Basic Conceps of Law Dersi - 1. Makale

Louis Favoreu, Constitutional Review in Europe, in CONSTITUTIONALISM AND RIGHTS: THE INFLUENCE OF THE UNITED STATES CONSTITUTION ABROAD (Louis Henkin & Albert J. Rosenthal eds., 1990).

For Europeans, the primary interest in United States constitutional jurisprudence is the idea of constitutional review and the protection it provides for fundamental rights . . . . The illusive representation of United States constitutional jurisprudence has sometimes influenced the actions of governments and the writings of European scholars. . . . [but] has never been incorporated in or applied under any of France's successive constitutions. Italy and Spain have established systems of constitutional review quite different from that which prevails in the United States.

From an historical viewpoint, the United States example undoubtedly has had a decisive impact on constitutional development and the protection of rights. The Founding Fathers had drawn upon the European intellectual background developed during the seventeenth and eighteenth centuries, but the United States was the first to elaborate a modern written constitution and a bill of rights.

The French 1789 Declaration des droits de l'homme et du citoyen and the 1791 Constitution were a second instance of the constitutionalism initiated in the United States. It is significant to recall that the first draft of the United States Bill of Rights was presented in France to the Assemblee Constituante on July 11, 1789, by the Marquis de La Fayette, who was known_ for his appreciation of American ideas, developed in the course of his stay in the United States during the drafting of the fundamen-tal texts. Furthermore, when on July 27, 1789, Champion de Cice reported to the Assemblee Constituante the works of the Constitutional Committee and the decision to have the proposed constitution for France preceded by a bill. of rights, he said:
This noble idea coming from another hemisphere was to be implement-ed here first. We participated in the events which led North America to freedom: it shows us on which principles we should rely to keep ours. The New World on which we put chains in the past is today showing us how to protect ourselves from being chained.

So the United States exported to Europe the concept of a written constitution and a bill of rights. . . .
. . . [The U.S. contribution to the theory of] constitutional review has had great impact both on political theory and on political practice. The practical impact, however, is often misconceived.... The idea of reviewing legislation to determine whether it conforms to a constitution is undoubt-edly American, but the implementation of that idea in Europe has followed different paths.

The United States, then, contributed to the theory of European consti-tutional law the idea of a written constitution and a bill of rights obtained by the people's representatives, the idea of constitutional review, and the idea that the supremacy of constitutional rules is genuine only if it is guaranteed by an institution that is independent of the political authorities whose acts are being reviewed.

But for a long time, constitutional review was not established in Europe, whether for reasons of fundamental principle, the inconsistency of such review with the sovereignty of parliaments, or for a "technical reason," the unacceptability of entrusting such review to the courts.... Jean Rivero suggested that "before World War II ... constitutional review was for public law like Western and American comedy for movies an American specialty."

 An early attempt to establish American-style constitutional review met many obstacles .... The "American way" proving unfeasible, another way appeared, beginning after World War I, first in Austria and then, after World War II, in several Western European countries. This model of constitutional justice the Austrian or Kelsenian model became the Euro-pean model.

The essential difference between the United States and the European models is in the way constitutional review is organized In the United States constitutional review is exercised by the entire court system; in Europe  it is exercised by a unique, specialized court. In other respects  - particularly regarding the function and impact of constitutional review—there are great similarities.

TWO MODELS OF CONSTITUTIONAL REVIEW . . .

In the American system, constitutional review is lodged in the judicial system as a whole, and is not distinct from the administration of justice generally. All disputes, whatever their nature, are decided by the same courts, by the same procedures, in essentially similar circumstances. Con-stitutional matters may be found in any case and do not receive special treatment. At bottom, then, there is no particular "constitutional litiga-tion," anymore than there is administrative litigation; there is no reason to distinguish among cases or controversies raised before the same court. Moreover, in de Tocqueville's words, "An American court can only adjudi-cate when there is litigation; it deals only with a particular case, and it cannot act until its jurisdiction is invoked." Review by the court, therefore, leads to a judgment limited in principle to the case decided, although a decision by the Supreme Court has general authority for the lower courts.

