The diffusion of constitutional judicial review over the past half-century has resulted in the emergence of two dominant 'models' of review: the American and the European. In Europe, successive generations of politicians, constitution-makers, and legal scholars intensively debated but ultimately rejected importing American-style judicial review. They chose, instead, variations on a system that Hans Kelsen designed to 'fit' with existing parliamentary institutions, separation of powers ideologies, and a legacy of constitutional, but not 'judicial', review (Favoreu 1990 ; Kelsen 1928 ; Stone Sweet 2000 : Ch. 2; von Beyme 1989). After the French Revolution, across much of the Continent parliamentary democracy had come to mean legislative supremacy; legislative supremacy implied separation of powers; and separation of powers meant the subjugation of the 'judicial function' to the 'political function'. Constitutional and statutory provisions codified these dogmas in diverse ways but to the same end: to make of the judge the 'slave of the legislator'. With the move to codifying constitutional rights, Kelsen's court spread across Europe because it enabled rights and other provisions to be enforced, as higher law, while maintaining—at least formally—the general prohibition against judicial review. 1
The European model of constitutional review can be broken down into four constituent components (Stone Sweet 2000 : Ch. 2). First, constitutional judges alone exercise constitutional review authority; the ordinary, non-constitutional judiciary remains precluded from engaging in review. Second, terms of jurisdiction restrict constitutional courts to processing constitutional disputes. Constitutional judges do not preside over judicial disputes or litigation or judicial appeals, which remain the purview of the judiciary; and the judiciary has its own appellate, supreme courts. Instead,
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Publication information: Book title: On Law, Politics, and Judicialization. Contributors: Martin Shapiro - Author, Alec Stone Sweet - Author. Publisher: Oxford University Press. Place of publication: Oxford, England. Publication year: 2002. Page number: 343.
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