Max Planck Institute for Comparative Public Law and
Max Planck Institute for Comparative Public Law and International Law Heidelberg The inception of judicial review of legislation in the USA and in Europe Comparative constitutional law Monday, 15 February 2015 Dr. Davide Paris – paris@mpil. de
Comparative constitutional law – Course description � How the idea of judicial review of legislation was conceived, in the USA and in Europe � How this idea came to reality in Post World War II Europe: the establishment of Constitutional Courts in Germany, Italy, France and Spain � How different constitutional courts deal with similar cases � Judicial review of legislation and the principle of primacy of EU law
Monday, 15 February 2016 The inception of judicial review of legislation in the USA � The debate before the Constitution’s approval: the Federalist Paper n. 78 � The first case of judicial review of legislation: Marbury v. Madison (1803) The inception of judicial review of legislation in Europe � The rejection of the American model in Europe between the Wars: Lambert’s book “The government of judges” � Kelsen’s proposal of a constitutional court and the first examples thereof
The Federalist Papers � 17 September 1787: the delegates sign the Constitution of the USA in Philadelphia � 1788 1790: ratification process in each State The Federalist papers: 85 essays written in 1788 1789 by Alexander Hamilton (52), James Madison (28) and John Jay (5) in support of the new Constitution
Federalist No. 78 - The Judiciary Department (A. Hamilton) The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
Federalist No. 78 - The Judiciary Department (A. Hamilton) There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. […] It is not […] to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.
Federalist No. 78 - The Judiciary Department (A. Hamilton) The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
Federalist No. 78 - The Judiciary Department (A. Hamilton) This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will should have the preference.
Federalist No. 78 - The Judiciary Department (A. Hamilton) But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. � Limited Constitution � Superiority of the Constitution over statutes � � judicial review of legislation The Constitution is the fundamental law, yet is a law (applying the Constitution over a statute does not differ from applying a more recent statute over an older one) All courts are entitled to judicial review
Marbury v. Madison (1803) – The case � � 17 February 1801: Thomas Jefferson defeats the incumbent President John Adams and becomes the third President of the USA. He will take the office on 4 March 1801 On the last day of his mandate (3 March) President Adams appoints a significant number of circuits judges and judges of the peace (so called “Midnight Justices”), including William Marbury, who was appointed justice of the peace of the District of Columbia. The Senate gives immediately its consent and the seal of the U. S. is affixed to these commissions by the Secretary of the State, John Marshall, however, does not manage to deliver all these commissions. As soon as Jefferson takes the office, he orders his new Secretary of the State, John Madison, not to deliver the remaining commissions, including the one concerning Marbury cannot assume the office of Justice of the peace, because his commission is not delivered to him. He asks Madison to deliver him the said commission and after Madison’s refusal, files an application to the Supreme Court for a “mandamus” (i. e. an order to do something) against Madison
Marbury v. Madison (1803) In the order in which the Court has viewed this subject, the following questions have been considered and decided. � 1. Has the applicant a right to the commission he demands? � 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? � 3. If they do afford him a remedy, is it a mandamus issuing from this court?
Marbury v. Madison (1803) Has the applicant a right to the commission he demands? It is therefore decidedly the opinion of the Court that, when a commission has been signed by the President, the appointment is made, and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State. [. . . ] Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years independent of the Executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country. To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.
Marbury v. Madison (1803) If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. […] It is then the opinion of the Court: 1. That, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for the County of Washington in the District of Columbia, and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment, and that the appointment conferred on him a legal right to the office for the space of five years. 2. That, having this legal title to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.
Marbury v. Madison (1803) He is entitled to the remedy (a “mandamus”) for which he applies? This depends on: 1. The nature of the writ applied for, and 2. The power of this court. Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be: "a command issuing in the King's name from the Court of King's Bench, and directed to any person, corporation, or inferior court of judicature within the King's dominions requiring them to do some particular thing therein specified which appertains to their office and duty, and which the Court of King's Bench has previously determined, or at least supposes, to be consonant to right and justice. " This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired: Whether it can issue from this Court.
Marbury v. Madison (1803) The ACT to establish the judicial courts of the United States authorizes the Supreme Court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. " The Secretary of State, being a person, holding an office under the authority of the United States, is precisely within the letter of the description, and if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.
