How can we ensure that a written constitution’s promises will be translated into reality? There is a world of difference between a paper constitution that is merely nominal or semantic (Loewenstein, 147–53), and a normative constitution that constrains and regulates the exercise of political power and secures the enjoyment of human rights. The challenge is one of institutional design: What kind of political and legal structures should be put in place to ensure that a constitution’s provisions will be put into practice? Constitutional rules might be embedded in political practice by the symbolic power of constitutional rules in shaping political discourse or by institutional competition and countervailing powers, both of which prevent breaches of constitutional provisions. Sometimes, though, the constitution may require effective sanctions for such breaches.
Modern constitutional law has developed various means of ‘controls of constitutionality’ to supervise and guarantee the effective implementation of constitutional rules. Cappelletti (1971) draws a distinction between political control1 and judicial control. Judicial control of constitutionality, also known as constitutional judicial review, is the review by a court of the constitutionality of legislation enacted by parliament. This has become a dominant feature of modern constitutionalism, although it has not always been a necessary feature of constitutionalism. In some constitutional cultures, political constitutionalism is still dominant.2
In contemporary constitutionalism, two well-known models of constitutional judicial review exist: the American model of ‘decentralised’ review by ordinary courts, and the continental European model of ‘centralised’ review by a specialised constitutional court. There also exist mixed or hybrid systems that contain features of both these models. Systems of constitutional judicial review also differ in terms of the extent to which the system provides for a stronger or weaker form of judicial review.
The US model of constitutional judicial review is usually traced back to Marbury v Madison,3 although there is a close relationship between the American system and British colonial constitutional law. Chief Justice Marshall pointed out in the Marbury case that the power of the legislature is limited by the constitution established by the people; any law made by the legislature that is repugnant to the constitution is void; and it is the power and responsibility of the court to determine the applicable legal norm where there is a conflict between a statute and the constitution. In the US system, every court has the power to determine whether a statutory provision is unconstitutional and therefore void. Standing at the apex of the hierarchy of courts, the US Supreme Court is the final court of appeal in deciding whether any statutory provision is inconsistent with the constitution.
Britain does not have a written constitution, and there is therefore no practice of constitutional judicial review.4 Colonies in the British Empire had written constitutions enacted by the Crown or Parliament in Britain. Colonial courts had the power, under the colonial constitution, to review whether any provision in an enactment of the colonial legislature was ultra vires and therefore void. This tradition was inherited by Commonwealth countries such as Canada and Australia. The written constitutions of both Canada and Australia provide for a federal system characterised by a constitutionally entrenched division of power between the federal government and the provincial or state governments. Constitutional judicial review in these jurisdictions was mainly concerned with the enforcement of this federal division of power, until Canada in 1982 enacted, by way of constitutional amendment, the Canadian Charter of Rights and Freedoms, which inaugurated in Canada the era of constitutional judicial review in the human rights domain. Constitutional judicial review by ordinary courts is also practised to varying extents in newly independent countries that were formerly parts of the British Empire, such as India, Pakistan, Bangladesh, Sri Lanka, and some other common law countries in Asia and Africa, such as Malaysia and Kenya.
The European model of constitutional judicial review by a specialised constitutional court can be traced back to the Austrian Constitution of 1920, which, under the influence of Hans Kelsen’s jurisprudence, established a constitutional court (Cappelletti 1971, 46–47, 71–72). According to Kelsen’s theory of the hierarchy of legal norms, the constitution stands at the foundational level; the validity of all legal norms is ultimately derived from it. Kelsen proposed the creation of a constitutional court that (unlike the ordinary courts) has jurisdiction to determine whether any legal norm is consistent with the constitution. In his view, the constitutional court is the complement to the legislature; it performs a political and legislative function—that of negative legislation, or nullification of an unconstitutional norm. In Kelsen’s theory, such constitutional judicial review was limited to dealing with inconsistencies between constitutional norms—particularly norms governing the division of power between various state organs—and other lower-level legal norms; it was not concerned with the protection of human rights.5
Constitutional review was also established in Czechoslovakia in 1920, in Liechtenstein in 1921, and in Spain in 1931.6 In Ireland, the 1937 Constitution expressly provided for judicial review of legislation.7 The Austrian constitutional court epitomised the ‘archetypal form’ (Cappelletti 1971, 69) of the kind of constitutional judicial review that is (a) centralised, (b) abstract (i.e. review of a law’s constitutionality not in the context of the facts and circumstances of any concrete case litigated before a court) rather than concrete review (as in the American system or the systems in former British colonies, under which the court reviews the constitutionality of a law only where the application of that law is relevant to a case litigated before the court), and (c) review principaliter (i.e. review in a legal action where the principal or only issue is the constitutionality of a law) rather than review incidenter (as in the US system or the systems in former British colonies, where the review is only incidental to the making of a judicial decision as to which party wins the case) (Cappelletti 1971, 69). In the Austrian system that existed in 1920–1929, the constitutional court conducted only abstract review of laws in actions initiated by other governmental organs for the purpose of such review. The system was modified by the constitutional amendment of 1929, under which the supreme court and central administrative court acquired the right to refer the question of a law’s constitutionality to the constitutional court when such a question arose in cases being tried by them (Cappelletti 1971, 72–74). An element of concrete review or review incidenter was thereby introduced into the Austrian system.
