Broadly defined, a constitutional court is a court that adjudicates disputes over the interpretation and application of a political system's constitution. In the United States disputes over the federal constitution occur in all levels of the federal and state court systems, and courts in general are capable of resolving those constitutional disputes. Thus, in the American model of constitutional review most courts in the judicial system can act as constitutional courts. Moreover, American courts are generalist, in the sense that they are all capable of resolving a wide variety of disputes, from constitutional issues to family and labor law disputes. The U.S. Supreme Court is the highest court in the American political system and therefore has the final say on constitutional disputes. As scholars note, the fact that the Supreme Court's decisions on the Constitution are final means that although it is a generalist court which can resolve a broad assortment of legal disputes, it has evolved as a de facto special constitutional court that often devotes much of its attention to constitutional cases.
In contrast to the American model, a different type of constitutional court emerged in Europe after World War II (1939–1945). Modern European constitutional courts are often distinct, specialized courts that only adjudicate constitutional issues. In many European states there is one constitutional court with the sole and exclusive power to resolve all legal disputes over the meaning and interpretation of the constitution. One prominent example of such a specialized court is the German Federal Constitutional Court (Bundesverfassungsgericht), which adjudicates disputes over the German Constitution, called the "Basic Law."
The European model of a constitutional court views courts as more specialized, instead of general, and thus only the constitutional court is capable of addressing constitutional disputes. Lower courts that are faced with a constitutional dispute will refer that case to the specialized constitutional court for decision. In the context of European legal systems, specialized constitutional courts often reflect the fact that courts in general are specialized and usually charged with deciding disputes in certain areas of the law only, such as labor law, administrative law, family law, and the like.
structure of the court
Regardless of whether a constitutional court is a specialized tribunal that only adjudicates constitutional disputes, as in the European context, or a generalist court that adjudicates constitutional and nonconstitutional disputes, as in the American context, wide diversity exists in how courts are structured. The U.S. Supreme Court is a good starting point for comparing constitutional courts across political systems.
The United States. The Supreme Court consists of nine justices, although Congress may change the number of justices through a federal statute . All are nominated by the president and appointed with the "advice and consent" of the Senate. Although the Senate's role in Supreme Court nominations has evolved
since 1789, in the present day those nominated to the Supreme Court are expected to testify before the Senate in public, and the Senate has rejected approximately 25 percent of nominees. Supreme Court justices serve for life "during good behavior" and are only removable through an impeachment process defined in the Constitution. The Court works as a plenary body, meaning that all nine justices generally meet as a collegial group to adjudicate cases. Moreover, the Court has almost complete discretion in deciding which cases to review and which cases to reject. Through its ability to interpret the Bill of Rights, the Court plays a very significant role in defining the rights and liberties of American citizens.
Canada. Another North American court, the Canadian Supreme Court, operates similarly to the U.S. Supreme Court. It also has nine justices, all of whom are appointed by the cabinet and prime minister. Canadian Justices serve during good behavior until the age of seventy-five, when they must retire. At least three justices must be from Quebec to ensure that some members of the Court are familiar with Quebec's legal system based on the Napoleonic Code (Roman law) and the French language. It is also a customary political imperative that the Supreme Court reflect the geographical diversity of Canada, with justices representing the maritime and western provinces as well as Ontario, the most populous province. Historically, geographical representation on the Canadian Court helped unify disparate geographical interests, from Quebec to British Colombia. Like the U.S. Supreme Court, the Canadian Court sits as a plenary body (although it may also sit in panels of five or seven) and decides cases as a group of nine. Similar to the U.S. Supreme Court, the Canadian Court interprets a constitutional bill of rights—the Canadian Charter of Rights and Freedoms—and thus plays a significant role in defining and protecting the rights and liberties of citizens.
Germany. The German Federal Constitutional Court stands in distinct contrast to its North American counterparts. There are sixteen Constitutional Court justices; this number is set by legislation. German justices serve for a twelve-year nonrenewable term, and there is a mandatory retirement age of sixty-eight. Each house of the legislature, the Bundestag and the Bundesrat, elects eight justices. The Bundestag, which is based on proportional representation of the German people, votes as a whole, and two-thirds must vote to elect a candidate. The Bundesrat, which represents the German states (Länder), elects justices based on a two-thirds majority vote in its Judicial Selection Committee. Federal and state governments and political parties represented in the Bundestag submit the names of potential justices. Justices must also be at least forty years old and have successfully passed national judicial exams. The German Court meets in two separate senates; thus, all sixteen justices do not sit as a collegial court.
Each senate also has a slightly different jurisdiction . Initially, after the Basic Law of 1949 came into effect, the First Senate was assigned the role of reviewing constitutional issues that arose out of ordinary litigation and were referred to the Court by lower courts, and also deciding constitutional complaints filed by individual citizens that alleged a government agency had violated their constitutional rights. The Second Senate, in contrast, was to decide constitutional disputes existing between political branches, such as the parliament and the executive, and between the federal and state levels of government. However, an imbalance in workload quickly developed, and citizens' constitutional complaints were transferred from the First to the Second Senate in the late 1950s.
The important role of the Constitutional Court in defining the rights and liberties of German citizens under the Basic Law cannot be overemphasized. Since individual citizens can directly access the Court through the "constitutional complaint" procedure, German citizens can ask their Constitutional Court to directly interpret their rights in a way that citizens of no comparable democracy are able to. As long as a private citizen first exhausts all other legal means of recourse against a government agency, that person can file a complaint with the Constitutional Court alleging violation of a constitutional right guaranteed in the Basic Law. Indeed, German citizens view the constitutional complaint procedure as a "prerogative—almost a vested right—of citizenship" (Kommers 1997, p. 14). By allowing citizens to directly petition the Constitutional Court, the Basic Law in essence ensures that the Justices will militantly guard the rights and liberties of the people.
