constitutional law

Introduction

      the body of rules, doctrines, and practices that govern the operation of political communities. In modern times the most important political community has been the state. Modern constitutional law is the offspring of nationalism as well as of the idea that the state must protect certain fundamental rights of the individual. As the number of states has multiplied, so have constitutions and with them the body of constitutional law, though sometimes such law originates from sources outside the state. The protection of individual rights, meanwhile, has become the concern of supranational institutions, particularly since the mid-20th century.

Constitutions (constitution) and constitutional law

The nature of constitutional law

      In the broadest sense a constitution is a body of rules governing the affairs of an organized group. A parliament, a church congregation, a social club, or a trade union may operate under the terms of a formal written document labeled a constitution. Not all of the rules of the organization are in the constitution; many other rules (e.g., bylaws and customs) also exist. By definition the rules spelled out in the constitution are considered to be basic, in the sense that, until they are modified according to an appropriate procedure, all other rules must conform to them. Thus, the presiding officer of an organization may be obliged to declare a proposal out of order if it is contrary to a provision in the constitution. Implicit in the concept of a constitution is the idea of a “higher law” that takes precedence over all other laws.

      Every political community, and thus every state, has a constitution, at least insofar as it operates its important institutions according to some fundamental body of rules. By this conception of the term, the only conceivable alternative to a constitution is a condition of anarchy. Nevertheless, the form a constitution may take varies considerably. Constitutions may be written or unwritten, codified or uncodified, and complex or simple, and they may provide for vastly different patterns of governance. In a constitutional monarchy, for example, the sovereign's powers are circumscribed by the constitution, whereas in an absolute monarchy the sovereign has unqualified powers.

Giovanni Bognetti David Fellman Matthew F. Shugart

      A political community's constitution articulates the principles determining the institutions to which the task of governing is entrusted, along with their respective powers. In absolute monarchies, as in the ancient kingdoms of East Asia, the Roman (Roman law) Empire, and France between the 16th and 18th centuries, all sovereign powers were concentrated in one person, the king or emperor, who exercised them directly or through subordinate agencies that acted according to his instructions. In ancient republics, such as Athens and Rome, the constitution provided, as do the constitutions of most modern states, for a distribution of powers among distinct institutions. But whether it concentrates or disperses these powers, a constitution always contains at least the rules that define the structure and operation of the government that runs the community.

      A constitution may do more than define the authorities endowed with powers to command. It may also delimit those powers in order to secure against them certain fundamental rights of persons or groups. The idea that there should be limits on the powers that the state may exercise is deeply rooted in Western political philosophy. Well before the advent of Christianity, Greek philosophers thought that, in order to be just, positive law—the law actually enforced in a community—must reflect the principles of a superior, ideal law, which was known as natural law. Similar conceptions were propagated in Rome by Cicero (Cicero, Marcus Tullius) (106–43 BC) and by the Stoics (see Stoicism). Later the Church Fathers and the theologians of Scholasticism held that positive law is binding only if it does not conflict with the precepts of divine law. These abstract considerations were received to a certain extent in the fundamental rules of positive legal systems. In Europe during the Middle Ages, for example, the authority of political rulers did not extend to religious matters, which were strictly reserved to the jurisdiction of the church. Their powers also were limited by the rights granted to at least some classes of subjects. Disputes over the extent of such rights were not infrequent and sometimes were settled through solemn legal “pacts” between the contenders, such as Magna Carta (1215). Even the “absolute” monarchs of Europe did not always exercise genuinely absolute power. The king of France in the 17th or 18th century, for example, was unable by himself to alter the fundamental laws of the kingdom or to disestablish the Roman Catholic Church.

      Against this background of existing legal limitations on the powers of governments, a decisive turn in the history of Western constitutional law occurred when political philosophers developed a theory of natural law based on the “inalienable rights (human rights)” of the individual. The English philosopher John Locke (Locke, John) (1632–1704) was an early champion of this doctrine. Others followed Locke, and in the 18th century the view they articulated became the banner of the Enlightenment. These thinkers asserted that every human being is endowed with certain rights—including the rights to worship according to one's conscience, to express one's opinions in public, to acquire and possess property, and to be protected against punishment on the basis of retroactive laws and unfair criminal procedures—that governments cannot “take away” because they are not created by governments in the first place. They further assumed that governments should be organized in a way that affords effective protection for individual rights. Thus, it was thought that, as a minimal prerequisite, governmental functions must be divided into legislative, executive, and judicial; executive action must comply with the rules laid down by the legislature; and remedies, administered by an independent judiciary, must be available against illegal executive action.

      The doctrine of natural rights was a potent factor in the reshaping of the constitutions of Western countries in the 17th, 18th, and 19th centuries. An early stage of this process was the creation of the English Bill of Rights (Rights, Bill of) (1689), a product of England's Glorious Revolution. All these principles concerning the division of governmental functions and their appropriate relations were incorporated into the constitutional law of England and other Western countries. England also soon changed some of its laws so as to give more-adequate legal force to the newly pronounced individual freedoms.

      In the United States the doctrine of natural rights was even more successful. Once the American colonies became independent states (1776), they faced the problem of giving themselves a fresh political organization. They seized the opportunity to spell out in legal documents, which could be amended only through a special procedure, the main principles for distributing governmental functions among distinct state agencies and for protecting the rights of the individual, as the doctrine of natural rights required. The federal Constitution (Constitution of the United States of America)—drafted in 1787 at a Constitutional Convention in Philadelphia to replace the failing Articles of Confederation (Confederation, Articles of)—and its subsequent Bill of Rights (Rights, Bill of) (ratified 1791) did the same at the national level. By formally conferring through these devices a higher status on rules that defined the organization of government and limited its legislative and executive powers, U.S. constitutionalism displayed the essential nature of all constitutional law: the fact that it is “basic” with respect to all other laws of the legal system. This feature made it possible to establish institutional controls over the conformity of legislation with the group of rules considered, within the system, to be of supreme importance.

      The American idea that the basic rules that guide the operations of government should be stated in an orderly, comprehensive document quickly became popular. From the end of the 18th century, scores of countries in Europe and elsewhere followed the example of the United States; today nearly all states have constitutional documents describing the fundamental organs of the state, the ways they should operate, and, usually, the rights they must respect and even sometimes the goals they ought to pursue. Not every constitution, however, has been inspired by the individualistic ideals that permeate modern Western constitutional law. The constitutions of the former Soviet Union and other communist countries subordinated individual freedoms to the goal of achieving a classless society. Notwithstanding the great differences between modern constitutions, however, they are similar at least in one respect: they are meant to express the core of the constitutional law governing their respective countries.

Giovanni Bognetti Matthew F. Shugart

Characteristics of constitutions

      It is often asserted that the United States has a written constitution and the United Kingdom an unwritten one. In one sense this is true: in the United States there is a formal document called the Constitution, whereas there is no such document in the United Kingdom. In fact, however, many parts of the British constitution exist in written form; for this reason, most scholars prefer to classify it as “uncodified” rather than unwritten. Moreover, there are important aspects of the U.S. Constitution that are wholly unwritten. The British constitution includes, for example, the Bill of Rights (1689), the Act of Settlement (Settlement, Act of) (1701), the Parliament Act of 1911, the successive Representation of the People Acts (which extended suffrage), the statutes dealing with the structure of the courts, and various local government acts. On the other hand, certain institutions of constitutional significance, including the system of political parties (political party) and judicial review of legislative and executive actions, are not mentioned in the written constitution. Indeed, written constitutions can never exhaust the whole constitutional law of a state. They are always supplemented, to varying degrees, by statutes, judicial doctrines interpreting the constitution, intergovernmental practices, and nongovernmental institutions (such as political parties) and their practices.

David Fellman

      Whether long or short, written constitutions can concern themselves exclusively or prevalently with the organization of government or deal extensively also with the rights of the people and with the goals of governmental action. The U.S. Constitution, at roughly 7,000 words, is a model of brevity, and many constitutions in Western countries are only slightly longer. In contrast, the constitution of India extends to hundreds of pages. Merely “organizational” constitutions—documents containing no guarantees of rights or prescriptions of goals—are now rare. More-recent written constitutions are generally longer and encompass a wider range of rights accorded to citizens.

