Constitutional Courts

History

Constitutional courts are closely tied to the history of judicial review, an American innovation that had been adopted by very few European countries before 1914. After World War I, officials asked the legal theorist Kelsen to write a constitution for Austria. Kelsen's legal theory, the “pure theory of law,” placed great emphasis on the democratically elected legislature as the sole legitimate source of norms. Judges were not to make law, but rather to limit their role to interpreting the legal commands of the legislature. Therefore, [Page 250]it would be inappropriate to give the function of constitutional adjudication to ordinary judges. Who, then, could ensure legislative conformity with the constitutional scheme? Kelsen's answer was to create a designated constitutional court that would adjudicate questions of governmental violation of the constitutional scheme.

Austria was a federal polity with distinct lawmaking powers residing in the central government and those of the Länder (states). Kelsen's primary concern was to ensure that the boundary between these lawmakers was maintained. Therefore, the only bodies with the power to refer questions to the constitutional court were the state and national governments.

After World War II, Kelsen's idea of a designated constitutional court was adopted in European polities overcoming fascism, Italy and Germany. Because of the fascist legacy, these postwar constitutions placed great emphasis on human rights, and democratically elected leaders saw the constitutional courts as the ultimate safeguard against abuses. They therefore decentralized access to the courts, so that citizens could bring claims directly to the constitutional court. The constitutional courts played an important role in defining the limits of democracy, for example, by prohibiting a reconstituted Nazi party in Germany and by striking down leftover fascist laws in Italy. The association between constitutional courts and rights protection is now well established in Europe and advanced as well through the supranational European Court of Human Rights sitting in Strasbourg.

With the global “third wave” of democracy, beginning in the 1980s, constitutional courts spread around the globe and became a norm of constitutional design. Most new democracies followed the German model of a designated constitutional court for judicial review. For example, every East European country (save Estonia) adopted a centralized court, no doubt partly motivated by the legacy of “telephone justice” that rendered ordinary courts untrustworthy. These new courts were immediately confronted with questions of great social and political importance. Inexperienced legislatures and unstable party systems meant that there was great incentive to bring important political questions to the courts, and some of the courts (particularly in Hungary) played a particularly important role in transposing norms from other European democracies into the local legal system. After some years of transition, the political processes stabilized, and legislatures began to play a more effective and active role, so the constitutional courts reduced their transitional role.

...