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3. Striking down legislation
- Central European University Press
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3. Striking down legislation 3.1. ONCE AGAIN ON POPULAR SOVEREIGNTY Constitutional justices are not elected representatives but are merely authorized by elected representatives; the mandate of this body is derived from the constitution makers, while the judges’ own personal mandates derive from the lawmakers. Usually, ordinary judges, too, are not elected representatives ; their authority is derivative as well. Yet there is a fundamental difference between constitutional justices and ordinary judges. We have seen (in Section 2.1) that the principle of popular sovereignty demands that those authorized should act within the framework of rules set up by those who authorized them. The upshot of the previous chapter was that the judges who interpret the law may abundantly resort to supplementary information when developing their reading, as long as they confine themselves to the domain specified by the strict reading. In the case of ordinary judicial legal interpretation, this is sufficient to prevent a conflict between the interpreters and the makers of the law. In Hungary, ordinary judges may not examine the constitutionality of laws at all; they must accept existing laws as given. But the situation is not fundamentally different where—as in the United States, Australia, Japan, Canada or India—at certain levels of the ordinary judiciary hierarchy judges have the power of constitutional review. For if an ordinary court finds some legal provision to be unconstitutional, it does not annul it but merely rejects applying it any longer. The legal provision continues to be in force even when it is “dormant ”, that is, when its execution cannot be enforced through the court. Therefore, it may be claimed that the ordinary court empowered to constitutional review does not take over the authority of the legislation; it neither makes nor repeals laws. The case is different with Constitutional Courts. The mandate of the justices concerns directly the control of legal norms, and it includes the power to strike down norms found to be unconstitutional. This once again confronts us with the question whether the institution of constitutional review 184 ⁄ Constitutional Review is compatible with popular sovereignty. How could the Constitutional Court strike down laws, once it is true that it must function within the framework of laws? The reply that first recommends itself runs as follows: the Court’s mandate is to examine the existence or lack of coherence between some contested provisions and the constitution; the body annuls laws only if they violate the provisions of the constitution. Therefore, the judges examine in the cases brought before them the relation between two decisions both made by the elected representatives of the people—one lower-order (legislative) and one higher-order (constituent) decision. What overrules the lower-order parliamentary decision is not the judgment of the Court but the fact that it is incompatible with the higher-order parliamentary decision; the Court’s ruling merely establishes the fact of the conflict and its practical consequences. Therefore, striking down legislation by the Court does not violate the principle of popular sovereignty, as long as the Court does no more than establish the conflict between the lower-order and the higher-order parliamentary decisions. It may appear obvious to add that constitutional review is consistent with popular sovereignty only if the law struck down by the Court is in conflict with the constitution and only with the constitution. The principle of popular sovereignty is violated if the higher-order legislative decision excludes the lower-order one only if supplemented by further premises, by such premises , that is, that are given to the Court not by the constitution makers (nor by the consensus in public opinion) but by itself. Only such a practice of constitutional review is consistent with the principle of popular sovereignty which merely applies the constitutional provisions issued by the Parliament and supplements the text of the constitution at most with generally accepted concepts and theorems. If the striking down of some law requires resorting to certain theorems that go beyond these and are also contested, then the conflict established by the Court is in fact not between a higher-order and a lower-order parliamentary decision but between a higher-order parliamentary decision supplemented by convictions not codified by the Parliament and a lower-order parliamentary decision. And this—the conclusion seems compelling—does indeed violate the principle of popular sovereignty. In order that the Court does not transgress the authority which is compatible with democracy, it must confront...