      Written constitutions are said to be “normative” when all their binding principles are observed, more or less, in the actual operations of the political system. A constitution is considered “nominal” if it is largely or in substantial parts disregarded and does not provide insight into the real functioning of the political system. Normative constitutions predominate in the United States, Australia, Canada, Japan, and the countries of western Europe, while nominal constitutions are common in countries ruled by a one-person or a one-party dictatorship or by a military junta.

      Constitutions also can be classified as “rigid” or “flexible.” Those that are rigid stipulate that at least some part of the constitution cannot be modified by the same procedures used to enact statutory law. Those that are flexible allow any of the rules of the constitution to be modified through the simple procedure by which ordinary statutes are enacted. The U.S. Constitution is rigid, as an amendment requires supermajorities at both the proposal and ratification stages (the most common method of amendment is proposal by a two-thirds vote in both houses of Congress followed by ratification by three-fourths of the states). The United Kingdom's constitution is flexible, because any of its constitutional institutions and rules can be abrogated or modified by an act of Parliament. The great majority of countries have rigid constitutions.

      Only under rigid constitutions is it possible to establish institutional controls to ensure the conformity of legislation with the principles considered indispensable for the well-being of the community. Nevertheless, a rigid constitution does not by itself guarantee the stability and continuity of a country's constitutional law. Although the amending process in the United States is difficult, it is easier than the process in other countries with rigid constitutions. In Switzerland, for example, amendments to the federal constitution of 1874 are proposed by the legislature or by a petition of 100,000 citizens and require for their approval a majority vote in a national referendum and ratification by a majority of voters in each of a majority of the cantons (canton). Nevertheless, the provisions of the Swiss constitution have been changed repeatedly on many important points. In addition, even if the provisions of a rigid constitution remain unaltered, they often assume over time different meaning and scope, because formal constitutional provisions are subject to interpretation by the courts or by the legislature, the executive, and other institutional subjects. Thus, the commerce (commerce clause) and due process clauses of the U.S. Constitution do not have the same legal implications today as they did in the 19th century. To a certain extent interpretation inevitably involves adaptation of the letter of the law to societal changes.

      Constitutional law in countries with flexible constitutions does not have to be unstable or constantly in flux. The United Kingdom can modify its constitutional law by statute (or even in important areas by “conventions” between the supreme institutional powers of the state: the crown, Parliament, and the cabinet). Nevertheless, statutes and common-law (common law) principles of constitutional import cannot be changed as easily as other statutes and rules and are generally treated as permanent. Thus, the principle of the “rule of law”—roughly the equivalent of the American due process principle—has been an essential element of the British constitution since approximately the late 17th century. This continuity has been ensured by a broad consensus between the crown, political leaders, and citizens that such principles are crucial to the country's constitution—not by the existence of any institutional obstacles to changing them.

      Thus, the relative continuity of a country's constitutional law does not depend entirely on the adoption of a rigid constitution, though such a constitution may make changes at times more complicated and difficult. It depends rather on the people's attitude concerning the fundamental political values the legal system ought to honour. If and when this attitude changes, the new viewpoint is likely to eventually make its way into the constitution, whether through the amending process and interpretation by the courts under a rigid constitution or through easier legislative procedures under a flexible constitution. (Of course, there exists the further possibility of change, in both cases, through the extreme means of a popular revolution or a military coup d'état.) Because the political values felt to be supreme by the dominant forces in a community have ultimate controlling influence, some European continental scholars have been prompted to call them the “material constitution,” at any given historical moment, of that community. The development of the material constitution is decisive in determining the retention or demise—as well as the actual meaning and scope in application—of the principles and rules of the written constitution, whether the latter is rigid or flexible.

Unitary and federal systems

The distinction between unitary and federal states (state)

      No modern country can be governed (government) from a single location only. The affairs of municipalities and rural areas must be left to the administration of local governments. Accordingly, all countries have at least two levels of government: central and local. A number of countries also contain a third level of government, which is responsible for the interests of more or less large regions.

      The distribution of powers between different levels of government is an important aspect of the constitutional organization of a state. Among states with two levels of government, distinctions can be made on the basis of the greater or lesser autonomy granted to the local level. The British government's respect for local self-government has always been a characteristic of its constitution. In contrast, France traditionally had kept its local authorities under strict central control. In countries with three levels of government, the distribution of powers between the central and the intermediate governments varies. States formed through the union of formerly independent states usually maintain an intermediate level with considerable legislative, executive, and judicial powers (as in the United States, Argentina, and Switzerland), though some grant few powers to this level. The latter situation occurs often in countries that have introduced the intermediate level as a correction to their previous choice of two levels—as Italy did in its constitution of 1948 and Spain in its constitution of 1978.

      Depending on how a constitution organizes power between the central and subnational governments, a country may be said to possess either a unitary or a federal (federalism) system (see also federalism). In a unitary system the only level of government besides the central is the local or municipal government. Although local governments may enjoy considerable autonomy, their powers are not accorded constitutional status; the central government determines which decisions to “devolve” to the local level and may abolish local governments if it so chooses. In federal systems there is an intermediate level of governmental authority between the central and the local; it usually consists of states or provinces, though other entities (e.g., cantons or republics) may exist in some countries. Aside from the number of levels, the most important distinction between a unitary system and a federal one is that the states or provinces of a federal state have constitutionally protected sovereignty. Within a federal system the state or provincial governments share sovereignty with the central government and have final jurisdiction over a broad range of policy areas.

      Federal and unitary systems are ideal types, representing the endpoints of a continuum. Most countries fall somewhere in between the two extremes—states can be more or less unitary or more or less federal. So-called “semifederal” countries occupy a middle category, possessing an intermediate level of government that does not have the same protections of sovereignty that the states or provinces of federal states enjoy.

      A proper understanding of these types of constitution requires the consideration of additional features of each type. The model federal state is characterized by the existence, at the national level, of a written, rigid constitution guaranteeing the several intermediate governments not only permanence and independence but also a full complement of legislative, executive, and judicial powers. The national constitution enumerates the powers granted to the central government; the remaining powers are reserved to the intermediate governments at the state or provincial level. These subnational entities are generally represented at the national level, possibly on an equal footing, in a second chamber of the national legislature (often called the upper house, or senate). They also often are central to the process of amending the national constitution. For example, some number of state or provincial legislatures may be required to consent to the ratification of amendments passed by the federal legislature. States or provinces in federal systems also have their own constitutions that define the institutions of their respective governments, as well as the powers that are devolved further to their local governments. Such constitutional arrangements are a guarantee against possible efforts of the central government to enlarge its jurisdiction and so imperil the important political role that intermediate governments play in a federal system. More than formal constitutional safeguards are required to preserve that role. Apart from constitutional amendments, the central government may seek to broaden its own powers through the use of constitutional clauses granting “implied powers.” In some federal states (e.g., Argentina and India), there are emergency provisions by which the central government may suspend the powers of individual state or provincial governments. If abused, these provisions—meant to be used only in cases of rebellion or other severe disturbance against the constitutional order—may seriously compromise the constitutionally enshrined principle of shared sovereignty that is the hallmark of federalism. Even in established federal democracies (e.g., Canada, Germany, and the United States), the exact distribution of powers between levels of government is a matter of constant dispute between central and subnational governments. Disputes about federal-state matters are often the subject of rulings in courts or constitutional tribunals or conferences involving the heads of the central and subnational governments.

      Semifederal states are also based, as a rule, on rigid written constitutions granting some limited legislative and administrative (though seldom judicial) powers to the intermediate or regional governments. But because regional governments in semifederal states possess jurisdiction only over enumerated matters (and even here they are subject in part to the overriding powers of the central authorities), their actual role and political influence within the system largely depend on the tendency of the central government to buttress or to restrict their autonomy. Where the powers granted by the constitution to the regional governments are particularly minimal, the semifederal state will look in many respects like a unitary state. Where the powers are relatively large and the central government favours their expansion—perhaps because the central government is itself a coalition of national and regional parties—the state tends to assume federal characteristics, even if the typical hallmarks of the federal system are not present. Spain and Belgium are good examples of semifederal states that have become increasingly more federal in practice.

