Central and Eastern Europe Constitutional Courts and the Antimajoritarian Objection to Judicial Review
Sheive, Sarah Wright, Law and Policy in International Business
Since the political revolutions of 1989, the Central and Eastern European states have embraced judicial review as a means of promoting the supremacy of constitutional values and protecting fundamental rights. Nearly all Central and Eastern European nations have established constitutional courts modeled after the constitutional courts in Western Europe. Although their judges are not popularly elected, constitutional courts across Europe have jurisdiction to review and invalidate parliamentary legislation. Because they have the power to veto through constitutional review the policy choices of popularly elected representatives in parliament, European constitutional courts have been criticized as anti majoritarian.
This Note first compares the European and U.S. models of judicial review and suggests reasons why Western Europe, after World War II, and Central and Eastern Europe, after 1989, chose to adopt concentrated systems of judicial review. Second, it examines the jurisdictional mandates of Central and Eastern European constitutional courts(2) and compares them with the jurisdictional structures of their French and German counterparts. Third, it discusses the antimajoritarian objection to European constitutional review, addressing arguments on both sides of the academic debate. Finally, this Note identifies several practical strategies that Central and Eastern European nations might pursue to minimize the antimajoritarian objection.
II. The European Model of Constitutional Review
A. The European and U.S. Models Compared
Judicial review, or a court's power to invalidate a legislative or executive act on grounds of its unconstitutionality,(3) is structured differently in Europe than in the United States. The most significant difference between review in the two regions is that the European model features a concentrated, or centralized, system of review. Under a system of concentrated judicial review, constitutional review is exercised only by specialized courts that have been specifically created to decide constitutional issues. Thus, while the U.S. system of diffuse judicial review authorizes all courts to consider the constitutionality of legislation, the European model concentrates the power of judicial review in one tribunal.(4) With few exceptions,(5) European constitutional courts decide only constitutional questions; they do not adjudicate non-constitutional litigation between adverse parties.(6)
Constitutional courts are created expressly by provisions in European constitutions,(7) and they are independent of ordinary judicial structures. In fact, the provisions establishing constitutional courts usually are separate from those regulating the ordinary judiciary.(8) While ordinary European courts generally are not permitted to exercise judicial review of constitutional questions, these courts may be allowed to refer such issues to constitutional courts for decision, and they subsequently are bound by constitutional court rulings.(9)
The second major difference between the European and U.S. models of judicial review is that the European constitutional courts possess jurisdiction to practice abstract review. Abstract review is not dependent on litigation involving a statute; rather, the court considers the constitutionality of an item of legislation in principle. When constitutional courts practice abstract review, they need not examine the factual circumstances of a specific case.(10) By contrast, the U.S. model permits courts to review constitutional issues only in the context of ripe adversarial lawsuits where parties have standing to bring a challenge.(11) In sum, judicial review in the United States is incidental to ordinary litigation, whereas European constitutional courts may decide constitutional issues in the abstract. As a result, doctrines of standing vary in the European and U.S. models. U.S. courts will decide constitutional issues only if individual litigants have "a personal stake in the outcome of the controversy,"(12) whereas public officials - who may lack a "personal stake" in the sense of the U. …