The American and European Models of Constitutional Review Alec Stone Sweet Yale Law School

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The American and European Models of
Constitutional ReviewAlec Stone SweetYale Law
School
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• Three tasks for today
• 1. Contrast the American Model of Judicial
  Review with the European Model of Constitutional
  Review.
• 2. Examine the three main modes of
  constitutional review found in the European
  model abstract review, concrete review, and the
  individual constitutional complaint.
• 3. Describe how abstract review operates in
  the United States, despite the case or
  controversy requirement.

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The American Model

• Article 3, Federal Constitution of the U.S.
• The judicial Power shall extend to all Cases, in
  Law and Equity, arising under this Constitution
  the Laws of the United States . . . and . . .
  to Controversies to which the United States shall
  be a party to Controversies between two or more
  States between a State and Citizens of another
  State and between Citizens of different States
  . . ..
• This is the basis of the case of controversy
  rule governing justiciability for American
  courts.
• Advisory opinions are prohibited.
• Marbury v. Madison (1803) established the power
  of (constitutional) judicial review. What is
  judicial review?

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• American judicial review
• Authority is decentralized all judges possess
  the power to annul a statute on the grounds that
  it violates the constitution law.
• The Supreme Court is a court of general
  jurisdiction it is the highest court of appeal
  in the legal order, for all issues of law, not
  just constitutional issues.
• Judicial review is defensible under prevailing
  separation of powers doctrines to the extent that
  it is case or controversy review. Judges
  possess review authority because their legal duty
  is to resolve legal cases, some of which will
  have a constitutional dimension.
• Judicial review is understood to be concrete,
  in that it is exercised pursuant to ordinary
  litigation. Abstract review decisions look
  suspiciously like advisory opinions, which are
  prohibited under American separation of powers
  doctrines.

• European constitutional review
• Authority is centralized only the constitutional
  court may annul a statute as unconstitutional.
  Judicial review of statute is prohibited.
• The Constitutional Courts jurisdiction is
  restricted to resolving constitutional disputes.
  The ordinary courts handle civil suits and
  criminal matters.
• Review powers are defensible under separation of
  powers doctrines to the extent that it is not
  exercised by the judiciary, but by a specialized
  constitutional organ, the constitutional court.
  
• Constitutional review is typically abstract
  the review court does not resolve concrete
  cases between two litigating parties, but
  answers constitutional questions referred to it
  by judges or elected officials. Judicial review
  looks like a confusion of powers, since the
  judges participate in the legislative function.

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American Judicial Review

• Judicial Review review is exercised pursuant to
  a legal case being brought before a judge.
• A case a legal dispute brought to a court in
  the form of litigation between two parties who
  have opposed interests in the outcome of the
  dispute.
• Standing and mootness are ways for the courts
  to verify concreteness. American courts are
  expected to deny standing to parties that fail to
  show some degree of direct interest in the
  review of a law.
• Review is activated once one of the parties
  pleads the constitution, such as a right. Any
  court can, at the behest of either party, void a
  law as unconstitutional if that court determines
  that the statute violates the constitution.

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European Modes of Review

• Abstract Review
• Abstract review is initiated when elected
  officials typically the parliamentary
  opposition, the executive, or the government of a
  regional of federated state refer a law for
  review after the law has been adopted by the
  legislature, but before it has been enforced.
• This mode of review is called abstract because
  it proceeds in the absence of a concrete judicial
  case, since the law has yet to be applied. The
  review court compares the constitutional text and
  the statute, in the abstract, to determine if the
  latter conforms to the former.
• Abstract review is also called preventive
  review, since it allows the system to filter out
  unconstitutional laws before they can harm people.

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• Concrete Review
• Concrete review is initiated when an ordinary
  judge, presiding over litigation in the courts,
  refers a constitutional question for example,
  is law X, which is normally applicable to the
  dispute at bar, unconstitutional? that the
  constitutional court must answer. The referring
  judge then resolves the dispute with reference to
  the constitutional courts ruling. This mode of
  review is called concrete since it is related
  to a concrete case already underway in the
  ordinary courts. In comparison with American
  judicial review, however, concrete review still
  looks more abstract, in that the constitutional
  court does not preside over, or settle the case,
  which remains the responsibility of the referring
  judge.

