Comparative Constitutional Review

Introduction

Constitutional review — the power of courts to assess the constitutionality of legislation and governmental action — is a defining feature of modern constitutionalism. Over 160 countries now have some form of constitutional review, making it one of the most successful legal transplants in history. Two basic models dominate comparative constitutional law: the American model of decentralized review by ordinary courts and the Kelsenian model of centralized review by a specialized constitutional court. Many hybrid and variant systems exist, reflecting different constitutional traditions, historical experiences, and institutional choices. The global expansion of constitutional review since the Second World War represents one of the most significant developments in modern public law.

The American Model

The American model originated in Marbury v. Madison (1803), when Chief Justice John Marshall asserted the Supreme Court’s power to declare legislation unconstitutional. The American model is characterized by four features. First, it is decentralized: any court in the system may adjudicate constitutional questions, not merely a specialized tribunal. Second, it is concrete: a genuine case or controversy is required — there is no abstract review of legislation. Third, it is incidental: the constitutional question arises in the context of ordinary litigation. Fourth, its decisions have inter partes effect, binding only the parties to the dispute, though the principle of stare decisis gives Supreme Court decisions de facto erga omnes effect. The American model has been adopted in Canada (where the Supreme Court exercises constitutional review under the Charter of Rights and Freedoms, subject to the unique notwithstanding clause in Section 33), India (where the Supreme Court has developed the basic structure doctrine limiting constitutional amendments), Australia (where the High Court reviews federal legislation), Japan (where the Supreme Court has exercised its power sparingly), and many other common law jurisdictions.

The Kelsenian Model

Hans Kelsen designed the Austrian Constitutional Court (Verfassungsgerichtshof) in 1920, creating the first centralized system of constitutional review. Kelsen conceived the constitutional court as a “negative legislator” — it could annul legislation but could not create positive law. The Kelsenian model features centralized review: a single specialized constitutional court holds the exclusive power to declare legislation unconstitutional. It permits abstract review: authorized political actors — typically heads of state, parliamentary minorities, or regional governments — may challenge legislation without a concrete case. The constitutional question is the direct subject of proceedings (principal review), and decisions have erga omnes effect, invalidating the law for everyone. This model was adopted in Germany (Bundesverfassungsgericht, 1951), Italy (Corte Costituzionale, 1956), Spain (Tribunal Constitucional, 1978), Portugal (Tribunal Constitucional, 1982), Belgium (Cour Constitutionnelle, 1983), and South Africa (Constitutional Court, 1995). After the fall of communism, nearly all Central and Eastern European countries established constitutional courts following the Kelsenian model. The German Federal Constitutional Court has become the most influential such court globally, exercising abstract review, concrete review (references from ordinary courts), constitutional complaints (Verfassungsbeschwerde), and disputes between federal and state authorities.

The French Model

France developed a distinctive model of constitutional review that has evolved significantly over time. The Conseil Constitutionnel, established by the Constitution of the Fifth Republic (1958), was originally limited to a priori review — examining legislation before its promulgation, at the request of the President, Prime Minister, or parliamentary presidents. This system reflected French suspicion of government by judges (gouvernement des juges) and preserved parliamentary supremacy. The model changed dramatically with the constitutional reform of 2008, which introduced the question prioritaire de constitutionnalité (QPC). The QPC allows litigants to challenge the constitutionality of already-enacted legislation during ordinary court proceedings, with the Conseil Constitutionnel making the final determination. This hybridized the French system, adding concrete, a posteriori review to the existing a priori mechanism. The QPC has made the Conseil Constitutionnel a far more active and influential institution.

Mixed Models

Many legal systems combine elements of both models. Latin American countries often follow the American model of diffuse review but have created specialized constitutional chambers or courts within their supreme courts. Portugal operates a mixed system in which ordinary courts may refuse to apply unconstitutional laws (diffuse review) while the Constitutional Tribunal has the final word through abstract and concrete review. Brazil’s Supreme Federal Tribunal (STF) combines the functions of a supreme court and a constitutional court, exercising both abstract and concrete review. South Africa’s Constitutional Court, while centralized, also permits lower courts to decide constitutional questions subject to confirmation by the Constitutional Court.

Standing and Access

Standing rules determine who may invoke constitutional review. In the American model, standing requires a personal injury fairly traceable to the challenged action and likely to be redressed by a favorable decision. Constitutional questions arise collaterally in ordinary litigation. In Kelsenian systems, standing varies by procedure: abstract review is typically restricted to political actors (the president, parliamentary groups, regional governments); concrete review is initiated by ordinary courts referring constitutional questions; and constitutional complaints (where available) allow individuals to challenge rights violations directly. The German Verfassungsbeschwerde is the most accessible individual remedy, available to any person claiming a violation of fundamental rights after exhausting other legal remedies.

Global Expansion Since World War II

Constitutional review expanded dramatically after World War II. The postwar constitutions of Germany, Italy, and Japan established robust review mechanisms as a response to the horrors of Nazism and fascism. The third wave of democratization (1974–1990s) brought constitutional review to Southern Europe (Spain, Portugal, Greece), Latin America, and Central and Eastern Europe after the fall of the Soviet Union. The establishment of constitutional courts became a standard feature of post-communist constitution-making, with courts in Poland, Hungary, the Czech Republic, and Russia (until its democratic backsliding) wielding significant power. The global expansion reflects a deeper trend toward the constitutionalization of law — the idea that fundamental norms constrain ordinary legislation and that independent institutions must enforce those constraints.

Contemporary Challenges

Constitutional courts face significant contemporary challenges. Democratic backsliding in Hungary, Poland, and Turkey has seen governments capture constitutional courts through court-packing, early retirements, and political appointments. The Russian Constitutional Court was transformed from an independent arbiter into an instrument of executive power. Courts face accusations of judicial activism and political overreach in many jurisdictions. The tension between constitutional review and democratic legitimacy — the “counter-majoritarian difficulty” identified by Alexander Bickel — remains unresolved. Despite these challenges, constitutional review has become an entrenched feature of modern constitutionalism, with new courts continuing to emerge in transitional democracies.