Judicial review and constitutional courts

Constitutional review is the power of a court to check whether laws and government acts conform to the constitution and to set aside, or refuse to apply, those that do not. It turns a constitution from a political declaration into enforceable higher law. There are two main families:

• Decentralised (diffuse) review, on the American model: any court may refuse to apply an unconstitutional law in a case before it, with a supreme court having the final word.
• Centralised review, on the Austrian or "Kelsenian" model: a specialised constitutional court has exclusive power to annul laws, often including abstract review of a statute before or soon after it takes effect, at the request of political actors such as a parliamentary minority, without a concrete dispute.

Review can also be strong-form (courts can invalidate legislation) or weak-form (courts can declare incompatibility or interpret laws, but the legislature has the last word), as under the UK Human Rights Act 1998 or the Canadian "notwithstanding clause".

Defenders see review as the institutional core of constitutionalism and the separation of powers: it protects individual and minority rights against majorities, enforces federal divisions of power and keeps elected officials within the rules of political competition. John Hart Ely's "representation-reinforcing" theory argues that courts should above all police the democratic process itself, protecting voting rights, speech and minorities who are excluded from coalitions.

Critics, most prominently Jeremy Waldron, argue that in societies with working democratic institutions and broad commitment to rights, disagreements about rights are reasonable disagreements that should be settled by elected legislatures, not by majority votes among a few unelected judges. Political scientists add a strategic perspective: Ran Hirschl's "hegemonic preservation" thesis holds that elites facing loss of power empower courts to protect their interests, and Tom Ginsburg's "insurance" theory suggests that parties uncertain of future electoral success create strong courts as protection.

Main design choices

• United States, 1803. In Marbury v. Madison the Supreme Court held that it is "emphatically the province and duty of the judicial department to say what the law is" and declined to apply a provision of the Judiciary Act of 1789. The power is not explicit in the constitution's text.
• Austria, 1920. The Federal Constitutional Law of 1920, drafted with Hans Kelsen's participation, created a specialised Constitutional Court able to annul statutes. This became the template for post-war Europe.
• Germany, 1951. The Federal Constitutional Court hears individual constitutional complaints, abstract review petitions and disputes between state organs. It enjoys high public trust and has shaped areas from party bans to European integration.
• Post-1989 and post-colonial waves. New democracies in Central Europe, Asia, Africa and Latin America created constitutional courts; Ginsburg's study of Korea, Taiwan and Mongolia traces how political uncertainty shaped their powers.
• Backsliding. Hungary's Fourth Amendment (2013) repealed the Constitutional Court's rulings delivered before the Fundamental Law took effect and limited its review of constitutional amendments; the Venice Commission found it seriously undermined constitutional review. In Poland the disputed appointment of judges to the Constitutional Tribunal in 2015 led the European Court of Human Rights to hold, in Xero Flor v. Poland (2021), that a panel including an irregularly appointed judge was not a "tribunal established by law".
• Switzerland, an exception. Article 190 of the Swiss Federal Constitution obliges courts to apply federal acts, so the Federal Supreme Court cannot strike down federal statutes as unconstitutional. The traditional justification is direct democracy: any federal law can be challenged by optional referendum.

• Counter-majoritarian difficulty. Unelected judges with long tenure can override legislation on contested moral questions, and their decisions are hard to reverse except by constitutional amendment.
• Politicisation. Where courts decide high-stakes questions, appointments become intensely partisan, as in the United States, and governments attempting to entrench themselves target courts first.
• Limited protection in crises. Courts depend on compliance by other branches. Evidence on term-limit evasion and democratic backsliding shows that courts are often bypassed, packed or ignored when incumbents are determined.
• Juristocracy. Hirschl argues that transferring decisions to courts can depoliticise distributive questions and favour elite interests.
• Alternatives. Weak-form review, legislative rights committees, direct democracy and pre-legislative scrutiny by independent councils (such as France's Conseil constitutionnel before 2008, which reviewed laws only before promulgation) show that review is a spectrum, not a binary.

Constitutional review spread from a handful of countries in 1945 to the large majority of written constitutions today, and specialised constitutional courts are the dominant model outside the common-law world. Comparative research credits strong, independent courts with protecting rights and electoral competition in many new democracies, but also documents how quickly they can be captured. The institutional lesson is that review works when appointment rules require broad consensus, judges have secure non-renewable terms, and there is a political culture of compliance; without those conditions the court can become an instrument of the power it was meant to check.

• Marbury v. Madison (1803), full text, Legal Information Institute
• Venice Commission (2013), Opinion on the Fourth Amendment to the Fundamental Law of Hungary012-e)
• European Court of Human Rights, Xero Flor v. Poland (2021)
• Swiss Federal Constitution (Article 190), Fedlex
• Jeremy Waldron, "The Core of the Case Against Judicial Review", Yale Law Journal 115 (2006)
• Ran Hirschl, Towards Juristocracy (Harvard University Press, 2004); Tom Ginsburg, Judicial Review in New Democracies (Cambridge University Press, 2003)