Before the Second World War, ordinary courts in Germany and France made some attempts to practise the American system of constitutional review but did not succeed (Favoreu, 43; Jackson & Tushnet, 527–28). However, the influence of the US system of constitutional review was considerable in Latin America. Brewer-Carías pointed out that there is no necessary connection between a legal system based on the common law and the US system of decentralized constitutional review8; nor is there a necessary connection between a civil law-based legal system and the Austrian model of centralised review. Some civil law countries in Latin America—including Mexico, Argentina, and Brazil—have adopted the American system of constitutional review (Brewer-Carías, 128). At the same time, a hybrid system of constitutional judicial review, in which ‘the ordinary courts may have power to refuse to apply an unconstitutional law, but only a single court has the power to declare a law invalid’ (Jackson & Tushnet, 466), evolved in the course of the nineteenth century in some Latin American countries, including Venezuela and Columbia (Brewer-Carías, 128, 130). By the early twenty-first century, the Supreme Court in 10 Latin American countries has the power to declare a law unconstitutional and to annul it; five of these 10 countries have a special constitutional chamber in the Supreme Court.9 In six other Latin American countries, the power of constitutional review is exercised by a specialised constitutional court.10 For example, since the 1970s, constitutional courts or ‘constitutional guarantee tribunals’ have been established in Chile, Ecuador, and Peru.11 In Argentina and Brazil, a lower court’s decision may be brought before the Supreme Court for review by an ‘extraordinary recourse of unconstitutionality’ (Brewer-Carías, 129).
After the Second World War, major developments in constitutional judicial review occurred in Europe. These developments may be understood in the context of the post-War international movement to enhance the protection of human rights, including the adoption by the United Nations of the Universal Declaration of Human Rights in 1948, and the signature of the European Convention on Human Rights and Fundamental Freedoms in 1950. Both the 1949 Basic Law of West Germany and the new 1947 Constitution of Italy provide for the establishment of constitutional courts, which started to operate in these countries in 1951 and 1956 respectively. In France, the 1958 Constitution of the Fifth Republic provides for a constitutional council. Constitutional courts were established in Spain and Portugal in 1978 and 1982, respectively, after their transition to democracy. Poland also established a constitutional court in 1985. Another wave of founding of constitutional courts followed the collapse of Communism in the former Soviet Union and eastern Europe. Since the early 1990s, constitutional courts have been established in most of the new democracies in Russia, and eastern and central Europe. By the early twenty-first century, constitutional courts exist in 18 of the 27 member states of the European Union, while American-style constitutional judicial review exists in Denmark, Sweden, Finland,12 and Switzerland. Ireland, Portugal, Greece, Cyprus, and Estonia have hybrid systems of constitutional review (Ferreres Comella, 154). The Netherlands and the United Kingdom are exceptional in the sense that they do not have a formal mechanism of constitutional review. Under the Human Rights Act 1998, UK courts may declare the incompatibility of statutory provisions with the European Convention on Human Rights, though they have no power to invalidate such provisions. Dutch courts may review whether legislation is inconsistent with the European Convention on Human Rights, and to strike down statutory provisions that are inconsistent (Koopmans, 44). EU law has also given to all courts in EU member states the power to set aside national legal provisions contrary to EU rules. This is akin to constitutional review and has served, in fact, to promote a system of decentralised constitutional review in EU member states.
