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Constitutional Adjudication: Lessons

from Europe
Ferejohn, John, Pasquino, Pasquale, Texas Law Review
One of the most remarkable political evelopments of the twentieth centur! has been the
evelopment of constitutional emocrac! in "urope after #orl #ar $$% The efeate
powers in the western part of the continent aopte new constitutions that embrace
notions of iniviual ri&hts an limite &overnment% $t is ifficult to overstate how
funamental these chan&es have been in transformin& preexistin& le&al s!stems an
cultures an inee, in transcenin& historical political ivisions% The most important
transformation in these new constitutions was the introuction of constitutional courts
with power to review an strike own le&islation, an also to ajuicate conflicts amon&
&overnmental epartments%' These new courts have &rown in activit! an importance
since their introuction% (n, the! have sprea to other countries throu&hout "urope with
each wave of emocrati)ation*to +pain an Portu&al in the ',-.s an to "astern "urope
with the establishment of postcommunist constitutional re&imes after ',/,% "ach new
constitution has introuce new constitutional courts an new constitutional
ajuication%0
From an (merican perspective, it is eas! to see these constitutional innovations as
somehow a successful (merican export% The 1nite +tates has enjo!e a s!stem of
constitutional ajuication*which we call juicial review*for two centuries, an the
2ermans an $talians were le to aopt these institutions uner (merican 3tutela&e,3 or
even pressure% 4ut this view is mistaken for two reasons% $t is true of course that the
(mericans wante the $talians an 2ermans to establish constitutions with bills of ri&hts
an restraints on national &overnment%5 4ut, the stru&&le over the creation of the new
constitutions was ominate b! ini&enous leaers, not b! the (mericans%6 The
compromises settle upon reflecte historical conflicts within the countries% $nee, it
woul have been both unattractive an impossible to import (merican*st!le juicial
review to "urope, an, in the en, nothin& like it was put in place% (s we shall see, when
we look for intellectual ancestors of constitutional ajuication in "urope, we nee to
look at (ustria after the First #orl #ar rather than to the 1%+% 7onstitution% (n we
nee to reco&ni)e 8ans 9elsen, the first 7hief Justice an esi&ner of the (ustrian 7ourt,
an not James :aison, as its spiritual &ofather%
#e think it is also important to avoi the opposite mistake; to think that one can import,
irectl! from "urope, institutions an practices create there over the past half centur!%
The "uropean constitutional courts have in man! respects been remarkabl! successful in
implantin& constitutional restraints on &overnments in s!stems lon& inhospitable to such
restraints%< :oreover, the! have one so while avoiin& the kin of 3politici)ation3 of
ju&in& that is characteristic of (merican courts%= The ecisions of "uropean courts are
not marke b! the publication of separate an conflictin& opinions%- Perhaps for that
reason "uropean ju&es are not able to evelop ieolo&icall! istinct public
personalities%/ (n, even thou&h "uropean le&islatures o stru&&le over appointments to
the constitutional courts, political leaers o not campai&n for election b! claimin& the!
will appoint certain kins of ju&es to these courts% 4ut, for all their attractions, we o not
think it woul be eas!*an possibl! not even esirable*to tr! to import "uropean
practices into the (merican settin&% Reforms of an! le&al s!stem nee to fit with the
internal requirements of that s!stem an not be impose% +till, we are hopeful that at least
some lessons mi&ht be learne from the "uropean experiment an those experiences
mi&ht su&&est some possible paths of constitutional or subconstitutional reform in the
1nite +tates%
The iea that we shall pursue here is that the 1%+% +upreme 7ourt ma! have &one too far
in encoura&in& members of the 7ourt to en&a&e in public conflict, an that some simple
reforms ma! have the effect of reucin& the expression of political ifferences in
publishe opinions% >
Publication information: (rticle title; 7onstitutional (juication; Lessons from
"urope% 7ontributors; Ferejohn, John * (uthor, Pasquino, Pasquale * (uthor% Journal title;
Texas Law Review% ?olume; /0% $ssue; - Publication ate; June 0..6% Pa&e number;
'=-'% @ 1niversit! of Texas, (ustin, +chool of Law Publications, $nc% Aec 0../%
Provie b! ProBuest LL7% (ll Ri&hts Reserve%