Classifying states as federal or unitary

Federal and semifederal states

      Classifying a particular state as federal or unitary is usually straightforward, though in some cases it can be more difficult. The United States and Switzerland are clearly federal states; all of the above-mentioned characteristics of the federal state are present in their constitutional systems. Australia and Germany too can be considered federal in all respects. Canada also is a federal state, despite the fact that some of the formal features of ideal federalism are absent from its 1982 constitution: the provinces' powers, not the central government's, are enumerated. Additionally, there is no constitutionally mandated representation of the provinces in the upper house of the federal legislature, whose members are appointed by the central government (though they are chosen, by convention, in a way that ensures provincial representation). Nevertheless, the provinces' powers are vast, and the constitutional guarantees of their rights and independence are particularly strong.

      There are several federal states in Latin America. Argentina and Brazil probably are the most clearly federal, with rigid constitutions, equal representation of the regional governments in the upper house, and significant power reserved to the regional level. The central government, however, has the ability to intervene in state or provincial affairs in some circumstances, particularly in the case of Argentina. Moreover, neither constitution assigns a formal role to the subnational governments in the process of amending the national constitution. In Argentina amendments must be passed by a nationally elected constitutional assembly. In Brazil amendments are passed by supermajorities of the two houses of the federal legislature but are not subject to ratification by the states. Mexico is a federal state, but both formally and informally it has long deviated from many principles of federalism. Formally, the upper house represents the states, but it is much weaker than the lower house. Informally, until the late 1980s a single highly centralized party controlled the federal government and all state governments, rendering subnational autonomy moot. With greater competition between parties, Mexico increasingly has come to resemble the federal state its constitution has long described.

      The case of India (Indian law) is somewhat ambiguous. The Indian federal constitution spells out a long list of important subjects over which the states and territories that compose the union have exclusive jurisdiction. But the constitution gives the central government the power to legislate on any subject—including the ones reserved to the regional governments—it deems a matter of national importance. In addition, the central government has direct powers of control over the regional governments (e.g., the national Parliament can dissolve the legislative council of any state or territory).

      The former Soviet (Soviet law) Union was, by constitution, a federal state; but, apart from the nominal character of at least certain parts of its constitution, the constitutional role entrusted to the Communist Party (Communist Party of the Soviet Union) unified the system to such an extent that the state was essentially unitary with some semifederal aspects. Post-Soviet Russia, in contrast, has a federal constitution in all respects.

      Both Italy and Spain can be considered semifederal states, though Italy is much closer to the unitary model. The regions in these countries are endowed with legislative and administrative powers in certain areas, but all the courts are national. Italy is perhaps one of the best examples of how a state may closely resemble a unitary system notwithstanding the presence of regional governments. The limited powers constitutionally granted to the regions have been extended by the national legislature through its devolution of additional matters to the purview of regional legislatures. Regional laws, however, must respect general principles laid down in national statutes, and in practice little room is left for genuinely autonomous regional legislation. Moreover, the regions are not financially independent. Thus, on the whole they can be considered almost a branch of the system of local governments, on a par with communes and provinces, rather than a distinct third level of government.

Unitary states

      The United Kingdom often is cited as the quintessential example of a unitary state, despite the presence of regional governments. Northern Ireland has alternated between periods of special autonomy and direct rule by the British government; in the 1990s an autonomous government for the region was reestablished, though autonomy was sometimes suspended by the British government. Also in the 1990s a Scottish Parliament and a Welsh Assembly were established (the former, but not the latter, was given extensive powers, including taxation), and the government debated introducing assemblies in some English regions. In the absence of a rigid constitution at the national level, however, the powers of the regional parliaments remained ill-defined. Indeed, an act of the central Parliament at Westminster theoretically could take powers away from the regional governments or in fact abolish them. Although France is a unitary state, in 1982 it established elective regional governments less dependent on the centre.

International unions of states

      Beginning in the second half of the 20th century, there was a growing tendency in many countries to allow the direct operation within their constitutional systems of international laws and the laws of special international organizations (international organization) to which they belonged. The constitutions of Germany and Italy, for example, require the legal system to conform with international customary law. Because both constitutions are rigid, this means that ordinary national statutes conflicting with such law are unconstitutional.

      At various times, groups of nation-states have formed unions that resulted in the creation of supranational governmental agencies whose laws became part of the legal systems of the member states. Although these unions did not constitute a new political community in the strict sense, they did act as something like a new level of government above the ones already existing. The most important examples of such a system are the European Union (EU) and its predecessor organizations. The Treaty of Rome (Rome, Treaties of) (1957), which established the European Community, created a government for the organization consisting of a commission, a council of ministers, an assembly (now the European Parliament), and a court (the European Court of Justice; ECJ). Directives and regulations enshrined in EU law must be applied by the national courts and must take precedence over national legislation. In addition, by adopting the euro, a single currency, member states agreed to cede substantial authority on financial management to the EU. The ECJ, which issues binding interpretations of the treaty and of EU regulations, allows for individual recourse.

      In 2004 the heads of government of the EU signed a constitution that created the posts of president and foreign minister and expanded the powers of the European Parliament, though that constitution has since failed to be ratified. Under this constitution, the EU also was given a “legal personality,” meaning that it could negotiate most treaties on behalf of its members. The EU may be the embryo of a future federal state, if the union develops into an organization whose central government is capable of making decisions independently of the consent of member states, and particularly if it is given substantial freedom to act in the field of foreign and military policy. Even as it exists now, however, the EU is much more than a simple alliance of states that issues regulations in its members' common economic interest. The structures of the EU penetrate deeply into the constitutional structures of the national member states, in much the same way as the structures of the central government penetrate those of regional governments in a federal system. Some features of federalism, such as the precedence of community law in member states and the restriction of interpretive functions to a central agency, are already present in the EU. Unlike state members of a true federal system, however, members of the EU may withdraw from the union at any time. But until a member takes such a step, it is subject to EU law in practically the same way that a subnational state or province is subject to federal law in a federal system.

Giovanni Bognetti Matthew F. Shugart

Executives and legislatures

      States may be classified as monarchical or republican and as having presidential or parliamentary executives. The United States, which possesses a presidential government, and the United Kingdom, which is the oldest practitioner of parliamentary government, have long served as models of their respective systems of executive authority, both for scholarly analysis and for the drafting of the constitutions of other countries.

Monarchical (monarchy) systems

      Although the institution of monarchy is as old as recorded history, since the beginning of the modern era many monarchies have been replaced with republics. Of the monarchies that remain—such as those in the United Kingdom, Japan, Spain, the Scandinavian countries, and the Low Countries—many are best described as “constitutional monarchies”: the monarchs are primarily titular heads of state and do not in fact possess important powers of government. Most of the executive powers are in the hands of ministers—headed by a prime minister—who are politically responsible to the parliament and not to the monarch. The executive powers of government in the United Kingdom, for example, are exercised by ministers who hold their offices by virtue of the fact that they command the support of a majority in the popularly elected House of Commons (Commons, House of). A constitutional monarch can act only on the advice of the ministers. The position of the monarchs in Scandinavia and the Low Countries is similar to that of the monarch in Britain: they reign but do not rule. In countries where no political party has a majority of its own in the parliament, the monarch may exercise some discretion in deciding whom to invite to form a government. Even where they have this discretion, however, monarchs must first consult with the various party leaders, a requirement that severely limits their freedom of action. In countries with stable two-party systems, all the monarch can do is offer the prime ministership to the leader of the majority party. Since 1975 the Swedish king has not even possessed this formal power; it is the president of the legislative assembly who chooses and appoints the prime minister. A constitutional monarch is the head of the state, not of the government. Standing above the political controversies of the moment, the sovereign is an object of national pride and loyalty and a symbol of the nation's unity and its continuity with the past.

      In a few monarchies, however—for example, those of Jordan, Morocco, and Saudi Arabia—the king exercises real powers of government. The ministers are chosen by and are responsible only to the king rather than to an elective parliamentary body. Hereditary rulers with this degree of personal power were quite common in the 18th century but are rare today. Although Jordan and Morocco have augmented the powers of their elected parliaments, the monarchs retain ultimate authority in those countries. In Thailand the constitution promulgated in 1932 greatly reduced the powers of the monarch, relegating him to a role similar to that of the European monarchs. Although he retained considerable formal powers, he could exercise them only upon the advice of elected leaders. His most important function was to serve as a living symbol of the country and as a focus of national unity.

