Central and Eastern Europe Constitutional Courts and the Antimajoritarian Objection to Judicial Review

By Sheive, Sarah Wright | Law and Policy in International Business, Summer 1995 | Go to article overview

Central and Eastern Europe Constitutional Courts and the Antimajoritarian Objection to Judicial Review


Sheive, Sarah Wright, Law and Policy in International Business


I. Introduction

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Central and Eastern Europe Constitutional Courts and the Antimajoritarian Objection to Judicial Review
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.