Note: This is a just draft. Please, do not cite without permission. I have not included footnotes or citations, so as to make my arguments more clear (and more vulnerable).

 

 

 

IS THE EUROPEAN MODEL OF JUDICIAL REVIEW IN CRISIS?

 

Victor Ferreres Comella

Universitat Pompeu Fabra

Barcelona

 

 

 

 

INTRODUCTION

 

 

            In this paper, I will explore the extent to which the European model of constitutional review of legislation can be said to be “in crisis”. By the expression “the European model”, I refer to a system where a special court (the Constitutional Court) is the only organ that has the power to declare a statute unconstitutional. A typical feature of this system is that it is possible for a statute to be challenged in the abstract, with no connection to a real case or controversy. In the “American model”, in contrast, all courts have the power of constitutional review, which they exercise as an aspect of their authority to decide cases and controversies according to the law.

 

I will try to show that the European model is in crisis: it no longer satisfies the need to check legislation in an efficient way, and it is being undermined by external forces that have been released by the process of European integration. The model has to transform itself into a different one that is more decentralized, and therefore more similar to the American model.  I will highlight, however, some features of the European model that are worth preserving, and that should be kept even if that tendency towards decentralization went very far.

 

Throughout the discussion, I will often use the case of Spain as an illustration, but I will refer to other countries as well, to the extent that similar problems are being experienced in them. I am aware that it is risky to generalize. Different countries have adopted diverse systems of constitutional review that fall within the broad umbrella of the “European model”. Still, I think it worthwhile to attempt to isolate the structural features of the model, to reconstruct the most important  reasons for having  embraced it, and to reflect upon the extent to which this model is viable in the modern circumstances that European countries face.

 

 

 

 

I.          THE STRUCTURAL FEATURES OF THE EUROPEAN MODEL AND THEIR JUSTIFICATION

 

 

After the First World War, some countries in Europe decided to take the Constitution seriously as a norm that should be judicially enforced against the legislature. But they decided to organize judicial review according to a centralized model, instead of the decentralized one that emerged in the United States. Only a special court, the Constitutional Court, would be entrusted with the authority to declare that a statute enacted by Parliament was unconstitutional.  Moreover,  it would be possible to challenge the statute in the abstract, with no reference to a concrete case. Austria and Czechoslovakia in 1920, and Spain in 1931, were the three countries that adopted this model.  Hans Kelsen was the great scholar who theorized it and defended it against the American alternative.

 

After the Second World War, more countries joined the club. Italy in 1948 and Germany in 1949 enacted new Constitutions that provided for the existence of a Constitutional Court. France was to do so in 1958. After their transitions to democracy, so did Portugal in 1976 and Spain in 1978. The fall of communism in Central and Eastern Europe generated a new wave of constitutionalism, and the new Constitutions adhered to the European model of judicial review. A recent addition is Luxembourg, that amended its Constitution in 1998 to create a Constitutional Court.

 

The European countries that have instead chosen the “American model” are in the minority: Sweden, Finland and Denmark. (Greece and Switzerland are special cases: in Greece all judges have the power of constitutional review, but there is a special chamber in the Supreme Court that is specialized in constitutional matters. In Switzerland there is no judicial review of federal legislation –only cantonal legislation can be checked.)  But in these three countries the rule exists (which is explicitly constitutionalized in Sweden and Finland) that judges can only take legislation to be unconstitutional when this is patently so, so that there is no room for doubt. In practice, a statute is almost never considered to be unconstitutional.

 

  So (in Europe) the European model is the norm, and the American model is the exception. Now, within the so-called “European model” there are important variations. One of the most important variables refers to the question of who has standing to initiate the procedure to review legislation. To simplify a bit, one can distinguish three avenues through which the Constitutional  Court can be reached: 

 

a) “Constitutional challenges”. A public institution may be allowed to attack a statute in the abstract. Normally, it must do so within a limited period of time since the statute was enacted. These “constitutional challenges” may be brought, for example, by the government, by a qualified minority of members of Parliament, by the Ombudsman, etc...

 

b) “Constitutional questions”. A court that has to decide a case may realize that the statute that is applicable is arguably unconstitutional. The court is then allowed or even required to raise a “constitutional question” to the Constitutional Court. The latter will not decide the case, but will limit itself to the question whether the statute is constitutional or not. It is true that, in practice, it will decide this question having that case in mind, but technically it is only the statute that is being examined.

 

c) “Constitutional complaints”. Individuals are allowed to go to the  Constitutional Court if they consider that their fundamental rights have been violated. They can do so by filing “constitutional complaints” against the act (or ommission) of the public institution that has caused the violation. Normally, they have to exhaust all the remedies that are available within the judiciary; only then is their complaint admissible. In most cases in which the complaint is grounded the act that violates the fundamental right rested on an incorrect interpretation of the relevant statute. But sometimes it is the statute itself that is at fault. In these instances, the Court will review the statute and pass upon its constitutionality in the abstract.

 

Notice that in the three types of procedure the statute is reviewed “in the abstract”, in the sense that the statute itself is the object of review, with the consequence that if the Court finds the statute unconstitutional, it invalidates it with general efects (erga omnes). But in a different sense of the expression “abstract”, we can say that the three procedures differ in the extent to which they are “abstract”. Constitutional challenges are more abstract than constitutional questions, since there is no case at all when the Court decides the former, while there is one when it decides the latter, even though it is only the constitutional question, and not the case, that the Court will decide.  Constitutional questions, in turn, are more abstract than “constitutional complaints”, since when the Court decides the latter, it decides a concrete case (or, at least, an aspect of a concrete case: whether there has been a violation of a fundamental right). Still, constitutional review is abstract even in this latter procedure, since when the Court finds the statute that was applied unconstitutional, it so declares with general effects.

 

As I said, within the European model, there are important variations among the different countries depending on which kinds of procedures they have instituted. Thus, we have the extreme case of France, where only constitutional challenges are permissible. Italy is an intermediate case: both challenges and questions are admitted, while in Germany (and, with some qualifications, in Austria) the three procedures are accepted.  Actually, this German variation is quite dominant in Europe: this was the system that Spain imported in 1978 and the one that most Central and Eastern European countries have adopted in the last decade.

 

In spite of these differences, however, we always find these two central features in the European model: constitutional review is centralized and abstract. Now, what are the reasons for this institutional choice?

 

An important reason that has traditionally been given to justify the European model has to do with the value of legal certainty, which is so important in countries that belong to the civil law tradition. (It would not be an exaggeration, I think, to say that Kelsen was really “obsessed” with this value, which figures so prominently in his writings when he offers the justification for the model of constitutional review that Austria adopted under his advice in 1920).  If all courts were authorized to review the constitutionality of legislation, a wide divergence of judgment could emerge among them as to the constitutionality of a particular statute. In America this potential for interpretive plurality is neutralized through the doctrine of precedent, which makes the decisions that are rendered by the highest courts binding on the lower courts. But in the civil law tradition this doctrine of precedent is (or is thought to be) absent, or only a very weak conception is accepted, under which judges enjoy wide discretion not to follow the standards that are provided by the highest courts. The  idea that the judge should limit himself to apply the relevant statute has been emphasized to such an extent in this tradition (especially since the French Revolution and the process of codification that it encouraged) that there seems to be no room left for precedents to play any role. So if the doctrine of precedent is absent, or it is understood in a very weak sense, another mechanism must be resorted to in order to reduce divergence. This mechanism is, of course, centralization in a special court: if only the Constitutional Court has the power to review legislation, there is obviously no risk that there will be divergence among courts when it comes to constitutional issues.