Presidential (president) systems

      By definition, presidential systems must possess three basic features. First, the president originates from outside the legislative authority. In most countries such presidents are elected directly by the citizens, though separation of origin can also be ensured through an electoral college (as in the United States—see electoral college—or in Argentina before constitutional reforms were adopted in the mid-1990s), provided that legislators cannot also serve as electors. Second, the president serves simultaneously as head of government and head of state; he is empowered to select cabinet ministers, who are responsible to him and not to the legislative majority. And third, the president has some constitutionally guaranteed legislative authority.

      The U.S. (presidency of the United States of America) system is based on a strict concept of separation of powers (powers, separation of): the executive, legislative, and judicial powers of government are vested by the Constitution in three separate branches. The president (presidency of the United States of America) is neither selected by nor a member of the Congress (Congress of the United States). He is elected indirectly by the public through an electoral college for a fixed term of four years, and he holds office no matter how his legislative program fares in Congress and whether or not his political party controls either or both houses of Congress. (A president may be removed from office only for “Treason, Bribery, or other high Crimes and Misdemeanors”; removal requires impeachment by a majority of the House of Representatives followed by conviction by two-thirds of the Senate.) The members of the cabinet, as noted above, are chosen by the president and are politically responsible to him (though they must be confirmed by the Senate). The Constitution prohibits cabinet officials from serving simultaneously in Congress. Moreover, the president shares legislative powers with Congress: all bills passed by Congress are signed into law or vetoed by the president, though Congress may override a presidential veto by a two-thirds vote in each chamber. (For further discussion, see presidency of the United States of America.)

      Presidential systems may differ in important respects from the U.S. model. In terms of constitutional provisions, the most important variation is in the powers that the constitution delegates to the president. In contrast to the requirement that Congress need a supermajority to override a presidential veto in the United States, for example, in some countries (e.g., Brazil and Colombia), a presidential veto may be overridden by a simple majority. Many presidential constitutions (e.g., those in Argentina, Brazil, Colombia, and Russia) explicitly give the president the authority to introduce new laws by decree, thereby bypassing the legislature, though typically the legislature can rescind such laws after the fact.

      Some countries with presidential systems require that cabinet appointments be approved by the legislature. Thus, in the United States the president's cabinet appointments must be confirmed by a majority vote of the Senate. In the Philippines appointments of cabinet ministers must be approved by a Commission on Appointments, which consists of members of both houses of the legislature. Once appointed, however, cabinet secretaries or ministers cannot be removed by the legislature, except by impeachment.

Parliamentary systems

      The executive is organized very differently in a parliamentary system. In the United Kingdom, whose Westminster system has been adopted in many countries, the executive branch is not entirely separate from the legislative branch. On the contrary, the British cabinet may be described as the leading committee of Parliament. Formerly, the British prime minister, the head of the government, could sit in either the House of Lords (Lords, House of) or the House of Commons, but contemporary convention dictates that he serve as a member of the House of Commons (Commons, House of). The other ministers who make up the cabinet must be members of one or the other house of Parliament. If the prime minister wishes someone who is not in Parliament to serve in the cabinet, he must either appoint him to the peerage or find a vacancy in the House of Commons to which he can be elected.

      Whereas the doctrine of separation of powers in the U.S. system does not require the executive branch to hold a majority in the legislature, in Great Britain the ministers of the crown hold office only so long as they enjoy the support of a majority in the House of Commons. A cabinet that loses such support must either dissolve the Commons and call a new election—thus in effect putting the issue to the voters—or resign and permit others to form a government. Since the start of the 20th century, most changes of government in Britain have occurred as a result of the outcome of a general election.

      It follows that in the British system the prime minister and the cabinet are fully in charge of Parliament. They are responsible, as the guiding committee of Parliament, for the preparation and enactment of most legislation and of the budget. There can be no permanent or serious conflict between the House of Commons and the cabinet, for responsibility means that the government of the day must either prevail or give way to another government. Thus, the deadlocks between the chief executive and the Congress that occur from time to time in the United States cannot occur in the British system.

      Many parliamentary systems, however, lack the two-party system that typifies Britain's model of parliamentarism. Although there are in fact more than two parties in Britain, one party almost always holds a majority of seats, which thus enables the cabinet to be formed by ministers from a single party and prevents changes in the partisan complexion of the government between elections. Unless the government loses its majority before the next election (as a result of defections in the legislature or of by-elections to fill vacancies caused by death or resignation), the only event that can produce a change of government is an election that results in a legislative majority for another party.

      In contrast, many other countries possess parliamentary systems in which it is rare for a single party to obtain a majority of seats. In such systems the cabinet may be formed by a coalition of two or more parties, or it may be formed by a party that lacks a majority in the parliament. Because a party may withdraw from a coalition over a policy or some other issue, and because the opposition may demonstrate through a vote of no confidence that the government has lost its majority, it is possible for the government to change between elections. In some of these countries, however, it is also possible for a government to persist in office despite a lack of majority support. In countries that have adopted a “constructive” vote of no confidence, for example, a government may be removed by the legislature between elections by a majority vote of no confidence only if a majority also elects a successor government. The constitution of the Federal Republic of Germany was the first to require a constructive vote of no confidence, its authors hoping to avoid the frequent votes of no confidence (without majority agreement on a replacement) that had typified executive-legislative relations during the Weimar Republic (1919–33). Constructive votes of no confidence also have been adopted in Hungary and Spain.

      Parliamentary systems also vary in the role performed by the head of state. In constitutional monarchies the monarch occupies office by virtue of heredity. In parliamentary republics the head of state is usually a president. Presidents in parliamentary systems may be elected by direct popular vote (e.g., Ireland), by the legislature (e.g., the Czech Republic and Israel), or by an electoral college that consists of members of the legislature as well as delegates of regional assemblies (e.g., Germany, India, and Italy). They usually serve for fixed terms that are longer than the term of the parliament, and they may have some discretion in the appointment of a prime minister or the dissolution of the parliament.

Other systems

      Many constitutions with elected presidents do not meet the criteria of a presidential system outlined above. If the president must share—or, in some cases, cede—executive authority to a prime minister and cabinet who depend on parliamentary confidence, then the system is neither presidential nor parliamentary but rather a hybrid. Such a system has been in place in France since the establishment of the Fifth Republic (1958). According to the terms of a constitutional amendment adopted in 1962, the president of the republic is elected by direct vote of the people for a seven-year term (shortened by referendum to five years in 2000). This mandate gives the president significant moral power because he is the only leader elected directly by the entire voting population. Although the exercise of some presidential powers requires the signature of the prime minister or of some other minister, the president is invested with broad powers of his own: he appoints the prime minister; he dominates the management of foreign relations; he may dissolve the National Assembly, though not more often than once a year; he may call a referendum; and he possesses vast emergency powers. In addition, he presides over the cabinet, known as the Council of Ministers. Members of the council cannot be members of the National Assembly or the Senate, but they have access to both chambers; they may speak there, though they do not vote. The cabinet is responsible to the National Assembly and can be dismissed by a motion of censure. Thus, the French system of government is not presidential, because the president cannot maintain in office a cabinet that is opposed by a legislative majority. Although the president has the power to appoint the prime minister, he usually chooses the leader of the opposition party or coalition if it is in control of the National Assembly. Such periods of divided government are known in France as cohabitation.

      Constitutions similar in key respects to that of France have been adopted in several countries, including Finland, Poland, Portugal, and Romania. Although the president's precise powers vary, in each of these countries he is popularly elected and has more than merely ceremonial powers, and the cabinet and prime minister are politically responsible to the legislature. In still other hybrid systems—including those of Peru, Russia, Sri Lanka, and Taiwan—the president retains more formal authority than the French president possesses during periods of cohabitation.

      The Swiss (Switzerland) executive is unique, having neither an elected presidency nor a cabinet responsible to the parliament. The executive is a Federal Council that consists of seven members elected for four-year terms by the legislature (the Federal Assembly). They are elected as individuals and are never forced to resign. Indeed, disagreement with the Federal Assembly leads neither to resignation of the Federal Council nor to dissolution of the parliament; the ministers simply adjust their positions to conform with the wishes of the parliamentary majority. This does not mean that the Federal Council is an unimportant body; as a group it originates most new legislation, and its members, as individuals, direct the major departments of government. Each year the legislature appoints a member of the Federal Council to serve as president of the confederation. The president is chairman of the Federal Council and titular head of state.