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• The Constitutional Complaint
• Individuals may activate the constitutional court
  directly by sending to the judges a
  constitutional complaint, which alleges that
  their rights have been violated by a public
  authority, after judicial remedies have been
  exhausted or are not available.
• Most constitutional complaints are, in effect,
  appeals of judicial decisions. Thus concrete
  review and the complaint often work together in a
  long extended process. Example Farmer Fritz and
  the expropriation of his pasture to build an
  Autobahn in Germany.

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• Table 9.1 Regional Distribution of Models of
  Constitutional Review in 2000
• CJR EM Mixed Other None
• Europe 5 31 3 (1) 1 2
• Africa 12 29 1 6 3
• Middle East 2 5 0 3 1
• Asia and SE Asia 18 13 2 11 0
• North America 2 0 0 0 0
• Central America 3 3 3 (1) 0 0
• South America 3 4 5 (3) 0 0
• Caribbean 8 0 0 1 0
• Totals 53 85 14 22 6

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Abstract Review

• Abstract review the pre-enforcement review of
  statutes.
• Abstract review is also called preventive
  review, since its purpose is to filter out
  unconstitutional laws before they can harm
  anyone.
• In Europe, abstract review is politically-initiate
  d. Typically, executives, parliamentary
  minorities, and regions or federated entities in
  federal states, possess the power to refer laws
  to the court.

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Abstract Constitutional Review in the U.S.

• How does abstract review of statutes in America
  happen?
• The technical answer facial challenges happen
  when
• plaintiffs file a motion for injunctive or
  declaratory relief from the application of a
  law on the grounds that it would injure them in
  some significant way. Such motions are filed
  immediately after a law is adopted but before it
  is applied.
• plaintiffs file a facial challenge directly,
  pleading the first amendment.

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Injunctive or Declaratory Relief

• The doctrine
• Judges will give relief where (a) a plaintiffs
  constitutional rights are at issue, (b) the
  plaintiff is likely to prevail on the merits, and
  (c) the plaintiff may suffer irreparable injury
  if relief is not granted.
• Major examples abortion.
• California Supreme Court (1997) American
  Academy of Pediatrics, et al. v. Lungren. Online
  at http//caselaw.lp.findlaw.com/data2/california
  statecases/s041459.doc
• Facial challenge brought by, among others,
  American Academy of Pediatrics, the California
  Medical Association, the American College of
  Obstetricians, and Planned Parenthood of San
  Francisco

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Facial Challenges

• Developed first in the free speech area in the
  1940s allows individuals whose speech rights
  might be affected if a law is enforced to sue to
  have the law reviewed as to its legality under
  the constitution, and groups to plead the rights
  of third persons.
• In first amendment litigation, for the government
  to win, it must show that the law was narrowly
  tailored to achieve a government purpose, and
  that the law wont have a substantial chilling
  effect on speech.

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• Example Annulment of the Communications Decency
  Act, U.S. Supreme Court in Janet Reno v. the
  American Civil Liberties Union (1997), online at
  http//www.law.cornell.edu/supct/html/96-511.ZO.ht
  ml.
• Issue Law prohibited making available to minors
  patently offensive and indecent words or
  images.
• Facial challenge brought by, among others,
  American Civil Liberties Union, Human Rights
  Watch, the National Writers Union, Stop Prisoner
  Rape, AIDS Education Global Information System,
  Queer Resources Directory, Planned Parenthood of
  America, American Library Association, America
  Online, American Booksellers Foundation for Free
  Expression, Citizens Internet Empowerment
  Association, CompuServe, Families Against
  Internet Censorship, Health Sciences Library
  Consortium, Magazine Publishers of America,
  Microsoft, Netcom On-Line, Newspaper Association
  of American, Opnet, Prodigy, and Society of
  Professional Journalists.

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Abstraction

• Almost all important Supreme Court decisions are
  abstract in the sense of being about general
  (rather than particular) questions of law and
  policy, and generate prospective rather than
  purely (retrospective) law-making effects.
• An oracle of the law or a third-party dispute
  resolver or both?