From its European and American roots, constitutional judicial review has spread to all parts of the world, and is now clearly a global phenomenon. The institution of constitutional review by ordinary courts is widespread among common law jurisdictions, and has also been introduced in post-War Japan. At the same time, constitutional courts have been established all over the world. Examples of countries outside the European and American continents that have established constitutional courts include Turkey, Egypt, South Africa,13 Ethiopia,14 Senegal,15 Taiwan (Republic of China), Mongolia, South Korea, Cambodia,16 Thailand, and Indonesia. It is no coincidence that some of these courts were established in the 1980s (in South Korea), 1990s (in Mongolia, South Africa, and Thailand), or the first decade of the twenty-first century (in Indonesia) at the time of the transition of their countries from authoritarianism to liberal constitutional democracy, which was also the case in European countries that have undergone such a transition. In the early twenty-first century, a well-developed system of constitutional review is now generally accepted as an essential or desirable feature of a liberal constitutional democracy.
Why did many European states and new democracies in other parts of the world choose to establish specialised constitutional courts instead of adopting US-style constitutional review by ordinary courts? In the case of the civil law jurisdictions in Continental Europe, factors that have favoured the option of having a constitutional court include the following17: (a) the traditional conception of separation of powers according to which the judiciary (of the ordinary courts) should not engage in the ‘political’ function of invalidating Acts of Parliament; (b) the absence of a doctrine of stare decisis (binding precedents) in civil law countries, which means that even if one court rules that a statute is unconstitutional, the ruling does not bind other courts; (c) judicial structure and procedure (such as the plurality of courts specializing in different kinds of litigation); and (d) the legal culture and training of judges of ordinary courts being such that, some fear, these courts may not be appropriate for performing the task of constitutional review. In the case of countries undergoing a transition from authoritarianism to democracy, existing judges ‘would be unlikely to have either the training or the independence from prior regimes to function with legitimacy as constitutional adjudicators’; hence the more viable option is to establish a constitutional court staffed by ‘a small number of respected and untainted jurists’ (Jackson & Tushnet, 468).
Constitutional courts are often given additional functions other than the review of the constitutionality of laws, such as supervising elections and referenda, determining the legality of political parties, or enforcing criminal law against senior officials (Ferreres Comella, 6). The German case provides a well-known example of the operation of a constitutional court. The Federal Constitutional Court (Bundesverfassungsgericht, or BVerG), originally of West Germany, and subsequently of the united Germany (after 1990),18 consists of 16 judges divided into two chambers or senates. Half of the judges are elected by the Bundestag (Federal Parliament), and the other half by the Bundesrat (Council of Constituent States).19 The types of cases over which the court has jurisdiction include, among others, (a) abstract review (upon the request of certain governmental actors, such as the federal government, a state government, or one-third of the members of the Bundestag); (b) concrete review, where other courts may, in the course of hearing cases, refer to the Constitutional Court a question regarding whether a statutory provision is unconstitutional; and (c) constitutional complaints (Verfassungsbeschwerde) by persons who allege that their basic rights have been violated by governmental actions, including administrative actions and judicial decisions. In practice, most of the cases dealt with by the Court arose from constitutional complaints, and most such complaints were against decisions of other courts (Jackson & Tushnet, 529–30). Kommers suggests that the institution of constitutional complaints has contributed to the high standing of the Constitutional Court in the eyes of members of the public, and to the ‘rising constitutional consciousness among Germans generally’ (Kommers, 28).
The model of the German Constitutional Court has much in common with that of other European states, such as the Italian and Spanish Constitutional Courts (Favoreu, 52–54). In France, constitutional judicial review has traditionally been much more limited. Since the French Revolution, the conception of legislation (as expressing the ‘general will’) and the supremacy of Parliament was such that courts did not have any power to strike down laws enacted by Parliament. The 1958 Constitution of the Fifth Republic established for the first time a constitutional council (Conseil Constitutionnel), with the role mainly of protecting the boundaries between the Parliament and the executive. The council was given the power to review the constitutionality of bills adopted by Parliament before the bills came into effect as laws. This kind of review may be characterised as ‘preventive’ (preventing an unconstitutional law from coming into force) or ‘a priori’ review (before the formal promulgation of a law) (Ferreres Comella, 7). The role of the constitutional council expanded significantly since the council’s landmark decision in 1971 in the case of Liberté d’Association, which de facto ‘incorporated’ into the Constitution the French Declaration of the Rights of Man and of the Citizen (of the year 1789), the Preamble to the 1946 Constitution, or ‘the fundamental principles recognized by the laws of the Republic’. Since 1971, therefore, the constitutional council has used its power not only to maintain the boundary between the powers of legislative and executive organs but also to protect human rights. A constitutional reform in 1974 further expanded the council’s role by empowering 60 members of either chamber of Parliament to activate the council’s review jurisdiction. Almost every controversial bill is now referred to the council for review (Morton, 90–92). The council’s power of review was confined to abstract preventive review until a constitutional amendment of 2008 introduced concrete review into the French system, by establishing a system of judicial referral subject to a filtering process involving the two highest courts.