      Although members of the Federal Council are formally elected as individuals, seats on the council have informally been apportioned according to a formula that gives each major party a certain number. From 1959 to 2003 the party composition of the Swiss executive remained the same, despite the shifting electoral strengths of the parties. Even after 2003 the Federal Council continued to consist of members of the four largest parties, which together regularly controlled more than four-fifths of the seats in the Federal Assembly.

Unicameral and bicameral (bicameral system) legislatures

      A central feature of any constitution is the organization of the legislature. It may be a unicameral body with one chamber or a bicameral body with two chambers. Unicameral legislatures are typical in small countries with unitary systems of government (e.g., Denmark, Sweden, Finland, Israel, and New Zealand) or in very small countries (e.g., Andorra, Dominica, Luxembourg, Liechtenstein, Malta, and Tuvalu). Federal states, whether large or small, usually have bicameral legislatures, one house usually representing the main territorial subdivisions. The classic example is the Congress of the United States, which consists of a House of Representatives (Representatives, House of), with 435 members elected for two-year terms from single-member districts of approximately equal population, and a Senate, consisting of 2 persons from each state elected by the voters of that state. The fact that all states are represented equally in the Senate regardless of their size reflects the federal character of the American union. The U.S. Senate enjoys special powers not shared by the House of Representatives: it must ratify by a two-thirds majority vote the international treaties concluded by the president and must confirm the president's appointments to the cabinet and to other important executive offices. The federal character of the Swiss (Switzerland) constitution is likewise reflected in the makeup of the country's national legislature, which is bicameral. One house, the National Council, consists of 200 members apportioned among the cantons according to population; the other house, the Council of States, consists of 46 members elected from the cantons by direct vote.

      Argentina, Brazil, Mexico, and Russia possess federal systems that mirror the U.S. model of equal representation for each subnational government in the upper chamber (since the mid-1990s one-fourth of Mexican senators have been elected in a single national district on the basis of the proportion of votes their political parties receive). In some federal systems representation of regions in the upper house is not equal. In Germany, for example, states are allocated three to six seats in the upper house (the Bundesrat), depending on population. In federal Austria each state is guaranteed at least three seats in the Bundesrat. In federations in which there is no guaranteed overrepresentation of smaller regions, a crucial principle of federalism is violated: the protection of regional sovereignty against a central government, backed by a national majority, that may seek to erode regional autonomy. An example of this case is Canada, where the upper house (the Senate) is an appointed body that is not constitutionally required to represent the provinces, though in practice senators are appointed (for life terms) to ensure regional balance. Although Micronesia and Venezuela are both federal states, each has a unicameral legislature.

      A unitary system of government does not necessarily imply unicameralism. In fact, the legislatures of most countries with unitary systems are bicameral, though one chamber is usually more powerful than the other. The United Kingdom, for example, has a unitary system with a bicameral legislature, which consists of the House of Lords (Lords, House of) and the House of Commons (Commons, House of). The Commons has become by far the more powerful of the two chambers, and the cabinet is politically responsible only to it. The Lords has no control over finances and only a modest suspensory veto with respect to other legislation (it may delay the implementation of legislation but not kill it). A veto by the Lords can be overcome in the Commons by a second vote at an early date. The parliaments of Italy, Japan, and France also are bicameral, though none of those countries has a federal form of government. Although in the United States all 50 states except Nebraska have bicameral legislatures, their governmental systems are unitary. In the 49 U.S. states with bicameral legislatures, the two houses have equal legislative authority, but the so-called upper houses—usually called senates—have the special function of confirming the governors' appointments.

Giovanni Bognetti David Fellman Matthew F. Shugart

judicial review

      The first examples of written constitutions (Constitution of the United States of America) came from the United States. The United States also gave the world an institution that has become a fundamental feature of many contemporary constitutional systems: judicial review. Rigid written constitutions allow for the existence of special state agencies that ensure the conformity of ordinary legislation to the rules of the constitution and, in case of conflict, set the former aside. Flexible unwritten constitutions do not permit this. In the United Kingdom, for example, all statutes, even those that are contrary to long-established constitutional principles, are formally binding and can be set aside only by subsequent statutes. The power to invalidate legislation conflicting with the provisions of a rigid constitution has been most frequently, though not invariably, entrusted to the judiciary. It was in the United States that the idea of making the judiciary the guardian of the constitution first took definitive shape. Judicial review—the power of courts to determine the constitutional validity of legislation or of actions taken by executive or government agencies—is intended to produce impartial judgments that are supported by traditional and tested rules of legal interpretation. This form of judicial review, which might be called “constitutional review,” differs from the “administrative review” of actions of government administrators that are alleged to be unreasonable or to constitute an abuse of power. Unlike constitutional review, administrative review does not require that courts have the power to declare such actions unconstitutional or that the country have a written constitution.

Judicial review in the United States

      Because judicial review in the United States has been a model for other countries, it is appropriate to devote some discussion to it and to the body of constitutional law it has produced. Despite its overwhelming importance, judicial review is not explicitly mentioned in the U.S. Constitution; indeed, it is itself a product of judicial construction. In Madison (Marbury v. Madison) (1803), the Supreme Court (Supreme Court of the United States) ruled that, because the Constitution clearly states that it is the supreme law of the land and because it is the province of the judiciary to uphold the law, the courts must declare state laws and even acts of Congress null and void when they are inconsistent with a provision of the Constitution. The same principle holds with regard to executive actions contrary to the Constitution. Supreme Court pronouncements on questions of constitutionality are final and binding for all other courts and governmental authorities, whether state or federal.

      In the U.S. system of judicial review, constitutional questions can be raised only in connection with actual “cases and controversies.” Advisory opinions to the government are common in other countries but are not rendered by U.S. federal courts. Although the cases and controversies requirement has been relaxed by the Supreme Court—at least to the extent of allowing class-action suits or allowing organizations to sue on behalf of their members who have not personally brought suit—it is still the case that courts will not decide a constitutional question unless it is rooted in a controversy in which the parties have a direct, personal interest. This requirement can sometimes frustrate efforts to obtain pronouncements on disputed issues.

      Although the U.S. courts are the guardians of the Constitution, they are not bound to consider all the provisions of the Constitution justiciable. Under the doctrine of “political questions,” the Supreme Court has refused at times to apply standards prescribed by or deducible from the Constitution to issues that it believed could be better decided by the political branches of government. Since Borden (Luther v. Borden) (1849), for example, it is a matter of settled practice that the court will not use Article IV, Section 4—which provides that the states must have a republican form of government—to invalidate state laws; it is for Congress and the president to decide whether a particular state government is republican in form. Many military and foreign policy questions, such as the constitutionality of a particular war, likewise have been considered political and therefore nonjusticiable.

      On the other hand, the political-question doctrine has not prevented the Supreme Court from asserting its jurisdiction in cases that are politically sensitive. Thus, in United States v. Nixon (1974), the court ruled that President Richard Nixon was required to turn over to federal authorities the tape recordings that confirmed his complicity in the Watergate Scandal. The doctrine also did not prevent the court from intervening in the presidential election of 2000, when it halted the recount of ballots in the disputed state of Florida and effectively confirmed George W. Bush (Bush, George W.)'s victory, despite forceful arguments that, under the Constitution and relevant federal statutes, the matter was clearly one for Florida and Congress to decide.

      Judicial review is designed to be more impartial than review by other institutions of government. This does not mean, however, that it is immune to policy considerations or to changes in the needs and political attitudes of the people. As a matter of fact, the Supreme Court's reading of the Constitution has itself evolved in the course of more than two centuries, in accordance with the large transformations that have occurred in American society.

      Given the structure of the U.S. Constitution, the Supreme Court historically has resolved constitutional disputes in four main areas: the relations between the states and the national government, the separation of powers within the national government, the right of government to regulate the economy, and individual rights and freedoms. In each of these areas the court's conception of the Constitution has undergone substantial changes.

      From 1789 through the Civil War era, the Supreme Court was a crucial participant in nation building, its decisions reinforcing the newly born structures of the federal system. The court's rulings established judicial supremacy in constitutional interpretation, gave force to the national supremacy clause of Article VI of the Constitution—which declared the Constitution the supreme law of the United States—and laid the foundation for the power of the federal government to intervene in the national economy by broadly interpreting its constitutional power to regulate interstate commerce. In contrast, during the decades of industrialization and economic growth that followed the Civil War, the court was very skeptical of attempts at economic regulation by the federal government. Indeed, until the Great Depression spawned the New Deal legislation of President Franklin D. Roosevelt (Roosevelt, Franklin D.), the court often ruled that many areas of economic activity were matters exclusively for state legislation or not subject to government regulation at all. After 1937, however, the court lifted the obstacles it had previously erected to federal intervention in the economic and social transactions of the country. Within a few years the Supreme Court established that Congress can make laws with respect to practically all commercial matters of national concern.