In the European system, constitutional review is organized differently. It is common in Europe to differentiate among categories of litigation (administrative, civil, commercial, social, or criminal) and to have them decided by different courts. Constitutional litigation, too, is distinguished from other litigation and is dealt with separately. Constitutional issues are decided by a court specially established for this purpose and enjoying a monopoly on constitutional litigation. That means that, unlike United States courts, the ordinary German, Austrian, Italian, Spanish, or French courts cannot decide constitutional issues. At most they can refer an issue to the constitutional court for a decision; the decision of the constitutional court will be binding on the ordinary courts.

In Europe, moreover, in general, the constitutionality of a law is examined in the abstract, not, as in the United States, in the context of a specific case; therefore the lawfulness of legislation is considered in general, without taking into account the precise circumstances of any particular case. This is because in Europe constitutional issues [may be] . . . raised by a public authority (the government, members of Parliament, courts) .

 As a consequence, the effect of the decision is erga omnes, i.e., applicable to all, absolute. When a European constitutional judge declares an act unconstitutional, his declaration has the effect of annulling the act, of making it disappear from the legal order. It is no longer in force; it has no further legal effect for anybody, and sometimes the ruling of unconstitu-tionality operates retroactively. Kelsen characterized the constitutional court as a "negative legislator," as distinguished from the "positive legisla-tor," the parliament.

 The United States model and the European model, however, are two means to the same end. Both have to fulfill the same tasks:

* Above all, the United States and the European systems protect fundamental rights against infringement by governmental authority, particularly the legislature. The means are different, but the ends are the same and the results similar.

* Both systems generally try to maintain a balance between the state and the entities of which it is composed. In a federal state, constitu-tional review serves that function whether the system of review follows the United States model or the European one. The United States Supreme Court and the German Constitutional Tribunal play a similar role in maintaining the balance between the federal govern-ment and the member states.

* United States and European constitutional courts perform the same tasks, as contemplated by their respective constitutions, when they protect the separation of powers—the division of authority between the various organs of the state, whether between the executive and the legislature, or between the chambers of Parliament.

* In Europe, as in the United States, constitutional courts may have to decide electoral disputes regarding the highest positions in the state, or the arraignment of the highest political authorities.

In both the United States and the European models, constitutional review is vested with an essential and delicate mission: to decide political issues in legal terms. In both the United States and Europe, it incurs the risk of displeasing both the executive and the legislature. In both systems, the Court is subject to the same criticism, sometimes for being too timid, sometimes, to the contrary, for being too "activist" or daring.

THE UNITED STATES MODEL IN EUROPE BETWEEN THE WARS ...

At the beginning of the twentieth century, and particularly between the two world wars, the United States model was very popular in Europe, especially in France, Germany, and Italy. In France, a campaign in favor of establishing the American model of constitutional review was initiated in 1902 by Dean Lsrnaude in the Societe de Legislation Comparee. Famous writers as well as politicians backed the idea, but this led a French specialist of the American system, Edouard Lambert, to write a famous book on "government by the judges" and their part in the struggle for social legislation in the United States. Because some jurists and some politicians of very different ideologies had "suddenly come to agree that it is necessary to introduce into our constitutional system judicial review as in the United States," Lambert deemed it necessary to show the French the results of the American experience. In effect, he indicted the Supreme Court for having curbed social progress and for being an instrument of conservatism generally.

Lambert's work did not slow down the momentum to implement the United States model. The campaign even spread to the newspapers. An inquiry was published in the November-December 1925 issue of Le Temps. In December 1925 a debate was held at the Academie des Sciences Morales et Politiques. The most renowned public law specialists—Professors Ber-thelemy, Duguit, Hauriou, Mestre, and Rolland—reached agreement—itself an unusual occurrence—to instigate the judges of the ordinary courts to "dare" to follow the American example. The results, however, were mea-ger. In a few cases the Conseil d'Pitat or the Cour de Cassation* seemed to avoid giving effect to an unconstitutional law by interpreting it so as to bring it within constitutional limits; but there was no case in which either the Conseil d'tat or the Cour formally declared a law unconstitutional. When a constitutional issue was raised before an ordinary court, whether an administrative or civil court, the judge took the position that he had to apply the law and could not consider whether the law was constitutional.. That is the position today, and writers at present hardly support the United States system in principle. ... France, we shall see, has introduced constitutional review by the Conseil Constitutionnel, but it is not the United States model.

 In Germany, beginning with a decision of the Reich Tribunal on November 4, 1925, ordinary courts accepted the responsibility of reviewing

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