Constitutional Jurisdiction: Origins, Evolution, and Control Systems
Constitutional Jurisdiction: Origins and Evolution
Primitive liberalism and constitutionalism had great faith in the law and did not distrust the legislature. However, judges were viewed with suspicion due to their service to the king in the absolute state. There was a concern that judges were enslaved to the letter of the law. The law was seen as the charter of liberty, and the judge was merely its obedient servant and executor.
In America, subjects were protected by the Constitution, a higher law than those produced by Congress, the direct emanation of popular sovereignty. This context framed the emergence of constitutional courts as guardians of the Constitution. Under the influence of Kelsen, constitutional control emerged in contrast to the diffuse system of central America, where all judges are empowered to address laws they deem contrary to the Constitution.
Kelsen’s model relies on a single organ, the Constitutional Court (TC), as the component to declare the unconstitutionality of a rule. A review of post-war constitutions offers a wide range of modalities of constitutional control, but the performance of the TC is highlighted. Now, there’s a growing discussion about overcoming the dichotomy of the American-Austrian system, blending incidental and concentrated control, leading to the creation of applications on a single common system.
The Doctrine of Judge Marshall and Judicial Review
The doctrine of judicial review can be traced back to Europe, but it was fully accepted in the U.S. In Europe, Coke brandished his doctrine on the authority of the judge as an arbitrator between the king and the nation. The king wanted judges to be merely his delegates, but Coke responded by giving that arbitral role to judges. Coke’s doctrine was largely forgotten after the triumph of the English Glorious Revolution, which proclaimed the sovereignty of Parliament.
The confidence of the courts to enforce the Constitution should be considered a contribution from the Americas to political science. The American system is built on the concept of value, autonomy, and dignity of the individual as an irreducible reality prior to society. The Republican administration of Jefferson and his successors enshrined federal supremacy through their actions and traditions, a goal the Federalists had failed to establish.
In 1803, in the landmark case of Marbury v. Madison, Marshall proclaimed the supremacy clause, asserting the essential principle in all written constitutions. With the ruling in Cohens v. Virginia, Marshall extended the Court’s power to control the decisions of state courts in all matters where the Court’s view amounted to an interpretation of the Constitution. This led to an increasingly broad power for the U.S. Supreme Court.
Marshall believed that the powers of Congress are defined by the Constitution. He was challenged with the notion that courts must abide by and implement unconstitutional rules. His response was negative: the mission of the courts is to say what the law is, and what it is not. Since a law contrary to the Constitution is not law, the courts are not bound by it. Their obligation is to reaffirm the Constitution as the supreme law of the country. That is the essence of the judicial function for Marshall.
Hamilton, for example, spoke of a Constitution containing specific rules or prohibitions applicable to the legislative authority. These limitations can only be maintained in practice by the courts, whose duty is to declare void all acts contrary to the Constitution. Marshall argued that when a court is asked to apply a law opposed to the Constitution, it must determine the applicable law, as this is the essence of the judicial function, and the court should always lean in favor of the Constitution.
Justice Marshall asserted that a written and rigid Constitution represents the apex of norm-making. Hence, it can be stated that the Constitution is not only a law but a fundamental law, primary in the hierarchy, obligating the proclamation of its superiority and supremacy.
Political Control vs. Judicial Review of the Constitutionality of Laws
Historical constitutionalism has presented two types of constitutional control systems:
- Control by the courts system (USA)
- Control by political organs
The Gallic tradition shows a strong anti-judicial tradition, with several justifications:
- Ideological reasons: Separation of powers, making it impossible for judges to intervene in the legislative sphere.
- Practical reasons: Ensuring the Council of State had protection against the lawlessness and abuses of executive power.
- Historical reasons: Trust in the general will, and suspicion of judges due to their past arbitrary behavior before the Revolution.
Sieyès proposed the creation of a jury constitutionnaire. Its competence would include addressing constitutional violations, as all unconstitutional acts should be declared null and void. Napoleon largely adopted Sieyès’s draft. The Constitution of Year VIII instituted a Sénat conservateur, conferring upon it the power to judge acts of the legislature and government deferred by the Tribunals as unconstitutional.
The Second Republic encouraged the restoration of a Senate whose intervention, though binding, was ultimately frustrated. With the Third Republic, all traces of the institution disappeared, while the Fourth Republic established the Constitutional Committee. The creation of this committee for the Constitution of the Fifth Republic, and attempts to bring this institution closer to the profiles of the courts, represent an innovative approach to European models of judicial review of the constitutionality of laws.
Traditional French political control has three specific traits:
- Political composition of the body responsible for constitutional control, rather than a techno-legal status of its members.
- Preventive control, prior to the enactment of the law, regulated by law.
- The character of the decision, sometimes merely advisory, rather than always binding.
Kelsen’s Conception of Europe and the Control of Constitutionality
Disregarding some precedents in the 19th century, constitutional jurisdiction arose in Europe after the First World War. However, there was already an insistence on the desirability of a controlling institution of constitutionality. A law of January 25, 1919, created a Constitutional Court, and one that deeply modified the interim Austrian Constitution gave the court the power to hear actions brought by the central government against laws passed by provincial assemblies as unconstitutional.
The Federal Constitution of the Austrian Republic in 1920 addressed the regulation of the tribunal, consisting of a chairman, a vice president, and an undetermined number of members and alternate members elected by the National Council and Federal Council. The emergence of the Austrian Constitutional Court is closely related to the thought of Kelsen.
Kelsen argues that the legal order is not a system of coordinated rules at the same level, but a real hierarchy of different levels of standards.