      A foundation of this expansion of the government's power to intervene in the economy and society was laid in the doctrine of federal spending power first enunciated in United States v. Butler (1936). The outcome of this case was overtly hostile to the expansion of government power, since the Supreme Court ruled unconstitutional a tax provision of the Agricultural Adjustment Act of 1933 that was designed to encourage limitation of production. However, the lasting contribution of the decision emerged from the Supreme Court's conclusion that the Constitution gives Congress a general and broad power to tax and spend in support of the general welfare. As a further example, the new interpretation of the commerce clause laid down in Wickard v. Filburn (1942) upheld the federal government's right to enforce quotas on the production of agricultural products in virtually all circumstances, even when, as in this case, a farmer exceeding his quota—by an admittedly sizable amount of wheat—proclaimed his intention to consume all his excess production, thereby preventing it from entering interstate commerce at all.

      In the area of separation of federal powers (powers, separation of), the court gradually came to support a substantial transfer of powers to the executive and to administrative agencies. Because Article I, Section 1 of the Constitution confers all legislative powers upon Congress, the court at first ruled that such powers cannot be delegated by Congress to the executive. This doctrine was much diluted in the 20th century, when it became clear that delegated legislation was necessary to administer a mixed economy. The court's generally favourable attitude toward enhancing the powers of the executive branch has manifested itself in other areas as well, notably in the field of foreign affairs. Nevertheless, the court has set important limits on the powers of the president. It has ruled, for example, that the president does not have an “inherent” power to seize steel mills in time of war (Youngstown Sheet & Tube Co. v. Sawyer, 1952) and that the prerogative of the president to keep confidential records secret must yield to the need of the judiciary to enforce criminal justice if the secret is not strictly related to military or diplomatic matters (United States v. Nixon, 1974).

      Until the New Deal, the court used the provisions of the Constitution concerning individual rights and freedoms primarily to protect property and economic liberties against state and federal efforts to interfere with the market. Thus, it often used the due process clause of the Fifth and Fourteenth amendments (no person shall be deprived of “life, liberty, or property, without due process of law”) to invalidate social legislation, such as laws establishing minimum or maximum working hours. In contrast, the court's agenda is now dominated by litigation directly raising questions involving civil and political rights and freedoms, as well as individual equality before the law. Due process claims focus primarily on procedural rights in criminal and administrative areas. In the mid-20th century, during a period of expansion of individual rights, the court declared unconstitutional racial segregation (segregation, racial) in the schools (Board of Education of Topeka (Brown v. Board of Education of Topeka), 1954) and malapportionment in electoral districts (Carr (Baker v. Carr), 1962; Wesberry v. Sanders, 1964) and strengthened the rights of criminal defendants and the accused (Mapp v. Ohio, 1961; Arizona (Miranda v. Arizona), 1966). The court also recognized a constitutional right to privacy (privacy, rights of) (State of Connecticut (Griswold v. State of Connecticut), 1965), which became the foundation for the right of a woman to obtain an abortion (Wade (Roe v. Wade), 1973; Casey (Planned Parenthood of Southeastern Pennsylvania v. Casey), 1992). Beginning in the 1970s, the court was less willing to support litigant claims that would further expand individual rights and freedoms, though for the most part it did not significantly restrict them.

      Through more than two centuries of judicial review, the U.S. Supreme Court typically has supported the values of the prevailing political ideology against challenges from the states or other branches of the federal government. Indeed, it has often been said that the court conducts judicial review by following election returns and public opinion polls. Although there is considerable insight in this observation, it is not true that the court simply tailors its decisions to comport with the political views of the electoral majority. At times, as in the early 20th century, the court's view of economic legislation was out of step with the views of the electorate, the other federal branches, and some states. In the 1950s and early '60s the court also made decisions contrary to public opinion and government policy regarding political and racial equality and other civil, political, and procedural rights.

Judicial review outside the United States

      In the world outside the United States, the idea of making the judiciary the guardian of the constitution was not warmly received until the second half of the 20th century. Political and legal traditions in Europe and elsewhere emphasized central executive or parliamentary sovereignty and forbade the judiciary from filling interstices in the laws. Eventually, however, the failure of popular governments based on parliamentary sovereignty, the experience of world war, wholesale decolonization, and the need to reconstruct the collapsed regimes built upon fascism and communism led to a sharp change in worldwide attitudes toward constitutional judicial review. By the early 21st century constitutional review by the judiciary of legislative and executive actions was a formal part of the written constitutions of a majority of the world's nations, including the postcommunist regimes of eastern Europe and postapartheid South Africa. In other countries where judicial review is central to the workings of government—including Canada, Australia, and New Zealand—its foundations lay in national-autonomy statutes or judicial pronouncements rather than in written constitutions.

      Judicial review in Europe differs from the U.S. model. Instead of allowing any court to rule on the constitutionality of statutes, with the high court in the regular judicial hierarchy being the ultimate arbiter, European countries have established special constitutional courts to which all questions concerning the constitutional validity of legislation or executive action must be referred—and which alone have the power to declare statutes or actions unconstitutional.

      In 1920 Austria became the first European country to inaugurate centralized judicial review in a constitutional court. After World War II, Italy, West Germany, France, and Turkey also established constitutional courts, as did Spain and Portugal after the fall of the dictatorships in those countries in the 1970s. Virtually every post-Soviet eastern European country followed suit, as did Luxembourg in 1997. In contrast, the countries of Scandinavia, as well as Belgium, Greece, and Ireland, vest judicial-review powers of varying kinds in their regular courts. The United Kingdom and The Netherlands remain the principal European countries lacking constitutional judicial review. In both countries, however, the courts may hold that laws are void because they are inconsistent with the provisions of binding international treaties, such as those establishing the law of the European Union.

      Where constitutional courts exist, questions concerning the validity of statutory laws or executive actions reach the court chiefly through referrals from the judges of ordinary courts, who certify the presence of a constitutional question in the litigation, or through appeals by the losing parties, who assert that the decisions of ordinary courts have deprived them of their constitutional rights. In some circumstances nonjudicial agencies—such as the national executive, the regional governments, or a parliamentary minority—can bring issues directly to the constitutional court. Most European constitutional courts also differ from the U.S. Supreme Court in that they can hear both “concrete” and “abstract” disputes—suits that, respectively, do and do not involve an actual case or controversy. In France the Constitutional Council can set aside unconstitutional statutes only before they have been promulgated and only upon petition by either the president of the republic, the prime minister, the chairman of either of the two legislative assemblies, or a parliamentary minority that includes at least 60 deputies or senators.

      The U.S. system of judicial review by ordinary courts also has been adopted widely. It has been in operation in Switzerland, with some limitations, since 1874. It is also practiced in several major former British colonies, including India, Canada, Australia, and New Zealand, and in Japan and the Philippines, countries whose constitutions were drafted with considerable U.S. influence.

      Judicial review by the highest regular courts has been the dominant arrangement in Latin America, though often the influence of a powerful president or the existence of a politicized appointment process has made constitutional review effectively a cipher. Nonetheless, courts in Brazil, Colombia, Mexico, and other Latin American countries have become increasingly active in restraining the executive and legislative bodies, and there is a trend toward greater use of judicial review in the region.

      Although the practice is not always enshrined in written constitutions, constitutional judicial review is also the rule in a majority of African, Middle Eastern, and Asian countries, with the regular-court variety being most common in former British territories and the constitutional-court type in former French dependencies. There is also a small group of countries that lodge the power of constitutional review specifically in an agency other than a regular or a constitutional court.

      For the most part, the American doctrine of political questions has not been accepted in the jurisprudence of centralized European systems. Besides adjudging the validity of statutory law, European constitutional courts usually must also resolve conflicts between state agencies (the legislature, the executive, the president of the republic, and the judiciary) concerning their respective constitutional prerogatives; in addition, they may conduct trials of impeachment and dispose of other matters of constitutional import.