 

It should be noted that an alternative arrangement, under which constitutional review would be centralized in the Supreme Court, was not feasible.  The reason is that in civil law countries the judiciary is made up of courts that are specialized in different areas of the law, and at the appex of each group of courts there is a specific Supreme Court. Therefore, there is not a single Supreme Court, but several. It is true that in some countries (Spain is an example) there is an organ that is called “Supreme Court”, but this is divided into several specialized chambers, which means that, for practical purposes, there are several courts at the appex of the system. So it would have made no sense to centralize constitutional review in the Supreme Court(s), if legal certainty was to be preserved. A new institution had to be created.

 

The other feature of the European model -the abstract character of constitutional review- can also be linked to the value of legal certainty. If the Constitutional Court reviewed statutes as it decided concrete cases, and the consequence of finding a statute unconstitutional were simply that it should not apply it to the concrete case, the risk would exist that the Court contradicted itself as it decided several cases to which the same statute were applicable: in some cases it might consider the statute valid while in others it might deem it invalid. In the absence of a (strong) doctrine of precedent, the risk of contradictions by the Court could not be underestimated. If constitutional review of legislation is abstract, however, the number of occasions for contradictions is drastically reduced.

 

This is clearly so when the Court declares that the statute is unconstitutional. The effect of its decision is the formal expulsion of the statute from the legal system –the statute is actually “written off the books”-, and it is impossible for that statute to be reviewed again. (The legislature may enact a similar statute in the future, but that would be a new statute, not the old one).

 

 It is true that when the Court declares a statute constitutional, it is still possible for that statute to be attacked through a new procedure. So, for example, the parliamentary opposition may have challenged the statute with no success, and an ordinary court may decide some years later to try a second attack through a “constitutional question”. But even if it is possible to attack the same statute again, the number of occasions is very low. Judges are not expected to raise a question when they know that the Court has already said, in a decision that has general effects, that the statute in question is valid.

 

Even in those countries that allow individuals to file constitutional complaints, the risk of contradictions is reduced. In some countries (Austria and Spain, for example), if the Court finds that the statute that was applied to the case that has triggered the complaint is unconstitutional, it will open a special procedure to declare the invalidity of the statute in the abstract. (In Austria this procedure takes place before, while in Spain it takes place after the Court has decided the complaint). In other countries like Germany no such procedure is initiated, but the Court declares whether the statute is constitutional or not in the abstract and with general effects, even if its pronouncement figures in a decision that resolves the complaint.

 

So we can say that while the absence of a (strong) doctrine of precedent in the “vertical dimension” explains the need to centralize constitutional review in a special Court, the absence of a (strong) doctrine of precedent in the “horizontal sense” accounts for the need to articulate abstract review procedures. The European model is thus centralized in a double sense: constitutional review is centralized in a special Court, and the constitutional issues that could arise repeatedly in many cases are concentrated, centralized, into a single, abstract question. Both instances of centralization are linked to the value of legal certainty.

 

Apart from this value, other values that are associated with the idea of democracy help to account for the structural features of the European model. First of all, if judicial review of legislation may give rise to a “democratic objection”, to the extent that the legislation that is being reviewed was passed by a democratic Parliament, this objection can be minimized if the members of the Court are selected in ways that are relatively democratic. In the United States, for example, federal judges are appointed by the President with the advice and consent of the Senate. This gives judges an important democratic pedigree, even if they are not accountable to the people in the same way that those institutions are. To the extent that in many European countries it was thought advisable to maintain a more bureaucratic method for selecting judges, they had to create a different institution if they wanted the judges in charge of constitutional review to be selected through relatively democratic means. Thus, the judges of Constitutional Courts in Europe are appointed by the popular branches. Typically, Parliament has a crucial role in their selection.

 

This democratic worry about the institutional conditions for the legitimacy of constitutional review also explains the general rule in Europe that the judges of the Constitutional Court have a limited tenure. Normally, they exercise their function for 9 years -in Germany they do so for 12 years, and in Austria until they reach the age of 70. This makes them more likely to be sensitive to the evolving consensus in society. This is in contrast to the American rule, where federal  judges have tenure for life.

 

These democratic concerns were especially strong in countries that  made a peaceful transition from dictatorship to democracy. If the new democratic forces were not able to get rid of the judges that were appointed under the dictatorship, it made sense for them to refuse to grant them the power to review the validity of legislation enacted by the new democratic Parliament. The Constitution typically speaks, especially in the sensitive area of rights, at a level of generality that is not present in ordinary legislation. It is thus very important who interprets that text, and it is not reasonable to place it in the hands of judges whose democratic and liberal beliefs are doubtful. In these circumstances there is an additional reason for adopting the European model: the members of the new Constitutional Court are appointed by the new democratic branches.

 

 

 

II.                   SPAIN´S PREFERENCE FOR THE EUROPEAN MODEL

 

 

When the Spanish Constitution was being framed in 1977-78, it was clear that a system of constitutional review had to be established. As I mentioned, after the Second World War, there had been a wave of constitutionalism in Europe, and more and more countries came to the belief that for a Constitution to be respected a system of judicial review had to be established.  Spain joined them in this belief. Two features of the Spanish Constitution, moreover, made the argument in favor of judicial review a powerful one:

 

First, the Spanish Constitution is a “Constitution of consenso”, as it was soon to be called. Given that certain issues had historically divided Spaniards in tragic ways (Monarchy versus Republic; unitary versus decentralized state; the role of the Catholic Church; etc....), it was soon realized that if the new Constitution wanted to be stable and resist the passage of time, it had to be based on an accommodation (a “consenso”) of the different views that were held by the main political parties. The effort at reconciliation was very deep and sustained, and the Constitution that resulted from it established a collection of rules and principles that were then and still are generally accepted as “good enough”, even though (or precisely because) they are not  the “optimal” rules and principles from the point of view of each of the parties to the constitutional bargain. The Constitution was passed by a huge supermajority of Parliament, as well as of the people in a referendum. This was a good indicator of the extent to which the Constitution had succeeded in expressing a set of rules and principles that almost everybody could accept as “good enough”. For the Constitution to be amended a supermajority is required (the general rule is that a majority of 3/5 of both Houses of Parliament is necessary). The idea is that only a new political pact may replace the old one that was reached in the constitutional moment of 1977-78. So the party (or coaltion of parties) that is currently in power may not, by simple majority at the legislative level, infringe the rules and principles that were supported by a wider majority at the constitutional level. To guarantee that the constitutional compromises are respected, it is necessary to resort to a third party that acts as an arbiter and keeps the parties from ignoring what they committed themselves to. Hence one of the justifications for the existence of a system of constitutional review of legislation.

