Constitutional Courts Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

This example Constitutional Courts Essay is published for educational and informational purposes only. If you need a custom essay or research paper on this topic please use our writing services. EssayEmpire.com offers reliable custom essay writing services that can help you to receive high grades and impress your professors with the quality of each essay or research paper you hand in.

Constitutional courts are judicial bodies that possess the authority to nullify or invalidate actions taken or laws enacted by governmental officials on the grounds that those actions or laws are violations of that country’s constitution. This power of a court to authoritatively determine whether a legislative enactment or executive action is constitutional or unconstitutional is known as judicial review. The origin of judicial review is commonly considered to have come from the United States and the U.S. Supreme Court’s landmark and politically critical decision in Marbury v. Madison (1803). It is in this case that Chief Justice John Marshall carved out this power of judicial review for the U.S. Supreme Court, even though the U.S. Constitution does not specifically enumerate this authority in the first place, nor does it attach such a power

as belonging to the federal courts or any other governmental actor. A variety of other nations have followed America’s lead in placing this judicial check into their democratic governance structures, observed in the democratizing trends as manifested during the twentieth century—especially so after World War II (1939–1945) and in the post-1980s period.

Constitutional Court Structures In Common-Law And Civil-Law Countries

The American orientation has been to give this function of constitutional adjudication to ordinary courts and to a supreme court—that is to say, they resolve disputes emanating from common law, statutory law, and the nation’s constitution. However, the common practice seen in the contemporary era is for nations to construct special courts whose sole purpose and function is to engage in judicial review. These courts are called constitutional courts. Just under seventy nations now have such constitutional courts operating, and most of these nations make a point, unlike the United States, in directly establishing this authority of judicial review in their respective constitutions.

A clear pattern has emerged that shows that the U.S. form of judicial review—where ordinary courts possess judicial review authority; there are appellate courts in place to review lower court rulings; the supreme court serves as the court of last resort and final arbiter on these constitutional cases; and the dispute in question must be actual and concrete, not merely an hypothetical or abstract conflict—is often found in nations with common law backgrounds (e.g., Canada, Australia, Scandinavian countries, Pakistan, India, Burma, and a number of Latin American countries). Countries with a civil-law background are more likely to have a structure of constitutional courts separate from ordinary courts that decide constitutional cases and some of these countries allow these courts to produce advisory opinions on more abstract, less concrete disputes such as a proposed law in addition to resolving actual disputes arising from already enacted laws (e.g., Austria, France, Russia, Germany, Spain, and Italy).

Debate Over The Primary Purpose And Function Of Constitutional Courts

In the European context of constitutional courts, the post– World War II constitutions of previously fascist states clearly stressed protections for fundamental human rights—constitutional courts would play a critical role in guaranteeing such rights and serving as a bulwark against the return of brutal autocrats. Thus, it has been argued that the overriding design of constitutional courts is to have them serve as inherently countermajoritarian institutions, working to ensure that the will of the majority would not and could not trample over basic liberties of the minority. In other words, the constitutional courts in their exercise of judicial review work to stabilize and temper forms of democratic governance. It is noteworthy that all of the post-communist states in Eastern Europe after the fall of the Soviet Union in the early 1990s ended up opting for a structure of constitutional courts, directly modeled from the German system.

A counterargument to this human rights protection contention is that constitutional courts have become popular due to the motivations of political elites and the accompanying incentive structures in their respective countries. As political actors in newly developing democracies deal with elections and the high probability that at some point they will not win an election and thus be out of power for a period of time, they are duly motivated to designate institutions (such as constitutional courts) to legitimately test, challenge, and potentially hinder public policy of the advantaged political opposition. In other words, constitutional courts are established instrumentally by political elites as they recognize and respond to the intrinsic electoral uncertainty associated with democratic procedures.

Judicial Selection For Constitutional Courts

The mechanisms used in the recruitment and selection of judges to serve on these constitutional courts varies. A common practice in these methods of appointment is to place some degree of insulation between these judges and external political influence, but at the same time try to provide a modicum of judicial accountability and responsiveness to the public. This captures one of the leading criticisms of constitutional courts: The appointment processes in place do not provide adequate levels of accountability for these judges. A variety of countries use methods that necessitate a sharing of this judicial appointment power between the executive and legislative branches, with the executive nominating the appointee and the legislature consenting or rejecting (a prime example of a checks and balances effort in the structure). Other more complex systems involve even more actors in selection process, such as all three branches (legislative, executive, and judicial) responsible for nominating a proportion of constitutional court judges. Additional recruitment iterations, albeit less common, involve a single entity, such as the chief executive, making the appointment. The typical normal tenure for a constitutional court judge is one nonrenewable term, commonly between six to nine years of service.

Controversies

There are several inherent controversies with constitutional courts (as well as supreme courts) as they engage in judicial review. The first revolves around unelected, relatively politically unaccountable judges striking down and invalidating actions or measures taken by the people’s elected representatives. With its judicial second-guessing, this antimajoritarian posture strikes some as problematically antidemocratic. The second controversy engages the challenging conundrum of how exactly these judges are supposed to go about interpreting their nation’s constitution to help them decide whether a statute or governmental activity is truly unconstitutional. The ongoing debate between judicial activism and judicial restraint manifests directly in these types of questions. How much deference these judges should show the elected branches, and how close to the text of the constitution or to the specific intentions of the constitution’s original writers these judges should cleave, remains uncertain.

Bibliography:

Abraham, Henry J. The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France, 7th ed. New York: Oxford University Press, 1998.
Ginsburg, Tom. Constitutional Interpretation, 9th ed, edited by Craig R. Ducat. Boston: Wadsworth, 2009.
Judicial Review in New Democracies: Constitutional Courts in Asian Cases. New York: Cambridge University Press, 2003.
Hague, Rod, and Martin Harrop. Political Science: A Comparative Introduction, 5th ed. New York: Palgrave Macmillan, 2007.
Hirschl, Ran. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge, Mass.: Harvard University Press, 2004.
Murphy, Walter F., C. Herman Pritchett, Lee Epstein, and Jack Night. Courts, Judges, and Politics: An Introduction to the Judicial Process. Boston: McGrawHill, 2006.
Tushnet, Mark. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. Princeton: Princeton University Press, 2007.