Appunti di Fundamental Rights-Constitutional Courts and Constitutional Adjudication

The Point of Justice

Courts of justice are the means to guarantee the limitation provided by the constitution.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No Legislative act, therefore, contrary to the Constitution, can be valid. The original idea outlining the concept of judicial review of legislation.

Since the basis of legislative power is set in the constitution, the legislative power cannot establish or be against it. If the legislative power adopts acts contracting with the constitution, they are declared null and void.

To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the Representatives of the People are superior to the People themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. People

substituting their will to that of their constituents. It is far more rational to suppose that the Courts were designed to be an intermediate body between the People and the Legislature, in order, among other things, to keep the latter within the limits assigned to their authority. At that time this was a revolutionary idea. The interpretation of the laws is the proper and peculiar province of the Courts. A Constitution is, in fact, and must be regarded by the Judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular Act proceeding from the Legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the People to the intention of their agents (The contrast between people laying down the constitution and the representatives).

of Parliament) However this does not imply that the judiciary is superior to the legislative power. The American legal system is one of the principles of the separation of separation is applied in a consistent manner. Nor does this conclusion by any means suppose a superiority of the Judicial to the Legislative power. It only supposes that the power of the People is superior to both; and that where the will of the Legislature, declared in its statutes, stands in opposition to that of the People, declared in the Constitution, the Judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

US model: US Supreme Court Marbury vs Madison (1803) The founding moment is represented by the Supreme Court's decision issued during Marbury v. Madison. the appointment was not transmitted to the judge by the new Secretary of State, Madison – refused to do so) Marbury went before the

Supreme Court ...The dismissing government of President Adams President before leaving the power to the newly elected Jefferson, decided to confer places to confident people. From this comes the so-called midnight judges, party members of president Adam, who were appointed in various courts. Among them there was also Marbury.

In the confusion of that time, the document that appointed him as midnight judge was not transmitted lawfully by the previous Secretary of State to the new one, Madison, who refused his appointment. Therefore, Marbury went before the Supreme Court of the US and forced Madison to transmit the appointment.

What is relevant is the reason of the court: with the final decision, it establishes the judicial review of the legislation with this decision.

The US Supreme Court stated:

"The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that"

limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? [...] If the legislature could be able to not take into account those limits established by the constitution, why should the constituent power write a constitution? Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law (idea law); if the latter part be true, then written of hierarchy of the Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Therefore we may consider written constitution as capable of limiting power and therefore consider legislative acts and primary normative acts as inferior to the constitution.

or written constitution would be useless and would be unlawful, an absurd attempt of the constituent power to limit power.

Since the latter hypothesis is nonsense, the only solution is to consider the constitution a higher law.

However if we consider the constitution a higher law, the court is entitled to act in accordance with this principle, by striking down legislative acts and primary norms.

Therefore through this case, we have:

• the establishment of the judicial review of legislation, never applied previously;
• each court, judge, individual is entitled to perform this kind of review before every single judge.

The judge can declare the unconstitutionality of legislative acts, which are not consistent with the constitution.

The Supreme Court is considered the last instance court on constitutionality of federal law.

Since individual judges, according to this case and the US system, are entitled to perform the judicial review of legislation, the US Supreme Court is not the only court entrusted with

This task and not only a constitutional court. It is a judge of last instance.

THE KELSENIAN or EUROPEAN MODEL Vater der Verfassungsgerichtsbarkeit(A. Merkl)

“Mein geliebtes Kind” (H. Kelsen)

Legal advisor in the drafting of the Austrian Constitution of 1920 and judge in the Austrian Constitutional court (1920-1929)

As legal scholar supported constitutional courts’ institution:

• Wesen und Entwicklung der Staatsgerichtsbarkeit (VVdS 1929, 31-88)/ La garantie jurisdiction nelle de la Constitution -La justice constitutionnelle(Rev. dr. publ. et sc. pol.1929)
• Wer soll der Hüter der Verfassung sein? (Die Justiz 1930-1931)
• Judicial Review of Legislation. A Comparative Study of the Austrian and the American Constitution (Journal of Politics 1942)

Kelsen was an Austrian jurist who wrote several books on the idea of centralized judicial review of legislation.

He was also the legal advisor during the drafting of the Austrian Constitution in 1920 and a constitutional

application by a State Government whether Federal laws are unconstitutional. The Constitutional Court's power of judicial review is an essential component of a democratic system. It ensures that laws passed by the legislative branch are in line with the principles and values enshrined in the Constitution. This helps to safeguard individual rights and prevent the abuse of power by the government. The Austrian model of judicial review is unique in that it allows for both ex officio review and review upon application. Ex officio review means that the Constitutional Court can review a law even without a specific request or application. This allows the Court to proactively identify and address potential constitutional issues. In addition to its role in reviewing legislation, the Constitutional Court also has the power to interpret the Constitution. This means that it can provide guidance on the meaning and scope of constitutional provisions, ensuring consistency and clarity in the application of the law. Overall, the Constitutional Court plays a crucial role in upholding the rule of law and protecting the rights of individuals in Austria. Its independence and authority are essential for maintaining a fair and just legal system.

application by a State Government [or by one third of the House of Representatives' members] whether Federal laws are unconstitutional. This article was issued when Kelsen was legal advisor. Since Austria was a federal state, the constitutional court was requested to verify whether the state laws were consistent with the Constitution and the federal laws on the application by the member states. This model spread all over Europe.

• Czechoslovakian Constitutional court (1921) only took 2 decisions in 1922
• Austrian Constitutional court (1920-1933): This court has some special features that cannot be traced in other systems

Direct recourse of the federal Government for the annulment of a state law, and vice versa; The Court decides on its own motion on the constitutionality of a statute, when it exercises another of its competences; 1929: the Supreme Court and the Supreme administrative court can refer a question of constitutionality to the Constitutional court

Spanish Tribunal for

constitutional guarantees (1934 – 1936): Several competences, including direct recourse by individuals for the protection of their guarantees (amparo) In contemporary European context, among 27 Member States of the EU: - 19 States have Constitutional Court, intended as specialized body which performs a centralized control of constitutionality; - 3 States (Sweden, Norway, Denmark) are similar to the US one - 4 States (Ireland, Greece, Cyprus, Estonia) have a combination of the two systems - Netherlands: no constitutional review of legislation COMPOSITION AND APPOINTMENT (I): Supreme courts in diffused systems - U.S. Supreme Court (Anglo-Saxon model): Justices appointed by the President with the advice and consent of the Senate. Therefore it is substantially a political matter. In order to ensure the independence of the justice from the political parties, justices of the US Supreme court are appointed for life. - UK Supreme Court: 12 members appointed by Her Majesty on the basis of a Prime Minister's.proposal (after a selection commission)

In both cases the decision of appointment is substantially made by the Government.

In general judges, law professors and law practitioners are appointed.

There are also different compositions in other courts. (the federal constitutional court)

GERMANY - BUNDESVERFASSUNGSGERICHT

In the German federal system:

• 8 members are elected by a Committee consisting of 12 members of the lower Chamber of the Parliament, elected by the whole country in BUNDESTAG (general election) by qualified majority
• 8 members are elected by the upper chamber in which the executive of BUNDESRAT (the Lander are represented) by qualified majority
• Half of the Constitutional Court is elected by the Chamber elected by the Bundestag and the other by the Bundestag.

The aim is to find a balance.

REQUIREMENTS

• Age limits: between 40 and