South Africa. The Constitutional Court of the Republic of South Africa is a relatively new constitutional court, having started its work of interpreting the new democratic South African Constitution in 1995. The South African Court plays a very active role in resolving constitutional disputes and protecting human rights. In fact, the final South African Constitution was approved by the Constitutional Assembly in 1996, and it also had to be certified by the Constitutional Court in accordance with the basic thirty-four constitutional principles agreed upon by the parties negotiating the transfer of power from white minority rule and the apartheid government to a democratic multiracial government, one in which people of all races would retain the same political and legal rights. Unlike any other constitutional court to date, then, the South African Court determined at the outset whether the Constitution under which it and all other government agencies operated was itself "constitutional" and in agreement with the basic principles of the new South African political system.
Eleven justices serve on the South African Court. The president and deputy president of the Court are appointed by the president of the republic, who is required by the Constitution to consult with the Judicial Service Commission and the leaders of political parties in the National Assembly. Other Constitutional Court justices are chosen by the president from a list supplied by the Judicial Service Commission, and again the president is constitutionally required to consult with leaders of political parties and the president of the Constitutional Court. The Judicial Service Commission interviews potential candidates and makes its recommendations to the president based on the candidates' legal and judicial experience. Justices serve for a twelve-year nonrenewable term and must retire at the age of seventy. The Constitution also requires that the South African judiciary, in general, reflect broadly the racial and gender composition of the South African nation.
basic law of 1949
After World War II ended in 1945 Germany was divided into four zones of occupation. Britain, France, and the United States, in the west, and the U.S.S.R. in the east, each occupied a sector. In 1949, with the Cold War well underway, it became clear that the wartime allies could not agree on a plan to create a unified Germany, and the zones were transformed into two states. The western sectors became the Federal Republic of Germany (FRG), better known as West Germany, and the Soviet sector became the German Democratic Republic (GDR), or East Germany. (The city of Berlin was similarly divided.)
For West Germany to function as a state it needed a legal charter that would define its character and provide the basic rules for its government. This was provided in the Grundgesetz (Basic Law) of 1949, which became the constitution of the Federal Republic.
The law provides for a parliamentary republic with an elected president as a primarily honorary head of state, and gives executive authority over the government to the Bundeskanzler, or federal chancellor, who is the head of the majority party in the Bundestag, or federal parliament. The Basic Law, like most European constitutions, also affords the chancellor some leeway in setting up a cabinet; German chancellors can have any number of cabinet ministers they want. In 1990, when East and West Germany were reunited, the GDR became defunct and was incorporated into the Federal Republic, and the Basic Law was extended to all of Germany.
The South African Constitutional Court has assumed a very active role in defining and protecting the rights of all South Africans. The new Constitution contains a bill of rights, and Article 39 of the Constitution mandates that courts must interpret the document in a way which promotes "the values that underlie an open and democratic society based on human dignity, equality and freedom." Thus, South African courts, and most important the Constitutional Court, have an explicit constitutional duty to guard the values of a democratic society based on human dignity. Since 1995 the Constitutional Court has been a vigilant protector of human rights in South Africa. It has expanded the rights of criminal defendants, declared the death penalty unconstitutional, expanded the right to privacy of all individuals, and also articulated very strong protections for freedom of expression.
Abraham, Henry J. The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France, 7th ed. Oxford, UK: Oxford University Press, 1998.
Cappelletti, Mauro. The Judicial Process in Comparative Perspective. Oxford, UK: Oxford University Press, 1991.
Kommers, Donald. The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed. Durham, NC: Duke University Press, 1997.
McWhinney, Edward. Supreme Courts and Judicial Lawmaking: Constitutional Tribunals and Constitutional Review. Boston: Kluwer, 1986.
Morton, F. L. Law, Politics, and the Judicial Process in Canada, 2nd ed. Calgary: University of Calgary Press, 2001.
Sunstein, Cass R. Designing Democracy: What Constitutions Do. Oxford, UK: Oxford University Press, 2001.
John C. Blakeman
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
Hamilton, Alexander. 1778. The Federalist No. 78 —The Judiciary Department. http://www.law.ou.edu/ushistory/federalist/.
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.
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
Article III vests the federal judicial power in the Supreme Court and in any lower courts that Congress may create. The judiciary so constituted was intended by the Framers to be an independent branch of the government. The judges of courts established under Article III were thus guaranteed life tenure "during good behavior " and protected against the reduction of their salaries while they held office. The federal courts so constituted are called "constitutional courts." They are to be distinguished from legislative courts, whose judges do not have comparable constitutional guarantees of independence.
Constitutional courts, sometimes called "Article III courts," are limited in the business they can be assigned. They may be given jurisdiction only over cases and controversies falling within the judicial power of the united states. For example, Congress could not constitutionally confer jurisdiction on a constitutional court to give advisory opinions, or to decide a case that fell outside Article III's list of cases and controversies included within the judicial power. That list divides into two categories of cases: those in which jurisdiction depends on the issues at stake (for example, federal question jurisdiction) and those in which jurisdiction depends on the parties to the case (for example, diversity jurisdiction.)
Congress can, of course, create bodies other than constitutional courts and assign them the function of deciding cases—even cases falling within the judicial power, within limits that remain unclear even after northern pipeline construction co. v. marathon pipe line co. (1982). Such a legislative court is not confined by Article III's specification of the limits of the federal judicial power, any more than an administrative agency would be so confined. However, a legislative court's decisions on matters outside the limits of Article III cannot constitutionally be reviewed by the Supreme Court or any other constitutional court.
Kenneth L. Karst