Judicial Dictatorship: Potential Institutionalisations of the Constitutional Review Process

<p>This paper concerns constitutional review of legislation, a widely discussed issue within comparative constitutional law. Specifically, this paper addresses the issue of the lack of democratic legitimacy that U.S. style judicial review has and the potential lack of stability that other weak form constitutional review mechanisms have. Three constitutional review procedures are proposed in this paper, with the commonly overlooked executive branch playing a central role in each review mechanism. These proposed procedures aim to solve democratic legitimacy and stability issues. While all three arguably accomplish the mentioned goal, the paper addresses the issues each proposed mechanism has before defending the leading mechanism. The paper offers a possible solution to the seemingly unresolvable tension within constitutional review of parliamentary sovereignty and judicial supremacy. The described mechanisms and the outcomes they produce seems to show that democratically based constitutional review is possible and it is not necessary to rely on unelected judges to ensure that constitutional rights are maintained. Ultimately, this paper aims to show that a redistribution of constitutional review power among all state organs is the best way to ensure that legislation conforms to constitutional norms.</p>

Judicial Dictatorship: Potential Institutionalisations of the Constitutional Review Process

<p>This paper concerns constitutional review of legislation, a widely discussed issue within comparative constitutional law. Specifically, this paper addresses the issue of the lack of democratic legitimacy that U.S. style judicial review has and the potential lack of stability that other weak form constitutional review mechanisms have. Three constitutional review procedures are proposed in this paper, with the commonly overlooked executive branch playing a central role in each review mechanism. These proposed procedures aim to solve democratic legitimacy and stability issues. While all three arguably accomplish the mentioned goal, the paper addresses the issues each proposed mechanism has before defending the leading mechanism. The paper offers a possible solution to the seemingly unresolvable tension within constitutional review of parliamentary sovereignty and judicial supremacy. The described mechanisms and the outcomes they produce seems to show that democratically based constitutional review is possible and it is not necessary to rely on unelected judges to ensure that constitutional rights are maintained. Ultimately, this paper aims to show that a redistribution of constitutional review power among all state organs is the best way to ensure that legislation conforms to constitutional norms.</p>

An American Notwithstanding Clause? Between Potestas and Potentia

Debates about judicial review and departmentalism have continued to rage, and in the wake of the last three Supreme Court appointments and current Presidential Commission on the Court, only look to intensify. Should the US adopt a notwithstanding or override provision, of the kind that exits in Canada and Israel? These countries take a departmentalist approach to allow the legislature to override the Court, “notwithstanding” its ruling. Although America is a presidential framework, a paradox emerges: evidence exists that its system already makes possible the equivalent of a notwithstanding clause. This consists of Congress and the President together “overruling” the Supreme Court. In another sense, however, this is not an accepted practice—large parts of the legal community hold that the US Constitution establishes judicial supremacy. To better understand this dynamic, we consider two kinds of power: formal and authorized (potestas) as well as direct and concrete (potentia). The contrast between the positions on both power and sovereignty of Thomas Hobbes (associated with potestas) and Baruch Spinoza (linked to potentia) helps clarify these issues in a contemporary context. It turns out that a robust departmentalist equivalent of the notwithstanding clause already exists in the US, as a matter of Hobbesian potestas but not of Spinozist potentia. Another term for the latter is pouvoir constituant. Spinoza’s perspective on political activity further clarifies the in-between nature of the American override capacity: the active or passive character of a multitude is not binary, but is a matter of degree. Without making an institutional recommendation, we note that Spinoza’s understanding of power also allows for dynamic interaction between potentia and potestas: formal authorization can contribute to the expression of direct power. It is, therefore, conceivable that additional codification of the existing American override capacity, either through a joint declaration of Congress and the Presidency or a Constitutional Amendment, can strengthen the effective sovereignty of the American people in relation to the courts.

The Road Not Taken

This article explores the position taken by the Herut party and its leader, Menachem Begin, on fundamental issues of democracy and regime type. It analyzes the democratic model that Begin and Herut sought to promote during Israel’s formative years: a presidential democracy with a clearly defined separation of powers preserved in a rigorous formal constitution that includes both judicial supremacy and a mechanism for judicial review. The article illuminates an important and unexplored chapter in Israeli historiography—the right wing’s position on the formation of Israel’s democratic regime—and addresses the ideological roots and foundations of the Likud movement in the spheres of government and law.

The Randstad Case: Melki Reloaded? The Fundamental Right to Effective Judicial Protection as Battleground for Judicial Supremacy in European Law

This paper will examine the recent preliminary reference to the European Court of Justice issued by the Italian Court of Cassation in the Randstad case, aimed at rearranging the internal constitutional separation between ordinary and administrative courts (article 111(8) of the Constitution). I will first provide some context on both the relations between Italian and EU courts (2.1) and on the confrontation between the Court of Cassation and the Constitutional Court in interpreting article 111 (2.2). I will then specifically examine the referring order to the Court of Justice of the EU (3), focusing on the role of general clauses of EU law as articles 4(3) and 19 TEU and 47 of the Charter in it. Finally, I will consider the instrumental use of EU law made by the Cassation to overcome an unpleasant constitutional arrangement. This aligns Randstad with previous cases such as Melki or A v. B and may foster constitutional conflict in the future.