Ancillary Powers of Constitutional Courts
Ginsburg, Tom, Elkins, Zachary, Texas Law Review
Observers of the global judicialization of politics have noted the spread of constitutional courts around the world, which made their appearance in early twentieth-century Europe1 and became seemingly required practice thereafter in Asia, Africa, and Latin America.2 The paradigmatic power of these courts is constitutional review, in which a court evaluates legislation, administrative action, or an international treaty for compatibility with the written constitution. It is natural that writers on the new constitutional courts have concentrated attention on judicial review, for it is here that the courts' lawmaking power is at its apex. Relatively free of the threat of correction from other political actors, courts exercising judicial review are rather obviously policy-making bodies. But in their understandable eagerness to assess new systems of review, scholars have paid little attention to the other functions of constitutional courts - functions that potentially alter the status and effectiveness of the bodies.
This Article is concerned with what we call the ancillary powers of constitutional courts - those powers that fall outside the prototypical constitutional-review function described above. Perhaps because of the prominence of constitutional courts and their function of reviewing legislation and government action, constitution drafters have given new courts a wide range of other tasks ranging from impeachment to certifying states of emergency. Just as Martin Shapiro has argued that scholars of American law and courts have paid too much attention to judicial review,3 scholars of the new constitutional courts also risk an incomplete understanding of courts as political institutions if they ignore these other powers of constitutional courts, which often place the courts in the midst of politically charged controversies. This Article is a first attempt to call attention to these powers as a set. It describes the powers, documents trends over time, and speculates as to the political consequences of assigning courts tasks beyond judicial review.
We do not mean anything pejorative by labeling these powers ancillary. As a historical matter, the earliest constitutional power of courts was that of judicial review.4 The powers considered here arise later as a historical matter, and hence can be labeled ancillary in this sense. Furthermore, none of the powers considered here is seen as essential to the definition of a court as a constitutional adjudicator. The defining function of a constitutional court is constitutional review, and other powers may be bundled with that function, but need not be. As we will see, the ancillary powers vary in the extent to which they require the court to refer to a constitutional text, and some of them do not involve the constitution even nominally. But paradoxically, the involvement of courts in ancillary tasks has the potential to undermine their ability to conduct effective constitutional review, precisely because it pulls them into political conflicts.
The Article is organized as follows: We begin with a review of the recent literature on constitutional review and judicial lawmaking. We then describe the evolution of some of the ancillary powers of constitutional courts around the world, both as provided by constitutional texts and as exercised in practice. We conclude by speculating on the tension that emerges between lawmaking and dispute resolution in the exercise of these ancillary powers.
II. Constitutional Review and Judicial Lawmaking
A. The Spread of Constitutional Review
Constitutional interpretation is arguably an essential function of written constitutions, but for much of the history of written constitutions the task was primarily assigned (if at all) to the legislature in accordance with the doctrine of parliamentary sovereignty.5 The American experience with Marbury v. Madison6 was, however, emulated in several Latin American constitutions in the nineteenth century7 and in other countries, such as Norway, where courts announced the power to review legislation for constitutionality. …