There is, therefore, an increased degree of convergence in Europe with regard to the forms of constitutional judicial review and the roles attributed to constitutional courts. Some have identified a similar, albeit slower and more limited, trend towards convergence between the European and American models of constitutional review (Cappelletti 1971; Favoreu 1990). As stated above, one factor contributing to this trend is the empowerment by EU law of lower courts to review the validity of national laws in light of EU rules.
In addition to the distinction between US-style and European-style review, another distinction is that between what can be called a strong form of constitutional judicial review and a weak form. This distinction is based on the relative powers of, and relationship between, the court and the Parliament. Strong constitutional judicial review may be said to exist where the court’s determination on constitutionality is final and conclusive, and is binding on all persons and organs until and unless the court overrules itself in another case, or a constitutional amendment is enacted that alters the constitutional rule on which the court’s original decision was based. Strong constitutional judicial review exists in both the USA and Germany, although they practise decentralised and centralised review respectively.
Weak constitutional judicial review exists where the court’s determination that a particular law is unconstitutional and invalid can be superseded or overridden by a subsequent legislative act (not a constitutional amendment) that re-affirms this law by a special majority or even just a simple majority. The most well-known example of this form is Canada under its 1982 Constitution, which provides for an ‘override’ mechanism20: Parliament may (by a simple majority) validate a statute even if it is inconsistent with certain provisions of the Canadian Charter of Rights and Freedoms as interpreted by the court. Such validation automatically expires after five years unless it is extended. This ‘override’ mechanism is not, however, applicable to certain Charter rights considered essential to the democratic process.
The system introduced in the UK by the Human Rights Act (HRA) 1998 may be regarded as a form of constitutional judicial review that is even weaker than the Canadian review. A British court may only declare provisions in an Act of Parliament to be inconsistent with the HRA (and the European Convention on Human Rights) but has no power to invalidate the provisions. It will then be up to Parliament to decide whether, and if so how, the former Act is to be amended. ‘Preventive’ or ‘a priori’ review, and ‘consultative’ review (Cappelletti 1971, 2),21 may also be regarded as weak forms of constitutional judicial review. In practice, however, in some of these regimes of formal weak review, the political culture has developed a deference towards judicial judgments that empowers the judiciary more than in some regimes with formal strong review.
The strongest form of constitutional judicial review may be said to exist where the court has—or has successfully claimed—the power to determine, in the final analysis, whether a constitutional amendment itself is constitutional and valid. For example, in the German Basic Law, the ‘eternity clause’ (Article 79(3)) prohibits constitutional amendments of certain core principles of the Basic Law. The constitutional court is the ultimate authority for determining whether a constitutional amendment is valid.22 In India, the Supreme Court has, in the famous Kesavananda Bharati case (in 1973) and subsequent cases, enunciated a doctrine that the ‘basic structure’ of the constitution may not be validly amended (Krishnaswamy 2009; Ramachandran 2000). The constitutional court in Taiwan adopted a similar approach in 2000.23
Constitutional judicial review in most of its forms involves the court’s invalidation of provisions in legislative Acts on the ground that the provisions are unconstitutional. Insofar as the court consists of unelected judges whereas Parliament consists of the elected representatives of the people, the institution of constitutional judicial review may appear undemocratic or counter-majoritarian. Its legitimacy has thus been questioned from time to time (Bickel 1986). A long-standing debate has taken place on what is the proper role of courts in constitutional review. The usual focus of this debate is on the methods of interpretation to be adopted by courts (Garcìa Belaunde, 3421 ff.), but the discussion is linked to broader normative preferences regarding the role of courts in shaping political and social life, and the proper balance of power between the judiciary and the political process in a democratic political community.