 

Secondly, one of the most important decisions that the Spanish Constitution expresses is the decision to create a decentralized State. Although the Constitution was not specific enough as to what kind of decentralized State it wanted to found, it was nevertheless clear that there would be a distribution of legislative power between the central Parliament and the new regional Parliaments that would be created. It was then inevitable to face the problem of what happens if a conflict arises between a state statute and a regional statute. Some court would have to decide which statute had to be applied and which one had to be set aside. So federalism (or quasi-federalism) provided another important reason for the establishment of some system of constitutional review.

 

So the need for review was taken for granted, and there was not much discussion about it during the constitutional debates. Moreover, when the question arose as to which model of constitutional review should be adopted, it was also uncontroversial that the European model was to be preferred. This was the model that countries like Germany, France and Italy had established, and these were the countries that were most influential in the framing of the Spanish Constitution in connection to other issues. Moreover, the reasons for this model, which are linked to the values of legal certainty and democracy,  as we have seen, were equally thought to be applicable in Spain.

 

Now, within the European model, Spain chose the “German” variation, which combines at least the three procedures I have mentioned above, that is: constitutional challenges, constitutional questions, and constitutional complaints.  In Spain, constitutional challenges can be brought by the Prime Minister, the Ombudsman, 50 Deputies, 50 Senators, and the regional governments and Parliaments. Constitutional questions can be raised by any court. And constitutional complaints can be filed by any individual (as well as the Ombudsman and the Attorney General) who claims a violation of any of the fundamental rights that are declared in articles 14 to 30.2 of the Constitution.

 

That the Spanish Constitution was a Constitution of “consenso” helps to account for some specific features of the system of judicial review. For example, it was thought advisable to grant a qualified minority of the members of Parliament  (50  Deputies or 50 Senators) the right to challenge legislation before the Constitutional Court. In practice, that minority represents one of the parties to the constitutional pact, and it was thought reasonable to grant that minority standing to challenge a statute that is arguably contrary to that pact. Similarly, Parliament can only select judges of the Constitutional Court (8 out of 12) by a 3/5 majority (4 justices are elected by the Congress and the other 4 by the Senate). This ensures that the Court that must enforce the Constitution is composed of judges that somehow represent the diverse political conceptions that were accommodated when the Constitution was enacted. Interestingly, this supermajority of 3/5 coincides with the supermajority that is normally required for a constitutional amendment to be valid. So there is a coherent set of rules that try to make sure that the supermajoritarian consensus that the Constitution expresses is not undermined by a simple majority in the future.

 

However, the fact that Spain chose to allow ordinary judges and citizens to reach the Constitutional Court makes it impossible for the “political class” to protect a statute against constitutional review by agreeing not to challenge it. The fact that other actors (judges and individuals) may question the statute prevents it from being immunized. This is in contrast to the situation in France, for example, where there is no procedure through which judges or individuals can attack a statute. (One must mention, though, that in France there are some special statutes –“organic statutes”- that must be sent to the Council for review, even if nobody challenges them).

 

Again, this decision in Spain to “open” the process of constitutional review can be explained by the political and social meaning that was attached to the new Constitution. Apart from a political bargain, the Constitution expressed a commitment to the principles of liberty that characterized the European democratic culture that Spain wanted to belong to. The principles included in the Bill of Rights, especially those that are more abstract in their formulation, easily attracted a wide and deep consensus, and they were not a product of a “bargain” in the same way in which other rules and principles were, such as those that defined the structure of the State. (The clauses in the Bill of Rights that deal with the Catholic Church and with the school system, however, are important exceptions to this). When the Constitution enshrined those liberal principles, it was repudiating an authoritarian past. It was necessary, therefore, to define the role of the Constitutional Court in a way that was sensitive to the importance of the individual in a scheme of liberal rights. The function of the Court should not be merely that of preserving the compromises that were struck among the political parties. It should also protect individual rights, and it should do so through procedures that allow the voices of individuals to be heard. Thus, the individual could ask the ordinary judge to raise a question to the Constitutional Court, and the individual could finally reach the Court through a complaint if she thought that one of her fundamental rights had been violated by the action or ommission of a public institution.

III.            INTERNAL PRESSURES TO DECENTRALIZE CONSTITUTIONAL REVIEW

 

 

The Spanish system of constitutional review, like those of other European countries, is centralized: Even if the ordinary judge can question a statute, it is only the Constitutional Court that is empowered to determine that the statute is unconstitutional. The judge cannot set it aside on his own authority. (The only exception in Spain are statutes that were enacted before the Constitution came into force. Judges can disregard them if they consider them to contradict the Constitution).

 

Now, this structural feature of the European model is more and more inconvenient. Pragmatic considerations should push the system towards a deeper decentralization, one that  would allow ordinary courts to participate in the task of constitutional review in more intense ways.

 

First of all, there is the problem of delays. The Constitutional Court needs time to resolve a question raised by an ordinary court, and during this time the parties to the case that has promted the judge to raise the question have to wait. The longer the delay, the more likely it is that judges will hesitate to raise questions to the Constitutional Court. A judge that is worried about  the problem will tend to resolve the doubts concerning the constitutional validity of a statute in its favor, so as not to have to suspend the proceedings and raise a question to the Court. It is sometimes said that the reason why ordinary judges in Europe do not raise many questions to the Court is due to their lack of constitutional consciousness. This may be a factor, but the truth is that even if they were more sensitive to constitutional values, and therefore more eager to measure statutes against those values, they would still face the tragic choice of having to delay the resolution of the case for a considerable period of time if they wanted the Constitutional Court to have a look at a particular statute. The consequence of all this is that statutes are overprotected against constitutional arguments.

 

Of course, the extent to which this is a problem depends on how long it takes the Constitutional Court to decide. In this connection, there is an interesting contrast between the situation in Spain and Germany, on the one hand, and that of Italy, on the other.

 

The Spanish and German Constitutional Courts are overloaded. This is due to the enormous amount of “constitutional complaints” that are filed every year. In both countries legal reforms have been introduced to allow the Court to filter those complaints that are not well founded or that raise no constitutional issue worth deciding. But the court is still overloaded. More radical proposals have been made, which would grant the Court discretionary jurisdiction, similar to that of the United States Supreme Court. But these proposals, which are very controversial in many quarters, have not yet been accepted and enacted into law. At the present moment, the docket of cases is so full in Spain and Germany that the Court needs years to decide a constitutional question.  In 1997, for example, the European Court of Human Rights condemned Germany for a violation of article 6 (right to a fair trial) because the German Constitutional Court had taken 7 years and 4 months in one case, and 5 years and 3 months, in another case, to decide a constitutional question. (See Probsteimer v. Germany, and Pammel v. Germany, respectively, both decided on 1 July, 1997). Some scholars in Spain have even suggested that constitutional complaints should be eliminated or, at least, that some rights, such as procedural rights, should not be protected through this mechanism.

 

The situation in Italy, however, is quite different. The Court is less overwhelmed, and it can decide the constitutional questions that judges refer to it within a reasonable period of time. The explanation is not that the Italian Court is more efficient, but that it does not have to decide constitutional complaints, since the law does not provide for this remedy. So the Court has much more time left for the questions that judges raise concerning the constitutionality of statutes.

