Although judicial review of the constitutionality of laws is over two hundred years old in the U.S., it is a much more recent phenomenon in Europe, where it was launched after World War One and has become prevalent since World War Two. Also, whereas in the U.S. constitutional review is decentralized and spread among both state and federal courts, under the European model it is highly centralized and confined to a single body, such as the German Constitutional Court or the French Constitutional Council. Moreover, constitutional judges in Europe have a special status and do not ordinarily come from the ranks of career judges who fill all other judicial positions. Finally, unlike U.S. federal courts, constitutional courts are not constrained by any “case or controversy” requirements and thus engage in “abstract” review, which is somewhat akin to the “advisory opinions” rendered by some state courts in the U.S.

In my presentation, I will highlight the similarities and differences between constitutional adjudication by constitutional courts (through focus on the German Court and the French Council) and the U.S. Supreme Court. I will start by 1) focusing on the model of constitutional adjudication developed by Kelsen in the context of European parliamentary democracies. I will then look into 2) the mode of appointment of constitutional judges and into the nature and scope of the jurisdiction of their respective courts. Next, I will examine 3) the contrast between “abstract” and “concrete” review. I will also inquire 4) into the respective principles and techniques of constitutional interpretation and compare these to their counterparts in the U.S. In conclusion, I will review the claims to legitimacy of constitutional courts against accusations (also familiar in the U.S.) that they are too political and that they are prone to legislate rather than to strictly interpret the constitution.

1) The Kelsenian Model

Ordinary judges in Europe are career bureaucrats who are unlikely to strike down legislation enacted by parliament. Kelsen felt that to insure conformity with the constitution, it was necessary to create a special judicial body, made up of independent persons (often legal academics) not answerable to the ordinary judicial bureaucracy, which would determine whether laws adopted by the parliament are consistent with the constitution. In Kelsen’s view, the constitutional court is supposed to function as a “negative legislator” charged with setting aside enacted laws that are inconsistent with the constitution. So long as the constitution is exclusively structural, constitutional review seems amply compatible with the function of the court as a negative legislator. With the great proliferation of fundamental rights after World War Two, which Kelsen did not foresee, however, it has become increasingly difficult for constitutional courts to remain purely negative legislators. This in turn, had led to criticism against these courts as unelected positive legislators prone to undermining the will of parliamentary democracies.

2) Appointment and Tenure of Constitutional Judges

Both in France and in Germany appointments are for a term of years (nine in France; twelve in Germany) and are explicitly political. In France, the President of the Republic, the Speaker of the National Assembly, and the President of the Senate each nominates one person to the Council every three years. In Germany, there is a more elaborate procedure, but judges are nominated on account of party affiliation and appointed on the basis of a broad parliamentary consensus. The French Council appears to be a much more political body, and many have questioned whether it is truly a court. The German Court, on the hand, is generally regarded as less political, as its judges tend to converge toward the center. The French Council created by the Gaulle to protect the newly strengthened executive from parliament was not meant to be neutral. It has greatly increased its powers, however, and now does more than safeguard the boundaries between legislature and the executive. The German Court has wielded greater power and prestige, but has more recently come under attack as too activist.

3) Abstract v. Concrete and Ex Ante v. Ex Post Review

The French Council is only empowered to engage in ex ante abstract review and only the President, Prime Minister, Speaker, President of the Senate or sixty Deputies or Senators have standing to challenge the constitutionality of a law. On the surface, at least, French constitutional review seems very much akin to an added round of legislation set in motion by the losers in the Parliament. The German Court, in contrast, engages in both abstract and concrete as well as ex ante and ex post review. Arguably, abstract review is more prone to politicizing constitutional adjudication, but I will argue on the basis of parallels with the U.S., that the differences between abstract and concrete review are ultimately more apparent than real.

4) Interpretation and Politics

Neither the French nor the German constitutional adjudicators have much concern with originalism. Although the interpretive rules and principles used by each of them differ from one another, and from those that prevail in the U.S., analysis reveals certain interesting parallels and overlaps in substance if not in form. In France, the Council has been accused of going too far through recourse to “metaconstitutional” norms and principles. In Germany the Court has gone far afield by means of expansive interpretations based on the values, such as human dignity or militant democracy, enshrined in the German Basic Law. The German Court has also given a more sweeping scope to constitutional rights by interpreting them as extending to relations among private parties. In the last analysis, the convergence between constitutional adjudication and politics is as prevalent in France and Germany as it is in the U.S. From and institutional standpoint, however, the French Constitutional Council seems to be on much shakier ground than the German Constitutional Court or the U.S. Supreme Court.