The peculiar nature of constitutional interpretation poses a major problem of method. Courts employ a variety of methods of interpretation: text, legislative history, context, purpose or telos are among those most used in judicial decisions.24 It is through this arsenal of professional techniques that judges construct the legal arguments by which they justify their judicial decisions. This recourse to the ‘language’ of a particular community of judicial discourse25 is a usual step taken by courts in the objectivisation of the process of interpretation by reference to the particular community where it takes place (Fiss, 739–63). However, such language can be used to construct rather different legal arguments. The nature of the law and its changing context of application is such that there is often a normative gap between the text and the social reality in which courts are called upon to intervene.
We can identify at least three different ways of dealing with the role of courts in addressing such normative gaps. Often presented as theories of constitutional interpretation or constitutional justice, they express, above all, different institutional preferences regarding the role to be played by courts and other institutional alternatives26 in enforcing the constitution. First, one can simply assume that the normative gap inherent in the process of interpretation ought to be filled by courts. This is legitimated by the institutional authority of courts. Interpretation renders law objective by reason of the meaning attributed to particular norms by courts; it is the courts’ interpretative authority that renders law objective and not vice versa. To a certain extent, this is the never-quite-articulated theory of interpretation and constitutional justice that has largely dominated the practice of constitutional review in Europe. Any normative gap of constitutional interpretation is construed as a delegation to courts. Constitutional review is the process through which courts exercise their exclusive authority of interpretation. This is an approach that emphasises the power of courts at the expense of the political process in giving meaning to constitutional text.
This constitutional practice is theorised in rather different ways by some versions of legal positivism,27 legal realism,28 and critical legal studies.29 They all recognise, at either a normative or empirical level, that courts do have the authority to fill the normative gaps of the constitution. What varies between them is that for some, such authority derives from the construction of the legal system as complete and fully insulated from outside arguments, in which case the existence of such normative gaps is itself denied, while for others, such authority is a given of the institutional position that courts have acquired in a particular legal system. This is not to imply that under such theories, there are no constraints imposed on courts, but what they have in common is the conception of those constraints as external to the process of legal interpretation.30 They all empower courts at the expense of the political process.
Such approaches to constitutional review are challenged because they keep outside of judicial reasoning other relevant constitutional dimensions and arguments in determining the appropriate levels and forms of judicial review. That there are other relevant dimensions of constitutional interpretation, in particular those concerning its relationship with the political process, is made obvious by the fact that all courts end up developing mechanisms of self-restraint.31 They do not come in the form of theories of judicial deference but, instead, appear in the form of procedural filters,32 narrowly tailored decisions or limitations of the effects of judicial decisions.33 Sometimes, the resistance to the internalisation and articulation of the other dimensions of constitutional interpretation in judicial reasoning leads to apparently inconsistent judicial outcomes. This is a simple product of the fact that variations in the degree of judicial scrutiny remain unarticulated in the case law.
A second approach to constitutional review argues that the normative gaps identified in constitutional interpretation ought to be filled by the political process. The most usual version of this is to be found in some of those arguing for a formal interpretation of the law. Unlike the versions of legal formalism associated with legal positivism that believe that existing constitutional rules provide courts with all the answers, this kind of formalism recognises that rules do not provide all the answers and that, precisely because this is so, courts must develop methods of interpretation narrowing their own discretion and protecting that of the political process. We can define this approach as formal constructivism. These theories adopt formal methods of interpretation even to artificially govern areas that could be considered as involving substantive judicial discretion in light of the legal text. The argument is that formalism is what best constrains courts. These theories require, in practice, an objective meaning of the norm that is static in time. If the text itself is not clear, then such meaning is to be found in the historical context of its enactment,34 the intent of the legislator,35 a holistic interpretation of the language employed (Amar), a rule-bound combination of plain meaning and agency deference (Vermeule), a direct and popular decoding,36 or any other purportedly objective and formal meaning (external to the interpreter’s preferences). This appears to be the currently dominant conception of constitutional review in the United States.37
These theories also limit the scope of arguments to be employed by courts. They close the constitution by appealing to formal arguments; thus they are in tension with the universalist claims usually associated with constitutionalism. Constitutional norms derive their superior authority from their purporting to reflect universal principles intended to bound us under a kind of prospective veil of ignorance (Rubenfeld, 188). Agreement on such general principles is meant to be an agreement on the universal potential of such principles abstracting from their concrete historical meaning. This openness of constitutional law should not be artificially closed. This discussion highlights the fundamental challenge to formal constructivist theories: in light of the openness of constitutional law, why should the political process always be presumed to be superior to the judicial process in giving meaning to substantive areas of discretion in constitutional law?
