Constitutional Adjudication: Lessons from Europe

Abstract

One of the most remarkable political developments of the twentieth century has been the development of constitutional democracy in Europe after World War II. The defeated powers in the western part of the continent adopted new constitutions that embraced notions of individual rights and limited government. It is difficult to overstate how fundamental these changes have been in transforming preexisting legal systems and cultures and indeed, in transcending historical political divisions. The most important transformation in these new constitutions was the introduction of constitutional courts with power to review and strike down legislation, and also to adjudicate conflicts among governmental departments.1 These new courts have grown in activity and importance since their introduction. And, they have spread to other countries throughout Europe with each wave of democratization-to Spain and Portugal in the 1970s and to Eastern Europe with the establishment of postcommunist constitutional regimes after 1989. Each new constitution has introduced new constitutional courts and new constitutional adjudication.2 From an American perspective, it is easy to see these constitutional innovations as somehow a successful American export. The United States has enjoyed a system of constitutional adjudication-which we call judicial review-for two centuries, and the Germans and Italians were led to adopt these institutions under American tutelage, or even pressure. But this view is mistaken for two reasons. It is true of course that the Americans wanted the Italians and Germans to establish constitutions with bills of rights and restraints on national government.3 But, the struggle over the creation of the new constitutions was dominated by indigenous leaders, not by the Americans.4 The compromises settled upon reflected historical conflicts within the countries. Indeed, it would have been both unattractive and impossible to import American-style judicial review to Europe, and, in the end, nothing like it was put in place. As we shall see, when we look for intellectual ancestors of constitutional adjudication in Europe, we need to look at Austria after the First World War rather than to the U.S. Constitution. And we need to recognize Hans Kelsen, the first Chief Justice and designer of the Austrian Court, and not James Madison, as its spiritual godfather. We think it is also important to avoid the opposite mistake: to think that one can import, directly from Europe, institutions and practices created there over the past half century. The European constitutional courts have in many respects been remarkably successful in implanting constitutional restraints on governments in systems long inhospitable to such restraints.5 Moreover, they have done so while avoiding the kind of politicization of judging that is characteristic of American courts.6 The decisions of European courts are not marked by the publication of separate and conflicting opinions.7 Perhaps for that reason European judges are not able to develop ideologically distinct public personalities.8 And, even though European legislatures do struggle over appointments to the constitutional courts, political leaders do not campaign for election by claiming they will appoint certain kinds of judges to these courts. But, for all their attractions, we do not think it would be easy-and possibly not even desirable-to try to import European practices into the American setting. Reforms of any legal system need to fit with the internal requirements of that system and not be imposed. Still, we are hopeful that at least some lessons might be learned from the European experiment and those experiences might suggest some possible paths of constitutional or subconstitutional reform in the United States. The idea that we shall pursue here is that the U.S. Supreme Court may have gone too far in encouraging members of the Court to engage in public conflict, and that some simple reforms may have the effect of reducing the expression of political differences in published opinions. …

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