 

Now, it seems to me that it would not be advisable in Spain or Germany to solve the problem of the overload by eliminating the possibility of filing complaints. These are very popular, and they should be kept as an interesting way in which the individual is allowed to participate in the constitutional dialogues that take place before the Court. Actually the fact that the individual, no matter his wealth, social influence or the popularity of his views, is granted standing before the Court to offer an argument that a statute is unconstitutional is a feature of judicial review that should be celebrated on democratic grounds, as Lawrence Sager has emphasized. That the Court should have the power to invalidate legislation may pose a democratic problem, at least prima facie. But, in any case, the fact that the individual is authorized to go to Court to have his argument taken seriously by an institution that will have to give a reasoned answer to his argument exemplifies some deep principle of equal citizenship. So constitutional complaints, which are the procedure through which the individual has the closest connection to the Constitutional Court under the European model, should be maintained.

 

Introducing an important degree of discretion in the selection of complaints would be an important step in the right direction to solve the problem of overload. (The rule could be established that when the complaint actually rests on the proposition that a statute is unconstitutional, the doors of the Court should be open. In this way that democratic virtue that I have just referred to would be maximized). But discretionary jurisdiction in complaints would still leave the Court with lots of work to do, and it would be difficult for the Court to resolve the constitutional questions raised by judges in an expeditious way.

 

The problem of delays is compounded by another problem, which is this: The idea that a statute can be said to be constitutional once and for all (at least, as far as a particular constitutional clause is concerned) makes sense if we are talking of statutes that are precise, that is, that are specific and categorical. The more precise legislation is, the more easily we can imagine what kind of situations it applies to. We can then compare the solution the statute provides with the solution that we can adscribe to the Constitution. What the Constitution says is controversial and difficult to determine in many cases, of course, but once we accept a particular answer to that question, it is relatively easy to decide whether the statute is valid or not, since it will be clear what legal consequences the statute entails. Now, there is a growing tendency for modern legislation to be less categorical and specific. We live in a world where circumstances change very fast in many areas of the law. Moreover, it is increasingly difficult in a pluralist society to generate consensus around specific rules. It is not surprising, therefore, that Parliaments tend to legislate in more open-ended terms. Even when they use specific terms to define the situation to which a certain legal consequence attaches, they often include more general clauses that allow judges to expand the set of cases to which the rule applies or to restrict that set by introducing exceptions to the rule. This, of course, is no novelty in the life of the law, but there has been an important change in the degree to which legislation ceases to be specific and categorical. This change is especially worrisome within the civil law tradition, since some of the most fundamental principles of that tradition (such as the rejection of the doctrine of precedent) assume that the legislation that the judge has to apply is so precise that there is no room left for the “lawmaking powers” of the judiciary. If this is no longer the kind of legislation we tend to have, it is increasingly difficult to say, a priori, whether a particular statute is constitutional or not, since the scope of cases to which it will apply is more difficult to define in advance. Constitutional review in the abstract is then a difficult task, and must be replaced by another kind of review, one which takes place as the statute is interpreted and applied in different types of cases. It may sound paradoxical, but the truth is that “abstract” review is only appropiate when legislation is “specific”, whereas “concrete review” (that is, case-by-case review) must be resorted to when the legislation to be checked is “abstract”.

 

Now, judges, compared to the public institutions that can bring constitutional challenges, are in a much better position to explore the legal consequences of a particular statute in a range of different cases. This means that if they take their responsibility as indirect guardians of the Constitution seriously, judges will have to refer constitutional questions in an increasing number of cases: the same statute may have to be examined at different times, depending on the different types of situations to which it can be interpreted to be applicable. Similarly, the Constitutional Court will not be able to be categorical in its decisions whether a particular statute is or is not constitutional. It may have to draw distinctions depending on the different types of cases that the statute may be taken to be applicable to.

 

So under modern legislation the number of constitutional questions sent by judges will have to increase. This exacerbates the problem of delays, of course. The centralization of review of legislation in a Constitutional Court, therefore, seems to run counter to the pragmatic needs that modern societies face.

 

There is a way in which the centralization that characterizes the European model is already being undermined, however: through interpretation. Before raising a question to the Constitutional Court, the ordinary judge is expected to look for an interpretation of the statute that will save its constitutional validity. There is a legal provision in Spain, for example, that impedes judges to raise a question to the Court if it is possible to interpret the statute in such a way that it no longer infringes the Constitution (article 5.3 of the Ley Orgánica del Poder Judicial, enacted in 1985). This power of interpretion has been emphasized as an important way in which ordinary judges can and should have a share in the task of guarding the Constitution against offensive legislation. They should not have the power to disregard statutes on constitutional grounds, it is said, but they certainly should have the power to “reinterpret” them so as to make them cohere with the Constitution.

 

Now, my claim is that for this “power of interpretation” to be legitimate, certain conditions have to be met, and that once these conditions are met, it is no longer acceptable to deny judges the additional “power of setting aside” a statute.

 

To make my point, I need to specify what one could call the “circumstances of the problem of legitimacy” that constitutional review poses. The reason why constitutional review of legislation is a delicate task is that (a) the constitutional text to be interpreted uses morally controversial concepts in many instances, and (b) the legislative text that is being checked has a special dignity because of its source -a popularly elected Parliament-. (Actually, I think that a third circumstance must be included: the constitutional text is difficult to amend. But we can ignore this feature for purposes of this discussion). The combination of these circumstances makes constitutional review a “problematic” institution within a democracy. Now, this may turn out to be a false impression in the end, either because the most attractive conception of democracy makes constitutional review a perfectly democratic institution, or because there are other values that are not reducible to democracy - although they may be connected to it- the protection of which justifies a restriction of some of the democratic principles. Whatever the better view on this issue is, it is quite likely that both views will recommend that the institution that is in charge of constitutional review be appointed in a way that is relatively democratic or, more precisely, that it is as democratic as it can be, after having taken into account that the institution must enjoy an important degree of independence vis-a-vis the popular branches if we really want it to perform its task of checking the legislation that these branches enact. The option that the European model takes is to grant the power of review to a special Court whose members are appointed by the popular branches for a limited period of time, instead of placing that power in the hands of ordinary judges that are selected in a manner that is less democratic and that enjoy their offices for a long tenure. So only the Constitutional Court, given its relatively high democratic credentials, can exercise the delicate task of (a) interpreting the Constitution for purposes of (b) deciding that a statute is invalid under it.

 

Now, when it is said that ordinary judges should be encouraged to look for an interpretation of legislation that will save its constitutionality, one problem that has to be faced is this: what constraints should the ordinary judge respect when it interprets the Constitution? And the answer that is usually given is this: she must interpret the Constitution in accordance with the precedents that the Constitutional Court has set. Again, there is an interesting legal provision in Spain, article 5.1 of the Ley Orgánica del Poder Judicial, which explicitly requires judges to interpret legislation in light of the Constitution, and to interpret the Constitution in light of the doctrines generated by the Constitutional Court in all types of procedures. It is assumed, then, that for the “power of interpretation” to be legitimately exercised by ordinary judges, it is necessary that they satisfy this condition: they must interpret the Constitution as the precedents established by the Constitutional Court indicate. Constitutional interpretation is a delicate task, but it is not so delicate when it is constrained by a dense system of precedents that have been generated by the only institution within the European model that is deemed to have the political legitimacy to make the controversial decisions through which that Constitution acquires concrete meaning: the Constitutional Court.