This question is equally valid for another theory aimed at limiting the judicial role so as to empower the political process: judicial minimalism as argued by Cass Sunstein (1999). Courts should show deference to the political process by narrowing the scope and depth of their judicial decisions. They should decide only issues specific to the cases actually before them, without laying down broad rules for future application. As Chief Justice Roberts of the US Supreme Court put it, ‘If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.’38 Judicial minimalism may also be a simple product of the constraints of deliberation. Particularly in courts without dissents, it is usual for judges to agree on minimalist decisions, keeping disagreement on questions of principle while agreeing on how to resolve the particular case.
These approaches prefer the meaning of the constitution to be determined by the political process and not courts. Their popularity in the United States is understandable in view of the democratic concerns raised by constitutional review historically, since it was introduced by the Supreme Court in the absence of any express constitutional provision to such effect (contrary to what came to be the case in most modern constitutions). But such a general presumption in favour of the political process in interpreting constitutions is itself a product of a systemic understanding of the constitution and the legal order39—one that must be justified.
The third approach to constitutional review entrusts courts with a specific constitutional mission, involving a particular normative goal that ought to guide them in interpreting and applying the constitution. Both the legitimacy and the role of courts in constitutional review are determined by a particular function entrusted to them by the constitution. Adopting this approach, some defend judicial review by explaining that it enables the values in natural law to be realised in a largely positivist legal system (Cappelletti 1971). Others identify constitutional justice with a set of constitutional values (in particular, human rights or human dignity) inherent in the constitutional document interpreted as a living one.40 Others focus on a more procedural conception of the constitutional role of courts to secure the proper functioning of the democratic process by correcting representative malfunctions.41 Challenges to these theories would highlight, instead, how courts themselves can be victims of institutional malfunctions (Komesar 1994 and 2001).
Constitutional courts themselves rarely engage in such debates or even in justifications of the different levels of judicial scrutiny that are often employed under the same constitutional rules. The most famous exception is in a footnote of a US Supreme Court opinion highlighting that certain discrete and insular minorities deserve additional protection by constitutional justice.42 Even outside their written judicial opinions, it remains uncommon for constitutional judges to articulate any theory of constitutional interpretation or judicial review.43
The scholarly debate on constitutional justice does highlight a reality where courts and the political process (as well as other institutional alternatives) compete in giving meaning to constitutions. The debate is mostly about the relative merits of these institutions in the pursuit of constitutional goals.44 But that, after all, is both what explains the emergence of constitutional judicial review and the debates surrounding it.
* The authors’ names here are in alphabetical order.
1 Political control is exercised by political or non-judicial organs.
2 For recent defences of political constitutionalism, see, e.g. Tushnet; Bellamy. Tushnet calls his version ‘populist constitutionalism’.
3 1 Cranch 137 (1803).
4 However, under the law of the European Communities (now the European Union), British courts (if necessary, on the basis of interpretations of EU law provided by the European Court of Justice) may review and invalidate UK law that is inconsistent with applicable EU law. Moreover, under the European Convention on Human Rights, the European Court of Human Rights may review the compatibility of UK law with the Convention. After the enactment by the British Parliament of the Human Rights Act 1998, the highest courts in the UK may also review the compatibility of UK law with the Convention (as incorporated into the Act), though they may not invalidate such incompatible law.
5 See generally Kelsen 1942; Kelsen 1961.
6 Ferreres Comella 2009, 3.
7 Koopmans 2003, 42.
8 Brewer-Carías (1989, 186–87) provides the following examples of common law countries with a centralised form of constitutional review by a single court: Papua New Guinea, Uganda (under its 1966 Constitution), and Ghana (under its Constitutions of 1960, 1969, and 1979). He draws three conclusions from his comparative study (at 188): ‘first, the concentrated system of judicial review can only exist when it is established expressis verbis in a Constitution, … second, the concentrated system of judicial review is compatible with any legal system, whether common law or Roman law legal systems; third, the concentrated system of judicial review does not imply the attribution of the functions of constitutional justice to a special Constitutional Court, Tribunal or Council … It may also exist when constitutional justice functions are attributed to the existing Supreme Court of the country …’
9 Jackson & Tushnet, 493; Ferreres Comella, 5.
10 They are Peru, Guatemala, Chile, Ecuador, Bolivia, and Colombia: see Ferreres Comella, 5; Jackson & Tushnet, 493.
11 Brewer-Carías, 190; Ferreres Comella, 5.
12 Finland has a tradition of ex ante review of the constitutionality of bills by the Parliament’s Constitutional Law Committee. This committee consists only of Members of Parliament, but in its decision-making process it consults academic experts whose opinions are given considerable weight. In addition to this kind of constitutional review, the Finnish Constitution of 1999 also introduced a system of ex post review by courts in cases where ‘the application of an Act of Parliament would be in manifest conflict with the Constitution’. See Lavapuro et al.