Marbury v. Madison (1803) "The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction. “ (Art. III, section 2 U. S. Constitution) It has been insisted at the bar, that […] the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States. […] If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.
Marbury v. Madison (1803) An Act of the Congress gives the U. S. Supreme Court the authority to issue a mandamus to any person holding an office under the authority of the United States (= an original jurisdiction not provided by the Constitution) Art. III, Section 2 of the Constitution declares that the Supreme Court only has original jurisdiction “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
Marbury v. Madison (1803) The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Marbury v. Madison (1803) Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. […] So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Marbury v. Madison (1803) Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. Judicial review is the obvious consequence of a written Constitution � Setting aside an act that conflicts with the Constitution is a natural duty of the judiciary (no distinction between Supreme �
The inception of judicial review of legislation in Europe � The rejection of the American model in Europe between the Wars: Lambert’s book “The government of the judges” � Kelsen’s proposal of a constitutional court and the first examples thereof
The Lochner era � After Marbury v. Madison: Little use by the Supreme Court of the power of judicial review of federal statutes in the first half of the XIX century. More frequently a state statute is declared unconstitutional � After the Civil War: extraordinary economic growth and expansion => first state and federal laws regulating working conditions � Hostility of state courts and of the Supreme Court toward this progressive legislation: cfr. Supreme Court of the United States, Lochner v. New York (1905), invalidating a state statute imposing a limit of ten working hours per day on backers (!) � Reactionary approach of the judiciary comes to an end in 1937, after a strong controversy with the F. D. Roosevelt administration
The “government of judges” 1921: Edouard Lambert, Le Gouvernment des juges et la lutte contre la législation sociale aux États Unis. L’expérience americaine du controle judiciaire de la constitutionnalite des lois Judicial review of legislation makes the judiciary the supreme power over the legislature. Conservative judges are in a position to limit all progressive legislation in France.
Kelsen’s centralized model of judicial review Hans Kelsen (1881 1973) Legal advisor in the drafting of the Austrian Constitution of 1920 and judge in the Austrian Constitutional court (1920 1929) Supported the institution of constitutional court as a legal scholar: Wesen und Entwicklung der Staatsgerichtsbarkeit (VVd. S 1929, 31 88)/ La garantie jurisdictionnelle de la Constitution La justice constitutionnelle (Rev. dr. publ. et sc. pol. 1929) Wer soll der Hüter der Verfassung sein? (Die Justiz 1930 1931) Judicial Review of Legislation. A Comparative Study of the Austrian and the American Constitution (Journ. Of Pol. 1942)
Kelsen’s centralized model of judicial review Supremacy of the Constitution over other statutes Since the Constitution largely determines the way in which Statutes come into existence, legislation is an application of law, if seen in relation to the constitution. In relation to the decree, however, as well as in relation to other acts standing below the level of statute, legislation is creation of law. And a decree, similarly, is application of law in relation to statute, and it is creation of law in relation to the judicial decision or administrative act that applies the decree. […] If there is no differentiation, in positive law, between constitutional form and statutory form, only the observance of the latter can ever be at issue. And in that case, the proclamation of basic principles, guidelines, or limitations for the content of law will be meaningless from the legal technical point of view; it will be no more than a misleading appearance created for political ends.
Kelsen’s centralized model of judicial review The need for an independent body to protect the Constitution For understandable reasons, the legislative organ, in reality, feels that it is nothing but the free creator of the law, and not a law applying organ that is bound by the Constitution, although that is what it is according to the idea. If legal restraints to the legislature are to become effective, one must not make the parliament itself the guarantor of this idea. An organ that is distinct from the legislator and independent of it, and thus of any other public authority, must be empowered to annul the unconstitutional acts of the legislator. This is the institution of a constitutional court.