 

By following the precedents of the Constitutional Court, moreover, ordinary judges are able to safeguard the value of legal certainty, which is the other value that has historically inspired the European model. If the legislature explicitly introduces the doctrine of precedent in the vertical sense, or if we reconstruct our practices and realize that the best interpretation of what we already have points towards that doctrine, then there is no risk that the legal system will be uncertain if we allow judges to interpret statutes in light of the Constitution. Any potential diversity of readings as to what a particular statute says and entails will be neutralized through the precedents generated by the Constitutional Court.

 

But then, why shouldn´t ordinary judges be entrusted with the power to set aside legislation? If the condition that makes the exercise of the power of interpretation democratically legitimate and sufficiently protective of legal certainly is met, namely, coherence with the precedents of the Constitutional Court, why shouldn´t this condition be enough to justify giving judges the power to set aside statutes too? Why should the Constitutional Court retain a monopoly over the question of the constitutional validity of statutes?

 

Imagine this case: The Constitutional Court declares a statute unconstitutional. Some time later, a judge has to decide a case where a statute that has exactly the same content, or an extremely similar one, is to be applied. There is no doubt that if the Constitutional Court has considered the first statute unconstitutional, it will consider the second statute unconstitutional too. Is the judge allowed to set aside the second statute himself? According to the Spanish Constitutional Court, the answer is no: he must refer the second statute to the Court for review (see its decision 23/1988). Does this make sense? Should the litigants bear the cost of waiting for the Court to decide the question (some years later), when it is obvious that if the first statute was unconstitutional, so is the second one? 

It may be said that it is difficult for two statutes to be so similar in content that there is no reasonable doubt that if one is unconstitutional so is the other.  Well, that may be true in a world where there is a single legislature. But things are different when we have federal or quasi-federal systems where some subject-matters are regulated by the state or regional legislatures, instead of the central one. It is not unlikely that one state or regional legislature will enact a statute that is similar to that of another state or region. If the Court has already rendered the first one unconstitutional, it is not difficult to be certain that the other is unconstitutional too.

 

A system where ordinary judges can exercise the power to (re)interpret statutes in order to save their validity, but are not authorized to set them aside if they contradict the Constitution, encounters an additional problem: how to distinguish between those readings of a statute that count as genuine “interpretations” and those that do not. Of course, a judge cannot make a statute say whatever it should say in order for it to be constitutional. She cannot “save the statute” by making it say what nobody could reasonably read it to say. But it is not easy to identify the conditions that a reading of the statute must satisfy for it to count as a genuine interpretation.

 

Some European constitutional scholars have tried to isolate those conditions, but their conclusions are rather vague. The reading, they say, must be one which the text permits; one should not manipulate the text. But what about implicit exceptions, for example? If the text says “whoever does X  will face consequence Y”, and the judge reads the statute to provide that “whoever does X, except in circumstances C1 and C2, will face consequence Y”, to what extent is she respecting the literal tenor of the statute? It is also said that the intention of the legislature should be respected. But quite apart from the well-known objections to intentionalist theories of interpretation when applied to legislation, there is a particular problem in the constitutional context: maybe the legislature would have wanted to give the text a rather strained interpretation, if this was the only way to save it from the constitutional fire.

 

So it is not easy to construct a theory that sucessfully specifies the conditions that have to be met for something to count as an “interpretation of a statute in harmony with the Constitution”. Moreover, even if we have a theory that is widely accepted, the way it should be applied in concrete cases will be controversial. The European model is thus based on an unstable distinction between the “power to interpret” and the “power to set aside”. This is in contrast to the American model, of course. Here the distinction between the two powers is theoretically important and has some pragmatic consequences, but these consequences do not go so far as to determine the institutional division of labor between a Constitutional Court and the rest of courts. Because in the United States all courts have the two powers -the power of interpretation and the power to set aside statutes- the institutional consequences of the distinction are minimal.  (I am aware that the existence of both federal and state courts in the United States complicates this picture, since when federal judges review the validity of state legislation under the federal Constitution they are expected to defer to the interpretation that state courts have given of that legislation).

Now, it may be argued that I am underestimating the radical difference, from a political point of view, between interpreting a statute in a certain way in order to make it cohere with the Constitution and setting it aside on the grounds that it contradicts the Constitution. However difficult it may be to specify the boundaries of genuine interpretation, the fact remains that only when the statute is set aside is the popular will that it expresses being frustrated.  In contrast, when a judge genuinely interprets the statute, and looks for that interpretation that best comports with the Constitution, she is still working within the range of options that the democratic legislature adheres to.

 

It´s true that there is a relevant difference here. But if we accept that what makes constitutional review of legislation a “sensitive matter” from a democratic point of view, is not simply that the political will expressed in a statute is frustrated, but the fact that this frustration derives from a judicial decision that rests on a text the interpretation of which is morally controversial, then we have to introduce a further distinction. It is one thing for ordinary judges to interpret the Constitution “themselves”, so to say, and conclude that a statute must be disregarded. It is quite another for them to set it aside on the grounds that this clearly flows from the interpretive precedents that the Constitutional Court has established in past decisions. Once the Constitutional Court has done the interpreting, and has generated the precedents under which it is clear that a particular statute is invalid, we are no longer in the scenario where constitutional review by ordinary judges is not legitimate. Here the delicate task of adscribing meaning to the broad clauses of the Constitution has already been done by he who has the political legitimacy to do it, and there is no reason why ordinary judges should not be authorized to execute that decision.

 

So, given the pragmatic disadvantages of referring statutes to the Constitutional Court, the reasonable design, I think, would be one in which the Constitutional Court centralizes the function of interpreting the Constitution (for purposes of checking legislation), while ordinary judges are allowed to measure the validity of legislation under the specific standards that the Court provides. Only when no such standards have been generated should the judge raise a question to the Constitutional Court. Notice that this system would still be different from the American model, where the power of judicial review can be exercised by all courts even if the Supreme Court has not yet spoken in a specific way about the issue that a particular statute poses. To the extent that all federal courts in the United States are appointed in the same way, following the same procedure that has been deemed to contribute to the democratic legitimacy of their function, it makes sense not to condition the exercise of their power of constitutional review to the existence of a clear Supreme Court precedent that settles the issue. Under the European model, in contrast, to the extent (but only to the extent) that ordinary judges do not have the same democratic credentials as the members of the Constitutional Court have, it is reasonable to impose a stricter requirement on ordinary courts when they decide to set aside legislation on constitutional grounds: their decision should have a strong support on a clear precedent that the Constitutional Court has set in the past.  

 

In sum,  for the European model to serve the present practical needs, it should become more decentralized. But quite apart from these pragmatic considerations, there are external forces that are pressing the European model in a decentralizing direction: 

 

 

 

 

IV.               EXTERNAL PRESSURES

 

 

 

Some of the nations that have opted for the European model of constitutional review are part of two supranational organizations: the European Union, and the Council of Europe. Membership in them entails many economic, social and political consequences. But it also alters the role  of judges when they have to apply national legislation. Here I will briefly focus on the impact that European supranationalism has had and is increasingly going to have on one of the structural features of the European model:  centralization of constitutional review of legislation in the Constitutional Court.

