The Politics of Constitutional Review
Cambridge University Press, 2004
In writing his monumental survey of American democracy in the 1835, Alexis de Tocqueville praised the role of the judiciary in the new political system, arguing that the power granted to American courts to pronounce on the constitutionality of laws is one of the most powerful barriers ever erected against the tyranny of political assemblies. Similarly, constitution writers following World War II, and again in the wake of the peaceful revolutions of 1989 in Eastern Europe, turned to courts armed with the power of constitutional review in the hope of creating effective limitations on the power of legislative majorities.
Constitutional review - defined as the power of judicial bodies to set aside ordinary legislative or administrative acts if judges conclude that they conflict with the constitution - has emerged as an almost universal feature of Western-style democracy. The commitment to this institution has become so pervasive that it is now virtually unthinkable to draft a democratic constitution without providing for its inclusion. Whether in post-fascist Spain, or post-communist Eastern Europe, recent transitions to democracy have been transitions to constitutional democracy, including judicial oversight of the political process. As Mauro Cappelletti has observed, in much of the Western world, constitutional review has come to be understood as "the necessary 'crowning' of the rule of law." However, it may represent the crowning of the judiciary as the creators of law.
Constitutional courts have emerged as central institutions in many advanced democracies. This book investigates the sources and limits of judicial authority, focusing on the central role of public support for judicial independence. The empirical sections of the book illustrate the theoretical argument in an in-depth study of the German Federal Constitutional Court, including statistical analysis of judicial decisions, case studies, and interviews with judges and legislators
During the West German Constitutional Convention, Konrad Adenauer warned that: "Dictatorship is not necessarily dictatorship by a single person. There is also dictatorship by a parliamentary majority. And we want protection against such dictatorship in the form of a constitutional court" (Verhandlungen des Parlamentarischen Rates, 2nd session, p. 15). Unfortunately, more recently, many governments in Europe do not seem to be interested in avoiding dictatorship by a parliamentary majority when they control such a majority. …