Applications of judicial review

      Constitutional courts and supreme courts exercising judicial review outside the United States often are not usually as politically influential as their American counterpart, but there are notable exceptions. The Supreme Court, for example, is widely regarded as the most powerful government institution in India (Indian law). It has used its powers of judicial review, its custody of the “fundamental freedoms” of the Indian constitution, and its understanding of the needs of Indian society to assert its authority to make policy on virtually any matter that invokes the “public interest” or requires “social action.” To do so, it has all but abandoned the requirement that would-be litigants have even minimal standing to sue. It has asserted, successfully, its right to declare unconstitutional even properly adopted constitutional amendments when such amendments violate the unspecified but judicially defined “basic structure” of the constitution.

      The Supreme Court of the Philippines is also worth noting for its prestige, powers, and broad policy role in national politics. The Philippine constitution adopted in 1987 after the ouster of Ferdinand Marcos (Marcos, Ferdinand E.) explicitly limited the courts to deciding actual cases or controversies, but it effectively rejected the validity of the political question doctrine as a limit of the power of courts by establishing their duty to decide by judicial review “whether or not there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of government.” Using this and other constitutional powers, the Supreme Court of the Philippines has been deeply involved in questions of national economic and social policy, human rights, and presidential succession.

      Less dramatically, judicial review has become an element of at least some weight in the constitutional processes of many countries. The expansion of judicial review is in fact part of a broad judicialization of politics around the world: a trend toward relying on judges to make policy decisions in areas that were previously within the purview of other governmental institutions.

      The consequences of judicial review in the United States have been enormous. From the late 1930s through the 1960s, a liberal Supreme Court (Supreme Court of the United States) used its powers of judicial review to broaden democratic participation in government and to expand the rights of citizens, especially those of minorities and the accused. Beginning in the 1970s, a more-conservative Supreme Court resisted the expansion of rights in many areas and limited the effects of previously established rights in others. Nevertheless, it did not, by and large, overturn the panoply of rights created by its predecessor.

      In Europe and elsewhere judicial review has been used to advance the same democratic values that inspired the decisions of the U.S. Supreme Court from the late 1930s. European constitutional courts, in particular, have modified the legal systems of their countries here and there by interpreting the rights enumerated in their respective constitutions in ways that bear comparison with the American experience of judicial review. Nevertheless, European courts have tended to be more cautious than the U.S. Supreme Court in expanding the freedoms of the individual at the expense of other competing values.

      A few examples may illustrate the differences between American and European applications of judicial review. In the area of freedom of expression, the American doctrine holds that no seditious or subversive speech can be punished unless it poses a “clear and present danger” of inciting immediate unlawful action. Accordingly, the U.S. Supreme Court has been extremely reluctant to approve prior restraint of speech or expression. The freedom to express unorthodox opinions is also clearly recognized by European constitutions and is upheld by the constitutional courts when they are confronted with laws that curtail it. But European doctrine has not accepted the American standard of clear and present danger or prior restraint. Thus, the Italian constitutional court requires, for the punishment of speech advocating the use of violence, that the speech create, in the circumstances, a “danger,” but it does not specify that the danger must be “immediate.” The Federal Constitutional Court of Germany, judging on the basis of constitutional provisions that forbid speech and associations directed at impairing the liberal-democratic foundations of the state, has dissolved neo-Nazi and other parties without even considering the element of actual “danger.” On the same basis it has upheld laws excluding from public employment persons holding subversive beliefs. In the United States the law of libel (see defamation) concerning public figures actively protects free speech inasmuch as, under the doctrine of New York Times v. Sullivan (1964), plaintiffs who are public figures cannot win unless they prove that the libeler acted with “actual malice” (that he knowingly asserted a false statement). In Europe a finding of liability for the defamation of a public figure does not constitutionally require such proof.

      The U.S. Supreme Court has found (Roe (Roe v. Wade) v. Wade, 1973; Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992) that a woman's constitutional right to privacy entitles her to obtain an abortion freely, prior to the point at which the fetus attains viability. No European constitutional court has gone this far in recognizing a freedom to obtain an abortion. The Italian court held in 1975 that voluntary abortions cannot be punished if performed for the purpose of preserving the life and health—either physical or emotional—of the woman. The Austrian court (1974) and the French Constitutional Council (1975), without addressing the problem of a woman's constitutional right to interrupt pregnancy, have validated statutes that provide in liberal terms for the possibility of voluntary abortions. In a unique ruling in 1975, the Federal Constitutional Court of West Germany held that the West German constitution, by declaring the life of persons inviolable, implicitly protects the life of fetuses and that an adequate protection is afforded by the state only if voluntary abortion is made a crime by law. The law of East Germany was much more permissive, and, a few years after the reunification of the two German states (1990), the Constitutional Court, while reaffirming the principle that the fetus must be protected, held that such protection must be achieved not through punishment but through counseling and other measures aimed at influencing a woman to decide freely to carry her pregnancy to term.

      The separation of church and state, as provided for by the First Amendment to the U.S. Constitution, has led the U.S. Supreme Court to rule in a series of cases that officially sanctioned Bible reading, prayer, and religious instruction in public schools are unconstitutional. Separation of church and state, although contemplated in principle also by European constitutions, is sometimes tempered by constitutional provisions making accords between church and state possible in matters of common interest. No European court has ruled that accords giving students the opportunity to attend religious courses in public schools violate the principle of religious freedom or the principle of the equality of all citizens before the law.

      In other areas of the law, European constitutional courts have proved to be as ready as, and sometimes even more ready than, the U.S. court to afford protection to the rights of the individual. In the United States, Mapp v. Ohio (1961) established that illegally obtained evidence cannot be produced at a trial to substantiate criminal charges against the defendant. This “ exclusionary rule” also is in force, at least partially, in much of Europe. The Italian constitutional court, for example, has stated that such a rule is required on constitutional grounds. In Miranda (Miranda v. Arizona) v. Arizona (1966), the U.S. Supreme Court held that a confession made by the accused under arrest cannot be used as evidence unless he has been previously advised of his rights, among which is the right to remain silent and the right to consult with a lawyer. The Italian constitutional court declared unconstitutional (1970) a law that excluded the suspect's attorney at the interrogation by the investigatory authorities and at other proceedings intended to secure evidence against the accused.

      Although courts in the United States can be asked to review the lawfulness of administrative actions, the Supreme Court is still reluctant to establish as a matter of constitutional due process that citizens are always entitled to sue in court in order to have administrative decisions set aside if contrary to ordinary substantive or procedural rules. The Italian and German constitutions explicitly state the principle and admit no exception, and the courts of both countries carefully see to it that the principle is respected and that citizens are not deprived of their day in court, even if the other party is the administrative agency.

      While applying the principle of equality in cases of sex discrimination and discrimination against children born out of wedlock, European courts often have gone beyond the doctrines of the U.S. Supreme Court in the same areas. According to the German rule, for example, husband and wife must have the same rights within the family (family law); in particular, parental power over the children belongs equally to both. The Italian court has in many respects reshaped family law to ensure the equal rights of the wife and of children born out of wedlock and has defended the right of women to treatment equal to that of men in labour relations. Effective legislative protection against discrimination aimed at non-European immigrant workers and their families is still deficient in EU countries, and, by and large, constitutional courts have said little in this area. But they have shown remarkable sensitivity when the problem affects local ethnic or linguistic minorities. The U.S. Supreme Court found that programs of “ affirmative action” meant to help minorities who were previously discriminated against did not necessarily constitute “reverse discrimination” in violation of the equal protection clause of the Constitution. A similar ruling in the 1970s by the Italian court validated laws that reserved a proportion of public jobs and publicly financed housing for the German-speaking population of Alto Adige, who had inhabited the region for centuries.

      It is true that European courts thus far have not openly defied the political powers of the state in the way the U.S. Supreme Court has sometimes done. Even when the European courts have somehow challenged such powers by annulling laws that were supposedly of special interest to them, the conflict has not really been acute. But the greater prudence of European courts is not difficult to explain. It is the result of many factors, prominent among which are the facts that their legitimation as independent and active agencies within the political system is recent and that the tradition of judicial review does not yet have the firm roots it possesses in the United States.