 

 

 

A)     THE EUROPEAN UNION

 

 

The three Communities that make up the European Union were granted legislative power by the foundational treaties. There is a complex distribution of legislative powers between the Community institutions and the national authorities. The European Court of Justice, which sits in Luxembourg, was established in order to guard the Treaties and the norms enacted by the Community institutions. It soon proclaimed that Community Law had primacy over national law. But for a while it did not say how that primacy had to be enforced.

 

The Italian Constitutional Court, for example, understood that if an Italian statute contradicted Community Law, the statute was not only “directly” contrary to Community law, but also “indirectly” contrary to the Italian Constitution. This seemed to reinforce the primacy of Community Law. But the institutional consequence of this was, of course, that within Italy only the Constitutional Court could declare an Italian statute to infringe Community Law, for only that Court has the power to invalidate legislation on constitutional grounds. The European Court of Justice reacted against this. In an important decision (Simmenthal II, 1978), it held that every national judge is empowered and required to set aside national legislation if it contradicts Community Law, without having to refer the question to the national Constitutional Court. The European Court thus imposed a “decentralized” system of judicial review of legislation for conformity with Community Law.  It liberated ordinary judges from the monopoly that the Constitutional Courts might want to retain. (It should be mentioned, however, that there is a hierarchy of norms within Community Law and that judicial review of the validity of a secondary norm of Community Law under a primary norm is centralized in the European Court. If a national judge deems the secondary norm invalid, she will have to refer the question of validity to the European Court).

 

So we have this interesting situation: in the vast majority of countries that belong to the European Union, judges have no power to disregard a national statute on the grounds that it contradicts the national Constitution, but they do have the power to disregard that statute if it contradicts Community Law. This suggests that the mere fact that a statute enacted by a democratic Parliament is being set aside is not believed to be a sufficient reason to generate a “democratic objection”. In the area of Community Law we allow ordinary judges to review statutes, and yet we do not conclude that the democratic reasons that have traditionally been given to justify the European, centralized model of judicial review of legislation are being betrayed. Nor is there a serious worry that legal certainty will be destroyed. Why?

 

Well, we can say that the reason why things are different when the norm to be enforced is the national Constitution is that this is a very special text, which often expresses broad and morally charged principles the interpretation of which is controversial and will give rise to a plurality of readings. As I suggested, it is the combination of an abstract constitutional text and a popularly-enacted statute that makes constitutional review of statutes a delicate task. To the extent that Community Law is basically made up of rather detailed provisions that regulate complex and technical issues of economic and social policy, one of the circumstances of the problem of legitimacy disappears.

 

Still, this contrast between the character of the national Constitution and that of community Law cannot be taken too far:

 

First of all, there are provisions of Community Law that are controversial, and yet ordinary judges are allowed to use them as grounds to refuse to apply national legislation. It is true that there is the system of  “preliminary references” that allow national judges to reach the European Court of Justice if they have an interpretive doubt concerning a relevant provision of Community Law. (In some cases, they are required to send a reference).The European Court will solve the interpretive doubt concerning the norm of higher rank (the provision of Community law) under which the norm of lower rank (the national norm) will have to be checked. It is also true that, because the answers that the European Court gives are very specific and narrowly tailored to the problem that the national norm poses, the final decision that the national judge must make is relatively easy. Yet, it should be emphasized that these preliminary references are not resorted to if the Court has already set precedents under which it is clear what the right interpretation of Community Law is and it is clear, therefore, whether a national statute is or is not in conformity with it. And this is exactly what I suggested should be the case when it comes to enforcing the national Constitution: Ordinary judges should be allowed to set aside national legislation on constitutional grounds, provided they interpret the Constitution in light of the clear precedents that have been established by the Constitutional Court.

 

Secondly, Community Law is increasingly full of principles that protect abstract fundamental rights. Because the States have been enlarging the powers of the European Communities through the past decades, the need has increasingly been felt that the latter should be checked through a Bill of Rights. Some national Constitutional Courts, especially the German, were especially insistent some years ago on the need to protect fundamental rights at the Community level. The European Court took note of this reaction, and started to read fundamental rights into Community Law by way of “general principles”. But once recognized as part of Community Law, these rights bind not only the Community institutions, but the States themselves when they act and legislate in the area of Community law. So it is not rare for a national statute to infringe a fundamental right that is both part of Community Law and of the national Constitution. The right against discrimination in the employment is an important example of this. The national judge will have to disregard the statute on the grounds that it infringes Community Law, but at the same time she is supposed to refer a question to the Constitutional Court to the extent that that right also figures in the national Constitution.

 

The Charter of Fundamental Rights of the European Union that was proclaimed in the Nice summit of December 2000 has not been incorporated into the Treaties yet. But once it is (and quite apart from the legal consequences that can already be derived from that proclamation) the overlap between Community Law and the national Constitutions will be considerable in the area of fundamental rights. Granted, there will still be an important space where Community law will not be applicable and where, therefore, state legislation will only be measured by the standards that are set in the national Constitution. But the more Community Law expands its sphere of influence, the more that space will be curtailed. As we move in this direction, it will seem too paradoxical that the same judges that are authorized to set aside national legislation on the grounds that it contravenes Community Law are prohibited from doing so when that legislation infringes the national Constitution.

 

 

 

 

B. THE COUNCIL OF EUROPE

           

 

The countries that are members of the Council of Europe have all signed a Convention that protects fundamental rights (the 1950 European Convention on Human Rights), as well as additional protocols. The European Court of Human Rights, which sits in Strasbourg, is in charge of enforcing this Convention against the States that violate its provisions.

 

It is up to every member State to decide what kind of dometic legal arrangements have to be established in order to protect the Convention. Judicial review of legislation, in particular, is not imposed. What the Convention requires is a result: that there be no violation of rights within the member States.

 

Now, in some countries, international treaties are considered by the legal system to trump national legislation, and judges are authorized to disregard the latter if it contradicts the former. Since the Convention is an international treaty, the same rule applies. The interesting thing is that some of these countries do not authorize judges to ignore legislation if it contradicts the fundamental rights recognized in the national Constitutions. In the Netherlands, for instance, there is no system of constitutional review of legislation, but judges are required to ignore national legislation if it contradicts the international treaties. (Article 120 forbids judges to refuse to apply legislation on constitutional grounds, but article 94 obliges them to do so if the legislation violates an international treaty). In France there is a system of constitutional review, but judges have no role to play: the responsibility is placed in the hands of the Constitutional Council. But, paradoxically, they are allowed to set aside legislation if it contradicts the treaties. (This derives from article 55, which explicitly gives treaties a superior rank over statutes). Finally, in Spain the ordinary judge may refer a constitutional question to the Constitutional Court, but arguably he may directly disregard the statute if it contradicts a treaty. (Article 10.2 provides that the Bill of Rights of the Constitution will be interpreted in light of the international treaties that protect human rights. But apart from this interpretive function, those treaties have the status that derives from article 96, which implicitly makes treaties prevail over national legislation). Now, to the extent that the Convention is a treaty, and to the extent that there is an important degree of overlap between the national Bill of Rights and the list of rights that are enumerated in the Convention, there is a pragmatic tension in these systems.

