The Role Of Constitutional Courts: Upholding Democracy

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. The rulings of constitutional courts often implicate important social and political issues, and they are independent institutions, usually outside of the ordinary court system. The Austrian model, developed by legal scholar Hans Kelsen in 1920, was designed to protect against legislative overreach and limit the role of non-constitutional judges to the application of legislation. The jurisdiction and procedural rules of constitutional tribunals vary considerably from country to country.

Explore related products

Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue

$19.98 $35

The role of traditional courts in the justice system: Acting within the provisions of the Constitution

$14.99

The Role of Constitutional Courts in Multilevel Governance (3) (Law & Cosmopolitan Values)

$92.99 $103

Judging European Democracy: The Role and Legitimacy of National Constitutional Courts in the EU (Oxford Studies in European Law)

$137.99 $150

Judging Russia: The Role of the Constitutional Court in Russian Politics 1990–2006

$56.05 $59

The Warren Court: Constitutional Decision as an Instrument of Reform

$65

Interpreting the constitution

In South Africa, for example, the Constitutional Court is the highest court for constitutional matters and has the authority to interpret, protect, and enforce the Constitution. It deals exclusively with constitutional matters and can hear appeals from the High Court or Court of Appeal. Similarly, the Constitutional Court of Austria, established in 1921, is the oldest constitutional court in the world and has the power to review the constitutionality of laws and protect against legislative overreach.

In the United States, the Supreme Court is the highest court in the land, with the authority to interpret laws and decide the constitutionality of federal laws. There are also lower federal courts, such as the U.S. Court of Appeals and the U.S. District Courts, that play a role in interpreting the Constitution within their respective jurisdictions. Federal judges are appointed for life to ensure an impartial judiciary, and they must follow the Constitution in their decision-making and resist making policy.

Constitutional courts in other countries, such as Germany and Myanmar, also have the power of judicial review and are tasked with reviewing the constitutionality of legislation, resolving disputes involving elections and political parties, and ensuring that proposed treaties comply with the constitution. The creation of constitutional courts often reflects a country's commitment to democratic reforms and the protection of fundamental rights.

Protecting the constitution

The role of constitutional courts is to interpret, protect, and enforce the Constitution. They are high courts that deal primarily with constitutional law and are independent institutions, usually outside of the ordinary court system. Their rulings often implicate important social and political issues.

Constitutional courts have the authority to rule on whether challenged laws are unconstitutional, i.e., whether they conflict with constitutionally established rules, rights, and freedoms. They can also review the constitutionality of amendments to the constitution and adjudicate issues related to the constitution-drafting process. In some countries, constitutional courts can review legislation before it is passed, while in others, the review can only take place after the law is passed.

The jurisdiction of constitutional courts varies from country to country. For example, the Constitutional Court of South Africa is the highest court for cases that raise constitutional questions and has the discretion to hear appeals from lower courts. On the other hand, the Constitutional Court of Bulgaria does not hear cases brought by parties but reviews the constitutionality of existing laws and executive decrees.

Constitutional courts also have other significant duties, such as reviewing elections, presiding over presidential impeachment proceedings, and ensuring that proposed treaties comply with the constitution and international law. They may also resolve disputes involving elections and political parties, including the legality of election results.

In summary, constitutional courts play a crucial role in protecting the Constitution by ensuring that laws and government actions do not violate constitutionally established rights and freedoms. They provide a check and balance on the other branches of government and help to uphold the rule of law.

Enforcing the constitution

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.

Constitutional courts are independent institutions, usually outside of the ordinary court system, and their rulings often implicate important social and political issues. For example, the Constitutional Court of South Africa is the highest court for cases that raise constitutional questions. It has the authority to interpret, protect, and enforce the Constitution and can hear appeals from the High Court or Court of Appeal.

The Austrian model, developed by legal scholar Hans Kelsen, was designed to protect against legislative overreach and limit the role of non-constitutional judges to the application of legislation. The Austrian Constitutional Court, established in 1921, is the oldest constitutional court in the world. Other countries, such as Germany and Japan, established constitutional courts in response to major political and social change, as did countries with newly established democracies in the 1990s and early 2000s to entrench democratic reforms and safeguard fundamental rights.

Constitutional courts typically exercise some combination of the following powers: reviewing the constitutionality of amendments to the constitution and legislation; resolving disputes involving elections and political parties; and adjudicating issues related to the constitution-drafting process. For example, the Constitutional Tribunal of Myanmar is tasked with adjudicating constitutional disputes and reviewing the constitutionality of legislation. In the United States, the judicial branch has the authority to decide the constitutionality of federal laws and resolve other cases involving federal laws.

Explore related products

The role of the courts in enforcing electoral rights: Nigeria and U.K: The Courts and electioneering process: Nigeria and the United Kingdom

$64

The Hidden History of the Supreme Court and the Betrayal of America (The Thom Hartmann Hidden History Series)

$12.19 $19.95

Civil Courts and the European Polity: The Constitutional Role of Private Law Adjudication in Europe

$119.68

Governing from the Bench: The Supreme Court of Canada and the Judicial Role (Law and Society)

$38

The Myth of Coequal Branches: Restoring the Constitution’s Separation of Functions (Studies in Constitutional Democracy)

$45 $45

Fear and the First Amendment: Controversial Cases of the Roberts Court (Rhetoric, Law, and the Humanities)

$39.95 $39.95

Reviewing the constitutionality of laws

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. The constitutional court's authority reflects national priorities and historical context. The scope of its jurisdiction varies from country to country.

In some countries, the constitutional court reviews the constitutionality of legislation before it is passed, while in others, the review can only take place after the law is enacted. For example, the Austrian Constitutional Court, the oldest in the world, reviews the laws of Austria's federal states. Similarly, the Constitutional Court of Bulgaria reviews the constitutionality of existing laws and executive decrees.

In the United States, the judicial branch has the authority to decide the constitutionality of federal laws and resolve cases involving federal laws. The U.S. Supreme Court is the highest court in the country, and its decisions are binding on all lower courts. The Supreme Court of South Africa, on the other hand, is the highest court for constitutional matters in the country and has the authority to interpret, protect, and enforce the Constitution.

The rulings of constitutional courts often implicate important social and political issues. As such, they are independent institutions, typically outside the ordinary court system, with judges appointed for life to insulate them from public sentiment and ensure an impartial judiciary.

Adjudicating constitutional disputes

The scope of a constitutional court's authority varies, reflecting national priorities and historical context. For example, the Constitutional Court of South Africa is the highest court for constitutional matters, while the Supreme Court of Appeal handles all other cases. In contrast, the Constitutional Court of Bulgaria does not hear cases brought by parties but reviews the constitutionality of existing laws and executive decrees.

Constitutional courts often address important social and political issues, and their rulings can have significant implications. They are usually independent institutions, separate from the ordinary court system, to ensure impartiality and protect against legislative overreach. This separation of powers is a key feature of constitutional courts, allowing them to act as a check on the legislative and executive branches.

The process of adjudicating constitutional disputes involves interpreting the Constitution and applying it to concrete cases. Constitutional courts may review the constitutionality of legislation, amendments, and executive actions, ensuring compliance with constitutionally established rights and freedoms. They can also resolve disputes involving elections, political parties, and the legality of election results.

In some countries, constitutional courts can review legislation before it is promulgated, while in others, the review occurs after the law is passed. Individuals or entities, such as NGOs, may file cases directly with the court, or a case may be referred by a general jurisdiction court. The specific procedures and requirements for seeking constitutional court review vary across different countries and legal systems.

Frequently asked questions