The American and The American and European Models of European Models of

Constitutional ReviewConstitutional Review

Alec Stone SweetAlec Stone SweetYale Law SchoolYale Law School

Three tasks for today:Three tasks for today:

1. Contrast the American Model of Judicial 1. Contrast the American Model of Judicial Review with the European Model of Review with the European Model of Constitutional Review.Constitutional Review.

2. Examine the three main “modes” of 2. Examine the three main “modes” of constitutional review found in the European constitutional review found in the European model: abstract review, concrete review, model: abstract review, concrete review, and the individual constitutional complaint.and the individual constitutional complaint.

3. Describe how “abstract review” 3. Describe how “abstract review” operates in the United States, despite the operates in the United States, despite the “case or controversy” requirement.“case or controversy” requirement.

The American ModelThe American Model Article 3, Federal Constitution of the U.S.:Article 3, Federal Constitution of the U.S.:

‘‘The judicial Power shall extend to all Cases, in Law The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution; the and Equity, arising under this Constitution; the Laws of the United States . . . [and] . . . to Laws of the United States . . . [and] . . . to Controversies to which the United States shall be a Controversies to which the United States shall be a party; to Controversies between two or more party; to Controversies between two or more States; between a State and Citizens of another States; between a State and Citizens of another State; [and] between Citizens of different States [. . State; [and] between Citizens of different States [. . .]..].

This is the basis of the “case of controversy” rule This is the basis of the “case of controversy” rule governing “justiciability” for American courts.governing “justiciability” for American courts.

““Advisory opinions” are prohibited.Advisory opinions” are prohibited.Marbury v. Madison (1803): established the power of Marbury v. Madison (1803): established the power of

(constitutional) judicial review. What is judicial (constitutional) judicial review. What is judicial review?review?

American judicial review:American judicial review: Authority is Authority is decentralizeddecentralized: all : all

judges possess the power to judges possess the power to annul a statute on the grounds annul a statute on the grounds that it violates the constitution that it violates the constitution law.law.

The Supreme Court is a court of The Supreme Court is a court of “general jurisdiction: it is the “general jurisdiction: it is the highest court of appeal in the highest court of appeal in the legal order, for legal order, for allall issues of law, issues of law, not just constitutional issues. not just constitutional issues.

Judicial review is defensible Judicial review is defensible under prevailing separation of under prevailing separation of powers doctrines to the extent powers doctrines to the extent that it is “case or controversy” that it is “case or controversy” review. Judges possess review review. Judges possess review authority because their legal authority because their legal duty is to resolve legal “cases,” duty is to resolve legal “cases,” some of which will have a some of which will have a constitutional dimension. constitutional dimension.

Judicial review is understood to Judicial review is understood to be “concrete,” in that it is be “concrete,” in that it is exercised pursuant to ordinary exercised pursuant to ordinary litigation. Abstract review litigation. Abstract review decisions look suspiciously like decisions look suspiciously like “advisory opinions,” which are “advisory opinions,” which are prohibited under American prohibited under American separation of powers doctrines. separation of powers doctrines.

European constitutional review:European constitutional review: Authority is Authority is centralizedcentralized: only the : only the

constitutional court may annul a constitutional court may annul a statute as unconstitutional. statute as unconstitutional. Judicial review of statute is Judicial review of statute is prohibited. prohibited.

The Constitutional Court’s The Constitutional Court’s jurisdiction is restricted to jurisdiction is restricted to resolving constitutional resolving constitutional disputes. The ordinary courts disputes. The ordinary courts handle civil suits and criminal handle civil suits and criminal matters. matters.

Review powers are defensible Review powers are defensible under separation of powers under separation of powers doctrines to the extent that it is doctrines to the extent that it is not exercised by the judiciary, not exercised by the judiciary, but by a specialized but by a specialized “constitutional” organ, the “constitutional” organ, the constitutional court. constitutional court.

Constitutional review is typically Constitutional review is typically “abstract”: the review court “abstract”: the review court does not resolve “concrete does not resolve “concrete cases” between two litigating cases” between two litigating parties, but answers parties, but answers constitutional questions referred constitutional questions referred to it by judges or elected to it by judges or elected officials. Judicial review looks officials. Judicial review looks like a “confusion of powers,” like a “confusion of powers,” since the judges participate in since the judges participate in the legislative function. the legislative function.

American Judicial ReviewAmerican Judicial Review Judicial Review: review is exercised pursuant to a Judicial Review: review is exercised pursuant to a

legal “case” being brought before a judge.legal “case” being brought before a judge.

A “case”: a legal dispute brought to a court in the A “case”: a legal dispute brought to a court in the form of litigation between two parties who have form of litigation between two parties who have opposed interests in the outcome of the dispute. opposed interests in the outcome of the dispute.

