The American and European Models of Constitutional Review Alec Stone Sweet Yale Law School

1. The American and European Models of Constitutional ReviewAlec Stone SweetYale Law School

2. Three tasks for today: • 1. Contrast the American Model of Judicial Review with the European Model of Constitutional Review. • 2. Examine the three main “modes” of constitutional review found in the European model: abstract review, concrete review, and the individual constitutional complaint. • 3. Describe how “abstract review” operates in the United States, despite the “case or controversy” requirement.

3. The American Model • Article 3, Federal Constitution of the U.S.: ‘The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution; the Laws of the United States . . . [and] . . . to Controversies to which the United States shall be a party; to Controversies between two or more States; between a State and Citizens of another State; [and] between Citizens of different States [. . .]. This is the basis of the “case of controversy” rule governing “justiciability” for American courts. “Advisory opinions” are prohibited. Marbury v. Madison (1803): established the power of (constitutional) judicial review. What is judicial review?

4. American judicial review: Authority is decentralized: all judges possess the power to annul a statute on the grounds that it violates the constitution law. The Supreme Court is a court of “general jurisdiction: it is the highest court of appeal in the legal order, for all issues of law, not just constitutional issues. Judicial review is defensible under prevailing separation of powers doctrines to the extent that it is “case or controversy” review. Judges possess review authority because their legal duty is to resolve legal “cases,” some of which will have a constitutional dimension. Judicial review is understood to be “concrete,” in that it is exercised pursuant to ordinary litigation. Abstract review decisions look suspiciously like “advisory opinions,” which are prohibited under American separation of powers doctrines. European constitutional review: Authority is centralized: only the constitutional court may annul a statute as unconstitutional. Judicial review of statute is prohibited. The Constitutional Court’s jurisdiction is restricted to resolving constitutional disputes. The ordinary courts handle civil suits and criminal matters. Review powers are defensible under separation of powers doctrines to the extent that it is not exercised by the judiciary, but by a specialized “constitutional” organ, the constitutional court. Constitutional review is typically “abstract”: the review court does not resolve “concrete cases” between two litigating parties, but answers constitutional questions referred to it by judges or elected officials. Judicial review looks like a “confusion of powers,” since the judges participate in the legislative function.

5. American Judicial Review • Judicial Review: review is exercised pursuant to a legal “case” being brought before a judge. • A “case”: a legal dispute brought to a court in the form of litigation between two parties who have opposed interests in the outcome of the dispute. “Standing” and “mootness” are ways for the courts to verify concreteness. American courts are expected to deny standing to parties that fail to show some degree of “direct interest” in the review of a law. • Review is activated once one of the parties pleads the constitution, such as a right. Any court can, at the behest of either party, void a law as unconstitutional if that court determines that the statute violates the constitution.

6. European Modes of Review • Abstract Review: Abstract review is initiated when elected officials – typically the parliamentary opposition, the executive, or the government of a regional of federated state – refer a law for review after the law has been adopted by the legislature, but before it has been enforced. This mode of review is called “abstract” because it proceeds in the absence of a concrete judicial case, since the law has yet to be applied. The review court compares the constitutional text and the statute, in the abstract, to determine if the latter conforms to the former. Abstract review is also called “preventive review,” since it allows the system to filter out unconstitutional laws before they can harm people.

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

8. The Constitutional Complaint: Individuals may activate the constitutional court directly by sending to the judges a constitutional complaint, which alleges that their rights have been violated by a public authority, after judicial remedies have been exhausted or are not available. Most constitutional complaints are, in effect, appeals of judicial decisions. Thus: concrete review and the complaint often work together in a long extended process. Example: Farmer Fritz and the expropriation of his pasture to build an Autobahn in Germany.

9. Table 9.1: Regional Distribution of Models of Constitutional Review in 2000 CJREMMixedOtherNone Europe 5 31 3 (1) 1 2 Africa 12 29 1 6 3 Middle East 2 5 0 3 1 Asia and SE Asia 18 13 2 11 0 North America 2 0 0 0 0 Central America 3 3 3 (1) 0 0 South America 3 4 5 (3) 0 0 Caribbean 8 0 0 1 0 Totals 53 85 14 22 6

10. Abstract Review • Abstract review: the pre-enforcement review of statutes. • Abstract review is also called “preventive review,” since its purpose is to filter out unconstitutional laws before they can harm anyone. • In Europe, abstract review is politically-initiated. Typically, executives, parliamentary minorities, and regions or federated entities in federal states, possess the power to refer laws to the court.

11. Abstract Constitutional Review in the U.S. How does abstract review of statutes in America happen? The technical answer: “facial challenges” happen when: • plaintiffs file a motion for “injunctive” or “declaratory” relief from the application of a law on the grounds that it would injure them in some significant way. Such motions are filed immediately after a law is adopted but before it is applied. • plaintiffs file a “facial challenge” directly, pleading the first amendment.

12. Injunctive or Declaratory Relief • The doctrine: Judges will give relief where (a) a plaintiff’s constitutional rights are at issue, (b) the plaintiff is likely to prevail on the merits, and (c) the plaintiff may suffer irreparable injury if relief is not granted. Major examples: abortion. California Supreme Court (1997): American Academy of Pediatrics, et al. v. Lungren. Online at: http://caselaw.lp.findlaw.com/data2/californiastatecases/s041459.doc Facial challenge brought by, among others, American Academy of Pediatrics, the California Medical Association, the American College of Obstetricians, and Planned Parenthood of San Francisco

13. Facial Challenges • Developed first in the free speech area in the 1940s: allows individuals whose speech rights might be affected if a law is enforced to sue to have the law reviewed as to its legality under the constitution, and groups to plead the rights of third persons. In first amendment litigation, for the government to win, it must show that the law was “narrowly tailored” to achieve a government purpose, and that the law won’t have a substantial “chilling effect” on speech.

14. Example: Annulment of the Communications Decency Act, U.S. Supreme Court in Janet Reno v. the American Civil Liberties Union (1997), online at: http://www.law.cornell.edu/supct/html/96-511.ZO.html. Issue: Law prohibited making available to minors “patently offensive” and “indecent” words or images. Facial challenge brought by, among others, American Civil Liberties Union, Human Rights Watch, the National Writers Union, Stop Prisoner Rape, AIDS Education Global Information System, Queer Resources Directory, Planned Parenthood of America, American Library Association, America Online, American Booksellers Foundation for Free Expression, Citizens Internet Empowerment Association, CompuServe, Families Against Internet Censorship, Health Sciences Library Consortium, Magazine Publishers of America, Microsoft, Netcom On‑Line, Newspaper Association of American, Opnet, Prodigy, and Society of Professional Journalists.

15. Abstraction • Almost all important Supreme Court decisions are abstract in the sense of being about general (rather than particular) questions of law and policy, and generate prospective rather than purely (retrospective) law-making effects. An “oracle” of the law or a third-party “dispute resolver” or both?