By Ethan Hollander, Wabash College
The job of interpreting constitutions is as important as what they say. And in most democracies, that job falls to the courts. But courts (like constitutions) differ around the world. They differ in terms of the kinds of cases they hear, the methods they use to make decisions, and the amount of authority that they have to check the other branches of government.
The US Supreme Court
Most legal systems provide for an appeals process. If a court decides against you, and if you think that decision was based on a mistake, you can appeal that decision to a higher court. And if you follow that process all the way up the chain, you eventually get to the highest court—a final court of appeals. That’s where the appeals process finally comes to a conclusion. And in the United States, that’s the Supreme Court.
But a country also needs ways to resolve disputes between the institutions of government, and it needs to make judgments about the compatibility of individual statutes with constitutional law. In the United States, this job also falls to the Supreme Court.
In other words, the US Supreme Court fills the role of constitutional court and final appellate court at the same time.
Constitutional Courts
However, it doesn’t have to be that way. France, Germany, Italy, and Spain all have separate constitutional courts. In these countries, ordinary courts don’t weigh in on constitutional questions—although they sometimes refer cases to constitutional courts that do.
The argument behind having a separate constitutional court is that it provides for a tidy division of labor, and therefore greater clarity as to which institutions perform what functions.
The fact is, the constitutionality of a law is a matter of interpretation. And if a judge were so inclined, he or she could get ‘creative’ in their interpretations to such an extent that they’re not so much judging the constitutionality of a law as much as deciding whether or not they agree with it.
That’s what we mean by judicial activism: when a court steps beyond the strict functions of applying the law, and instead lets politics creep into what’s supposed to be a more restricted process.
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Judicial Review
When appellate and constitutional functions are combined, virtually any case can become a source of constitutional reinterpretation and revision, especially if activist judges want it that way. Some people think that having separate constitutional courts limits the degree to which that happens, but this is a much-debated point.
Whatever the division of labor among the country’s courts might be, the most important function of a constitutional court—and the most controversial—is its ability to interpret the constitution.
The power to determine the constitutionality of government action is called the power of constitutional review, or judicial review. And courts in virtually every democratic country have it to one degree or another. This is the role that courts play in resolving disputes, clarifying ambiguity, and solving problems that come up when we need to apply abstract principles like laws to real-world situations.
Resolving Disputes
Constitutional courts resolve disputes between the institutions of government—such as when investigators wanted to listen to tapes of President Richard Nixon’s conversations, and Nixon claimed that he didn’t have to turn the tapes over. (Nixon lost.)
Constitutional courts also resolve disputes between the levels of government—such as when states and counties in the US South wanted to maintain segregated schools, and the federal government argued that they couldn’t.
And constitutional courts also answer questions about the compatibility of government actions with the rights of ordinary citizens—such as when a Japanese-American man named Fred Korematsu challenged his internment during World War II. (The Supreme Court held that Korematsu’s imprisonment was constitutional.)
This last case has been roundly criticized in the years since. But it is a reminder that even constitutional review has its limits. Yes, it’s there to protect minority rights in the face of abuse by a powerful majority. But no protection is 100%, and that’s especially true in times of war.
Is Judicial Review Undemocratic?
A constitutional court’s power to weigh in on such weighty matters makes them lightning rods for controversy. And the problem is exacerbated by the fact that judicial review strikes some people as undemocratic.
After all, in a democracy, it’s the legislature that makes the law. So, one would be quite reasonable to argue that a system is less democratic if the people’s will—as voiced through their elected representatives—can be struck down by a court.
Moreover, the judges are usually appointed, not elected, and in many countries, they serve for very long terms. In the US, federal and Supreme Court judges serve for life!
Think about that: If a majority of the people wanted something, and if their will was thwarted by an unelected decider-for-life, we’d be tempted to call that a dictatorship. And yet, we call it judicial independence!
That said, in the United States, federal judges are appointed by the president and confirmed by the Senate. And those bodies are elected. So, the process of judicial appointments can be seen as a kind of indirect election.
Judiciary’s Chief Asset
Moreover, it’s the independence of judges that’s often regarded as the judiciary branch’s chief asset. Once appointed, federal judges aren’t beholden to anyone—not big industry, not fickle electorates, not corrupt congressmen, and not even to the president who appointed them, and over whom they might someday be called to judge.
Indeed, if judges were subjected to the same electoral pressures as the other branches of government, there’s a good chance that those judges would agree with the other branches of government.
When legislatures or presidents or even electorates control the courts too actively, constitutional review loses the very potency it was developed to provide. A court can’t check the other branches of government if it’s not truly independent of them.
Common Questions about Interpreting Constitutions
France, Germany, Italy, and Spain have separate constitutional courts. In these countries, ordinary courts don’t weigh in on constitutional questions.
Constitutional courts resolve disputes between the institutions of government. They also resolve disputes between the levels of government, and answer questions about the compatibility of government actions with the rights of ordinary citizens.
In the United States, federal judges are appointed by the president and confirmed by the Senate. As those bodies are elected, so, the process of judicial appointments can be seen as a kind of indirect election.
