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  • Eastern Europe’s Constitutional Courts
  • Herman Schwartz (bio)

It is rare that a new political institution performs beyond expectations, especially when one of its main tasks is to hold accountable rulers who have power and seek more of it. Yet among such remarkable successes one must count the performance over the last decade of the new constitutional courts of Eastern Europe. Since the Second World War, the nations quickest to establish constitutional tribunals have been those that had previously lived under authoritarian regimes or worse. Germany, Italy, Spain, and Portugal all established constitutional courts as soon as they became nascent democracies, and the countries of Central Europe followed the same path after the fall of communism. The record of these postcommunist courts has by no means been unblemished, and some of them have become mere tools of the regime. Most, however, have done remarkably well.

Although judicial review had its origins in the United States, these new courts diverge significantly from the American model, and it is essential to understand the ways in which they do so. Unlike the United States Supreme Court, the new European courts are not conventional appellate bodies presiding over hierarchies of general courts and charged primarily, like those lower courts, with the adjudication of particular “cases and controversies” and only incidentally with the power of constitutional interpretation. Except in Estonia, the new European courts reflect a different notion of what a constitutional tribunal should be, a notion that originated with the great legal theorist Hans Kelsen’s [End Page 100] design for a specialized constitutional tribunal for Austria just after the First World War. It is Kelsen’s model that spread through Western Europe after the Second World War and that has now been adopted by the postcommunist countries.

The primary function of the U.S. Supreme Court is to adjudicate disputes presented in a traditional legal form: A “complainant” brings a “defendant” before the court seeking to use the power of the state to order—and if necessary, to force—the defendant to do or not to do something. To persuade the court to issue such an order against the defendant, the complainant must show that the defendant violated some legal norm that represents a valid exercise of state power. The validity of the norm can always be called into question, and since modern law is a hierarchical system, all norms must comport with the highest legal norm—the constitution. Thus any U.S. court, no matter how lowly, may rule on a constitutional question if necessary to a decision of the case before it. For example, in a traffic court a motorist may claim that the police officer’s stop was unjustified, violating his constitutional right to privacy.

The key point is that in the American system all judicial decision making is for one purpose only—to decide the specific dispute between the interested parties that is before the court—and nothing else. If the complainant drops his suit or the parties settle the case before the court issues a decision, the court will dismiss the case regardless of the importance of the constitutional question at issue. The U.S. Supreme Court prohibits the federal courts from issuing advisory opinions—that is, whatever is not necessary to decide the specific controversy being litigated. Moreover, in addressing a constitutional question, the court is always aware of the delicacy of its task, which may involve overturning the action of a popularly elected institution. For this reason, U.S. courts try to avoid deciding questions on constitutional grounds if they can legitimately resolve the case on some other basis. Various techniques for avoiding a decision on constitutional grounds have been developed: limiting the right to bring suit to those with a specific kind of direct injury; identifying “political questions” inappropriate for judicial treatment; and allowing the Supreme Court virtually complete discretion over which cases it chooses to hear.

By contrast, the new European courts take the resolution of constitutional questions as their primary mission. They do not treat this task as incidental to lawsuit adjudication, and do not first seek nonconstitutional grounds of decision. While the U.S. Supreme Court’s exercise of judicial review, despite...

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pp. 100-114
Launched on MUSE
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