 

Moreover, the European Court of Human Rights has been interpreting the Convention in a more activist way in the recent years. At the beginning, it granted States a “wide margin of appreciation”  to decide the extent to which a restriction of a fundamental right was necessary in a democratic society to protect other rights or interests. The standards that the Court imposed were very minimal, and it was therefore difficult for a statute to violate the Convention. But nowadays the margin of appreciation has been reduced in many areas, the standards are more stringent, and the likelihood that a statute will not satisfy them is consequently increased. There is now a rich body of case law that the national judge can use to evaluate national legislation.

 

So to the extent that the Convention is taken in some countries to prevail over national statutes, the erosion of the centralized system of constitutional review is very deep. Of course, only the Constitutional Court will say that a statute contradicts the freedom of speech that the Constitution protects, let´s say, but the judge will have been able to set aside the statute on his own authority on the grounds that it violates the freedom of speech recognized in the Convention.

 

 

 

V.                 A THEORETICAL SHIFT

 

 

The existence of a supranational system of European norms that are interpreted by two supranational Courts should contribute to an important shift in the theoretical discussion about the problem of the legitimacy of constitutional review of legislation, in the following sense:

 

For many years the literature on constitutional interpretation in some European countries has been too obsessed with the problem of how to distinguish between a genuine interpretation of a statute and the undue manipulation of its content. One reason for this theoretical emphasis has already been examined above: since ordinary judges are granted the power to interpret statutes so as to save their constitutional validity, but not to set them aside on constitutional grounds, it is very important to define the boundaries of “interpretation” versus “manipulation” of a statute.

 

Another reason has to do with the political impact of the decisions rendered by the Constitutional Court when it reviews legislation. It is one thing for the Court to say that a statute is invalid, and quite another to say that it should be interpreted in a certain way (or not to be interpreted in a certain way). In the first case the majority that enacted the statute suffers a political defeat, especially if the parliamentary opposition is the one that challenged the statute. In the latter case, in contrast, the majority can claim that the constitutionality of its political choice has been vindicated by the Court, even though the statute “must be interpreted in a certain way”. The “interpretive judgment” articulated by the Court may even be submerged in the reasonings that the decision contains, and not appear in a categorical way at the end of the decision. The press, for example, may not notice that the declaration of constitutionality is a qualified one and that, therefore, the political victory that the majority has obtained is not complete. Now, of course, for this distinction to make sense, there must be some limits as to what counts as an “interpretation” of a statute, for otherwise the Court could abuse its power to declare statutes valid “to the extent that they are interpreted in such and such ways”.

 

It is understandable therefore, that this problem has been in the agenda for a long time, and that a sophisticated literature has been generated to address it. Unfortunately, this literature has contributed to distort things quite a bit. At some point, the view has emerged in many quarters that the “big problem of legitimacy” refers to the question of what the Constitutional Court should do with a particular statute once it appears to contravene the Constitution, and not to the question of what the right interpretation of the Constitution is and who should have the authority to answer it. That a Court should have the power to impose its interpretation of the Constitution on the popular branches does not seem to some European scholars to pose an issue of democratic legitimacy at all. It is sometimes said that if things are different in America, this is because the United States Constitution does not explicitly establish judicial review, whereas European Constitutions that have created Constitutional Courts clearly do, and because the American Constitution is so old that the problem of whether an “originalist” interpretation is right is very relevant. For many European scholars, then, the important debate is the extent to which the Constitutional Court can “distort” the text of the statute in order to save its constitutionality.  This seems to be the great issue.

 

But, of course, the more important issue is the other one: what does the Constitution say, and who should be empowered to fix its meaning in the name of the political community whose text it is? Does democracy require that the majoritarian branches decide? May a system of judicial review be established? What sort of system? How should judges be appointed? Are there ways to understand the relationship between the courts and the legislature that makes the arrangement more democratic than others? And, of course, there is then the difficult question: what are the standards that should guide the judge when she tries to adscribe concrete meaning to the broad and morally sensitive clauses of the Constitution? It is a pity that this debate is marginalized in favor of a discussion about what should happen with a statute once it is found to be in tension with the Constitution.

 

To make matters worse, there is a theme in Kelsen that has often been inaccurately used to buttress this wrong understanding of the problem of legitimacy. Kelsen repeatedly said that one can understand the Constitutional Court to be a “negative legislature”, in the sense that it has the power to invalidate the legislation that is enacted by Parliament (which would be the “positive legislature”). Now, Kelsen never intended this more or less felicitous phrase to express the standard for measuring the legitimacy of the Constitutional Court. That is, he never seriously thought that the answer to the problem of the conditions under which constitutional review is legitimate was to say: “the Constitutional Court acts legitimately if and only if it acts as a negative legislature”. To begin with, Kelsen argued that sometimes the Court should act as a positive legislature (for example: it may have to restore the applicablity of a statute that had been repealed by the statute that the Court has invalidated, if this is necessary to fill a gap in the system). Secondly, Kelsen was worried about the legitimacy of review even when the Court acted as a negative legislature. Thus, he insisted that constitutional review should only take place under rather specific clauses of the Constitution, for he thought that the final authority to interpret the more abstract clauses that protect, for example, “justice”, “liberty”, or “equality”, should rest with the majoritarian parliamentary procedure.  So it is a mistake, I think, to use Kelsen to justify the idea that the problem of legitimacy arises when the Constitutional Court, instead of simply declaring a statute unconstitutional, reinterprets it to save its validity, acting, as it were, as a “positive legislature”.

 

Well, the interesting thing about the European supranational Courts is that they help us see matters in the right way once again. Both the European Court of Justice when it answers preliminary references, and the European Court of Human Rights when it decides whether a State has violated a fundamental right enumerated in the Convention, do not address the question of what to do with a national statute that seems to contradict the higher norm.  The European Court of Justice will simply fix the meaning of the relevant provision of Community Law, and will leave it to the responsibility of the national judge to decide whether the national statute should be disregarded or whether it is possible to reinterpret it in such a way to make it consistent with Community Law. This is rightly thought to be a secondary problem, when compared to the larger issue that the European Court has given an answer to: what is the concrete meaning of the Community law provision? Similarly, the European Court of Human Rights does not review whether a national statute that has been applied to a case is or is not contrary to the Convention. It simply says whether there has been a violation of a fundamental right in that case, and it is up to the State to decide what to do with the statute. In particular, the national judges will decide whether it is possible to readjust it to the Convention through a new interpretation or whether it must be invalidated.

 

The increasing importance of these two supranational Courts in Europe should therefore have a healthy impact on the discourse of the legitimacy problem. The emphasis should be paced on the issue of what is the right interpretation of the higher norms that protect rights, and who and through which procedure should that interpretation be settled. In the contemporary agenda it is questions like the following that should attract our intellectual interests, when we talk about these supranational courts: Are they selected in the right ways? Is the interaction between these courts and the relevant politcal branches the right ones? Is the process for amending the fundamental texts that these Courts have to enforce too burdensome, so that the political branches encounter too many obstacles if they want to “respond” to the Court´s jurisprudence, or are there good reasons for protecting that jurisprudence through the rigidity of those texts? How are these courts to accommodate universal norms and local traditions and sensibities? Is there a sufficient consensus in Europe to which these supranational Courts can resort in order to support their interpretations of the fundamental texts? In comparison to this agenda of questions, it should be regarded as a marginal issue whether or not a statute that seems to contradict the higher norms can be reinterpreted in order to save its validity, and who should be authorized to decide that issue. We should not let this problem become so dominant that it hides the more fundamental and interesting set of questions that are part of the intellectual horizon of contemporary Europe.