Kelsen’s centralized model of judicial review This independent institution is a “court”? If a 'court' is endowed with the competence to annul a statute, it is thereby authorized to enact a general norm, since the annulment of a statute has the same general character as the enactment of a statute. The annulment, after all, is nothing but the inverse of enactment. The annulment of statutes is therefore itself a legislative func tion, anda court empowered to annul statutes is itself an organ of legislative power. […] The constitutional court as a “negative legislator” The question of whether an organ charged with the annulment of unconstitutional statutes can be a ‘court’ turns out to be altogether irrelevant. Its independence from parliament as well as from government is a self evident requirement, since parliament and government are the very organs that, as partici pantsin the process of legislation, are to be controlled by the constitutional court
Kelsen’s centralized model of judicial review How should the constitutional court be composed? It is not possible to make a proposal, in this respect, which is equally practicable for all constitutions. The specific design of the constitutional court will have to adapt itself to the peculiarities of the respective constitution. Only this much can be noted: that, since its judicature will mostly deal with questions of law and since the court is going to have to perform the purely juristic work of constitutional interpretation, the number of its members should not be too large. Apart from that, it must suffice here to point to some particularly characteristic forms of appointment. Neither the simple election by parliament, nor an appointment by the head of state alone or by the government alone, can be fully recommended. It may be valuable to consider some combination of the two, for instance election by parliament, on the basis of a proposal of the government that names several candidates for every position to be filled, or the other way around. It is of the utmost importance that legal experts be given due consideration in the composition of the court.
Kelsen’s centralized model of judicial review How should the constitutional work? Access to the Const. court Of the greatest importance is the question: in what way can proceedings in the constitutional court be initiated? The extent to which the constitutional court will be able to fulfil its task as a guarantor of the constitution depends primarily on the regulation of this question. � � Actio popularis (not recommended) Interlocutory proceeding: “all law applying public authorities have the right and the duty, in case they are to apply a norm subject to the control of the constitutional court and harbor doubt as to the legality of the same, to interrupt their own proceedings concerning the concrete individual case at hand to make a reasoned request to the constitutional court to review and, if necessary to annul the norm in question. This competence cou 1 d be restricted to higher or to the highest public authorities […]. It could also be restricted to the courts alone In a federal state, a right to challenge legal acts that originate from the union may be accorded to the governments of the Länder or constituent states, while a similar right is given to the union with regard to legal acts originating from a Land or one of the federation's constituent states an advocate of the constitution at the constitutional court, in analogy to the public attorney in the criminal process
Kelsen’s centralized model of judicial review Why not the American diffuse review? The disadvantage of this solution (=American diffuse review) consists in the fact that the different law applying organs may have different opinions with regard to the constitutionality of a statute, and that, therefore, one organ may apply the statute because it regards it as constitutional whereas the other organ will refuse the application on the ground of its alleged unconstitutionality. The lack of a uniform decision of the question as to whether a statute is constitutional, i. e. whether the constitution is violated, is a great danger to the authority of the constitution. […] Although the courts in the United States have only the power in a concrete case to refuse to apply a statute which they declare unconstitutional, the danger of a contradictory practice of the law applying organs is here not nearly so great […] the decisions of the Supreme Court are binding upon all other courts. Inasmuch as the American courts consider themselves bound by the judgments of the Supreme Court a decision of that Court refusing to apply a statute in a concrete case because of unconstitutionality has practically almost the same effect as general annulment of the statute.
“Kelsenian” constitutional courts in Europe in the interwar period � Czechoslovakian Constitutional court (1921) only took 2 decisions in 1922 � Austrian Constitutional court (1920 1933) Direct recourse of the federal Government for the annulment of a state law, and viceversa; The Court decides on its own motion on the constitutionality of a statute, when it exercises another of its competences; 1929: the Supreme Court and the Supreme administrative court can refer a question of constitutionality to the Constitutional court • • • � • Spanish Tribunal for constitutional guarantees (1934 – 1936) Several competences, including direct recourse by individuals for the protection of their guarantees (amparo)
“Kelsenian” constitutional courts in Post World War II Europe � Constitutional courts were established in Austria, Germany (1951) and Italy (1956) in the aftermath of World War II � In 1958 the Constitutional council was established in France. It later evolved toward a full fledged constitutional court. A similar evolution affected the Belgian Court of Arbitration, established in 1984 � Constitutional courts were established in Spain (1980) and Portugal (1983) after the dictatorships � Constitutional courts were established in Central and Eastern Europe after the fall of the Berlin Wall
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