Although Alexander Hamilton, one of the founders of the oldest constitutional court, promoted the judiciary as the “least dangerous” branch of government in 1788 (The Federalist No. 78 ), judicial practice has since proven that constitutional courts have considerable power potential and are less feeble than Hamilton suggested. Since the mid-twentieth century, constitutional courts have become particularly popular features in the constitutions of newly democratized states, specifically due to their potential to powerfully constrain the other governmental branches. In these states, constitutional courts carry the burden (though not always effectively) of safeguarding the democratic system.
Constitutional courts may have such political impact because they are specialized tribunals, charged (either exclusively or as the highest appellate court) with upholding the constitution and exercising judicial review by invalidating any legislative acts (or government actions) violating constitutional mandates. However, two schools of thought disagree whether this renders constitutional courts effective policymakers.
One school, known as the dynamic court view, holds that the exalted position of constitutional courts within the political system makes them more powerful than policymakers in other governmental institutions. However, this causes these courts to clash with other branches of government, producing what Alexander M. Bickel (1986) calls the countermajoritarian difficulty. Because they are not popularly elected, constitutional courts typically enjoy considerable independence from political pressures while wielding the power to invalidate acts of the popularly elected branches of government, frustrating the will of the (legislative) majority. Thus, their ability to shape public policies by setting constitutionally allowable parameters for legislation without being subject to traditional mechanisms of democratic accountability has prompted allegations of judicial activism.
In contrast, a second school of thought known as the constrained court view (Rosenberg 1991) argues that even the powerful U.S. Supreme Court is rarely able to effect social change because it is too constrained by the Constitution, by other institutions of government, and by its lack of policy-development tools. This school of thought is unconcerned about the countermajoritarian difficulty.
Notwithstanding this debate, constitutional courts are generally believed to have some (though not completely unrestrained) powers that may allow them to be effective guarantors of a democratic constitutional order. Scholars have begun to specify factors boosting a court’s political power, including a store of political capital; the court’s ability to pick from a wide range of cases (e.g., through generous standing rules, through the powers of both concrete and abstract review, as well as through a posteriori and a priori review), while being able to limit the docket; and the court’s insulation from political pressures (e.g., through long terms of office). Neither centralized nor diffuse systems of judicial review appear to present power advantages to the court.
Interestingly, some constitutional courts established their power through their own rulings (c.f. the U.S. Supreme Court in Marbury v. Madison , or the European Court of Justice in Costa v. ENEL ), rather than through explicit constitutional empowerment clauses. Some observers, such as C. Neal Tate and Torbjörn Vallinder, even detect a significant global trend toward the “judicialization of politics” (1995, p. 5) that increasingly puts constitutional (and ordinary) courts in the limelight of political conflict. Consequently, political analysis is no longer complete without a consideration of constitutional courts as political actors.
SEE ALSO Judicial Review
Bickel, Alexander M. 1986. The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed. New Haven, CT: Yale University Press.
Hamilton, Alexander. 1778. The Federalist No. 78 —The Judiciary Department. http://www.law.ou.edu/ushistory/federalist/.
Jacob, Herbert, et al. 1996. Courts, Law, and Politics in Comparative Perspective. New Haven, CT: Yale University Press.
Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring about Social Change? Chicago: University of Chicago Press.
Shapiro, Martin M. 1981. Courts: A Comparative and Political Analysis. Chicago: University of Chicago Press.
Tate, C. Neal, and Torbjörn Vallinder, eds. 1995. The Global Expansion of Judicial Power. New York: New York University Press.
"Constitutional Courts." International Encyclopedia of the Social Sciences. . Encyclopedia.com. (February 24, 2018). http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/constitutional-courts
"Constitutional Courts." International Encyclopedia of the Social Sciences. . Retrieved February 24, 2018 from Encyclopedia.com: http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/constitutional-courts
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The Constitutional Court was established in July 1991, prior to the breakup of the USSR. The Court was to be made up of fifteen judges, elected by the parliament for a limited life term (until age sixty-five). However, the parliament could agree on only thirteen of the nominees; leaving the other two seats vacant. Modeled on the constitutional courts of Western Europe, especially the German Federal Constitutional Court, it is the only body empowered to review constitutional questions.
Initially, the Constitutional Court, under the leadership of Chief Justice Valery Zorkin, carefully screened the cases it heard, thus attempting to avoid sharp clashes with either the parliament or the president. However, by 1993, Zorkin and several other justices had aligned themselves with the parliament against President Yeltsin. On October 17, 1993, two weeks after his security forces clashed with rioting protestors at the White House (Russia's parliament building), President Yeltsin issued a decree suspending the Constitutional Court pending the adoption of a new constitution.
The Constitution of 1993 and a new "Law on the Constitutional Court" of July 21, 1994, enlarged the court to nineteen members. Under this new legislation, judges were to be nominated by the President and confirmed by the Federation Council. In order to handle the rapidly increasing caseload, the new law permitted the court to consider multiple cases simultaneously. Under the provisions of the new law, judges no longer served for life; rather they have twelve-year terms. Retirement was made mandatory at the age of seventy.
The Constitutional Court is charged with ruling on the constitutionality of federal laws, presidential enactments, republic constitutions, regional charters, international treaties, and republic, regional and local legislative and executive acts. The court also has the responsibility to resolve jurisdictional disputes between state and legislative bodies at the federal and lower levels.
Access to the Court is relatively unrestricted; most cases require no previous hearing. After hearing oral arguments from interested parties, the judges retire to draft opinions (and, more rarely, dissenting options). Rendering a decision is a slow process, often taking two to four weeks. Decisions of the court are final and not subject to appeal. Although the Court agrees to hear only a small portion of all cases filed, it issues many determinations (opredeleniya ) that, although falling short of official decisions, attempt to revolve disputes by referring to previously rendered decisions.
In contrast to the previous court, the Constitutional Court of the Russian Federation initially focused on cases involving the rights of the individual. In the period from 1995 to 1996, more than 70 percent of the cases considered by the court dealt with individual rights, while only 12 percent dealt with separation of powers and 17.6 percent dealt with questions of federalism. The court appeared to be directing its attention to types of cases that would bolster its legitimacy and solidify its place in the judicial system, while avoiding conflicts with other branches of government and with the powerful regional governors.
With the election of President Vladimir Putin in early 2000, the Constitutional Court adopted a more assertive role again, especially in cases relating to Russia's federal relations. The Constitutional Court ruled that the constitutions of several republics violated the Basic Law of the Russian Federation, forcing them to revise their constitutions to bring them into line with the federal constitution. In contrast, the Court has, with a few notable exceptions, prudently avoided clashing with the President. The future legitimacy and credibility of the Court will depend on its adroitness in avoiding damaging confrontations with powerful state officials in which it cannot prevail, while still rendering meaningful decisions that uphold the primacy of constitutional principles.
See also: constitution of 1993; referendum of december 1993
Sharlet, Robert. (1993). "The Russian Constitutional Court: The First Term." Post-Soviet Affairs 9:1–39.
Smith, Gordon B. (1996). Reforming the Russian Legal System. Cambridge, UK: Cambridge University Press.
Trochev, Alexei. (2002). "Implementing Russian Constitutional Court Decisions." East European Constitutional Review 11:1–2.
Gordon B. Smith
"Constitutional Court." Encyclopedia of Russian History. . Encyclopedia.com. (February 24, 2018). http://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/constitutional-court
"Constitutional Court." Encyclopedia of Russian History. . Retrieved February 24, 2018 from Encyclopedia.com: http://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/constitutional-court