Transnational judicial review

      In Europe judicial review has transcended the boundaries of the state. In actions reminiscent of the nation-building efforts of the early U.S. Supreme Court, the European Court of Justice (ECJ) has “constitutionalized” the various EU (European Union) treaties, establishing their superiority to national laws and its right to exercise judicial review over the compliance of national laws—including national constitutions—with provisions of the treaties. Because the EU has been primarily an economic union since its inception in the 1950s as the European Coal and Steel Community, judicial review by the ECJ has focused on economic rights and relations in member countries. Nevertheless, the ECJ has begun to develop, through judicial review, rights that go beyond the economic sphere and that approach those addressed by the European Convention on Human Rights (1950), which had been ratified by some 45 countries by the early 21st century. As a consequence, European law is now subject to judicial review on human rights matters by the European Commission on Human Rights and the European Court of Human Rights. Besides granting a remedy in a pending case, the European Court of Human Rights also may find statutory and other national laws contrary to the provisions of the convention. If it does so, the country concerned is obligated to adapt its legal rules to the principles stated by the court.

      A convention on human rights similar to the European one was signed in 1969 by several Latin American countries. An Inter-American Court of Human Rights, which has jurisdiction over individual complaints, began functioning in 1982.

      Thus, the idea of the rights of the individual, after having contributed three centuries ago to the birth of modern constitutional law, has now become the mainspring of another incipient, promising experience: judicial review with transnational dimensions.

Giovanni Bognetti C. Neal Tate

Additional Reading

Background

The definitions of the concept of constitutional law and of the elements, necessary and contingent, that make up a constitution are the subject of such classic works as Hans Kelsen, General Theory of Law and State, trans. from German and French by Anders Wedberg (1945, reissued 1999); and H.L.A. Hart, The Concept of Law, 2nd ed. (1994, reissued 1997). A helpful place to begin for background on the national legal and judicial systems that provide the foundations for constitutional law and judicial review is Herbert M. Kritzer (ed.), Legal Systems of the World: A Political, Social, and Cultural Encyclopedia (2002). A thorough but concise treatment of the variety of courts and their roles in democracies is Carlo Guarnieri and Patrizia Pederzoli, The Power of Judges: A Comparative Study of Courts and Democracy (2002). Valuable works on modern constitutionalism include S.E. Finer, Vernon Bogdanor, and Bernard Rudden, Comparing Constitutions (1995); and the classic Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, 4th ed. (1968).

Federalism

Classic analyses of federalism as a form of government are William S. Livingston, Federalism and Constitutional Change (1956, reprinted 1974); and K.C. Wheare, Federal Government, 4th ed. (1963, reprinted 1980). More-recent treatments include Michael Burgess (ed.), Federalism and Federation in Western Europe (1986), and Comparative Federalism: Theory and Practice (2006). The theory of federalism is explored in Mikhail Filippov, Peter C. Ordeshook, and Olga Shvetsova, Designing Federalism: A Theory of Self-Sustainable Federal Institutions (2003). A history of the separation of powers in Europe and the United States can be found in M.J.C. Vile, Constitutionalism and the Separation of Powers, 2nd ed. (1998). An encompassing work on federalism worldwide is Alfred Stepan, “Toward a New Comparative Analysis of Democracy and Federalism: ‘Demos Constraining' and ‘Demos Enabling' Federations,” in Alfred Stepan, Arguing Comparative Politics (2001).

Constitutions and constitutionalism

The texts of almost all the state constitutions currently in force in the world are available in English in A.P. Blaustein and G.H. Flanz (eds.), Constitutions of the Countries of the World: A Series of Updated Texts, Constitutional Chronologies, and Annotated Bibliographies, 20 vol. (1971– ), with quarterly revisions published for loose-leaf update.Patterns in the world's constitutions through the 1960s are conveniently summarized in Ivo Duchacek, Power Maps: Comparative Politics of Constitutions (1973), and Rights & Liberties in the World Today: Constitutional Promise & Reality (1973). More-recent treatments of constitutionalism in various contexts include Gary J. Jacobsohn, Apple of Gold: Constitutionalism in Israel and the United States (1993), and The Wheel of Law: India's Secularism in Comparative Constitutional Context (2003); and J.H.H. Weiler, The Constitution of Europe: “Do the New Clothes Have an Emperor?” and Other Essays on European Integration (1999).A comprehensive study of variations in the constitutional forms of democracies may be found in Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-six Countries (1999). A comparative study of presidential democracy is Matthew Soberg Shugart and John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics (1992).An analysis of constitutional law in the British Commonwealth is Leslie Zines, Constitutional Change in the Commonwealth (1991). Surveys of individual countries include Hamid Khan, Constitutional and Political History of Pakistan (2001); Peter C. Oliver, The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand (2005); and A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law, 13th ed. (2003), a classic on Great Britain's constitution.

Judicial review

A useful symposium on comparative judicial review is Donald W. Jackson and C. Neal Tate (eds.), Comparative Judicial Review and Public Policy (1992). An authoritative analysis of judicial review as an institution and of the constitutional law produced by it is Mauro Cappelletti, Judicial Review in the Contemporary World (1971).

Judicial review in the United States

Judicial review in the United States is discussed in Robert G. McCloskey, The American Supreme Court, 4th ed., rev. by Sanford Levinson (2005); and Joan Biskupic and Elder Witt, The Supreme Court and Individual Rights, 4th ed., rev. by David G. Savage (2004), and The Supreme Court and the Powers of the American Government (1997).General works on the U.S. Constitution include Edward S. Corwin, Edward S. Corwin's The Constitution and What It Means Today, rev. by Harold W. Chase and Craig R. Ducat, 14th ed. (1978); Laurence H. Tribe, American Constitutional Law, 3rd ed. (2000); and Lee Epstein and Thomas G. Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 5th ed. (2004), and Constitutional Law for a Changing America: Rights, Liberties, and Justice, 5th ed. (2004). Leonard W. Levy and Kenneth L. Karst (eds.), Encyclopedia of the American Constitution, 2nd ed., 6 vol. (2000), is a comprehensive, multidisciplinary reference work. Historical discussions of U.S. constitutional law include Carl Brent Swisher, American Constitutional Development, 2nd ed. (1954, reprinted 1978); and Philip B. Kurland and Ralph Lerner (eds.), The Founders' Constitution, 5 vol. (1987, reissued 2000), a monumental collection of 17th-, 18th-, and 19th-century documents that bear on all parts of the Constitution. Invaluable reference works are Kermit L. Hall (ed.), The Oxford Companion to the Supreme Court of the United States, 2nd ed. (2005); David G. Savage (ed.), Guide to the U.S. Supreme Court, 4th ed., 2 vol. (2004); and Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments, 4th ed. (2006).

Judicial review outside the United States

The judicialization of politics is the subject of C. Neal Tate and Törbjorn Vallinder, The Global Expansion of Judicial Power (1995); Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004); Rachel Sieder, Line Schjolden, and Alan Angell (eds.), The Judicialization of Politics in Latin America (2005); and Martin Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization (2002). Especially useful for its theoretical, historical, and empirical content is Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003). Judicial review and the new constitutional politics of Europe are discussed in Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000).

Applications of judicial review

Important discussions of judicial review and its practice in various regimes include Mary L. Volcansek, Constitutional Politics in Italy: The Constitutional Court (2000); Georg Vanberg, The Politics of Constitutional Review in Germany (2005); Gretchen Helmke, Courts Under Constraints: Judges, Generals, and Presidents in Argentina (2005); S.P. Sathe, Judicial Activism in India (2002); B.N. Kirpl et al. (eds.), Supreme but Not Infallible: Essays in Honour of the Supreme Court of India (2000); Paula R. Newberg, Judging the State: Courts and Constitutional Politics in Pakistan (1995); and Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (2005). Judicial review as administrative review is the subject of Lee Bridges, George Meszaros, and Maurice Sunkin, Judicial Review in Perspective (1995); Marc Hertogh and Simon Halliday (eds.), Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (2004); and Susan Sterett, Creating Constitutionalism? The Politics of Legal Expertise and Administrative Law in England and Wales (1996).

Transnational judicial review

Useful sources among the many available on the development of transnational judicial review are Karen J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (2001); Renaud Dehousse, The European Court of Justice: The Politics of Judicial Integration, expanded ed. (1988; originally published in French, 1994); Gráinne de Búrca and J.H.H. Weiler (eds.), The European Court of Justice (2001); and Mary L. Volcansek and John F. Stack, Jr. (eds.), Courts Crossing Borders: Blurring the Lines of Sovereignty (2005).C. Neal Tate

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