““Standing” and “mootness” are ways for the courts Standing” and “mootness” are ways for the courts to verify concreteness. to verify concreteness. American courts are American courts are expected to deny standing to parties that fail to expected to deny standing to parties that fail to show some degree of “direct interest” in the show some degree of “direct interest” in the review of a law.review of a law.

Review is activated once one of the parties pleads Review is activated once one of the parties pleads the constitution, such as a right. Any court can, at the constitution, such as a right. Any court can, at the behest of either party, void a law as the behest of either party, void a law as unconstitutional if that court determines that the unconstitutional if that court determines that the statute violates the constitution.statute violates the constitution.

European Modes of ReviewEuropean Modes of Review Abstract Review:Abstract Review:

Abstract review is initiated when elected officials – Abstract review is initiated when elected officials – typically the parliamentary opposition, the typically the parliamentary opposition, the executive, or the government of a regional of executive, or the government of a regional of federated state – refer a law for review after the federated state – refer a law for review after the law has been adopted by the legislature, but law has been adopted by the legislature, but before it has been enforced. before it has been enforced.

This mode of review is called “abstract” because it This mode of review is called “abstract” because it proceeds in the absence of a concrete judicial proceeds in the absence of a concrete judicial case, since the law has yet to be applied. The case, since the law has yet to be applied. The review court compares the constitutional text and review court compares the constitutional text and the statute, in the abstract, to determine if the the statute, in the abstract, to determine if the latter conforms to the former. latter conforms to the former.

Abstract review is also called “preventive review,” Abstract review is also called “preventive review,” since it allows the system to filter out since it allows the system to filter out unconstitutional laws before they can harm people.unconstitutional laws before they can harm people.

Concrete Review:Concrete Review:

Concrete review is initiated when an ordinary Concrete review is initiated when an ordinary judge, presiding over litigation in the courts, judge, presiding over litigation in the courts, refers a constitutional question – for example, refers a constitutional question – for example, is law X, which is normally applicable to the is law X, which is normally applicable to the dispute at bar, unconstitutional? – that the dispute at bar, unconstitutional? – that the constitutional court must answer. The constitutional court must answer. The referring judge then resolves the dispute with referring judge then resolves the dispute with reference to the constitutional court’s ruling. reference to the constitutional court’s ruling. This mode of review is called “concrete” This mode of review is called “concrete” since it is related to a concrete case already since it is related to a concrete case already underway in the ordinary courts. In underway in the ordinary courts. In comparison with American judicial review, comparison with American judicial review, however, concrete review still looks more however, concrete review still looks more “abstract,” in that the constitutional court “abstract,” in that the constitutional court does not preside over, or settle the case, does not preside over, or settle the case, which remains the responsibility of the which remains the responsibility of the referring judge.referring judge.

The Constitutional Complaint:The Constitutional Complaint:

Individuals may activate the constitutional Individuals may activate the constitutional court directly by sending to the judges a court directly by sending to the judges a constitutional complaint, which alleges that constitutional complaint, which alleges that their rights have been violated by a public their rights have been violated by a public authority, after judicial remedies have been authority, after judicial remedies have been exhausted or are not available. exhausted or are not available.

Most constitutional complaints are, in effect, Most constitutional complaints are, in effect, appeals of judicial decisions. Thus: appeals of judicial decisions. Thus: concrete review and the complaint often concrete review and the complaint often work together in a long extended process. work together in a long extended process. Example: Farmer Fritz and the expropriation Example: Farmer Fritz and the expropriation of his pasture to build an Autobahn in of his pasture to build an Autobahn in Germany.Germany.

Table 9.1: Regional Distribution of Table 9.1: Regional Distribution of Models of Constitutional Review in Models of Constitutional Review in

20002000

CJRCJR EMEM MixedMixed OtherOther NoneNone

EuropeEurope 55 3131 3 (1)3 (1) 1 1 22

AfricaAfrica 1212 2929 11 66 33

Middle EastMiddle East 22 55 00 33 11

Asia and SE AsiaAsia and SE Asia 1818 1313 22 1111 00

North AmericaNorth America 22 00 00 00 00

Central AmericaCentral America 33 33 3 (1)3 (1) 00 00

South AmericaSouth America 33 44 5 (3)5 (3) 00 00

CaribbeanCaribbean 88 00 00 11 00

TotalsTotals 5353 8585 1414 2222 66

Abstract ReviewAbstract Review

Abstract review: the pre-enforcement Abstract review: the pre-enforcement review of statutes. review of statutes.

Abstract review is also called Abstract review is also called “preventive review,” since its purpose “preventive review,” since its purpose is to filter out unconstitutional laws is to filter out unconstitutional laws before they can harm anyone. before they can harm anyone.

In Europe, abstract review is In Europe, abstract review is politically-initiated. Typically, politically-initiated. Typically, executives, parliamentary minorities, executives, parliamentary minorities, and regions or federated entities in and regions or federated entities in federal states, possess the power to federal states, possess the power to refer laws to the court. refer laws to the court.

