constitutional issues and ensuring all governmental institutions comply with the constitution. It can declare legislation unconstitutional, rendering them ineffective. The court has ruled on cases concerning the restriction of fundamental rights, such as freedom of speech, and has the power to ban political parties that threaten the existence of Germany or seek to abolish the free democratic basic order.
The FCC has two separate panels (senates) of eight judges each, with each panel having jurisdiction over distinct areas of constitutional law. Judges serve a single, non-renewable 12-year term and are elected by the Bundesrat and Bundestag, ensuring no single party or coalition determines the court's composition. The court hears around 5,000 cases annually, a much higher workload compared to the US Supreme Court.
The FCC is not an appeals court but a trial court with first and final competence. It is not an integral part of the judicial or appeals process, except in cases concerning constitutional or public international law. The court's powers are defined in Article 94 of the Basic Law, which stipulates that all three branches of the state are directly bound by the constitution.
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The Austrian System
The Constitutional Court in Austria is the tribunal responsible for judicial review. It consists of fourteen members and six substitute members, appointed by the president upon nomination by the Cabinet, the National Council, and the Federal Council. All members are required to be highly experienced lawyers, with diverse legal backgrounds. The Court's primary function is to safeguard the foundations of the State and Democracy by testing the constitutionality of legislative and executive acts.
The Court verifies the constitutionality of statutes, the legality of ordinances, and the constitutionality of decisions made by other courts. It also resolves demarcation conflicts between courts, between courts and the public administration, and between federal and state bodies. The Austrian Constitutional Court hears election complaints, holds elected officials and appointees accountable for their conduct, and adjudicates liability claims against the state.
The Court ensures that Austrian legislation, at both the national and provincial levels, conforms to the respective constitutions. It can review draft legislation referred by the national or provincial cabinets. The Court's verdict becomes constitutional law, binding even itself, and can only be superseded by an amendment to the constitution.
Additionally, the Austrian Constitutional Court plays a crucial role in safeguarding fundamental and human rights. It scrutinizes the implementation of laws and regulations, ensuring they comply with the Constitution. When a law is found to violate the Constitution, the Court can set it aside, influencing how the law is understood and applied.
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Judicial control in constitutionalist democracies
In some countries, like the United States, Canada, Australia, and those with a common law system, judicial review by constitutional courts is a well-established practice. The US Supreme Court, for example, introduced judicial review in Marbury v. Madison (1803), establishing the power to review the constitutionality of laws and government actions. This power is shared by all courts in the US, ensuring that laws are interpreted in accordance with the Constitution.
Other nations, like the United Kingdom and New Zealand, have flexible constitutions, where the constitution is at the disposal of lawmakers. In these cases, judicial control may not be a necessary feature, and the focus is more on legislative interpretation. However, even in countries with rigid" constitutions, the binding force can be seen as a sanctionless imperative for lawmakers, as seen in France before the introduction of constitutional control in the Fifth Republic.
Constitutional courts are typically high courts with broad judicial powers and jurisdiction over constitutional matters. They set legal precedents, make decisions that guide lower courts, and protect the nation's constitutional framework. The selection of judges for these courts aims to balance democratic legitimacy with independence. While some countries have separate constitutional courts, others delegate constitutional authority to their ordinary court systems, with the final decision-making power resting in the supreme ordinary court.
The introduction of judicial control in constitutionalist democracies serves as a check on the powers of the legislative and executive branches, ensuring that individual rights and liberties are protected. It provides a mechanism for peaceful dispute resolution and upholds the principle of equal justice under the law, contributing to public confidence in the legal system.
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Frequently asked questions
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether challenged laws are unconstitutional, i.e., whether they conflict with constitutionally established rules, rights, and freedoms.
Examples of constitutional courts include the Constitutional Court of Austria, the Constitutional Court of Berlin, and the Constitutional Court of Brandenburg.
Constitutional courts have broader judicial powers and judges with lifetime appointments, while legislative courts handle specialized legal areas with judges serving fixed terms.
Constitutional courts set important legal precedents, make decisions that guide lower courts, and protect the integrity of the nation's constitutional framework. They also ensure that laws and government actions are in line with the constitution and protect individual rights and liberties.
The structure of constitutional courts varies depending on the country. Some countries have separate constitutional courts, while others delegate constitutional authority to their ordinary court system, with the final decision-making power resting in the supreme ordinary court.