13 The South African Constitution of 1996 not only establishes a constitutional court but expressly provides that when interpreting the constitutional bill of rights, a court ‘must consider international law’ and ‘may consider foreign law’: see Article 39 of the Constitution.
14 In Ethiopia, the Council of Constitutional Inquiry (CCI) established by the 1994 Constitution is a quasi-constitutional court. This constitution vests the power of constitutional review and interpretation in the second chamber of Ethiopia’s Parliament, known as the House of the Federation, which in exercising this power acts on the (non-binding) advice of the CCI, which consists of the president and vice-president of the Supreme Court, six legal experts and three members of the House of the Federation. See Takele Soboka Bulto.
15 Senegal has a French-style constitutional council. See below on the French Conseil Constitutionnel.
16 Cambodia has a French-style constitutional council that also has some functions in ex post concrete review: see Menzel, 55–57.
17 Cappelletti 1971, 54–66; Jackson & Tushnet 467–68.
18 See generally Kommers.
19 See the Basic Law, Art. 94, which also provides that the court ‘shall consist of federal judges and other members’. At least six of the 16 judges of the court must have served as federal judges. In practice, law professors constitute the largest group of appointees to the court, which is also the case in the Italian and Spanish Constitutional Courts. See generally Stone Sweet, 48.
20 Canada Constitution Act 1982, s. 33. See Dorsen, 152.
21 Consultative review refers to the advisory or reference jurisdiction of the supreme court—upon request by the government—to deliver an advisory opinion, which is not binding, on a constitutional question. Such a system exists in Canada and India.
22 In Portugal, which has a similar clause, a long discussion has taken place on the extent to which the clause itself could be amended. See Miranda.
23 The Council of Grand Justices’ Interpretation No. 499 (March 2000): see www.judicial.gov.tw/constitutionalcourt. See also Yeh, 59.
24 Coherently with the historical classification by Savigny (1840). For a modern (and more articulate) treatment, see Bobbitt.
25 It is a language that also varies depending on the constitutional culture that dominates a particular political community: see Kahn.
26 On comparative institutional analysis, see Komesar 1994.
27 See Kelsen 1930–31; Raz, 180 ff. and the reflections of Garlicki & Zakrzewski, 31 and Waluchow.
28 See e.g. Holmes; Ross, 108 ff.; Llewellyn; and the historical reviews in Peces-Barba Martìnez; and Tamanaha.
29 See e.g. Kennedy 1973, and the broad considerations in Kennedy 1997.
30 For an example, see Troper 1978, 287–302 (and particularly at 293–95) and Troper 1990, 31–48, departing from a notion of interpretation as an act of will and not knowledge, in a way very similar to Fish.
31 See Komesar 2001.
32 Bickel 1961, 75. See also Bickel 1986, 111 ff.
33 Sunstein.
34 I.e. in the ‘original meaning’ of the norm: see Scalia 1989; Barnett. For a recent review on the subject, see Balkin.
35 See historically Crosskey; Berger; and Bork.
36 See Tushnet 1999, Kramer 2004.
37 Despite, of course, the great difference between the authors just considered.
38 Chief Justice John G Roberts, Jr, Georgetown Law Center Commencement Address, 21 May 2006.
39 Paradoxically, departing from such systemic understanding is in contradiction with a formalist conception of interpretation.
40 Dworkin 1977, 131 ff; Dworkin 1985, 32 ff, 69–70; Strauss.
41 See, e.g. Ely.
42 See, e.g. the famous footnote 4 of Justice Stone’s opinion in United States v Carolene Products Co (1938) 304 US 144.
43 For recent, well-known exceptions, see Scalia 1997; Posner 1990 and 2003; and also Zagrebelsky; Barak; Lorenzetti.
44 Komesar 1994 and 2001; Shapiro 1964 and 1981.
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