Abstract Constitutional Review in the Abstract Constitutional Review in the U.S.U.S.

How does abstract review of statutes in How does abstract review of statutes in America happen?America happen?

The technical answer: “facial challenges” The technical answer: “facial challenges” happen when: happen when:

(a)(a) plaintiffs file a motion for “injunctive” or plaintiffs file a motion for “injunctive” or “declaratory” relief from the application “declaratory” relief from the application of a law on the grounds that it would of a law on the grounds that it would injure them in some significant way. injure them in some significant way. Such motions are filed immediately after Such motions are filed immediately after a law is adopted but before it is applied.a law is adopted but before it is applied.

(b)(b) plaintiffs file a “facial challenge” directly, plaintiffs file a “facial challenge” directly, pleading the first amendment.pleading the first amendment.

Injunctive or Declaratory Injunctive or Declaratory ReliefRelief

The doctrine:The doctrine:Judges will give relief where (a) a plaintiff’s Judges will give relief where (a) a plaintiff’s

constitutional rights are at issue, (b) the plaintiff constitutional rights are at issue, (b) the plaintiff is likely to prevail on the merits, and (c) the is likely to prevail on the merits, and (c) the plaintiff may suffer irreparable injury if relief is plaintiff may suffer irreparable injury if relief is not grantednot granted..

Major examples: abortion.Major examples: abortion.

California Supreme Court (1997): California Supreme Court (1997): American American Academy of Pediatrics, et al. v. LungrenAcademy of Pediatrics, et al. v. Lungren. Online . Online at: at: http://caselaw.lp.findlaw.com/data2/californiastathttp://caselaw.lp.findlaw.com/data2/californiastatecases/s041459.docecases/s041459.doc

Facial challenge brought by, among others, Facial challenge brought by, among others, American Academy of Pediatrics, the California American Academy of Pediatrics, the California Medical Association, the American College of Medical Association, the American College of Obstetricians, and Planned Parenthood of San Obstetricians, and Planned Parenthood of San Francisco Francisco

Facial ChallengesFacial Challenges Developed first in the free speech area in the Developed first in the free speech area in the

1940s: allows individuals whose speech rights 1940s: allows individuals whose speech rights might be affectedmight be affected if a law is enforced to sue if a law is enforced to sue to have the law reviewed as to its legality to have the law reviewed as to its legality under the constitution, and groups to plead under the constitution, and groups to plead the rights of third persons.the rights of third persons.

In first amendment litigation, for the In first amendment litigation, for the government to win, it must show that the law government to win, it must show that the law was “narrowly tailored” to achieve a was “narrowly tailored” to achieve a government purpose, and that the law won’t government purpose, and that the law won’t have a substantial “chilling effect” on speech.have a substantial “chilling effect” on speech.

Example: Annulment of the Example: Annulment of the Communications Decency Communications Decency ActAct, U.S. Supreme Court in , U.S. Supreme Court in Janet Reno v. the Janet Reno v. the American Civil Liberties UnionAmerican Civil Liberties Union (1997), online at: (1997), online at: http://www.law.cornell.edu/supct/html/96-511.ZO.htmhttp://www.law.cornell.edu/supct/html/96-511.ZO.htmll. .

Issue: Law prohibited making available to minors Issue: Law prohibited making available to minors “patently offensive” and “indecent” words or images.“patently offensive” and “indecent” words or images.

Facial challenge brought by, among others, American Facial challenge brought by, among others, American Civil Liberties Union, Human Rights Watch, the Civil Liberties Union, Human Rights Watch, the National Writers Union, Stop Prisoner Rape, AIDS National Writers Union, Stop Prisoner Rape, AIDS Education Global Information System, Queer Education Global Information System, Queer Resources Directory, Planned Parenthood of America, Resources Directory, Planned Parenthood of America, American Library Association, America Online, American Library Association, America Online, American Booksellers Foundation for Free Expression, American Booksellers Foundation for Free Expression, Citizens Internet Empowerment Association, Citizens Internet Empowerment Association, CompuServe, Families Against Internet Censorship, CompuServe, Families Against Internet Censorship, Health Sciences Library Consortium, Magazine Health Sciences Library Consortium, Magazine Publishers of America, Microsoft, Netcom On‑Line, Publishers of America, Microsoft, Netcom On‑Line, Newspaper Association of American, Opnet, Prodigy, Newspaper Association of American, Opnet, Prodigy, and Society of Professional Journalists.and Society of Professional Journalists.

AbstractionAbstraction

Almost all important Supreme Court Almost all important Supreme Court decisions are abstract in the sense of decisions are abstract in the sense of being about being about generalgeneral (rather than (rather than particular) questions of law and particular) questions of law and policy, and generate policy, and generate prospectiveprospective rather than purely (rather than purely (retrospectiveretrospective) law-) law-making effects.making effects.

An “oracle” of the law or a third-party An “oracle” of the law or a third-party “dispute resolver” or both?“dispute resolver” or both?