 

 

 

VI.               SOME FEATURES OF THE EUROPEAN MODEL THAT ARE WORTH PRESERVING

 

 

The main thesis that I have advocated so far is that the European model of judicial review of legislation should transform itself into a more decentralized one. It should give ordinary judges a constrained power not only to reinterpret, but also to actually set aside, statutes that are contrary to the Constitution. This, of course, would make it closer to the American model.

 

This does not mean however, that the European model should finally collapse into the American. There are some features of it that are worth preserving. In particular, the existence of “constitutional challenges” through which certain public institutions can impugn the validity of a statute is an interesting procedure to maintain. Here I will  briefly list some of the potential advantages of this procedure. Each deserves a fuller exploration that I cannot attain here.

 

a) When the constitutional validity of a statute is questioned on the grounds that it does not respect the distribution of legislative powers between the federation and the states (or between the state and the regions), it is advisable to have a procedure that allows the governmental organs that are involved to trigger the process of review. In particular, it makes sense to allow the federal government to challenge a state statute, and a state government to challenge a federal statute, on federalism grounds. (This is so in Austria, Germany, Spain and Italy, for instance). Even if the question can later be raised by private individuals in a concrete case, it should also be possible for the organs that  are directly involved to make their claims against each other. There is an epistemic advantage, I think, in granting these organs standing to challenge and defend the relevant statutes: since they have enacted the statutes or suffer their impact on their own sphere of comprtences, it is quite likely that they will have access to the information that is relevant to decide the controversy.

 

            b) In several European countries (Austria, Germany, Spain, France and Portugal, for example), the parliamentary opposition is granted the power to challenge legislation in the abstract. This possibility is worth preserving. It forces parliamentary debate to become more constitutionalized. Arguments concerning the constitutional validity of the statute will be made by the majority and the minority, and the fact that the minority can use its power to impugn the statute will tend to increase the level of responsibility with which those arguments are made: the majority and the minority will have a day in Court, and the public will see who is right (according to the Court). Of course it is very important that the public be engaged in constitutional debates, and it is crucial, as I argued, that individuals have standing to bring a case to the Constitutional Court to question a statute. But this does not detract from the fact that the “political class” should also be sensitive to constitutional issues. Politicians have a considerable influence in the way public debates are structured, and it is important that their legislative debates should include a constitutional layer. Otherwise the public may not be sufficiently aware of the questions of fundamental justice that underlie a legislative decision.

 

c) That constitutional review can take place in the abstract, in the strong sense that there is no concrete case that triggers the procedure of review, can also have some advantages. I have emphasized the need for a more “case-by-case” kind of constitutional review, given the tendency for modern statutes to be imprecise. Sometimes, however, the possibility of abstract review allows the Court to protect certain rights, or certain aspects of them, that might be more difficult to protect if review should take place in the context of a concrete case.

 

Take the example of social rights. It is sometimes said that there is no a priori reason why some social rights should not be understood to be fundamental. In fact, the case can be made that majoritarian legislatures may sometimes prefer to maximize the trivial interests of the majority that is relatively well-off to the detriment of the fundamental social rights of the poor, that are in the minority. And yet, the problem is that courts may not be in a good institutional position to protect those rights against the legislature. It is rightly said, for example, that social rights can only be satisfied with economic resources, and that only the legislature (when it enacts the annual budget, for example) is in a position to have a systematic view of the needs that have to be met with the resources that are available, which are inevitably scarce. Well, the fact that a Constitutional Court can review statutes in the abstract alters this argument. It may still be true that the Court should defer to the legislative branch when it comes to social rights, but the reason is no longer an institutional reason that has to do with the need for systematicity: the budget can be challenged in the abstract and the Court can review it in its generality.  

 

Or take the “overbreadth doctrine” that the Supreme Court of the United States has articulated to protect freedom of speech. This doctrine makes it possible for a court to declare a statute unconstitutional on its face, if it covers conduct that is privileged under the First Amendment, even though it also covers conduct that is not so privileged. The idea is that the existence of that statute may generate a “chilling effect”, since it will unduly discourage constitutionally protected speech. The interesting point about this doctrine is that he whose speech is not privileged can still make the claim that the statute is unconstitutional. Now, the problem is that this doctrine is seen by some American judges as a strange element in the American system of constitutional adjudication. The idea that constitutional review is linked to the resolution of cases makes it strange that he whose act is not protected as an instance of free speech should be able to claim successfully that the statute is unconstitutional on the grounds that it prohibits other individuals, who are not parties to the lawsuit, from engaging in constitutionally privileged speech.  There seems to be a mismatch between the substantive doctrine and the procedural context of constitutional adjudication in the American system. Of course, the fact that it was in America that this doctrine originated, and that the doctrine is still at work there, shows that substantive doctrines can grow and develop in hostile procedural environments. Still, the tension is felt. In contrast, no such problem arises under a system that allows certain public institutions to challenge statutes in the abstract. Here there is no mismatch between substance and procedure. The public interest in not having a law that chills speech is protected through a public institution that claims that the statute, because it is overbroad, will negatively affect the speech interests of the community as a whole.

 

d) Finally, in some European countries it is possible to ask the Court to determine the constitutionality of certain norms before they are published. In Spain, for example, the government or either House of Parliament may address the Court and require its opinion concerning the constitutional validity of an international treaty that has been signed but not yet ratified by Spain. The Court renders an “advisory opinion”. It seems appropriate to have such a mechanism. Spain has an important interest in making sure that the treaties it enters into with other nations are constitutionally valid. The government or Parliament should not be obliged to wait until a case arises in order to know what the Constitutional Court thinks about that treaty. There is a compelling state interest in having an answer in advance, and the European model can easily accommodate that interest. (A similar procedure exists in France).

 

            These are some of the advantages that can potentially be obtained through a procedure of abstract review of norms triggered by public institutions. This kind of procedure, I think, should be maintained even if the European model moves in the decentralizing direction that I have advocated in this paper. In a way, the small advantage that Europeans have had is that they have been able to construct a system of constitutional review from scratch. They have been able to include in the new Constitutions the norms that regulate the structure and procedures of constitutional review. This has made  possible the establishment of systems under which the Court is granted powers that are not easily reducible to those that the traditional theory of separation of powers has usually associated with the judiciary. Whereas in America, constitutional review had to adopt a shape that guarantees that courts “are still courts”, in Europe, in contrast, the modern framers were free to choose the institutional design that they thought would best ensure that certain functions would be rightly performed. They did not have to bother whether their new Constitutional Court “looked like a court” or not. The fact that, overall, the European model is moving in the American direction attests to the importance of “traditional courts” as the right institutional structures to perform certain basic functions. Still, there is room for manouvre and for institutional imagination, and the fact that many European countries could transcend the “trinitarian conception” of the separation of powers, as Ackerman has put it in another context, is a small plus that Europeans should be able to benefit from.